Appeal No. 2006-3202 Page 6
Application No. 10/323,592
We do not agree with Appellants that the claimed temperature differential
measured in a vessel with flowing blood is sufficient to impart patentability to the
claimed method. As pointed out by the Examiner, Casscells ‘261 expressly states that
the temperature of the vessel wall “can be measured with and without blood flow.”
Answer, page 6, lines 10-14; Casscells ‘261, column 30, lines 20-28. Casscells ‘261
also indicates that “continuous blood flow” can be maintained during temperature
measurement. Id., column 31, lines 55-59. Casscells ‘261 actually measured vessel
wall temperature in human arteriovenous grafts, non-invasively while blood was actively
flowing through it. In this experiment, “[t]he inventors found that grafts are
subcutaneous and superficial enough that their heat can be detected by an infrared
camera.” Id., column 38, lines 19-21. A graft with “good flow . . . revealed fine
temperature heterogeneity.” Id., column 38, lines 28-33. Non-invasive in vivo studies
were also performed in rabbits in which temperature measurements were collected from
an artery with intact blood flow. Id., column 35, lines 15-41. These disclosures make it
clear that Appellants’ characterization of “prior studies” as being performed in the
absence of significant blood flow (Brief, page 12, § 4) is not a correct description of the
cited Casscells ‘261 patent.
Appellants state that “[t]here is a suggestion at column 35 line 64 that an in vivo
experiment was performed but it is not apparent that there was in this experiment any
blood flow either.” Brief, page 15, paragraph 2. Apparently, Appellants are referring to
the experiment which in which temperature measurements were performed in a dog
model of human atherosclerosis. Since these experiments are described as having
been performed in vivo using devices “outside the animal’s body to collect” temperature
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