Ex Parte Bennett et al

Patent Trial and Appeal Board

Sep 25, 2017

12571091 (P.T.A.B. Sep. 25, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/571,091 09/30/2009 Tommy D. Bennett P0028243.00/LG10126 1366
27581 7590 09/27/2017
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
EXAMINER
OSINSKI, BRADLEY JAMES
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
09/27/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
medtronic_crdm_docketing @ c ardinal-ip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOMMY D. BENNETT and YONG K. CHO
Appeal 2015-006090
Application 12/571,091
Technology Center 3700
Before JOHN C. KERINS, SUSAN L.C. MITCHELL, and
ANTHONY KNIGHT, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Tommy D. Bennett and Yong K. Cho (Appellants) appeal under
35 U.S.C. § 134(a) from a final rejection of claims 1—12 and 25—29. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2015-006090
Application 12/571,091
THE INVENTION
Appellants’ invention is directed to a method for providing therapy to
a patient, for example, undergoing acute decompensated heart failure
(ADHF). Spec. 1. Claim 1, reproduced below, is illustrative:
1. An implantable medical device method, comprising:
setting an optimal level of a fluid status measurement of a
volemic state of a patient;
sensing a physiological signal;
computing from the sensor signal the fluid status measurement;
administering a therapy;
establishing a target profile of a time-based curve of the fluid
status measurement using an expected time period of the therapy,
the fluid status measurement and the optimal level;
determining an actual profile of a time-based curve of the fluid
status measurement during the therapy administration;
comparing the actual profile to the target profile; and
generating a notification if the actual profile of the fluid status
measurement subsequent to initiating the administered therapy
does not match the target profile.
App. Br. 11 (Claim App.)
REJECTIONS
The Examiner rejects:
(i) claims 1 and 7 under 35 U.S.C. § 102(b) as being anticipated by
Brugger (US 7,004,924 Bl, issued Feb. 28, 2006);
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Application 12/571,091
(ii) claims 1—12 and 25—28 under 35 U.S.C. § 103(a) as being
unpatentable over Zhang (US 2007/0073168 Al, published Mar. 29, 2007)
in view of Brugger;
(iii) claim 2 under 35 U.S.C. § 103(a) as being unpatentable over
Brugger, and
(iv) claim 29 under 35 U.S.C. § 103(a) as being unpatentable over
Zhang in view of Brugger and Ohlsson, “Monitoring of pulmonary arterial
diastolic pressure through a right ventricular pressure transducer”, Journal of
Cardiac Failure, Vol. 1, Issue 2, pp. 161—168, March 1995.
OPINION
Claims 1 and 7—Anticipation by Brugger
Appellants present a number of arguments as to why they believe that
Brugger does not disclose all limitations set forth in claim 1. Appeal Br. 6—
9. Among these, Appellants maintain that Brugger does not disclose
“establishing a target profile based on a time period of the therapy as
required by claim 1.” Id. at 8. Appellants argue that basing an expected
flow rate on a pump speed does not meet this limitation. Id.
The Examiner’s initial finding, in this regard, is that Brugger
discloses:
establishing a target profile of a time-based curve of the fluid
status measurement using an expected time period of the therapy,
the fluid status measurement, and the optimal level (expected
blood flow rate based on the pump speed - Col. 3, 11 56 and 57,
expected power consumption calculated from blood flow rate -
Col. 4,11 6-10).
Final Act. 3. The Examiner additionally finds that determining an actual
profile to compare with the target profile involves determining actual blood
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Appeal 2015-006090
Application 12/571,091
flow rate and actual power consumption. Id. Neither of these findings
appears to address using an expected time period of the therapy as a factor or
input in establishing a target profile as claimed.
In response to Appellants’ argument, the Examiner takes the position
that “flow rates are inherently time-based (again, volume over time) and
there is an expectation that when the pump is operating, such is the expected
time period of therapy.” Ans. 8.
That the units by which flow rate is measured include “time” does not
appear to relate in any particular way with establishing a target profile using
an expected time period of the therapy as a factor or input. As best we
understand it, the latter statement is to the effect that the therapy period is
the period or amount of time that the pump is operating. The Examiner
points to nothing in Brugger that mentions anything about any particular
time period for operation of the pump, and our review finds none. Further,
the recitation of an “expected time period of the therapy” in claim 1 is
indicative that there is a determination, prior to commencing the
administration of the therapy, that a particular time period is expected to
adequately address the patient’s condition.
We might speculate that patients who are to be subjected to the
withdrawal, treatment, and return of blood using the Brugger system might
undergo a treatment for a pre-specified time, but measurements other than
time, such as some condition of the blood, could well be used instead of a
particular time period. Even if a time period were employed in defining a
therapy session in Brugger, it is not clear to us that any target profile of the
type identified by the Examiner (flow rate, power consumption) would
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Application 12/571,091
necessarily use such expected time period of the therapy as a factor or input
to the target profile.
Accordingly, the rejection of claims 1 and 7 as being anticipated by
Brugger is not sustained.
Claims 1—12 and 25—28— Unpatentability over Zhang and Brugger
The Examiner initially relies on Brugger for the same limitation
discussed above directed to establishing a target profile using an expected
time period of the therapy as an input, in combination with teachings in
Zhang directed to using impedance and blood pressure sensors in treating
ADHF in patients. Final Act. 4—5. In response to similar arguments
advanced by Appellants and discussed above, the Examiner states that
“Brugger is used only for its teachings of feedback control (establishing a
target profile and detecting an actual profile in order to provide feedback and
achieve the desired fluid status).” Ans. 9.
Appellants point out that the Examiner’s response “conveniently
leaves out the requirement of an expected time period of the therapy,” and
therefore, the combination of Brugger with Zhang would not produce the
claimed invention. Reply Br. 10.
We agree with Appellants that the Examiner has failed to adequately
establish the obviousness of the claim limitation requiring that a target
profile is established using, as an input, an expected time period of the
therapy. Each of independent claims 1, 25, 26, and 27 includes a limitation
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to this effect, and therefore, the rejection of claims 1—12 and 25—28 as being
unpatentable over Zhang and Bragger is not sustained.
Claim 2—Unpatentability over Brugger
Appellants do not present any argument specifically traversing this
rejection. Ordinarily, a failure to argue against a rejection can lead to a
finding that Appellants have waived any such argument, and a summary
affirmance of the rejection. However, because claim 2 depends from claim
1, we assume that Appellants’ arguments directed to claim 1 and the
application of the teachings of Brugger are intended to address this rejection
as well.
The rejection of claim 2 as being unpatentable over Brugger is not
sustained for the same reasons that the anticipation rejection of claim 1 in
view of Brugger is not sustained, namely, that Brugger does not teach nor
suggest using an expected time period of the therapy in establishing a target
profile.
Claim 29—Unpatentability over Zhang, Brugger, and Ohlsson
Similarly, Appellants do not present any argument specifically
traversing this rejection. Ordinarily, a failure to argue against a rejection can
lead to a finding that Appellants have waived any such argument, and a
summary affirmance of the rejection. However, because claim 29 depends
from claim 1, we assume that Appellants’ arguments directed to claim 1 and
the application of the teachings of Zhang and Brugger are intended to
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Application 12/571,091
address this rejection as well. Ohlsson is not relied on in any manner that
overcomes the deficiencies of the combination of Zhang and Brugger.
The rejection of claim 29 as being unpatentable over Zhang, Brugger,
and Ohlsson is not sustained for the same reasons that the obviousness
rejection of claim 1 in view of Zhang and Brugger is not sustained.
DECISION
The rejection of claims 1 and 7 under 35 U.S.C. § 102(b) as being
anticipated by Brugger is REVERSED.
The rejection of claims 1—12 and 25—28 under 35 U.S.C. § 103(a) as
being unpatentable over Zhang and Brugger is REVERSED.
The rejection of claim 2 under 35 U.S.C. § 103(a) as being
unpatentable over Brugger is REVERSED.
The rejection of claim 29 under 35 U.S.C. § 103(a) as being
unpatentable over Zhang in view of Brugger and Ohlsson is REVERSED.
REVERSED
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