Ex Parte Korotko

Board of Patent Appeals and Interferences

Oct 21, 2011

10639347 (B.P.A.I. Oct. 21, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/639,347 08/12/2003 Joseph R. Korotko ACU-10803/29 6184
25006 7590 10/24/2011
GIFFORD, KRASS, SPRINKLE,ANDERSON & CITKOWSKI, P.C
PO BOX 7021
TROY, MI 48007-7021
EXAMINER
SMITH, FANGEMONIQUE A
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
10/24/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOSEPH R. KOROTKO
____________________

Appeal 2009-012118
Application 10/639,347
Technology Center 3700
____________________

Before STEFAN STAICOVICI, KEN B. BARRETT, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-012118
Application 10/639,347

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STATEMENT OF THE CASE
Joseph R. Korotko (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-25. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

THE INVENTION
Appellant’s claimed invention is directed to a temperature sensing
catheter including a blood flow occluding feature (Spec. 5:16-19).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A method of determining whether a region of the inner
wall of a blood vessel exhibits an elevated temperature using a
temperature-sensing catheter having a distal end with an
expansion device including at least one sensor operative to
generate an electrical signal indicative of temperature, and a
proximal end including a control to operate the expansion
device, the method comprising the steps of:
inserting the catheter into the vessel such that the temperature
sensor is in opposition to a point on the vessel wall to be measured;
obtaining a base temperature reading, Tflowing, with at least some
blood flowing;
expanding the expansion device by operating the control to
obtain a temperature measurement of the point on the vessel wall,
Toccluded, with blood flow substantially occluded; and
determining if the point on the vessel wall exhibits an elevated
temperature using ΔT = Toccluded - Tflowing.

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THE REJECTIONS
The following rejections1 by the Examiner are before us for review:
1. Claims 10-15 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Campbell (US 6,245,026 B1, issued Jun. 12, 2001).
2. Claims 1-9 and 16-25 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Campbell in view of Casscells (US 6,615,071 B1,
issued Sep. 2, 2003).

ISSUES
The issues before us are: (1) whether the Examiner erred in finding
that Campbell describes the step of “determining the temperature of the
vessel wall using the instrumentation by observing the electrical signal
several seconds after the sensor makes contact with the vessel wall,” as
called for in independent claim 10 (App. Br. 3) 2; and (2) whether the
Examiner erred in concluding that the combined teachings of Campbell and
Casscells would have rendered obvious the steps of obtaining a base
temperature reading with at least some blood flowing and another
temperature when the device is inflated with blood flow substantially
occluded (App. Br. 5).

1 The Examiner has withdrawn (1) the rejection under 35 U.S.C. § 102(b) of
claims 1, 2, 4, 5, 7-9, 16, 17, 19, 20 and 22-25 over Campbell (Ans. 6, see
also Final Rej. 2), and (2) the rejection under 35 U.S.C. § 102(e) of claims
1-10 and 16-25 over Casscells (Ans. 7, see also Final Rej. 3).
2 All references to the Appeal Brief (App. Br.) in this Decision are to the
Supplemental Appeal Brief filed May 27, 2008.
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Application 10/639,347

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ANALYSIS
Rejection of claims 10-15 under 35 U.S.C. § 102(b) over Campbell
Appellant argues claims 10-15 as a group (App. Br. 3). As such, we
select independent claim 10 as representative of the group, and claims 11-15
will stand or fall with independent claim 10. 37 C.F.R. § 41.37(c)(1)(vii).
Appellant contends that Campbell does not describe the step of
waiting at least several seconds before taking a reading (App. Br. 4).
The Examiner found that Campbell describes that “[w]ithin 45
seconds of inflating the expansion device, a temperature reading is obtained”
and cites in Campbell to column 8, lines 13-44 (Ans. 4, see also Ans. 6-7).
Appellant contends that Campbell’s disclosure that temperature
readings can be readily made in much less than 45 seconds does not teach or
suggest the step of waiting several seconds, as called for in independent
claim 10 (App. Br. 4).
Independent claim 10 calls for, inter alia, the step of “determining the
temperature of the vessel wall using the instrumentation by observing the
electrical signal several seconds after the sensor makes contact with the
vessel wall.” There is no waiting step specifically called for in the claim as
Appellant would like us to believe.
As cited to by the Examiner, Campbell describes in column 8, lines
13-44, in particular, lines 20-40, the following (italics added):
The radially expansible balloon arrangement 125 is then
conformally inflated so that the thermal sensors 20 contact the
artery walls (e.g. the vascular lesion) as illustrated in FIG. 3(b).
The inflated balloon substantially stops the flow of blood
through the artery and thus, the blood flow does not interfere
with the temperature measurements. Since the thermal sensors
are in contact or close proximity to the vessel walls the
temperature readings can be made very quickly and thus the
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balloons can be deflated shortly after it is inflated to restore the
flow of blood through the artery. As will be appreciated by
those skilled in the art, in various coronary procedures such as
stenting and angioplasty, it is not uncommon to occlude the
flow of blood through an artery for on the order of 45 seconds
to a minute and this is not seen as being dangerous to the
patient. Suitable temperature readings can readily be made in
much less then 45 seconds and thus, the temporary occlusion of
vessel should not be a problem. After a temperature reading
has been made, the balloon arrangement 125 is deflated and the
catheter tip may be repositioned to take a new reading.
Thus, Campbell describes (1) obtaining temperature readings very
quickly after the thermal sensors 20 contact the artery walls due to the
inflation of the balloons, (2) deflating the balloons shortly after they are
inflated, and (3) that the temperature readings can be made in much less than
45 seconds.
Accordingly, we find that a person having ordinary skill in the art
would recognize that Campbell’s temperature readings, which are described
as being obtained very quickly and in much less than 45 seconds, would be
obtained several seconds after the thermal sensors 20 make contact with the
artery walls, as called for in independent claim 10.
We affirm the rejection of independent claim 10, and dependent
claims 11-15, which fall with independent claim 10.

Rejection of claims 1-9 and 16-25 under 35 U.S.C. § 103(a) over Campbell
and Casscells
Appellant argues claims 1-9 as a group (App. Br. 4). As such, we
select independent claim 1 as representative of the group, and claims 2-9
will stand or fall with independent claim 1. Appellant argues claims 16-25
as a group (id.). As such, we select independent claim 16 as representative
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of the group, and claims 17-25 will stand or fall with independent claim 16.
37 C.F.R. § 41.37(c)(1)(vii).
Independent claims 1 and 16 call for, inter alia, the steps of obtaining
a base temperature reading with at least some blood flowing and another
temperature when the device is inflated with blood flow substantially
occluded.
The Examiner found that Campbell does “not specifically disclose
taking a temperature measurement when the device is deflated, and another
temperature measurement when the device is inflated” (Ans. 4-5).
Appellant agrees with the Examiner that Campbell does not
specifically describe the steps of taking a temperature measurement when
the device is deflated and when the device is inflated (App. Br. 5).
The Examiner found that Casscells describes obtaining a baseline
temperature, and after deployment of an expansion device to occlude blood
flow obtaining another temperature (Ans. 5). In support thereof, the
Examiner cited to column 30, lines 1-50 in Casscells (id.).
Appellant contends that Casscells does not cure the deficiency in
Campbell since in Casscells, “[r]ather than ‘taking a temperature
measurement when the device is deflated, and another when the device is
inflated,’ Casscells III et al. always take ‘baseline’ readings of various
arterial wall sections, with the expansion device inflated in each case” (App.
Br. 5).
As cited to by the Examiner, Casscells describes in column 30, lines
1-50, in particular, lines 20-26, the following (italics added):
If desired, an expandable balloon may be included on a central
inflation lumen (not shown) for deploying inside the basket to
momentarily restrict or occlude the flow of blood in the area
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during temperature measurements. With the inflatable balloon
the temperature of the vessel wall downstream can be
measured with and without blood flow.
Thus, we find contrary to Appellant’s contentions that Casscells
describes that the temperature of the vessel wall can be measured with and
without blood flow.
Since independent claims 1 and 16 call for, inter alia, the steps of
obtaining a base temperature reading with at least some blood flowing and
another temperature with blood flow substantially occluded, and since
Casscells describes that the temperature of the vessel wall downstream can
be measured with and without blood flow, we find the Examiner’s findings
regarding how Casscells reads on the steps called for in independent claims
1 and 16 to be reasonable.
We affirm the rejection over Campbell and Casscells of independent
claims 1 and 16, and dependent claims 2-9 and 17-25, which fall with
independent claims 1 and 9, respectively.

CONCLUSIONS
The Examiner has not erred in finding that Campbell describes the
step of “determining the temperature of the vessel wall using the
instrumentation by observing the electrical signal several seconds after the
sensor makes contact with the vessel wall,” as called for in independent
claim 10.
The Examiner has not erred in concluding that the combined teachings
of Campbell and Casscells would have rendered obvious the steps of
obtaining a base temperature reading with at least some blood flowing and
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another temperature when the device is inflated with blood flow
substantially occluded.

DECISION
The decision of the Examiner to reject claims 1-25 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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