Ex Parte Govari et alDownload PDFPatent Trial and Appeal BoardMay 31, 201612816492 (P.T.A.B. May. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/816,492 06/16/2010 27777 7590 06/02/2016 JOSEPH F. SHIRTZ JOHNSON & JOHNSON ONE JOHNSON & JOHNSON PLAZA NEW BRUNSWICK, NJ 08933-7003 FIRST NAMED INVENTOR Assaf Govari UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. BI05245USNP 3492 EXAMINER SMITH, RUTHS ART UNIT PAPER NUMBER 3737 NOTIFICATION DATE DELIVERY MODE 06/02/2016 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): jnjuspatent@corus.jnj.com lhowd@its.jnj.com pairjnj@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ASSAF GOV ARI, ANDRES CLAUDIO ALTMANN, and Y ARON EPHRATH Appeal2013-009979 Application 12/816,492 Technology Center 3700 Before: LYNNE H. BROWNE, MICHELLE R. OSINSKI, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Assaf Govari et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 3-5, 7-11, 13-15, and 17-21. 1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 2, 6, 12, and 16 have been canceled. Appeal Br. 39--42, Claims App. Appeal2013-009979 Application 12/816,492 CLAIMED SUBJECT MATTER Independent claims 1, 11, and 21 are pending. Claim 1, reproduced below, illustrates the claimed subject matter. 1. A method for contact sensing between a medical probe having a distal tip with at least one electrode at a location within a body cavity in the body of a patient, comprising the steps of: placing a plurality of body surface electrodes on an outer surface of the body of the patient; measuring impedance between the at least one electrode on the distal tip and the plurality of body surface electrodes; determining position coordinates of the location of the distal tip based on the impedance measured between the at least one electrode of the distal tip and the plurality of body surface electrodes; transmitting optical radiation in the red and/or infra-red frequency range from an optical emitter coupled to the distal tip of the medical probe that is positioned within the body cavity; receiving from an optical detector coupled to the distal tip a signal, which is indicative of an intensity of the reflection of the optical radiation in the red and/or infra-red frequency range from tissue in the body cavity; and assessing a quality of contact between the distal tip and the tissue responsively to the signal of reflected optical radiation only in the red and/or infra-red frequency range determining an estimated distance between the distal tip and the tissue based on an intensity of the reflection of the optical radiation from the tissue received by the optical detector and using the estimated distance between the distal tip and the tissue to assess the quality of contact based on the signal received from the optical detector. Appeal Br. 39, Claims App. 2 Appeal2013-009979 Application 12/816,492 REJECTIONS I. Claims 1, 3-5, 7-10, and 21 stand rejected under 35 U.S.C. § 112, i-f 2, as indefinite. Ans. 3; see also Final Act. 2; Ans. 10.2 II. Claims 1, 3-5, 8-11, 13-15, and 18-21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fulghum (US 2009/0131802 Al, pub. May 21, 2009), Appellants' Admitted Prior Art (AAPA), and Doiron (US 5,687,730, iss. Nov. 18, 1997). Final Act. 3. III. Claims 5 and 15 also stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAP A, Doiron, and Wang (US 5,464,983, iss. Nov. 7, 1995). Final Act. 4. IV. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAP A, Doiron, Viswanathan (US 2008/0004595 Al, pub. Jan. 3, 2008), and Goode (US 7,920,906 B2, iss. Apr. 5, 2011). Final Act. 4--5. V. Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAPA, Doiron, and Chance (US 5,987,351, iss. Nov. 16, 1999). Final Act. 5. 2 The Examiner originally rejected all of the pending claims as indefinite based on certain language appearing in independent claims 1 and 21. Final Act. 2. The Examiner also originally rejected claims 3, 8, and 13 for additional reasons. Id. The rejection of claims 3, 8, and 13 based on the additional reasons was withdrawn. Ans. 10. Because the Examiner never pointed out in the original rejection how independent claim 11 (and the claims that depend therefrom) were indefinite, we consider the Examiner's statement of the§ 112, second paragraph, rejection in the Answer to correct the rejection to apply only to independent claims 1 and 21, and the claims that depend therefrom, and to exclude independent claim 11, and the claims that depend therefrom. Ans. 3; Final Act. 2. 3 Appeal2013-009979 Application 12/816,492 VI. Claims 1, 3-5, 11, 13-15, and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arnold (US 2005/0038419 A9, pub. Feb. 17, 2005), Fulghum, AAPA, and Doiron. Final Act. 5. VII. Claims 5 and 15 also stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAP A, Doiron, and Wang. Final Act. 7. VIII. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAP A, Doiron, Viswanathan, and Goode. Final Act. 7. IX. Claims 8, 9, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, and Feld (US 2002/0156380 Al, pub. Oct. 24, 2002). Final Act. 8. X. Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, Feld, and Chance. Final Act. 8-9. OPINION Rejection I Claim 1 recites "assessing a quality of contact betvveen the distal tip and the tissue responsively to the signal of reflected optical radiation only in the red and/or infrared frequency range detennining an estimated distance between the distal tip and the tissue based on an intensity of the reflection.'~ Appeal Br. 39, Claims A.pp. A.ccording to the Examiner~ claim 1 does not recite a step of assessing a quality of contact that is separate from a step of determining an estimated distance. Ans. l 0. The Examiner argues that, if one were to interpret "detennining'' as a separate step, this interpretation 4 Appeal2013-009979 Application 12/816,492 \vould be '"contradicted by the recitation that the determining is used to provide the assessment" id. Appellants reply that remarks accompanying their prior amendment of claim 1 "rnade clear that the estimated distance between the distal tip and the tissue is used to assess the qualitv of contact based on the signal received w 0 from the optical detector." Reply Br. 3. This explanation, however, does not match the recited language of claim 1. \Ve are not persuaded that the Examiner erred in determining that claim 1 is indefinite. ,_, Claim 21 recites stored program instructions that "cause the computer to receive the signal from the optical detector and to assess a quality of contact between the distal tip and the tissue responsively to the signal of reflected optical radiation ... to determine an estimated distance between the distal tip and the tissue based on an intensity of the reflection." The Examiner finds that claim 21 recites assessing contact quality to determine an estimated distance, \vhich conflicts with the disclosed invention, "which uses the estimated distance to assess the quality of contact.~' Ans. 10. Regarding claim 21, Appellants contend that "his clear that assessing contact and determining the distance between the distal tip and the tissue based on an intensity of the reflection of the optical radiation ... are key components of the software program in the claimed invention.'~ Reply Br. 3. This argument is not responsive to the Examiner's finding of indefiniteness. \Ve are not persuaded that the Examiner erred. Rejection II Regarding Rejection II, the Examiner finds that Fulghum teaches most of the limitations of claim 1, except for the probe including "at least one electrode at the distal end of the probe and rneans for determining position 5 Appeal2013-009979 Application 12/816,492 coordinates of the distal tip ... using impedance measured between the at least one electrode and a plurality of electrodes positioned on a body surface." Final Act. 3. The Examiner finds, however, that Appellant's Specification (AAPA) discloses impedance-based position tracking being weH known in the art (Spec. 7, n. 3-5), and determines that it would have been obvious to one ski11ed in the art to use known impedance-based tracking to allow the operator to knmv where the probe is positioned in the patient, and that such tracking would include an electrode on the probe tip and others on the body surface. Id.; see Spec. 7, 1L 3-6; see also US Patent No. 5,983, 126 (disclosing impedance tracking via catheter tip electrodes and skin electrodes). The Examiner finds that Fulghum, as combined with AA.Pi\ still fails to disclose "estimating the distance between the distal tip and the tissue based on the received light" Final Act 3. The Examiner finds, however, that Doiron discloses employing an optical sensor detecting such a distance, concluding that it would have been obvious to one skilled in the art to '--' further modify Fu1ghurn to esthnate the distance between the probe tip and the tissue by comparing the intensity of reflected light to the excitation light, which would provide the operator with "information regarding how much further the instrument would need to be moved to be positioned correctly" and "provide an assessment of the quality of contact" id. at 3---4. Hindsight Appellants argue that the Examiner is using hindsight in combining Fulghum with AAP A "by taking teachings from two different types of medical probes and stating the combination is obvious primarily based on the teaching of [Appellants'] application." Appeal Br. 14; Reply Br. 4. 6 Appeal2013-009979 Application 12/816,492 The Examiner responds that Fulghum discloses the need to obtain repeatable probe placement and contact, which is essentially the same as Appellants' problem being solved, and concludes that one skilled in the art would recognize that all types of medical probes could be looked at for providing a solution to such problems. Ans. 10. The Examiner further notes that the claimed invention is not limited to an ablation catheter as argued by the Appellants. Id. Appellants' Specification states: "Impedance-based position tracking techniques are described, for example, in U.S. Patents 5,983,126, 6,456,864[,] and 5,944,022." Spec. 7, 11. 3-5. The Examiner's stated reasoning - allowing the operator to know where the probe is posWoned in the patient - is found within each of these prior art patents. We therefore are not convinced that the Examiner's proffered reasoning lacks a rational basis. Fiber Optic Channel Appellants argue that Fulghum's probe includes a fiber optic light channel, and Appellants' probe includes an electrode for electrophysiology applications. Appeal Br. 14; Reply Br. 4. Appellants contend that, because their probe has no fiber optic channel, "using one and reflecting light to determine the quality of contact between the electrode and the tissue is a novel and non-obvious modification of a typical electrode based ablation catheter," and"[ o ]ne skilled in the art would not look to Raman spectroscopy probes to solve the issue of tissue contact in an ablation probe." Id. We note that the claims do not recite an ablation probe, but rather recite "a medical probe having a distal tip with at least one electrode," and a 7 Appeal2013-009979 Application 12/816,492 method for contact sensing therefor. We are therefore not persuaded by this argument. Doiron Appellants argue that Doiron detects the presence of abnormal internal tissue using externally-generated fluorescence that is directed through the skin, and therefore does not disclose using reflected light to determine an estimated distance between a distal tip and tissue based on an intensity of the reflection in the red/infrared range from the tissue. Appeal Br. 14; Reply Br. 4. The Examiner responds that Appellants, rather than refuting the combination of references set forth in the pending rejection, are arguing that each individual reference fails to disclose all elements of the claimed invention, and that one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. Ans. 10-11 (citing In re Keller; 642 F.2d 413 (CCPA 1981)). According to the Examiner, while Doiron discloses a medical probe using visible excitation light, the proposed combination of Fulghum and Doiron would result in excitation light being in the red and/ or infrared frequency range as disclosed by Fulghum, because Doiron does not preclude its use in other frequency ranges. Ans. 11. Appellants then argue that there is no similarity between the devices of Fulghum and Doiron "that would cause one to combine the teachings of the two references even if Doiron overcame the deficiencies in the Fughum et al. reference." Appeal Br. 14--15. We are not persuaded by this conclusory argument, particularly because the Examiner provides reasoning 8 Appeal2013-009979 Application 12/816,492 having a rational basis regarding why one skilled in the art would combine Fulghum and Doiron. Claims 3-5and13-15 Regarding dependent claims 3-5 and 13-15, Appellants argue that the Examiner fails to state the basis for the section 103 rejection, and particularly whether Doiron or Fulghum disclose: (1) determining physical contact between the distal tip and the tissue (claims 3 and 13); (2) through the use of detection of the maximal level of received light (claims 4 and 14); or (3) where the optical emitter is flashed on and off to calibrate a zero level (claims 5 and 15). Appeal Br. 15. Appellants note that, in Rejection III, the Examiner adds a fourth reference in an attempt to find claims 5 and 15 obvious. Id. Regarding claims 3, 4, 13, and 14, however, the Examiner specifically finds that "Fulghum et al disclose assessing the quality of contact by detecting physical contact between the distal tip and the tissue based on the received signal being at a maximal level (Figure 4)." Final Act. 3. We are therefore not persuaded by this argument. Regarding claims 5 and 15, Appellants are correct, and we do not sustain Rejection II as it applies to claims 5 and 15. Claims 8 and 18 Regarding dependent claims 8 and 18, Appellants argue that the Examiner's conclusion regarding the obviousness of multiple emitters was "conclusory," and that the Examiner failed to "attempt[] to find any reference that uses multiple emitters .... " Appeal Br. 15. 9 Appeal2013-009979 Application 12/816,492 The Examiner responds that Appellants have not provided evidence that using multiple emitters is more than a mere duplication of parts and therefore, the use of such is considered to be obvious. Ans. 11. We agree with the Examiner. The mere duplication of parts has no patentable significance unless a new and unexpected result is produced. See In re Harza, 274 F.2d 669 (CCPA 1960). Claims 9, 10, 19, 20 Regarding dependent claims 9, 10, 19 and 20, Appellants argue that Fulghum' s paragraph 69 states that its Raman excitation light and contact monitor light "are multiplexed into the central delivery fiber 1900," whereas claims 9 and 19 recite at least two optical emitters being activated/multiplexed using a single input line, and claims 10 and 20 recite signals from at least two optical emitters being activated/multiplexed over a single output line. Appeal Br. 16; Reply Br. 8. According to Appellants, Fulghum is not multiplexing multiple emitters over an input line separate from multiplexing the signal from at least two optical emitters over a different output line. Id. The Examiner responds that the claims set forth the emitters being activated/multiplexed over a single input line or output line, and fail to recite that the input and output lines are not combined. Ans. 11. Claim 9 depends from claim 8, and recites that transmitting the radiation comprises activating at least two of the optical emitters using a single input line. Appeal Br. 40, Claims App. Claim 10 also depends from claim 8, and recites that receiving the multiple signals comprises receiving the signals from at least two of the optical emitters over a single output line. Id. 10 Appeal2013-009979 Application 12/816,492 Claim 19 depends from claim 18 and recites multiplexing circuitry, configured to activate at least two of the optical emitters using a single input line. Appeal Br. 42, Claims App. Claim 20 also depends from claim 18 and recites multiplexing circuitry configured to multiplex the signals from at least two of the optical emitters over a single output line. Id. at 43. We agree with the Examiner that the claims do not recite the argued different output line. We therefore are not persuaded by Appellants' argument. Rejection VI Regarding Rejection VI, /\ ppe llants argue claims 1 , 3----5, 1 l , 13----15, and 21 as a group. Appeal Br. 23----28. \Ve select claim 1 as representative. Claims 3-5, 11, 13-15, and 21 stand or fall with claim 1. The Exarniner finds that Arnold discloses the claimed invention, except for (1) a contact sensor utilizing red and/or infrared light (2) a medical probe including optical detection, (3) at least one electrode at a distal end, and (4) means for determining position coordinates of a distal tip of the probe using impedance measured between the at least one electrode and electrodes positioned on a body surface. Final Act 6. The Examiner finds, however, that Fulghum discloses limitations ( 1) - (3), and concludes that it would have been obvious to one skilled in the art to modify Arnold with Fulghum's contact sensor ernpfoying red/infrared Hght, because such a modification involves the substitution of one known type of optical contact sensor for another. ld. The Examiner also finds that AAP A discloses that impedance-based position tracking techniques for cardiac ablation probes (or means limitation (4) above) were well known in the art Final Act 6 (citing Spec. p. 6, lL 21- 11 Appeal2013-009979 Application 12/816,492 34, p. 7, lL 1----6). The Examiner concludes that it \.~muld have been obvious to modify An1old such that its probe includes an impedance based tracking means employing electrodes on the probe tip and the body surface, because such a modification was weH-known in the art for allowing the operator to know where the treatrnent is occurring in the patient Id. The Examiner then finds that the combination of /\mold, Fulghum, and AAP A fails to disclose "estimating the distance between the distal tip and the tissue based on the received light/' but finds this teaching in Doiron. Final Act 6-7. The Examiner concludes that it would have been obvious to modify the above combination "such that it compares the intensity of the detected reflected lhz:ht to the excitation lhz:ht to estimate the distance 0 0 between the probe tip and the tissue," because "[s]uch a modification provides the operator with infonnation regarding how much farther the instrument [needs] to be moved to be positioned con-ectly and would provide an assessment of the quality of contact'' Id. at 7. Appellants argue that Doiron does not overcome the deficiencies of Arnold and Fulghum, because Doiron is directed to detecting fluorescent light, which is of a different wavelength than the excitation light Appeal Br. 27. Appe11ants also argue that Doiron discloses only that the intensity of the reflected light, \vhen compared to the intensity of the excitation light and intrinsic fluorescence of the tissue, can give a quantitative measurement of the fiber tip to tissue distance, an indication of fiber contamination, and is usefu1 in quantifying pigmentation 1evels in the tissue. Appeal Br. 27; Reply Br. 7-8; Doiron, col. 2, L 66 - col. 3, L 4 and col. 5, L 66 - col. 6, 1. 4. According to Appellants, Doiron therefore does not teach or suggest using a quantity of actual reflected light directed to tissue in the red and/or infrared 12 Appeal2013-009979 Application 12/816,492 frequency ranges to measure the distance between a medical probe and the tissue. id. The Examiner responds that Appellants, rather than refuting the combination of references set forth in the pending rejection, are arguing that each individual reference fails to disclose all elements of the claimed invention, and that one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. Ans. 12-13 (citing In re Keller, 642 F.2d 413 (CCPA 1981)). We agree. The Examiner only cites Doiron for disclosing estimating a distance between a distal tip and tissue based on the received light (Final Act. 7), and Appellants have not persuaded us that this finding is in error. A.ppeHants also argue that there is also no similarity between the devices in Arnold, Fulghum, and Doiron that would cause one skilled in the art to combine their teachings, even if Doiron overcomes the deficiencies of Arnold and Fulghum; specifically, Doiron "is aimed at detection beneath the skin of the patient whereas Fulghum is aimed at a spectroscopic endoscope and the Arnold reference is [a] cardiac ablation balloon catheter." Appeal Br. 27. We are not persuaded by this conclusory argument, particularly because the Examiner provides reasoning having a rational basis regarding why one skilled in the art would combine Arnold, Fulghum, and Doiron. Rejections III and VII Regarding claims 5 and 15, the Examiner finds that Fulghum discloses "establishing a zero level to eliminate background light [0045]- [0046],5' but is unclear whether the emitter is configured to flash on and off Final Act 4, 7. The Examiner finds, however, that \'l ang discloses an 13 Appeal2013-009979 Application 12/816,492 optical measuring device calibrated by "switching the light source on and off to establish a zero-level (baseline) of the received signal ... to calibrate the device." Id. (citing \Vang~ coL 4, 11. 47-53, col. 11~ 11. 1-18). The Examiner concludes that 1t would have been obvious to one skilled in the art to have modified Fulghum "such that the Hght emitter is turned on and off to establish a zero-level (baseline) of the received signal in order to calibrate the device and ensure accurate measurements." Id. Appellants argue that Wang is directed to detecting the amount of a gas in a chamber, and would not be used by one skilled in the art to design a medical probe, and therefore Wang is non-analogous art. Appeal Br. 16, 29. The Examiner disagrees, responding that the problem being solved is calibration of an optical device, and it is not limited to a medical problem. Ans. 11. According to the Examiner, one skilled in the art would readily recognize that calibration of any optical device would be applicable to calibrating an optical medical probe, and Wang discloses such a means for calibrating an optical measuring device, by switching the light source on and off to establish a zero level (baseline) of the received signal. Id. (citing Wang, col. 4, 11. 47-53, col. 11, 11. 1-18). A reference is analogous art to the claimed invention if the reference is reasonably pertinent to the problem faced by the inventor, even if it is not in the same field of endeavor as the claimed invention. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). The Examiner has defined the "problem faced by the inventor" as calibration of an optical device, and has determined that Wang is reasonably pertinent to that problem. Appellants have not refuted the Examiner's definition or determination, and we therefore are not persuaded by this argument. 14 Appeal2013-009979 Application 12/816,492 Rejections IV and VIII Claims 7 and 17 recite calibrating a contact sensor coupled to the distal tip, and the processor being configured to calibrate the contact sensor, using the assessed quality of contact Appeal Br. 40 and 42, Claims App. Regarding claims 7 and 17, the Examiner finds that Viswanathan discloses a device including plural sensors detecting contact with a tissue wall, and that Goode discloses using data from one sensor to calibrate data from another sensor. Final Act 5, 7-8. The Examiner concludes that it would have been obvious to one skilled in the art to modify Fulghum to include multiple contact sensors and "to use the data from one of the sensors to calibrate the other sensors .... to ensure greater accuracy of the detected measurements and improved operation of the device." Id. Appellants argue that neither Viswanathan nor Goode disclose ( 1) reflecting a signal indicative of red/infrared radiation from target tissue to determine the distance from a probe to the target tissue, or (2) using an optical contact sensor to calibrate a second contact sensor such as a pressure/force sensor. Appeal Br. 19-20, 31-32. The Examiner responds that Viswanathan and Goode were cited only as disclosing plural contact sensors to detect device contact with a tissue wall, and using sensor data from one sensor to calibrate data from another sensor. Ans. 12. We agree with the Examiner. Appellants are not arguing against the proposed combination. The Examiner does not propose that Viswanathan or Goode disclose a signal indicative of red/infrared radiation, or using an optical sensor to calibrate a pressure/force sensor. We therefore discern no error in the Examiner's findings regarding Viswanathan and Goode. 15 Appeal2013-009979 Application 12/816,492 Appellants contend that it is unclear how Goode's analyte sensors relate in any way to tissue contact sensors of an internal medical probe, and that one skilled in the art looking to calibrate a contact sensor by using a second optical quality of tissue contact sensor would not look to the teachings of Goode, which is directed to analyte measurement in blood to determine blood glucose. Appeal Br. 20, 31. The Examiner responds that the problem being solved is device calibration, and the sensor type "does not preclude the use of such a teaching in any sensor environment to provide for greater accuracy of the device being used." Ans. 12. As explained above, a reference is analogous art to the claimed invention if the reference is reasonably pertinent to the problem faced by the inventor, even if it is not in the same field of endeavor as the claimed invention. See In re Bigio, at 1325. The Examiner has defined the "problem faced by the inventor" as device calibration, and has determined that Goode is reasonably pertinent to that problem. Appellants have not refuted the Examiner's definition or determination, and we therefore are not persuaded by this argument. Rejections V and X Claims l 0 and 20 recite receiving the signals from at least two of the optical emitters over a single output line. Appeal Br. 40 and 43, Claims /\pp. Regarding claims 10 and 20, the Examiner finds that Chance discloses a device with several source and detector probes being coupled to a multiplexer to transmit and receive light, and concludes that it would have been obvious to one skilled in the art to modify Fulghum such that the 16 Appeal2013-009979 Application 12/816,492 multiple source and detector probes "are multiplexed in operation over a single line in order to reduce the size of the overall system using well known circuitry in the art." Final Act. 5, 8-9. Appellants argue that Chance fails to teach or suggest ( 1) using a signal indicative of red/infrared radiation reflected from tissue, or (2) using a multiplexer for the function recited in claims 10 and 20. Appeal Br. 22, 37. The Examiner responds that Chance was not cited as disclosing red/infrared radiation, or as performing the claimed functions. Ans. 12. Indeed, Chance is cited by the Examiner as disclosing only a device with several source and detector probes being coupled to a multiplexer to transmit and receive light. Appellants' arguments do not address the combination of references set forth in the rejection, and do not apprise us of error in the Examiner's findings or conclusions. Rejection IX Regarding claims 8, 9, 18, and 19, the Examiner finds that Arnold discloses that light from multiple wavelengths can be sequentially transmitted to tissue, and concludes that it would have been obvious to provide light at multiple wavelengths using individual sources, which was well-known in the art. Final Act. 8. The Examiner also finds that Arnold discloses that any number of illuminating and sensing elements can be used, and concludes that it therefore would have been obvious to use plural collection fibers and illumination fibers, and to couple the excitation fibers to multiple sources operating at different wavelengths. Id. (citing Arnold i-f 100). The Examiner also finds that using multiple illumination fibers and multiple collection fibers in optical probes was well known, as taught by Feld, concluding that it would have been obvious to modify Arnold so that 17 Appeal2013-009979 Application 12/816,492 the optical probe includes multiple fibers for illumination and detectors. Id. The Examiner lastly finds that Fulghum discloses using multiplexing circuitry to multiplex optical signals over a single line. Id. (citing Fulghum, Fig. 19, ii 69). Appellants repeat the arguments from Rejection II that Fulghum is not multiplexing multiple emitters over an input line separate from multiplexing the signal from at least two optical emitters over a different output line. Appeal Br. 34; Reply Br. 9. For the reasons set forth above, we are not persuaded by this argument, because the claims do not recite the argued different output line. Appellants also argue that it is unclear how Feld is used by the Examiner to overcome the deficiencies in Arnold and Fulghum, because Feld is not directed to optical sensing of tissue contact in a medical probe having an electrode at the distal tip. Appeal Br. 34; Reply Br. 9. The Examiner, however, only cites Feld to establish that using multiple illumination fibers and multiple collection fibers in optical probes was well known. Final Act. 8. Appellants do not argue that Feld fails to establish that using multiple illumination fibers and multiple collection fibers in optical probes was well known. We therefore are not persuaded by this argument. DECISION We AFFIRM the rejection of claims 1, 3-5, 7-10, and 21under35 U.S.C. § 112, ii 2. 18 Appeal2013-009979 Application 12/816,492 We AFFIRM the rejection of claims 1, 3, 4, 8-11, 13, 14, and 18-21 under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAPA, and Doiron. We REVERSE the rejection of claims 5 and 15 under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAPA, and Doiron. We AFFIRM the rejection of claims 5 and 15 under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAPA, Doiron, and Wang. We AFFIRM the rejection of claims 7 and 17 under 35 U.S.C. § 103 (a) as unpatentable over Fulghum, AAP A, Doiron, Viswanathan, and Goode, Jr. We AFFIRM the rejection of claims 10 and 20 under 35 U.S.C. § 103(a) as unpatentable over Fulghum, AAPA, Doiron, and Chance. We AFFIRM the rejection of claims 1, 3-5, 11, 13-15, and 21 under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, and Doiron. We AFFIRM the rejection of claims 5 and 15 under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, and Wang. We AFFIRM the rejection of claims 7 and 17 under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, Viswanathan, and Goode, Jr. We AFFIRM the rejection of claims 8, 9, 18, and 19 under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, and Feld. We AFFIRM the rejection of claims 10 and 20 under 35 U.S.C. § 103(a) as unpatentable over Arnold, Fulghum, AAPA, Doiron, Feld, and Chance. 19 Appeal2013-009979 Application 12/816,492 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 20 Copy with citationCopy as parenthetical citation