T 0800/05 () of 4.7.2008

European Case Law Identifier: ECLI:EP:BA:2008:T080005.20080704
Date of decision: 04 July 2008
Case number: T 0800/05
Application number: 99949574.0
IPC class: A61B 18/14
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 34.468K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Electrosurgical device for cell necrosis induction
Applicant name: Rita Medical Systems, Inc.
Opponent name: -
Board: 3.2.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 52(1)
European Patent Convention 1973 Art 54
European Patent Convention 1973 Art 56
Keywords: Inventive step (yes, after amendment)
Catchwords:

-

Cited decisions:
-
Citing decisions:
-

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division dated 1 March 2005 to refuse European patent application No. 99 949 574.0.

The grounds of refusal were that the subject-matter of claim 1 of each of the main request and auxiliary request lacked an inventive step, having regard to document D1 (WO-A-97/06 855).

II. On 3 May 2005 the appellant (applicant) lodged an appeal against the decision and paid the prescribed fee on the same day. On 11 July 2005 a statement of grounds of appeal was filed.

The appellant requests that the decision under appeal be set aside and that a patent be granted on the basis of the following documents:

Claims 1 to 18 filed by telefax on 26 June 2008

Description pages 12 and 15 filed by telefax on 25 June 2008

Description pages 1 to 3 and 6 to 20 filed by telefax on 26 June 2008

Description pages 4 and 21 filed by telefax on 27 June 2008

Figures 1, 2(a), 2(b), and 3 to 21 as originally filed.

III. Independent claim 1 reads as follows:

"A cell necrosis apparatus (10) for use with an energy source (40), comprising an introducer (12) with a distal end (14) sufficiently sharp to penetrate tissue, further comprising: an energy delivery device (16) including at least a first set of RF electrodes (42) and a second set of RF electrodes (44), each electrode of the first and second sets having a tissue piercing distal end, being positionable in the introducer, and being deployable with curvature from the distal end (14) of the introducer (12), the apparatus further comprising: an advancement member (30) coupled to the first and second sets of electrodes of the energy delivery device for their simu1taneous deployment from the distal end (14) of the introducer (12), and wherein the second set of electrodes is deployable a greater distance from the introducer than the first set of electrodes."

Claims 2 to 18 are dependent claims.

Reasons for the Decision

1. The appeal is admissible.

2. Amendments

2.1 New claim 1 is based on original claim 1, and includes the following additional features:

"an advancement member (30) coupled to the first and second sets of electrodes of the energy delivery device for their simultaneous deployment from the distal end (14) of the introducer (12)".

2.2 The embodiment described with reference to Figures 2(a) and 2(b) of the application (WO-A-00/13602) includes an electrode advancement member 30 by which the electrodes can be deployed simultaneously (page 12, lines 16 to 18). On page 10, lines 3 to 7 are described (with reference to the apparatus of Figure 1) ways in which electrodes may be advanced to different lengths, namely the lengths can be determined by the actual physical length of electrodes, the length of an energy delivery surface of electrodes, or the length of electrodes that is not covered by an insulator. It is clear that such an arrangement is applicable to the embodiment of Figures 2(a) and 2(b), so that the electrodes thereof may be advanced simultaneously, yet exhibit different lengths when deployed.

2.3 Therefore, claim 1 is properly supported by the application as originally filed in this respect.

3. Novelty

3.1 Document D1 discloses (see particularly Figure 3a and the corresponding description on page 15) apparatus (10) for use with an energy source, comprising an introducer with a distal end sufficiently sharp to penetrate tissue, further comprising: an energy delivery device including at least a first set of e1ectrodes (antennas 16) and a second set of e1ectrodes (16), each electrode of the first and second sets having a tissue piercing distal end, being positionable in the introducer, and being deployable with curvature from the distal end of the introducer, the apparatus further comprising: an advancement member coupled to the first and second sets of electrodes of the energy delivery device for their deployment from the distal end of the introducer.

3.2 D1 discloses that each antenna 16 has an adjustable length (D1: page 7, lines 6-8), that each antenna 16 can have different lengths (D1: page 8, line 3), and that the antennas 16 can be independently deployed along different positions along the axis of the antenna 14 (D1: page 15, lines 5-8). If each antenna can have an adjustable length and is independently deployable, then one set of electrodes of D1 is deployable a greater distance from the introducer than another set of electrodes.

3.3 D1 also discloses the antennas can be independently or dependently deployed (page 15, line 6). Assuming that "dependently" means "simultaneously" in the context, this passage means that the electrodes may indeed be deployed simultaneously. However, in this case they would be simultaneously deployed to the same distance since the unequal deployment length is conditional, in this device, upon independent deployment.

3.4 Therefore, D1 does not disclose an advancement member for the simultaneous deployment of the electrodes such that the second set of electrodes is deployable a greater distance from the introducer than the first set of electrodes.

3.5 Thus, the apparatus claim 1 of the main request is novel.

4. Inventive step

4.1 The distinguishing features set out in point 3.4 above bring about the following advantages: The simultaneous deployment of the different electrode sets simplifies the deployment procedure as compared to sequential deployment of the different electrodes as is known from D1, and the spatial relations between the different sets of electrodes may be maintained at all times as compared to sequential deployment. Moreover, simultaneous deployment takes the guess work out of the procedure to ensure consistent and accurate deployment, which directly impacts on the effectiveness of the apparatus for its intended use.

4.2 Neither these features nor their advantages are disclosed or suggested in the available prior art. Therefore, the apparatus of claim 1 involves an inventive step.

ORDER

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the department of the first instance with the order to grant a patent on the basis of the following application documents:

Claims 1 to 18 filed by telefax on 26 June 2008

Description pages 12 and 15 filed by telefax on 25 June 2008

Description pages 1 to 3 and 6 to 20 filed by telefax on 26 June 2008

Description pages 4 and 21 filed by telefax on 27 June 2008

Figures 1, 2(a), 2(b), and 3 to 21 as originally filed.

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