Ex Parte Brynelsen et alDownload PDFPatent Trial and Appeal BoardSep 4, 201512145430 (P.T.A.B. Sep. 4, 2015) Copy Citation 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. Appeal 2013-001271 Application 12/145,430 3 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 Appeal 2013-001271 Application 12/145,430 4 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. Appeal 2013-001271 Application 12/145,430 5 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. Appeal 2013-001271 Application 12/145,430 6 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. Appeal 2013-001271 Application 12/145,430 7 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 Klh Copy with citationCopy as parenthetical citation