Ex Parte Lips et al

Patent Trial and Appeal Board

Jan 30, 2017

13142432 (P.T.A.B. Jan. 30, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/142,432 06/28/2011 Oliver Lips 2009P00211WOUS 3408
24737 7590 02/01/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue STOUT, MICHAEL C
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVER LIPS, BERND DAVID,
SASCHA KRUEGER, and STEFFEN WEISS
Appeal 2015-001054
Application 13/142,432
Technology Center 3700
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
FREDERICK C. LANEY, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Oliver Lips et al. (Appellants) appeal under 35 U.S.C. § 134(a) from
the Examiner’s decision rejecting claims 1—6.1 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Claims 7—12, which are the only other claims pending in the application,
have been withdrawn from consideration. Appeal Br. 2.
Appeal 2015-001054
Application 13/142,432
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An electrophysiology catheter system comprising:
an electrophysiology catheter with an elongated distal end
portion having a centre axis and being bendable in at least one
direction transverse to the centre axis, comprising:
two or more longitudinally spaced bands around said end
portion, each band comprising a plurality of electrically isolated
electrode segments for detecting electrical signals and being
arranged in a band around said end portion;
a plurality of electrode wires each coupled to an electrode
segment and extending through the distal end portion to a
proximal end portion of the electrophysiology catheter; and
a workstation arranged to receive electrical signals
detected by each electrode segment by means of the electrode
wires coupled thereto and comprising a processing unit
configured to identify electrode segments that are in contact with
tissue from the received electrical signals by comparison of the
electrical signal from each electrode segment with that from
one or more other electrode segments or a predetermined
threshold value and presenting the identified electrode segments
to an operator with an indication of the identified
electrode segments’ position in relation to a bending direction or
another marker of roll angle of the distal end portion.
REJECTIONS
I. Claims 1,3,4, and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bowman (US 2005/0033281 Al, pub. Feb. 10,
2005) and Hall (US 2003/0097125 Al, pub. May 22, 2003).
II. Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Bowman, Hall, and Stone (US 2008/0125772 Al, pub. May
29, 2008).
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Appeal 2015-001054
Application 13/142,432
III. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Bowman, Hall, and Toth (US 2005/0251156 Al, pub. Nov.
10, 2005).
DISCUSSION
Rejection I
Independent claim 1 is directed to an electrophysiology catheter
system comprising, in pertinent part, a workstation “comprising a processing
unit configured to identify electrode segments that are in contact with tissue
. . . and present[] the identified electrode segments to an operator with an
indication of the identified electrode segments’ position in relation to a
bending direction or another marker of roll angle of the distal end portion.”
Appeal Br. 13 (Claims App.).2 Independent claim 4 is directed to a
computer program product comprising software applications which, when
executed, provide identifying electrode segments in contact with tissue from
signals received from the electrode segments and “presenting the identified
electrode segments to an operator with an indication of the identified
electrode segments’ position in relation to a bending direction or another
marker of roll angle of the distal end portion.” Appeal Br. 14—15 (Claims
App.).3 Independent claim 6 is directed to a method comprising steps of
2 Roll angle is the angle of rotation, or twisting, of the distal end portion of
the catheter about its centre axis. See Spec. 1,11. 8—9 (alluding to “twisting
or rolling the catheter to adjust a roll angle”).
3 The reference to “the received electrical signals” in the penultimate
paragraph of claim 4 lacks strict antecedent basis in the claim. The first
paragraph of claim 4 refers to “electrically isolated electrode segments for
detecting electrical signals,” but does not recite receiving electrical signals.
Id.
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Application 13/142,432
“identifying electrode segments that are in contact with tissue” and
“presenting the identified electrode segments to an operator with an
indication of the identified electrode segments’ position in relation to a
bending direction or another marker of roll angle of the distal end portion.”
Id. at 15—16.
The Examiner finds that Bowman discloses a computer program
product embodying computer instructions including, in pertinent part,
presenting the identified electrode segments to an operator with
an indication of the identified electrode segments’ position in
relation to a bending direction or another marker of roll angle of
the distal end portion (the system displays the catheter segments
in contact, see paragraph Figure 14-16 in correlation to a roll
angle of the device which is correlated to a patient orientation
with the relative angle of the device aligned with the direction
the user is facing see at least paragraph 42-43).
Final Act. 6—7; Ans. 6—7. The Examiner also finds that Bowman discloses a
catheter system with a workstation comprising a processing unit configured
to perform such a presenting function and a method comprising such a
presenting step. Final Act. 4—5; Ans. 4—5.
Appellants emphasize that the claims require presenting both the
identified segment and a marker of roll angle. Reply Br. 8. Independent
claims 1, 4, and 6 require either (a) presentation to an operator of the
identified electrode segments and an indication of the identified electrode
segments’ position in relation to a bending direction or (b) presentation to an
operator of the identified electrode segments and another marker of roll
angle about the distal end portion. As such, each of independent claims 1, 4,
and 6 effectively covers two alternative embodiments, namely, a first
requiring presentation of the identified electrode segments and an indication
of the identified electrode segments’ position in relation to a bending
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Application 13/142,432
direction and a second requiring presentation of the identified electrode
segments and another marker of roll angle of the distal end portion. We
understand Appellants’ characterization of the claim to be focused on the
second recited embodiment, in which both the identified segment and a
marker of roll angle are presented, because that is the embodiment read by
the Examiner on Bowman. See Final Act. 4—5, 7; Ans. 4—5, 7. Accordingly,
we focus our attention on that embodiment of the claims as well.
According to the Examiner, in the initial default position described by
Bowman, in which the catheter is oriented so that one electrode is facing up,
“the display showing electrode quadrant position oriented with the body, and
electrode contact indicators of Bowman shown in Figures 6—16 may
reasonably be considered at least ‘an indication of the identified electrode
segments[’] position in relation to another marker of roll angle of the distal
end portion’ as broadly claimed.” Final Act. 13 (relying on the standard
orientation described in Bowman, para. 42).
The contact-indicating portion of the display shown in Figures 7, 8,
and 14—16 of Bowman presents only an identification of the electrode
segment(s) determined to be in contact with tissue. This display does not
present a marker of the roll angle of the distal end portion; each quadrant of
the display corresponds to a particular electrode, such that the particular
quadrant(s) of the display highlighted to identify electrode segment(s) in
contact with tissue are independent of the rotational position of the electrode
segment(s) in contact with tissue. See Bowman, para. 42 (the “four
quadrants correspond to the four electrodes in the position detection array on
the catheter”).
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Application 13/142,432
Although the surgeon operating the device might also be able to
ascertain the roll angle of the handle, by visually observing the orientation of
the specially-formed handle, or even the roll angle of the proximal portion of
the catheter, by visually observing marks, if any, on the proximal portion of
the catheter remaining outside the patient and out of contact with tissue (see
Bowman, para. 42), this does not constitute a presentation of a marker of roll
angle of the distal end portion of the catheter as called for in claims 1, 4, and
6. More specifically, this does not constitute a presentation of the identified
electrode segments with another marker of roll angle of the distal end
portion, as called for in claims 1, 4, and 6, much less a presentation of a
marker of roll angle of the distal end portion of the catheter by the
processing unit of the workstation, as required in claim 1, or by the software
of the computer program product, as required in claim 4. Although Bowman
alludes to “correlating specific electrode cardinal points (up, down, front and
back relative to the patient) to the quadrants of the display” (Bowman, para.
42), the Examiner does not direct our attention to any disclosure in Bowman
of integrating such correlation into the software of Bowman’s system so that
the software causes presentation of a marker of the roll angle of the distal
end portion of the catheter with the identification of the identified electrode
segments. See Appeal Br. 9 (arguing that Bowman requires assumptions or
test manipulations to correlate the quadrants of the display with cardinal
points of the patient), 10 (noting that the actual electrodes or catheter, and
not a display, are marked in Bowman).
For the above reasons, the Examiner fails to establish by a
preponderance of the evidence that Bowman discloses a computer program
product comprising software applications which, when executed, provide
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Application 13/142,432
“presenting the identified electrode segments to an operator with an
indication of the identified electrode segments’ position in relation to a
bending direction or another marker of roll angle of the distal end portion,”
as called for in claim 4; a catheter system with a workstation comprising a
processing unit configured to perform such a presenting function, as called
for in claim 1; or a method comprising such a presenting step, as called for
in claim 6. The Examiner does not rely on Hall for any teaching that might
make up for this deficiency in Bowman. See Final Act. 5, 8; Ans. 5, 7.
Accordingly, we do not sustain the rejection of claims 1, 4, and 6, or of
claim 3, which depends from claim 1, under 35 U.S.C. § 103(a) as
unpatentable over Bowman and Hall.4 * 6
4 The Examiner cites Organ (US 5,643,255, iss. July 1, 1997) as teaching
“monitoring the roll angle of the catheter and electrode, see Figure 18 and
disclosure.” Final Act. 14. In the portions cited by the Examiner (Figure 18,
and the accompanying disclosure in column 8), Organ discloses a display on
which various icons, including icon 150 with arrow 152 showing the number
of degrees of roll of an uninsulated portion of a catheter from a reference
orientation, icon 174 showing contact of a tip electrode with a tissue wall,
and icon 170 showing the amount of J-bending of the catheter distal end, are
presented. This disclosure may be pertinent to the feature of claims 1, 4, and
6 lacking in the combination Bowman and Hall discussed above. The
Examiner cites to similar disclosure in Joglekar (US 2010/0135553 Al, pub.
June 3, 2010). Id. However, “Joglekar and Organ are not relied upon for the
rejection but were merely part of a discussion in the ‘response to arguments’
section, in order to provide [Appellants] with more information.” Ans. 15.
Thus, we do not consider the teachings of these references in deciding the
present appeal. See In re Hoch, 428 F.2d 1341, 1342 n.3 (CCPA 1970)
(“Where a reference is relied on to support a rejection, whether or not in a
‘minor capacity,’ there would appear to be no excuse for not positively
including the reference in the statement of rejection.”).
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Application 13/142,432
Rejection II
The rejection of claim 2 is premised on the same findings and
reasoning with respect to the combination of Bowman and Hall applied in
the rejection of claim 1, from which claim 2 depends. Final Act. 8; Ans. 8.
The Examiner does not rely on Stone for any teachings that might make up
for the deficiency in the rejection of claim 1. See Final Act. 8—9; Ans. 8—9.
Thus, for the same reasons set forth above in discussing claim 1, we do not
sustain the rejection of claim 2 under 35 U.S.C. § 103(a) as unpatentable
over Bowman, Hall, and Stone.
Rejection III
Claim 5 is directed to “[a] computer program product embodying
computer instructions ... for updating a workstation in an electrophysiology
catheter system . . ., the product comprising means ... for installing software
applications which [provide particular identifying and presenting steps].”
Appeal Br. 15 (Claims App). Notably, claim 5 is not directed to, and does
not positively recite, either an electrophysiology catheter system or software
applications providing the identifying and presenting steps. See id.
In rejecting claim 5, the Examiner finds that Toth discloses a product
on a non-transitory computer readable medium (i.e., a memory) for updating
a workstation in an electrophysiology catheter system, the product
comprising means for installing software applications. Final Act. 11; Ans.
11 (citing Toth, paras. 42-44, 56—59, 84). The Examiner determines it
would have been obvious “to modify the computer product taught by
Bowman to include system updating means as taught by Toth in order to
update, improve, modify or customize a surgical system.” Final Act. 11—12;
Ans. 11.
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Application 13/142,432
Appellants argue that Bowman, Hall, and Toth fail to disclose or
suggest, alone or in combination, the feature of “presenting the identified
electrode segments to an operator with an indication of the identified
electrode segments’ position in relation to a bending direction or another
marker of roll angle of the distal end portion” called for in claim 5. Appeal
Br. 8—11. Appellants also argue that “Bowman does not even suggest a
bendable distal portion of a catheter” and, thus, “does not suggest a roll
angle, much less presenting a relationship between a contacting electrode
and the roll angle.” Id. at 11.
Appellants’ arguments do not apprise us of error in the rejection
because they are directed to features not positively recited in claim 5. See In
re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not appearing in the
claims cannot be relied upon for patentability). The features asserted to be
lacking in the combination of references applied in the rejection are features
of the electrophysiology catheter and software applications of the
workstation of the electrophysiology catheter system, neither of which is
positively recited in claim 5. As already noted above, claim 5 is directed to
a computer program product embodying computer instructions for updating
a workstation, the product comprising means for installing software
applications. Toth discloses a product for “allow[ing] programming to be
updated” in surgical instrument systems, such as ultrasonic imaging probes
and ablation catheters. Toth, paras. 42 44, 84. Toth discloses a master
controller processor provided with means to reconfigure its software to
properly control a new tool, instrument, or end effector, or to account for
product revisions since the programming of the processor. Id., paras. 56—57.
Appellants do not dispute the Examiner’s findings with respect to Toth or
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Application 13/142,432
identify any error in the Examiner’s determination that it would have been
obvious to modify Bowman to include system updating means as taught by
Toth.
For the above reasons, Appellants fail to apprise us of error in the
rejection of claim 5. Accordingly, we sustain the rejection of claim 5 under
35 U.S.C. § 103(a) as unpatentable over Bowman, Hall, and Toth.
DECISION
The Examiner’s decision rejecting claims 1—6 is reversed as to claims
1—4 and 6, and affirmed as to claim 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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