Appeal No. 2006-3202 Page 10
Application No. 10/323,592
Examiner should determine whether Casscells ‘261 would have enabled temperature
measurements to have been made within the claimed range, and if enabled, whether
this is sufficient for the skilled worker to have reasonably believed that carrying out
Casscells’ ‘261 method would necessarily result in the recordation of temperatures
within the claimed range.
We note that, on the record before us, it is not evident whether Appellants have
utilized a temperature detection device which enables them to measure temperatures
lower than those recorded by Casscells ‘261. Appellants state that Casscells’ ‘261
value of 0.21°C “may have been chosen simply because it is apparently the limit of
detection of the preferred apparatus.” Brief, page 15. However, this leaves open the
question of whether other devices described by Casscells ‘261, or available prior to the
instant application’s filing date, would have enabled temperature measurements in the
claimed range to have been made.
Appellants argue that, when the detection method is carried out in the presence
of blood flow, “the temperature difference which is indicative of a vulnerable plaque” can
be significantly lower than 0.39°C. Brief, page 12. They explain that the reason for this
difference is believed to be “due to the cooling or ‘smoothing’ effect of flowing blood in
the vessel and that prior studies” were carried out with “absent or significantly reduced”
blood flow, leading to “artificially high values.” Id. In other words, Appellants are not
arguing that they improved the detection technology or enabled more sensitive
measurements to be made, only that they discovered that the temperature of an
inflamed plaque is lower when blood is flowing past it. Because Casscells ‘261, in fact,
measures plaque temperature in several experiments when there is normal blood flow
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