Appeal No. 2006-3202 Page 5
Application No. 10/323,592
For the blood flow velocity limitation in claim 1, Nakano is cited for its teaching of
an average velocity of 15.3 ±6.5 cm/s in the subjects who participated in their study. Id.,
page 8, lines 3-11. Thus, the Examiner presumes, “the blood flow velocity is at least 5
cm/s for subjects that experience myocardial problems.” Id., page 8, lines 10-11.
The Examiner argues that the claimed requirement that the temperature
difference be “above zero but not more than 0.39°C” to diagnose the presence of
inflamed atherosclerotic plaque in the blood vessel would have been obvious in view of
Casscells’ ‘261 teaching “that an atherosclerotic plaque is present when the
temperature elevation is about 0.2°C or greater.” Answer, page 6.
Appellants contend that their invention resulted from the “realization” that when
temperature measurements are made in the presence of blood flow at rates
approaching or at physiological levels, “the temperature difference which is indicative of
a vulnerable plaque can even be significantly lower than 0.39°C.” Brief, page 12. They
admit that “it was known before the invention was made that vulnerable atherosclerotic
plaque exhibits a temperature which is elevated in comparison with ‘normal’ or non-
inflamed vessel wall.” Id., page 12. However, they urge that “[p]rior to the invention,
studies had shown that the temperature, or thermal heterogeneity, exhibited by such
vulnerable plaques, was generally at least 0.41°C above low-risk regions of the blood
vessel.” Id. “[M]issing from Casscells et al[.] is any teaching to the skilled reader that
the temperature detected should be at the very low end of the range when the methods
are carried out under conditions whereby blood flow is at least 5 cm/s.” Id., page 14.
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