Ex Parte Cabelka et alDownload PDFPatent Trial and Appeal BoardSep 30, 201613476127 (P.T.A.B. Sep. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/476, 127 05/21/2012 27581 7590 10/04/2016 Medtronic, Inc. (CRDM) 710 MEDTRONIC PARKWAY NE MS: LC340 Legal Patents MINNEAPOLIS, MN 55432-9924 FIRST NAMED INVENTOR Lonny V. Cabelka 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 ATTORNEY DOCKET NO. CONFIRMATION NO. P0036837.USU4/LG10126.L33 9247 EXAMINER CAREY, MICHAEL JAMES ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 10/04/2016 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@cardinal-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LONNY V. CABELKA and MARK A. MAASS Appeal2014-007122 Application 13/476,127 Technology Center 3700 Before MICHELLE R. OSINSKI, BEYERL Y M. BUNTING, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal2014-007122 Application 13/476,127 CLAIMED SUBJECT MATTER The claims are directed to charge control for a high voltage therapy energy storage component. Claims 1, 9, and 16 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An implantable medical device comprising: a power source; a therapy module that includes at least one energy storage component; a charging module coupled between the power source and the therapy module, wherein the charging module is configured to obtain a measurement representative of an average power drawn from the power source over a predetermined period of time and to terminate charging of the at least one energy storage component based at least on the measurement representative of an average power drawn from the power source. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Mulhauser Waltman Schulman Stessman Doerr D 'Ambrosio US 6,778,365 B2 US 6,839,590 B2 US 7,235,050 B2 US 7,509,167 B2 US 2011/0148365 Al US 2012/0157755 Al REJECTIONS Aug. 17, 2004 Jan.4,2005 June 26, 2007 Mar. 24, 2009 June 23, 2011 June 21, 2012 Claims 1-8 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Doerr, D' Ambrosio, Mulhauser, Schulman, Waltman, and Stessman. 2 Appeal2014-007122 Application 13/476,127 Claims 9-15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over D' Ambrosio, Doerr, Mulhauser, Schulman, Waltman, and Stessman. Claims 16-20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over D' Ambrosio, Doerr, Mulhauser, and Schulman. OPINION Our decision is limited to the issues before us for review. We do not review arguments that could have been made by the Appellants or the Examiner. "The Board does not 'allow' claims of an application and cannot direct an examiner to pass an application to issuance. Rather, the Board's primary role is to review adverse decisions of examiners including the findings and conclusions made by the examiner." Ex parte Frye, No. 2009- 006013, 15 (BPAI Feb. 26, 2010)(precedential); see also In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Claims 1--8 The Examiner finds that Doerr discloses the majority of the limitations of claim 1, except for the requirement that "the measurement is [representative of] the average power drawn from the [power] source." Final Act. 2-3. The Examiner states that D' Ambrosio 1 teaches "a device to monitor available charge ... wherein the charging module monitors the average power drawn from the power source obtained through a plurality of data points and calculates a threshold cutoff voltage." Id. at 3 (citations 1 Though the rejection of claim 1 lists six references, the Examiner appears to rely solely on Doerr and D' Ambrosio. 3 Appeal2014-007122 Application 13/476,127 omitted). The Examiner reasons that "[i]t would have been obvious to modify Doerr to include the average voltage measurement and threshold such as that taught by D' Ambrosio as this measurement is 'more accurate than prior art systems that gauge charge based on voltage alone (paragraph [0038]). "' Id. at 3. Acknowledging that the Examiner took this reasoning directly from D' Ambrosio, Appellants contend that "such reasoning appears completely unrelated to terminating charging of the at least one energy storage component [of a therapy module] based at least on the measurement representative of an average power drawn from the power source." Appeal Br. 8. Rather, Appellants argue, the benefits identified by the Examiner are specific to "determining the remaining charge of the battery (i.e., battery runtime)." Id. In response to the Examiner's contention that one of skill in the art "would see D 'Ambrosio's system as an improvement over the system in Doerr to monitor power drain, and at the very least would find it obvious to try" (Ans. 3--4), Appellants argue that "one of ordinary skill in the art would not look to a battery longevity monitoring reference like D 'Ambrosi[ o] to control termination of charging of a capacitor whenever the magnetic presaturation of the transformer exceeds a threshold value as taught by Doerr" (Reply Br. 3). Doerr terminates charging of a capacitor (i.e., an energy storage component) when a predefined threshold value for the magnetic presaturation of the transformer is exceeded (Doerr ,-r 9), and this exceedance "is detected by measuring a minimum battery voltage during the charging and a maximum voltage difference before and during charging" (id. 4 Appeal2014-007122 Application 13/476,127 if 15). The Examiner acknowledges that although Doerr is configured to terminate charging of the capacitor based on a measurement of the power source (Final Act. 2), "Doerr does not disclose that the measurement is [representative of] the average power drawn from the [power] source" (id. at 3). Because D' Ambrosio is specific to improving accuracy in gauging or measuring remaining charge left in a battery by using additional metrics, we are persuaded by Appellants' argument that using these metrics for assessing when to terminate charging of a capacitor in Doerr would not be obvious to one of skill in the art. In other words, simply because D 'Ambrosio's metrics may provide a more accurate indication of the remaining charge of a battery or power source, this does not explain why a person of ordinary skill in the art would have used that metric in Doerr for terminating charging of a capacitor or the energy storage component of a therapy module. Appellants have persuasively explained that the Examiner's stated reason to modify Doerr-i.e., improved accuracy in gauging charge left in a battery-lacks rational underpinnings. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)) ("[R]ejections on obviousness grounds ... [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."). The Examiner has not articulated reasoning having a rational evidentiary underpinning to explain why one of ordinary skill in the art would have been motivated to use the voltage measurement teachings of D' Ambrosio in connection with Doerr' s device. For the foregoing reasons, we do not sustain the Examiner's rejection of independent claim 1, nor claims 2-8 which depend therefrom, under 35 5 Appeal2014-007122 Application 13/476,127 U.S.C. § 103(a) as unpatentable over Doerr, D' Ambrosio, Mulhauser, Schulman, Waltman, and Stessman. Claims 9 and 14-16 Appellants argue claims 9 and 14--16 together as a group. Appeal Br. 12-14. Claims 9 and 16 are independent, and claims 14 and 15 depend from claim 9. We select claim 9 as representative. See 37 C.F.R. § 41.37(c)(l)(iv). As to claim 9, Appellants rely on their arguments with respect to claim 1, where they argue that D 'Ambrosio does not teach or suggest averaging. Appeal Br. 6-8. It was not necessary for us to address this argument above as Appellants successfully argued against the rejection of claim 1 on other grounds. Thus, we address this argument below. With respect to claim 9, the Examiner found that D 'Ambrosio "discloses a device to monitor available charge in an implantable device wherein the charging module monitors the average power drawn from the power source." Final Act. 5. Noting that D' Ambrosio does not disclose features including terminating power to the energy storage component after a threshold voltage is attained, the Examiner relies on Doerr, reasoning that "[i]t would have been obvious to modify D'Ambrosio to include the termination of power such as that taught by Doerr in order to prevent the power source from being completely exhausted." Id. Appellants disagree and argue that "D' Ambrosio fail[ s] to disclose the charging module monitoring the average power drawn from the power source." Appeal Br. 6. Rather, Appellants argue, "D 'Ambrosio appears to utilize the instantaneous (i.e., current) charge and instantaneous (i.e., 6 Appeal2014-007122 Application 13/476,127 current) consumption rate." Id. Appellants further respond that "[t]he [Examiner's] premise that an instantaneous rate is the same thing as an average is false." Id. at 7. In response, the Examiner explains that under "the broadest reasonable interpretation ... 'average power drawn' [of the claims] and 'power consumption rate' [taught by D 'Ambrosio] are synonymous and would be indistinguishable by a person having ordinary skill in the art." Final Act. 9. According to the Examiner, "a rate ... is computed as a unit measured divided by a unit time." Id. Power is a rate of doing work and, more particularly, is the amount of energy consumed per unit time. See, e.g., Power, The American Heritage Dictionary of the English Language, available at https://www.ahdictionary.com/word/ search.html?q=power (last visited Sept. 30, 2016). Although we agree with Appellants that an instantaneous rate and an average rate would not necessarily be the same thing, we are not persuaded by Appellants that the Examiner is improperly equating current power (i.e., current rate of doing work) with average power (i.e., average rate of doing work). Rather, the Examiner's position is that the average power drawn (i.e., average amount of energy consumed per unit time) can be equivalent to the current power consumption rate (i.e., the energy consumed over a certain period of time per unit time). That is, average power drawn would be representative of how much power was used, on average, over a certain period of time, which would involve determining the energy consumed and then dividing by the period of time. Similarly, because power consumption is cumulative over a measured period of time, the current power consumption rate would be the energy consumed over the measured period 7 Appeal2014-007122 Application 13/476,127 of time (i.e., up until the current time), divided by the amount of time (i.e., up until the current time). Accordingly, Appellants have not persuaded us that the Examiner erred in finding the power consumption rate of the power source of D' Ambrosio to be synonymous with a measurement representative of an average power drawn from the power source, as claimed. Appellants further argue that "rate is a quantity of a first variable measured per unit of a second variable," whereas "average ... is a single value that represents the general significance of a set of values." Appeal Br. 7. We are not persuaded by this argument in that it fails to account for the fact that average power necessarily involves a first variable (e.g., energy) measured per unit of a second variable (e.g. time) in that power itself is a rate of doing work. Appellants also argue: The Examiner has provided no rational reason as to why one of ordinary skill in the art would modify D 'Ambrosio to include an energy storage component within the therapy module of the V AD [ventricular assist device] in D 'Ambrosio that is charged by the battery source and then terminating the charging of the energy component of the therapy module. Appeal Br 13. Though Appellants make the above statement, they do not persuasively explain why the Examiner's proffered reason to combine is insufficient, or why the combination would not result in the claimed invention. In particular, Appellants' statements regarding D 'Ambrosio being generally directed toward computing remaining battery life and Doerr being generally directed to terminating charging of a capacitor under predefined conditions (Appeal Br. 13) fails to persuasively explain why the 8 Appeal2014-007122 Application 13/476,127 Examiner's reasoning relating to terminating charging so as to prevent complete exhaustion lacks rational underpinnings. Moreover, Appellants argue that "D' Ambrosio does not even appear to provide any description of an energy storage component of a therapy module," let alone "controlling charging of at least one energy storage components of a therapy module of an implantable medical device." Id. The Examiner replies that D 'Ambrosio teaches a therapy module 514 at paragraph 35 (Answer 5), and the Examiner relies on Doerr for teaching terminating the power to a therapy module of an implantable medical device (Final Act. 5) Appellants do not respond or provide further explanation as to how the Examiner's findings are in error and fail to support the Examiner's conclusion of obviousness. For these reasons, we sustain the Examiner's decision rejecting claims 9 and 14--16.2 Claims 10--12 and 17-19 Appellants argue claims 10, 12, 17, and 19 together as a group while referring to arguments made with respect to claim 2. Appeal Br. 14. Appellants also separately argue claims 11 and 18, which depend from claims 10 and 17, respectively. Id. at 14--15. We review Appellants' arguments with respect to claim 2 insofar as they are applicable to the noted claims. Claim 10 depends from claim 9 and adds, among other features, that "the measurement representative of the average power drawn from the 2 We note that claim 16 recites "the at least one energy storage component," but fails to provide antecedent basis for this term. 9 Appeal2014-007122 Application 13/476,127 power source comprises an average voltage of the power source." Claim 10 also adds "obtaining a plurality of voltage measurements representative of a voltage of the power source and computing the average voltage of the power source using the plurality of voltage measurements." Appeal Br. 10. The Examiner finds that D' Ambrosio teaches these steps in paragraphs 38 and 41. Final Act. 5. Appellants argue that the Examiner's finding that D 'Ambrosio teaches these steps are in error. Final Act. 14, 10 ("There is no description or indication in the referenced portions of D' Ambrosio of obtaining a plurality of voltage measurements representative of a voltage of the power source and computing the average voltage of the power source using the plurality of voltage measurements."). The Examiner responds by directing Appellants "to the disclosure of a hybrid method in determining the power drawn from the power supply in which voltage measurements are iteratively gathered over a period of time to determine the power drawn from the power supply." Ans. 4 (citing D' Ambrosio i-f 47). In reply, Appellants maintain that paragraph 47 merely "describes iterated (repeated) calculations of the remaining battery life," but fails to teach obtaining a plurality of voltage measurements and computing the average voltage using them. Reply Br. 3-4. Although the Examiner has adequately shown how D 'Ambrosio's power consumption rate is a measurement representative of an average power drawn as described hereinabove, Appellants argue convincingly that the Examiner has failed to show how D' Ambrosio's power consumption rate or its hybrid method (in which method steps are integrated on a schedule) is 10 Appeal2014-007122 Application 13/476,127 a teaching of the specific steps relating to computing the average voltage of the power source using a plurality of voltage measurements. For these reasons, we do not sustain the Examiner's decision rejecting claim 10, and claims 11 and 12, which depend therefrom. We also do not sustain the Examiner's decision rejecting claim 17, which recites instructions that cause the implantable medical device to compute the average voltage of the power source using the plurality of voltage measurements, and claims 18 and 19, which depend therefrom, for these same reasons. Claims 13 and 203 Claim 13 depends from claim 9 and adds "wherein the charging module computes the average power over a period of time that is less than approximately 50 milliseconds." In rejecting claim 13 the Examiner states: Schulman discloses an implantable device wherein electrical signals are averaged over a period of 10 milliseconds to determine an average signal (Claim 9). It would have been obvious to modify D' Ambrosio to include the averaging interval as taught by Schulman to sense spikes in the power drawn from the energy source. Final Act. 6. Appellants argue: the techniques described in the referenced section [of Schulman] are related to the averaging (integration) of sensed electrical signals, (i.e., neuro-response signals), not measurements of power draw. Appellant fails to see how this is relevant to 3 We note that claims 13 and 20 refer to "the charging module," whereas the claims from which they depend fail to provide antecedent basis for this term. 11 Appeal2014-007122 Application 13/476,127 features of Appellant's claim 5, which is directed to computing the average voltage of a power source over a period of time that is less than approximately 50 milliseconds. Appeal Br. 12. The Examiner then clarifies that "Schulman [is used to] demonstrate that sampling of an electrical signal, such as a voltage, at the rate of 50 milliseconds or less is a technique that is known in the art." Answer 4. To this, Appellants respond that "the Examiner has still provided no reason as to why one of ordinary skill in the art would look to the sampling of sensed physiological electrical signals to modify the applied references to have a sampling rate of the power source of 50 milliseconds. The two types of signals are completely unrelated." Reply Br. 5. Appellants' arguments do not inform us of error in the Examiner's reasoning or rejection. Appellants state the Examiner has not provided a reason to "look to the sampling of sensed physiological electrical signals to modify the applied references to have a sampling rate of the power source of 50 milliseconds." Id. Appellants' arguments do not explain why the Examiner's stated reason to combine-i.e., to sense spikes in the power drawn from the energy source-is lacking or why it would not be obvious to one of skill in the art to modify D' Ambrosio based on a sampling technique that the Examiner found to be known in the art. For these reasons, we sustain the Examiner's decision rejecting claim 13. Because claim 20 depends from claim 17, for which we do not sustain the Examiner's rejection for reasons described hereinabove, we also do not sustain the Examiner's decision rejecting claim 20. 12 Appeal2014-007122 Application 13/476,127 DECISION The Examiner's rejections of claims 1-8, 10-12, and 17-20 are reversed. The Examiner's rejections of claims 9 and 13-16 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)(l )(iv). AFFIRMED-IN-PART 13 Copy with citationCopy as parenthetical citation