Ex Parte Langenhove et al - Page 12


               Appeal No. 2006-3202                                                                    Page 12                  
               Application No. 10/323,592                                                                                       

               the claimed invention. In re Wright, 999 F.2d 1557, 1562, 27 USPQ2d 1510, 1513 (Fed.                             
               Cir. 1993).  In this context, the following issues should be considered:                                         
                      First, Appellants state in their Brief (page 12), “during their investigations the                        
               inventors came to the important realization that when the methods are carried out in                             
               such a way that blood flows through the vessel at a significant rate (approaching or at                          
               physiological rates), in fact vulnerable plaques are indicated by temperature differences                        
               which are rather low, specifically not more than 0.39°C.”  Claim 30, however, is not                             
               limited to carrying out the method in the presence of blood flow.  It is not clear from the                      
               record (and possibly inconsistent with it) that, when the method is carried out in the                           
               absence of blood flow, elevated temperatures in the claimed range would be                                       
               experienced by inflamed plaques.                                                                                 
                      Second, it is not apparent whether the data presented in Tables 1 and 2 on                                
               pages 25-26 of the application, which show “results from patients . . . indicative of the                        
               likely presence of inflamed plaques,” support the conclusion that the presence of                                
               inflamed plaques can be diagnosed where the temperature difference is “above zero but                            
               not more than 0.14°C” as required by claim 30.  There is no information (e.g., number of                         
               measurements made in particular patient, standard deviation, etc.) to establish the                              
               significance of the data.  For example, it is unclear on what basis Appellants have                              
               concluded that these values represent inflamed plaques rather than “biological noise” of                         
               the type described by Casscells ‘261.  Column 23, lines 54-57.  Similarly, patients 16 to                        
               18 are described as “most at risk of plaque rupture.”  These patients show the highest                           
               amount of vessel temperature heterogeneity.  In contrast, patients 5, 10, 13, and 14                             
               exhibit about two-fold less heterogeneity.  It is not evident how Appellants have ruled                          




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