John HauckDownload PDFPatent Trials and Appeals BoardMay 29, 20202019006334 (P.T.A.B. May. 29, 2020) Copy Citation 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. 11/647,272 12/29/2006 John A. Hauck 0G-0404USP4/82410.0136 1469 55962 7590 05/29/2020 Wiley Patent Administration 1776 K Street, NW Washington, DC 20006 EXAMINER NGANGA, BONIFACE N ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 05/29/2020 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): ASJM_Patents@abbott.com ptodocket@wiley.law PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN A. HAUCK Appeal 2019-006334 Application 11/647,272 Technology Center 3700 Before BENJAMIN D. M. WOOD, JILL D. HILL, and LISA M. GUIJT, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 9–12, and 282. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as St. Jude Medical, Atrial Fibrillation Division, Inc. Br. 2. 2 Claims 14–27 and 34–38 are withdrawn from consideration. Final Act. 1. Appeal 2019-006334 Application 11/647,272 2 BACKGROUND Claims 1 (method) and 28 (apparatus) are independent. Claim 1, reproduced below, illustrates the claimed invention, with certain limitations italicized: 1. A method of monitoring contact between a probe and a tissue surface, the probe having an electrophysiology sensor at a distal end thereof, the method comprising: placing the probe in proximity to the tissue surface; robotically moving the probe; measuring an electrophysiological tissue parameter at the distal end of the probe using the electrophysiology sensor, wherein the electrophysiological tissue parameter comprises phase angle; calculating a rate of change in the measured electrophysiological tissue parameter with respect to a distance traveled by the probe; and indicating a change in proximity or degree of contact between the probe and the tissue surface based upon the rate of change in the measured electrophysiological tissue parameter with respect to the distance traveled by the probe. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Sun US 6,391,024 B1 May 21, 2002 Wallace US 2005/0222554 A1 Oct. 6, 2005 O’Sullivan US 2007/0106287 A1 May 10, 2007 REJECTIONS Claims 1, 11, 12, and 28 stand rejected under 35 U.S.C. § 103 as unpatentable over Wallace and O’Sullivan. Final Act. 6. Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as unpatentable over Wallace, O’Sullivan, and Sun. Final Act. 11. Appeal 2019-006334 Application 11/647,272 3 ANALYSIS The Examiner finds, inter alia, that Wallace discloses a method of monitoring contact between a probe and tissue, including “calculating a rate of change in the measured electrophysiological tissue parameter with respect to proximity of tissue, a direct indication of a distance between the probe and the tissue,” and “indicating a change in proximity or degree of contact between the probe and the tissue surface based upon the amount of change in the measured electrophysiological tissue parameter.” Final Act. 6–7 (citing Wallace ¶¶ 287, 294–95). The Examiner finds that Wallace does not disclose the electrophysiology parameter comprising a phase angle, but finds this disclosure in O’Sullivan. Id. at 7–8. The Examiner concludes that it would have been obvious to “modify the contact sensing method of Wallace to include monitoring rate of change of impedance and/or phase angle with respect to proximity to tissue or distance travelled by the probe relative to the tissue, to predictably and reliably detect contact or proximity of the probe to tissue of interest,” which is “the substitution of one known technique for another to achieve the same end result would have yielded predictable results to one of ordinary skill in the art.” Id. at 8. Rate of Change with Respect to Distance Traveled Appellant argues that the Examiner’s proposed combination of Wallace and O’Sullivan does not disclose using a rate of change in the measured electrophysiological tissue parameter (i.e., phase angle) with respect to a distance traveled by the probe to determine a change in proximity or degree of contact between the probe and the tissue surface. Br. 8–9. According to Appellant, “Wallace does not disclose ‘a rate of change ... with respect to a distance traveled by the probe’ as claimed,” instead Appeal 2019-006334 Application 11/647,272 4 disclosing “differentiating an ECG signal ‘with respect to time.’” Id. at 9 (citing Wallace ¶ 295 (emphasis added by Examiner)). Appellant contends that “[d]ifferentiating a signal with respect to time, as disclosed in Wallace, is a rate of change over time rather than over distance as claimed.” Id. Further, the “changes in the slope of Wallace’s ECG signals are changes in voltage over time, not phase angle over distance as claimed,” and “[t]his is so even if the changes result from a change in position (e.g., the measurement electrode moves during ECG collection).” Id. Although Wallace appreciates that “an ECG waveform may differ depending upon the distance between the probe and the tissue surface,” appreciating that difference “does not equate to measuring the rate at which such differences manifest relative to a distance traveled by the probe.” Br. 9. In fact, Appellant argues, “the distance to which the Examiner points is not even the distance traveled by the probe between measurements, but rather the distance between the probe and the tissue.” Id. Further, Appellant argues that O’Sullivan does not remedy this deficiency. Id. The Examiner disagrees, contending that Wallace discloses that “[w]hen the ECG signal is differentiated with respect to time, the resulting differentiated signal has higher amplitude whether electrode is in contact, as compared with a slower-rising curve for a not in-contact scenario.” Ans. 12 (citing Wallace ¶ 295). According to the Examiner, Wallace’s signal that is differentiated with respect to time is a rate of change, and Wallace’s changes in ECG waveform are the “result of not only contact, but proximity to contact as the waveform shape changes with proximity to the pertinent tissue structure (i.e., distance or nearness to pertinent tissue as exemplified by O’Sullivan (US 20070106287) in the [abstract] and [0009]).” Id. The Appeal 2019-006334 Application 11/647,272 5 Examiner contends that Wallace’s contact sensing feature “is logically utilized to stop insertion driving of the instrument, further evidence that the ‘slower-rising curve’ noted in” Wallace results from driving “the instrument towards the pertinent tissue which involves a change in distance, which also attributes the slow-rising curve prior to contact, to change in distance to the pertinent tissue structure.” Id. (citing Wallace ¶ 295). Accordingly, the Examiner contends, “Wallace discloses ‘a rate of change . . . with respect to distance travelled.’” Id. Appellant has the better position. Independent claim 1 recites “calculating a rate of change in the measured electrophysiological tissue parameter with respect to a distance traveled by the probe,” and “indicating a change in proximity or degree of contact . . . based upon the rate of change in the measured electrophysiological tissue parameter with respect to the distance traveled by the probe.” Br. 13 (Claims App.). Similarly, independent claim 28 recites “a processor programmed to monitor [a tissue surface parameter] and indicate a change in proximity or degree of contact . . . based on a rate of change in the parameter relative to a distance traveled by the probe.” Id. at 14 (Claims App.). Thus, the claims recite the change in proximity or degree of contact being measured as a change in measured electrophysiological tissue parameter not with respect to time, but with respect to a distance traveled by the probe. The Examiner’s finding that Wallace discloses measuring a change in electrophysiological tissue parameter with respect to distance is in error. Wallace discloses a robotic catheter that recognizes contact between a probe tip (shown in Wallace Figures 153 and 154) and patient tissue by differentiating an ECG signal “with respect to time.” Wallace ¶ 295. While Appeal 2019-006334 Application 11/647,272 6 we agree with the Examiner that Wallace appreciates that its ECG can indicate probe-tissue contact being via a change in a measured electrophysiological tissue parameter (see, e.g., measurement mV in Wallace’s Figure 157), the rate of parameter change is only measured with respect to time, and not distance. See Wallace Figs. 156, 157. While it may be true that when the speed (Δdistance/Δtime) of probe movement is known, the change in time can be used to determine the change in distance, we do not discern that a skilled artisan would understand that Wallace discloses a known speed, or using the change in time to determine a rate based on a change in distance. For this reason, the Examiner’s finding that “Wallace discloses ‘a rate of change . . . with respect to distance travelled’” (Ans. 12) is in error. The Examiner makes no finding that O’Sullivan determines a rate based on distance traveled. Lacking such a finding, prima facie obviousness has not been established. We, therefore, do not sustain the rejection of independent claims 1 and 28 as unpatentable over Wallace and O’Sullivan. Claims 11 and 12 depend from claim 1, and we do not sustain the rejection thereof for the same reason. Regarding the rejection of claims 9 and 10 as unpatentable over Wallace, O’Sullivan, and Sun, the Examiner makes no finding that Sun determines a rate based on distance travelled. Claims 9 and 10 depend from claim 1. We do not sustain this additional rejection for the reasons set forth above. Appeal 2019-006334 Application 11/647,272 7 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 11, 12, 28 103 Wallace, O’Sullivan 1, 11, 12, 28 9, 10 103 Wallace, O’Sullivan, Sun 9, 10 Overall Outcome: 1, 9–12, 28 REVERSED Copy with citationCopy as parenthetical citation