Ex Parte Mackool

Patent Trials and Appeals Board

Feb 4, 2016

12984196 - (D) (P.T.A.B. Feb. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/984,196 01/04/2011 Richard J. Mackool
63704 7590 02/04/2016
HESS PA TENT LAW FIRM LLC
9 MIRAMAR LANE
STAMFORD, CT 06902
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.
P AT902839-US-CNT02 1841
EXAMINER
KISH, JAMES M
ART UNIT PAPER NUMBER
3737
MAILDATE DELIVERY MODE
02/04/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD J. MACKOOL
Appeal2013-001312
Application 12/984,1961
Technology Center 3700
Before SALLY C. MEDLEY, JAMES T. MOORE, and
JOSIAH C. COCKS, Administrative Patent Judges.
MEDLEY, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-26. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm-in-part.
Bowen
Lo
STATEMENT OF THE CASE
The Applied Prior Art
us 4,246,784
us 4,954,960
Jan.27, 1981
Sept. 4. 1990
1 According to Appellant, the Real Party-in-Interest is Alcon, Inc. App. Br.
4.
Appeal2013-001312
Application 12/984, 196
Poppas
Hughes
Shen
Ono
Laird
Bloom
Baerveldt
Kadziauskas
us 5,409,481 Apr. 25, 1995
us 5,962,027 Oct. 5, 1999
us 6,213,998 Apr. 10, 2001
US 6,392,814 Bl May 21, 2002
US 6,533,780 Bl Mar. 18, 2003
US 2003/0199783 Al Oct. 23, 2003
US 2002/0111608 Al June 10, 2004
US 7,077,820 Bl Jul. 18, 2006
The Rejections on Appeal
1. Claims 1, 2, 12-14, and 24 were finally rejected under 35
U.S.C. § 103(a) as obvious over Kadziauskas and Baerveldt. Final Act. 9-
11. 2
2. Claims 3, 4, 15, and 16 were finally rejected under 35 U.S.C.
§ 103(a) as obvious over Kadziauskas, Baerveldt, and Shen. Id. at 12.
3. Claims 5 and 17 were finally rejected under 35 U.S.C. § 103(a)
as obvious over Kadziauskas, Baerveldt, and Bloom. Id. at 12-13.
4. Claims 6-8 and 18-20 were finally rejected under 35 U.S.C.
§ 103(a) as obvious over Kadziauskas, Baerveldt, Poppas, and Hughes. Id.
at 13-14.
2 All references to the Final Office Action refer to the Final Office Action
mailed on January 17, 2012.
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5. Claims 9 and 21 were finally rejected under 35 U.S.C. § 103(a)
as obvious over Kadziauskas, Baerveldt, Poppas, Hughes, and Ono. Id. at
14--15.
6. Claims 10 and 22 were finally rejected under 35 U.S.C.
§ 103(a) as obvious over Kadziauskas, Baerveldt, and Laird. Id. at 15-16.
7. Claims 11 and 23 were finally rejected under 35 U.S.C.
§ 103(a) as obvious over Kadziauskas, Baerveldt, and Lo. Id. at 16.
8. Claims 25 and 26 were finally rejected under 35 U.S.C.
§ 103(a) as obvious over Kadziauskas, Baerveldt, and Bowen. Id. at 16-17.
The Invention
The Specification describes a method and apparatus for monitoring
thermal conditions to vary operation of an ultrasonic needle tip of a surgical
instrument. Spec. 1. 3 The surgical instrument, used for effecting
phacoemulsification, is described as containing a needle driven to vibrate at
ultrasonic speeds by a surgical handpiece/driver to break up tissue (such as
cataract) which is suctioned through an aspiration flow passage. Id. at 6.
The monitor of the surgical instrument is described as a thermal imaging or
thermal recognition source, such as a conventional thermal imaging camera
or optical pyrometer. Id. at 4. The monitor detects infrared wavelengths
that are proportional to a corresponding temperature that is compared to a
critical temperature or critical change in temperature. Id. at 5---6. When a
critical temperature or critical change in temperature is reached, an
evaluation of the thermal condition is made so that appropriate command
signals may be generated by a controller to the ultrasonic handpiece
3 Citations to the Specification are to page numbers.
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containing the needle driver of the surgical instrument. Id. at 6. In
particular, the controller generates command signals to the ultrasonic
handpiece/driver to fix the stroke length and thus the speed of vibration of
the needle or to slow or stop the needle vibration. Id. at 9.
Claims 1 and 13 are independent and are reproduced below.
1. A method of fixing needle stroke length of a vibrating
hollow needle of a surgical instrument and or slowing or stopping
the hollow needle, comprising the steps of:
performing phacoemulsification with a surgical
instrument having a driver and a hollow needle;
detecting an infrared radiation wavelength emanating
from a location with a monitor during the performing of the
phacoemulsification, selecting the monitor from the group
consisting of a thermal imaging source and a thermal recognition
source; and
evaluating the detected infrared radiation wavelength with
a controller to make a determination as to whether the hollow
needle needs to be slowed or stopped, the controller fixing a
stroke length of the hollow needle and thus a speed of vibration
of the hollow needle based on the evaluated, detected infrared
radiation wavelength and sending appropriate command signals
to the driver so that the hollow needle vibrates and travels in
accord with the fixed stroke length, the controller sending further
command signals to the driver as warranted based on the
evaluated, detected infrared radiation wavelength to slow or stop
the hollow needle.
13. An apparatus to fix needle stroke length of a vibrating
hollow needle of a surgical instrument and to slow or stop the
hollow needle, comprising:
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a surgical instrument suited to perform
phacoemulsification, the surgical instrument having a driver and
a hollow needle;
a monitor configured and arranged to be aimed to detect
an infrared radiation wavelength emanating from a location
during the performing of the phacoemulsification by the surgical
instrument, the monitor being selected from the group consisting
of a thermal imaging source and a thermal recognition source;
and
a controller suited to evaluate the detected infrared
radiation wavelength to make a determination as to whether the
hollow needle needs to be slowed or stopped, the controller
having means for fixing the stroke length of the hollow needle
and thus a speed of vibration of the hollow needle based on the
evaluated, detected infrared radiation wavelength, the controller
having means for sending appropriate command signals to the
driver that direct the driver to drive the hollow needle in accord
with the fixed stroke length of the hollow needle, the controller
having means for sending further command signals to the driver
as warranted based on the evaluated, detected infrared radiation
wavelength to slow or stop the hollow needle.
App. Br. 50, 52 (Claims Appendix).
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DISCUSSION
Obviousness of Claims 1, 2, 12-14, and 24 over Kadziauskas and Baerveldt
Appellant argues independent claims 1 and 13 together. App. Br.
generally. We focus on claim 1 for purposes of our discussion. Claim 1
requires performing phacoemulsification with a surgical instrument and
detecting an infrared radiation wavelength emanating from a location with a
monitor during the performing of the phacoemulsification.
Appellant argues that while Baerveldt describes infrared detectors for
thermal monitoring during cauterization and a controller to automatically
control the cauterization process (e.g., the surgical instrument), there is no
description in Baerveldt of monitoring temperature and controlling an
instrument during phacoemulsification. App. Br. 16; Reply Br. 8. As
pointed out by the Examiner, Baerveldt, at paragraph 113, describes an
alternative embodiment of an instrument used for phacoemulsification with
or without the cauterizing elements. Id. at 11. Appellant has not shown
error in the Examiner's findings that a person of ordinary skill in the art
would have understood that the Baerveldt temperature monitoring
arrangement for cauterization could be used and modified for the other
described embodiment of the surgical instrument used for
phacoemulsification. Final Act. 2-3, 10-11; Ans. 10-11. Appellant
narrowly views the different embodiments of Baerveldt in isolation of each
other instead of viewing Baerveldt as a whole, considering all that it conveys
to a person of ordinary skill in the art, who is also a person of ordinary
creativity, KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), at the
time of the invention.
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We also are not persuaded by Appellant's arguments that it would be
beyond the level of skill and creativity of a person of ordinary skill in the art
to utilize the cauterization infrared radiation wavelength detection described
in Baerveldt for phacoemulsification. App. Br. 41--42. Appellant directs us
to no credible, relevant evidence, such as a declaration, or teaching in a prior
art reference, that would support the conclusory assertions. Argument of
counsel cannot take the place of evidence lacking in the record. Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977).
For example, we do not give much if any weight to the Wikipedia
webpage on infrared detection that Appellant directs us to because Appellant
has not shown that the Wikipedia website general description of an infrared
detector is even relevant to show that the combination of Kadziauskas and
Baerveldt would have rendered the claims nonobvious as Appellant asserts.
Appellant's arguments in that regard are based on attorney conjecture, not
based on what a person of ordinary skill in the art would have known at the
time of the invention.4 Based on the record before us, the Examiner's
determination that automating Kadziauskas' method of detecting
temperature and controlling an instrument during phacoemulsification by
using infrared detectors and a controller as taught by Baerveldt would have
been obvious is reasonable. "[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
4 Based on the record before us, the level of ordinary skill in the art is
reflected by the prior art of record. See Okajima v. Bourdeau,
261F.3d1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91(CCPA1978).
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unless its actual application is beyond his or her skill." KSR, 550 U.S. at
417.
We also are not persuaded by Appellant's argument that there would
have been no reason to combine Kadziauskas with Baerveldt. In particular,
Appellant argues that a person of ordinary skill in the art would not have
been concerned with monitoring heat during phacoemulsification, because
that process does not give rise to creation of large amounts of friction and
heat due to selection of appropriate program setting and power modulation
techniques. App. Br. 18. This argument is not persuasive. Kadziauskas
describes that it was known at the time of the invention that an ultrasonically
driven needle in a phacoemulsification handpiece becomes warm during use
from frictional heat caused by the mechanical motion of the handpiece tip,
and that the risk of damaging the affected area via such heat can be a
considerable negative side effect. Kadziauskas 3: 18-31. Even Appellant
characterizes Kadziauskas as describing that "overheating of tissue needs to
be avoided to prevent tissue damage" and that Kadziauskas does so by
"tum[ing] off the ultrasonic energy pulse long enough to significantly
decrease the resultant heat level." App. Br. 20. Appellant's argument that a
surgeon would take care to not overheat the instrument during
phacoemulsification by manually stopping the instrument does not detract or
show error with the Examiner's determination (Ans. 11-12) that a person of
ordinary skill in the art would have combined Kadziauskas with Baerveldt in
order to automate that which was done manually (e.g., temperature
monitoring and controlling).
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Claim 1 recites "evaluating the detected infrared radiation wavelength
with a controller ... the controller fixing a stroke length of the hollow
needle and thus a speed of vibration of the hollow needle based on the
evaluated, detected infrared radiation wavelength." Appellant acknowledges
that Kadziauskas fixes stroke length through pedal depression, but argues
that Kadziauskas does not describe fixing stroke length through a controller
receiving evaluated, detected infrared radiation wavelength, and thus fails to
meet the claimed feature. App. Br. 17, 19; Reply Br. 6. The argument is
misplaced because the Examiner relies on Baerveldt in combination with
Kadziauskas for meeting this limitation. Final Act. 3; Ans. 10-11. In
particular, the Examiner relies on Baerveldt for its description of a system
that outputs information from an infrared temperature monitor to a controller
which adjusts power supplied to a surgical handpiece (e.g., to fix and/or
slow operation of the instrument). Final Act. 10-11; Ans. 12. Faulting
Kadziauskas for not describing what the Examiner finds Baerveldt to
describe is insufficient to show error in the Examiner's findings. In that
same respect, we are not persuaded by Appellant's arguments that claim 1
requires fixing the stroke length based on infrared radiation wavelength
detection before excessive temperature of the surgical instrument can impact
tissue adversely. App. Br. 20. Claim 1 does not require the italicized
language.
Claim 2 recites basing the determination on a comparison of critical
temperatures with a temperature that corresponds to the detected infrared
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radiation wavelength. Claim 14 is similar. 5 The Examiner relies on
Baerveldt to meet the limitation. Final Act. 11. Appellant argues that the
description of Baerveldt that the Examiner directs attention to (Paragraph
120) is directed to cauterization, not phacoemulsification, and, therefore, is
not relevant. App. Br. 21. For reasons provided above, we are not
persuaded by this argument. In particular, Appellant has not shown error in
the Examiner's determination that the description of using infrared detectors
for thermal monitoring and a controller to control a surgical instrument
would have been obvious based on the combination of Kadziauskas and
Baerveldt, regardless of whether the surgical instrument is one used for
cauterization or phacoemulsification.
Appellant does not provide separate and distinct patentability
arguments with respect to claim 12, which depends from claim 1, and claim
24, which depends from independent claim 13. Consequently, claims 12 and
24 fall with independent claims 1 and 13. See 37 C.F.R. § 41.37(c)(l)(iv).
For all of the above reasons, Appellant has not shown error with the
Examiner's rejection of claims 1, 2, 12-14, and 24.
Obviousness of Claims 3, 4, 15, and 16 over
Kadziauskas, Baerveldt, and Shen
Claim 3 recites comparing at least two different critical temperatures
with the corresponding temperature that corresponds to the detected infrared
radiation wavelength. The claim further recites fixing the needle stroke
5 We understand Appellant's reference to claim 24 on page 21 of the Appeal
Brief to be with respect to claim 14, which recites the features that Appellant
argues are not described or taught by the prior art.
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length to slow a speed of vibration of the hollow needle if the corresponding
temperature matches a lower one of the two different temperatures and
stopping or withdrawing the needle if the temperature matches a higher one
of the two temperatures. Claim 15 which depends from independent claim
13 is similar. Claims 4 and 16 also include two different critical
temperatures for comparing (medically safe and medically unsafe
temperatures).
Appellant argues that the Examiner erred in determining that Shen in
view of Kadziauskas and Baerveldt meet the at least two different critical
temperatures that trigger different actions such as slowing the needle and
stopping the needle. Reply Br. 10. Appellant's argument is persuasive.
While we agree with the Examiner that the combination of Kadziauskas and
Baerveldt conveys temperature comparison, resulting in slowing the speed
of vibration of the hollow needle, and that Shen teaches stopping an
instrument based on a temperature comparison, the Examiner has not
provided a sufficient factual basis for concluding that it would have been
obvious to compare at least two different critical temperatures with a
corresponding temperature to trigger different actions as asserted at page 12
of the Final Office Action. At best, the Examiner has provided evidence
showing a comparison between only one critical temperature and the
temperature that is being compared. Accordingly, the Examiner erred in the
rejection of claims 3, 4, 15, and 16 based on Shen, Kadziauskas, and
Baerveldt.
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Obviousness of Claims 5 and 17 over Kadziauskas, Baerveldt, and Bloom
Claim 5 depends directly from claim 1 and requires detecting multiple
radiation wavelengths over time, correlating those measurements to a change
in temperature over time, and basing the determination (from claim 1) on a
comparison between the correlated change in temperature with a critical
change in temperature. Claim 17, which depends directly from independent
claim 13 is similar. The Examiner relies on Bloom for its description of
monitoring temperature over time and reasons that it would have been
obvious to one of ordinary skill in the art to detect temperature over time as
taught by Bloom with the combined Kadziauskas and Baerveldt method and
apparatus in order to provide instantaneous results. Final Act. 12-13 (citing
Bloom i-fi-1 45 and 46).
Appellant argues that Bloom is non-analogous art "since it has
nothing to do with phacoemulsification" and that the "problem faced by the
inventor in the context of claims 5 and 1 7 concerns evaluating infrared
radiation wavelengths emanating from the surgical instrument as opposed to
a surgical site." App. Br. 24. Neither of these arguments is persuasive. A
reference is analogous art if it is either in the field of the applicant's
endeavor or is reasonably pertinent to the particular problem with which the
inventor was concerned. In re Kahn, 441F.3d977, 987 (Fed. Cir. 2006.
Here, Bloom describes at paragraph 45 "intraoperative [temperature]
monitoring of tissue where direct application of energy may impart
excessive damaging heat such as during phacoemulsification of the lens of
the eye" and, therefore, is in the same field of endeavor as the claimed
invention. Appellant also does not explain sufficiently why Bloom's
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teachings would not be reasonably pertinent to the noted problem identified.
Moreover, the claims do not recite evaluating infrared radiation emanating
from the surgical instrument, but recites "detecting an infrared radiation
wavelength emanating from a location." The location is not specified in
claim 5, for example, and that claim does not require evaluating radiation
wavelengths emanating from the surgical instrument as argued.
We also have considered Appellant's argument on page 12 of the
Reply Brief that it would not have been obvious to detect temperature over
time and to evaluate the temperature to slow or stop the needle in ample time
to prevent tissue damage. The argument is not commensurate in scope with
what is claimed, because the claims in dispute do not recite slowing or
stopping the needle in ample time to prevent tissue damage. For all of these
reasons, Appellant has not shown error with the Examiner's rejection of
claims 5 and 1 7.
Obviousness of Claims 6---8 and 18-20 over
Kadziauskas, Baerveldt, Poppas, and Hughes
Claims 6-8 and 18-20 were finally rejected as obvious over
Kadziauskas, Baerveldt, Poppas, and Hughes. Final Act. 13-14. Appellant
argues these claims together. Claim 6 is representative and recites "wherein
the thermal recognition or imaging source includes a surgical operating
microscope, the detecting of the infrared radiation wavelength being through
optical pathways of the surgical operating microscope." The Examiner
explains that Baerveldt at paragraph 121 describes using an operating
microscope during a surgical procedure. The Examiner relies on Poppas for
its description of using pyrometers for monitoring temperature of an area
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being operated on, and an infrared detector for receiving radiation emissions
via pathways outside of a surgical microscope. Id. The Examiner relies on
Hughes for its description of an infrared video camera focused on the eye
through an operating microscope, and provides a rationale for combining
Poppas and Hughes with Kadziauskas and Baerveldt. Id.
Appellant argues that the carrying out of phacoemulsification has
nothing to do with laser welding of tissue as in Poppas, and, therefore,
Poppas is nonanalogous art. App. Br. 26. We disagree that Poppas is
nonanalogous art. Poppas is concerned with overheating tissue under
treatment and controlling a surgical instrument accordingly, which is
pertinent to the same problem with which the inventor is involved.
Likewise, we are not persuaded that Hughes is nonanalogous art because it is
directed to different types of eye surgeries as asserted by Appellant. Id.
Hughes describes the use of an infrared video camera with an operating
microscope in an eye surgery context. The fact that Hughes describes that
that combination is used in a different type of optical surgery, does not take
the combination out of the scope of relevant teachings known to skilled
designers of optical surgery equipment or procedures.
We also have considered Appellant's arguments at pages 13 and 14 of
the Reply Brief that Baerveldt is relevant only to cauterization and not
phacoemulsification, and therefore, there would have been no reason to
combine Hughes or Poppas with Baerveldt and Kadziauskas. We have
addressed similar arguments above and find them not to be persuasive. For
these reasons, Appellant has not shown error with the Examiner's rejection
of claims 6-8 and 18-20.
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Obviousness of Claims 9 and 21 over
Kadziauskas, Baerveldt, Poppas, Hughes, and Ono
Claim 9 depends from claim 6 and recites "wherein the surgical
microscope has an objective lens that consists of a material that is more
transmissive of the infrared radiation wavelengths than that of glass or fused
silica." Claim 21, which depends from claim 18 is similar. The Examiner
relies on Ono for its description of a lens that meets the limitations of claims
9 and 21. Final Act. 14. Appellant's sole argument with respect to claims 9
and 21 is that Ono is nonanalogous art. App. Br. 26-27. We disagree and
determine that Ono's microscope lens improvements are relevant to a system
or process using a microscope. Ono is particularly relevant to systems and
processes using infrared frequencies with the microscope because Ono
specifically addresses preserving transmittance in the near-infrared range.
Ono 1:10-13, 2:16-23. The Examiner's limited use of the relevant
teachings of this reference was appropriate. For these reasons, Appellant has
not shown error with the Examiner's rejection of claims 9 and 21.
Obviousness of Claims 10 and 22 over Kadziauskas, Baerveldt, and Laird
Claim 10 directly depends from claim 1 and recites "wherein the
location is along a hub of the hollow needle, the hub being spaced from a tip
of the hollow needle." Claim 22, which depends directly from claim 13 is
similar. The Examiner relies on Laird for its description of a needle used in
a surgical procedure that contains a temperature sensor at the tip, and a
second sensor along the shaft or hub, of the needle. Final Act. 15.
Appellant argues that Laird is nonanalogous art. App. Br. 27-36; Reply Br.
14--18.
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Laird's methods to heat and shrink tissues are different from
phacoemulsification. The Examiner, however, relies on Laird for the narrow
proposition that those in the medical device art would have understood that
temperature sensing at a location along the needle could facilitate more
accurate temperature determination. While the use of the needle is different,
the need for accurate temperature determination to avoid damage to
untargeted tissue is the same. Accordingly, based on the record before us,
Appellant has not shown that a person having ordinary skill in the art would
not have considered Laird's sensor teaching to be reasonably relevant to the
problem facing the inventor.
We also are not persuaded by Appellant's arguments that the
placement of temperature sensors in Laird are at the treatment zone or
border between intermediate and target tissue and thus fails to describe that
the location be along the needle hub itself. App. Br. 30-32. Laird describes
that temperature may be sensed using a needle containing two temperature
sensors. One sensor is positioned at the tip at the center of the treatment
zone and the second sensor is along the shaft of the needle so as to be
positioned at the edge of the desired protection zone. Laird 10:42--47. The
Examiner relies on the placement of the second sensor along the shaft of the
needle to meet the disputed claim limitation. The Appellant has not shown
error in the Examiner's findings with respect to what Laid would have
conveyed to a person of ordinary skill in the art. Moreover, Appellant's
arguments at pages 31 and 32 of the Appeal Brief, and pages 15 and 16 of
the Reply Brief, for example, that the claimed invention is proactive rather
than reactive or avoids damage instead or reacts to damaged tissue (as in
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Laird) is of no moment because such arguments are not commensurate in
scope to what is claimed. We have considered all of Appellant's arguments
for this rejection, and determine that Appellant has not shown error with the
Examiner's rejection of claims 10 and 22.
Obviousness of Claims 11and23 over Kadziauskas, Baerveldt, and Lo
Claim 11 depends directly from claim 1 and recites "wherein the
location is at a driver of the hollow needle that drives the hollow needle to
vibrate and travel the fixed stroke length." Claim 23, which depends from
claim 13, is similar. The Examiner relies on Lo for its description of a
temperature feedback signal to provide temperature indication of the probe,
which the Examiner equates to the claimed driver, which then alters current
provided to the probe. Final Act. 16. Appellant argues that while Lo
mentions monitoring temperature of its probe by temperature feedback, there
is no mention about monitoring the temperature at the driver. Reply Br. 19.
We are persuaded by this argument because the Examiner has not
sufficiently accounted for monitoring temperature at a driver of a needle.
The broadest most reasonable construction of "at a driver" of the needle that
drives the needle to vibrate is at the location of the needle (instrument)
where the drive components (driver) are located, and not anywhere along a
probe where a driver may also reside, as the Examiner appears to assert (see,
e.g., Fig. 1 of Lo, where the temperature sensor is not located at the driver
28, 30 of the probe, but closer to the tip of the instrument). Accordingly,
Appellant has shown error with the Examiner's rejection of claims 11 and
23.
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Obviousness of Claims 25 and 26 over Kadziauskas, Baerveldt, and Bowen
Claim 26 depends directly from claim 1 and recites "further
comprising selecting from the thermal imaging source as the monitor, the
thermal imaging source being a thermal imaging camera." Claim 25, which
depends from claim 13 is similar. The Examiner relies on Bowen for its
description of measuring body temperature with infrared cameras and
provides a rationale for combining Bowen with Kadziauskas and Baerveldt.
Final Act. 17. Appellant argues that Baerveldt is relevant only to
cauterization and not phacoemulsification. Reply Br. 19-24. We have
addressed similar arguments above and find them unpersuasive. Based on
the record before us, Appellant has not shown error with the Examiner's
rejection of claims 25 and 26.
DECISION
The rejection of claims 1, 2, 12-14, and 24 under 35 U.S.C. § 103(a)
as obvious over Kadziauskas and Baerveldt is affirmed.
The rejection of claims 3, 4, 15, and 16 under 35 U.S.C. § 103(a) as
obvious over Kadziauskas, Baerveldt, and Shen is reversed.
The rejection of claims 5 and 17 under 35 U.S.C. § 103(a) as obvious
over Kadziauskas, Baerveldt, and Bloom is affirmed.
The rejection of claims 6-8 and 18-20 under 35 U.S.C. § 103(a) as
obvious over Kadziauskas, Baerveldt, Poppas, and Hughes is affirmed.
The rejection of claims 9 and 21under35 U.S.C. § 103(a) as obvious
over Kadziauskas, Baerveldt, Poppas, Hughes, and Ono is affirmed.
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The rejection of claims 10 and 22 under 35 U.S.C. § 103(a) as obvious
over Kadziauskas, Baerveldt, and Laird is affirmed.
The rejection of claims 11 and 23 under 35 U.S.C. § 103(a) as obvious
over Kadziauskas, Baerveldt, and Lo is reversed.
The rejection of claims 25 and 26 under 35 U.S.C. § 103(a) as obvious
over Kadziauskas, Baerveldt, and Bowen is affirmed.
AFFIRMED-IN-PART
KRH
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