Ex Parte Brynelsen et al

Patent Trial and Appeal Board

Sep 4, 2015

12145430 (P.T.A.B. Sep. 4, 2015)

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.
12/145,430 06/24/2008 Charles R. Brynelsen 90775-751587 (000610US) 3285
89404 7590 09/04/2015
IntraPace & Townsend & Townsend & Crew LLP
Two Embarcadero Center, Eighth Floor
San Francisco, CA 94111-3834
EXAMINER
HELLER, TAMMIE K
ART UNIT PAPER NUMBER
3766
MAIL DATE DELIVERY MODE
09/04/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHARLES R. BRYNELSEN,
MIR A. IMRAN, and JACOB A. BASHYAM
____________________

Appeal 2013-001271
Application 12/145,430
Technology Center 3700
____________________

Before LYNNE H. BROWNE, GEORGE R. HOSKINS, and
BRANDON J. WARNER, Administrative Patent Judges.

BROWNE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Charles R. Brynelsen et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1–4, 6–16, 24, and 25.1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Claims 5 and 17–23 are canceled.
Appeal 2013-001271
Application 12/145,430

2
CLAIMED SUBJECT MATTER
The claims are directed to a sensor-driven gastric stimulation for
patient management. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A system for use in providing gastric stimulation to a
patient having a stomach, the system comprising:
an ingestion sensor comprising a temperature sensor
positioned within an interior of the stomach so as to sense
information corresponding to a content of the stomach;
a stimulator; and
a processor coupled to the sensor and the stimulator, the
processor configured to determine
an ingestion of material by the patient based on a
temperature sensed by the temperature sensor,
a desirability of the ingestion by the patient, and
a level of stimulation based on the determination
of ingestion and the determination of desirability of ingestion,
wherein the processor comprises a module for
determining the level of stimulation, the module having
personalized patient data recorded thereon,
wherein the module selects a level of stimulation at or
above a personal threshold for the patient in response to a
determination that material has been ingested by the patient and
a determination that ingestion by the patient is undesirable,
wherein the personal threshold of stimulation for the
patient is sufficient stimulation to cause sufficient discomfort in
the patient to stop the undesired ingestion, and
wherein the processor induces the stimulator to transmit
the level of stimulation.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Policker US 7,330,753 B2 Feb. 12, 2008
Osorio
Imran
US 2004/0133390 A1
US 2005/0065571 A1
July 8, 2004
Mar. 24, 2005

REJECTIONS
I. Claims 1–4, 6–8, 10–16, 24, and 25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Policker and Imran.
II. Claim 9 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Policker, Imran, and Osorio.

OPINION
Rejection I
Appellants argue claims 1–4, 6–8, 10–16, 24, and 25 together. See Br.
12–16. We select independent claim 1 as the illustrative claim, and claims
2–4, 6–8, 10–16, 24, and 25 stand or fall with claim 1.
The Examiner finds that Policker discloses all of the limitations of
independent claim 1 except for an “ingestion sensor comprises a temperature
sensor.” Final Act. 3. The Examiner further finds that “Imran teaches using
motion, temperature, pH, optical, and/or pressure sensors to sense when food
has been swallowed (ingestion).” Id. (citing Imran ¶¶ 10, 19, 62). Based on
these findings, the Examine determines that it would have been obvious “to
substitute a temperature sensor, as taught by Imran, for one of the motion
sensors of Policker, to obtain the predictable result of facilitating sensing
food and drink ingestion by a patient and controlling stimulation pulses in
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response to information sensed by the sensors.” Id. at 4. In addition, the
Examiner determines that it would have been obvious “to include a
temperature sensor, as taught by Imran, in the invention of Policker in order
to provide additional ingestion detection and ensure that the detected
swallowing is in fact food or drink ingestion.” Id.
Appellants argue that “[n]owhere does Policker teach using a
temperature sensor positioned within the stomach cavity, determining when
ingestion is desirable, or using a module having personalized patient data
recorded thereon.” Br. 14.
In response, to Appellants’ first argument, the Examiner correctly
notes that this argument is not responsive to the rejection as articulated by
the Examiner, as “Policker is not relied upon to teach a temperature sensor
positioned within the stomach cavity and, instead, Imran is used as a
teaching reference for this aspect of the invention.” Ans. 2. In response to
Appellants’ second argument, the Examiner explains that “the patient’s
eating schedule is disclosed by Policker as being pre-programmed by the
physician into a device memory (see column 5, lines 13-17). As such, the
Examiner respectfully submits that Policker discloses using a module having
personalized patient data, the eating schedule, recorded thereon.” Id. at 3.
The Examiner’s reasoning is sound. Thus, Appellants’ arguments are not
persuasive.
Regarding Imran, Appellants argue that “Imran has not been shown to
disclose a module having personalized patient data recorded thereon.” Br.
15. Again, the Examiner correctly notes that this argument is not responsive
to the rejection as articulated by the Examiner, as “Imran has not been relied
upon for such a teaching.” Ans. 3.
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In addition, Appellants argue that “Policker’s vague mention of
various other supplemental sensors while notably omitting temperature
sensors, would not lead one of ordinary skill in the art to simply replace the
complex motion sensor system with a temperature sensor due to Imran’s
description of a temperature sensor” and that “there would be no apparent
reason to modify the Policker system with a module having personalized
patient data recorded thereon and configured to apply stimulation according
to a personal threshold stimulation level for a given patient.” Br. 15.
A determination of obviousness does not require the claimed
invention to be expressly suggested by any one or all of the references. See,
e.g., In re Keller, 642 F.2d 413, 425 (CCPA 1981). The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results. KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007). A prima facie conclusion of obviousness may be
supported by a showing that the claims are directed to a process, machine,
manufacture, or composition of matter already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, and such modification yields a predictable result. See id. (citing
United States v. Adams, 383 U.S. 39, 40 (1966)). In this case, the Examiner
has made such a showing because claim 1 differs from the prior art by the
mere substitution of one element (a temperature sensor) for another
(Policker’s unspecified mechanical sensors 70 and local sense electrodes
74). Moreover, in addition to the substitution rationale, the Examiner has
provided another reason, discussed supra, with rational underpinnings for
the proposed modification. Appellants do not explain why either rationale
articulated by the Examiner is deficient; thus, they do not apprise us of error.
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In conclusion, Appellants contend that “the claimed invention is far
more than the predictable use of its individual elements according to their
established functions as taught in each of the cited references.” Br. 16
(emphasis omitted). However, Appellants do not provide any evidence or
persuasive argument in support of this contention. An attorney’s arguments
in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974).
For these reasons, we sustain the Examiner’s decision rejecting
independent claim 1, and claims 2–4, 6–8, 10–16, 24, and 25, which fall
therewith.
Rejection II
The Examiner determines that neither Policker nor Imran “provide
that the real-time clock is adjustable by a global positioning system.” Final
Act. 9. The Examiner finds that “Osorio teaches a method and apparatus for
synchronizing real-time clocks of implantable medical device (see Abstract),
that includes adjusting the real-time clock by a global positioning system in
order to account for time differences between different time zones (see
paragraph [0009]).” Id. Based on these findings, the Examiner determines
that it would have been obvious “to modify the real-time clock of Policker in
view of Imran such that it is adjustable by a global positioning system, as
taught by Osorio, in order to account for time differences between different
time zones, and thereby ensure that that patient’s meal schedule is always
accurate.” Id.

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Appellants argue:
Nowhere does Osorio teach a system having a processor having
personal patient data recorded thereon that determines an
ingestion of material based on a temperature sensed by a
temperature sensor or determines a desirability of the ingestion
by the patient, or a module that determines a level of
stimulation based on personal stimulation threshold.
Br. 16 (emphasis omitted).
As with Appellants’ similar arguments discussed supra, the Examiner
correctly notes that Appellants’ argument is not responsive to the rejection
as articulated by the Examiner, as “Osorio is not relied upon to teach such.”
Ans. 4. Thus, Appellants do not apprise us of error. Accordingly, we
sustain the Examiner’s decision rejecting claim 9.

DECISION
The Examiner’s rejections of claims 1–4, 6–16, 24, and 25 are
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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