Ex Parte Carpenter et al

Patent Trial and Appeal Board

Sep 23, 2012

11381493 (P.T.A.B. Sep. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREG CARPENTER, JOSEPH E. BANGE, PETER J. MUSTO,
WILLIAM R. MASS, and JONATHAN HEDSTROM
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Appeal 2010-008283
Application 11/381,493
Technology Center 3700
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Before LINDA E. HORNER, PATRICK R. SCANLON, and
BRADFORD E. KILE, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Greg Carpenter et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-14 and 29. Claims 15-
28 have been withdrawn from consideration. We have jurisdiction under
35 U.S.C. § 6(b).
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We AFFIRM.
THE INVENTION
Appellants’ claimed invention relates to systems for communicating
with implantable medical devices. Spec. 1, ll. 12-13. Claims 1 and 29 are
independent. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A system including an external medical data telemetry
device to communicate with an implantable medical device
(IMD), the external medical data telemetry device comprising:
a processor;
a reconfigurable far field radio-frequency (RF)
transceiver circuit, operable to modulate an outgoing IMD data
signal and to demodulate an incoming IMD data signal using at
least one modulation type that is selectable from a plurality of
configurable far field RF modulation types by the processor;
at least one far-field antenna, in electrical communication
with the reconfigurable RF transceiver circuit, the far field
antenna for RF wireless communication with an IMD using the
RF modulation technique; and
a user interface, in electrical communication with the
processor, wherein the processor selects the far field RF
modulation type using information entered by a user.
THE EVIDENCE
The Examiner relies upon the following evidence:
Heemels US 5,603,331 Feb. 18, 1997
Grevious US 6,443,891 B1 Sep. 3, 2002
Von Arx ‘898 US 2003/0114898 A1 Jun. 19, 2003
Von Arx ‘208 US 2005/0283208 A1 Dec. 22, 2005
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THE REJECTIONS
Appellants seek review of the following rejections:
1. Claim 1 is rejected under 35 U.S.C. § 102(b) as anticipated by
Grevious.
2. Claim 1 is rejected under 35 U.S.C. § 102(e) as anticipated by
Von Arx ‘208.
3. Claim 1-10 and 29 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Heemels and Grevious.
4. Claim 1 and 11-14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Von Arx ‘898 and Grevious.
ISSUES
The issues presented by this appeal are:
Does Grevious disclose “a reconfigurable far field radio-frequency
(RF) transceiver circuit”?
Does Von Arx ‘208 disclose a reconfigurable far field radio-frequency
(RF) transceiver circuit that is operable to modulate an outgoing IMD data
signal and demodulate an incoming IMD data signal using at least one
modulation type that is selectable from a plurality of configurable far field
RF modulation types by the processor?
Does Heemels disclose “a reconfigurable far field radio-frequency
(RF) transceiver circuit” and “at least one far-field antenna” as called for in
claim 1?
Would the combined teachings of Von Arx ‘898 and Grevious have
led one of ordinary skill in the art to the system as called for in claim 1?
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ANALYSIS
Rejection of claim 1 as anticipated by Grevious
The Examiner determined that Grevious’s telemetry module 29 is a
“reconfigurable far field radio-frequency (RF) transceiver circuit” as called
for in claim 1. Ans. 3. Appellants argue that the Examiner erred in this
determination because “Grevious relates to inductive and near-field
telemetry.” App. Br. 10. Appellants argue that the Examiner’s definition of
far-field to include inductive telemetry is unreasonably broad in view of
Appellants’ Specification. App. Br. 11.
The Examiner appears to take two positions. First the Examiner states
that “the adjectives ‘near’ and ‘far’ are merely relative terms that are
subjective in nature and are not limited to any particular structure and should
be given there [sic, their] broadest most reasonable interpretation.” Ans. 13.
We disagree with the Examiner’s interpretation of “far-field.” Appellants’
Specification describes that one type of near-field telemetry “is based on
inductive coupling between two closely-placed coils using the mutual
inductance between these coils” and one type of far-field telemetry “is
performed using an RF transceiver in the implantable medical device and an
RF transceiver in the external system.” App. 11/068,478, p. 2, ll. 6-18.1
Appellants’ Specification then defines “far-field” as follows:
A far-field, also referred to as the Fraunhofer zone, refers to the
zone in which a component of an electromagnetic field
produced by the transmitting electromagnetic radiation source

1 App. 11/068,478, filed Feb. 28, 2005, is incorporated by reference in the
present application. Spec., 1, ll. 4-8 and Spec. 12, ll. 19-24.
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decays substantially proportionally to 1/r, where r is the
distance between an observation point and the radiation source.
Accordingly, far-field refers to the zone outside the boundary of
r = λ/2π, where λ is the wavelength of the transmitted
electromagnetic energy.
Id. at p. 8, l. 28 – p. 9, l. 3. Based on the description and definition of “far-
field” provided in Appellants’ Specification, one of ordinary skill in the art
would not understand “far-field” to refer merely to a relative term that is
subjective in nature and is not limited to any particular structure.
Second, the Examiner states that the Appellants’ have misread
Grevious, and that Grevious, when read as a whole, discloses a “far-field”
telemetry system because it describes the ability of the programmer device
to communicate with several implantable medical devices with one request.
Ans. 13-14. In particular, the Examiner states:
It is the examiner’s opinion that any type of antenna
system that is capable of functioning in a similar manner as
expressed by Grevious is within the spirit of the Grevious
disclosure and that the disclosure is not limited to coil
inductance telemetry and certainly no [sic, not] to coil on coil
mutual inductance telemetry. That the functioning in Grevious
includes the ability to communicate with several IMDs from a
distance as noted at column 6 line 63 through column 7 line 13
teaches away from such. The true spirit and scope of the
invention is not limited to a particular telemetry scheme but is
defined by how it is used with the IMDs, and this case as a “far-
field” communication system, e[.]g[.,] capable of spaced apart
communication between programmer and IMD.
Ans. 14.
Grevious discloses that “[t]he telemetry system of the present
invention is a symmetrical, half-duplex communications link that uses the
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same inductive coupled physical transmission method to uplink and
downlink.” Col. 6, ll. 19-22, emphasis added. Grevious then describes that
“[t]o initiate a session the programmer will broadcast a medical device ID
request. All medical devices within range of the device ID request will
uplink their medical device ID. . . . The user may then select the appropriate
medical device via the programmer.” Col. 6, l. 65 – col. 7, l. 4.
Grevious does not disclose a particular range within which its
telemetry system will work. As such, the basis for the Examiner’s position
that Grevious discloses a telemetry system that operates at a far-field range
is speculative. “A claim is anticipated only if each and every element as set
forth in the claim is found, either expressly or inherently described, in a
single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d
628, 631 (Fed. Cir. 1987). For these reasons, we do not sustain the
Examiner’s rejection of claim 1 as anticipated by Grevious.

Rejection of claim 1 as anticipated by Von Arx ‘208
The Examiner determined that Von Arx ‘208 discloses a
“reconfigurable far field radio-frequency (RF) transceiver circuit (28)
capable of modulating an outgoing IMD data signal and to demodulate an
incoming IMD data signal [para. 0028] using at least one modulation type
that is selectable from a plurality of configurable far field RF modulation
types by the processor (25) [para. 0023].” Ans. 4. Appellants argue the
Examiner erred in this reading of Von Arx ‘208 because “the encoding
protocol of the cited portions of Von Arx ‘208 merely relates to a level of
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redundancy in a transmitted message rather than to a modulation type, as
recited in claim 1.” App. Br. 13.
While we agree with the Examiner that Von Arx ‘208 discloses the
use of a far field radio-frequency transceiver circuit (para. [0028]), we
disagree that Von Arx ‘208 describes that the transceiver circuit is operable
to modulate and demodulate the data signals using a modulation type
selected from a plurality of types. Instead, Appellants’ reading of the
disclosure of Von Arx ‘208 seems more reasonable.
Von Arx ‘208 discloses “selecting an encoding protocol according to
the type of communication mode to be conducted” and teaches that “by
introducing a varying degree of redundancy in the encoded signal, or by
selecting alternative encoding protocols, the present subject matter alters the
ratio of the information bandwidth relative to the transmitted signal
bandwidth.” Para. [0023]. Von Arx ‘208 further discloses that in one
example the messages “are encoded with redundant data which, for a given
data rate, reduces the data throughput rate” and that “[t]he encoding protocol
allows for a greater communication range at a given error rate or a reduced
error rate for a given communication range.” Para. [0032]. As such, the
Examiner’s determination that Von Arx ‘208 discloses the reconfigurable
far-field radio-frequency transceiver circuit as called for in claim 1 is not
supported by a preponderance of the evidence. For this reason, we do not
sustain the Examiner’s rejection of claim 1 as anticipated by Von Arx ‘208.
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Rejection of claims 1-10 and 29 as unpatentable over Heemels and Grevious
Appellants argue claims 1-10 and 29 as a group. App. Br. 16-17. We
select claim 1 as representative, and claims 2-10 and 29 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner determined that Heemels discloses “a reconfigurable
far field radio-frequency (RF) transceiver circuit” and “at least one far-field
antenna” as called for in claim 1. Ans. 5-7 (pointing, respectively, to the
transceiver and the inverted bisected triangle shown in the external medical
data telemetry device 42 of Figure 2). The Examiner relied on Grevious to
disclose that the processor selects the modulation type using information
entered by a user. Ans. 6. Appellants argue that neither Heemels nor
Grevious discloses far field telemetry. App. Br. 16.
Heemels describes, with respect to Figure 2, that the external
programmer device 42 is entirely conventional. Col. 4, ll. 35-36. Heemels
depicts an antenna in Figure 2 using an inverted, bisected triangle symbol.
We note that the prior art uses this same inverted, bisected triangle symbol
to depict a far field antenna. See, e.g., Von Arx ‘898, para. [0049] and fig. 2
(“Far field module 230 is coupled to antenna 235, herein depicted by an RF
antenna.”). See also Von Arx ‘898, figs. 3-5 and 8.2 As such, the Examiner
has provided sufficient evidence to support the finding by a preponderance
of the evidence that the symbol used in Figure 2 of Heemels to depict the

2 As noted by the Examiner, Appellants also use an inverted triangle to
depict far field antenna 1220 in Figure 12.
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antenna denotes a far field RF antenna in the art, and thus the finding that
the transceiver depicted in the figure is a far field RF transceiver circuit.
Appellants argue that the conventional external programmer device of
Heemels must use near-field telemetry because Heemels describes, in the
discussion of the prior art, that “[l]ong-term telemetry of raw data from an
implanted device is undesirable because the low energy available to the
implanted transmitter requires that the external receiver be worn by the
patient in close proximity to the implanted device.” Col. 1, ll. 27-31.
Appellants, notably, do not provide any evidence directly rebutting the
Examiner’s finding that the inverted triangle symbol in Heemels is
conventionally used to denote a far field RF antenna. We disagree with
Appellants’ assumption that Heemels’s description of a prior art device that
may use near field telemetry, necessitates a finding that the external
programmer device of Heemels uses near field telemetry.
As such, the Examiner’s findings that Heemels discloses “a
reconfigurable far field radio-frequency (RF) transceiver circuit” and “at
least one far-field antenna” are supported by a preponderance of the
evidence, and Appellants have not persuaded us of error in these findings.
Accordingly, we sustain the rejection of claims 1-10 and 29 under 35 U.S.C.
§ 103(a) as unpatentable over Heemels and Grevious.
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Rejection of claims 1 and 11-14 as unpatentable over Von Arx ’898 and
Grevious
Appellants argue claims 1 and 11-14 as a group. App. Br. 17. We
select claim 1 as representative, and claims 11-14 stand or fall with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner found:
Von Arx [‘898] discloses . . . a reconfigurable far field radio-
frequency (RF) transceiver circuit (120B, 110B) capable to
modulate an outgoing IMD data signal and to demodulate an
incoming IMD data signal; [and] at least one far-field antenna
(101B) in electrical communication with the reconfigurable RF
transceiver circuit (120B, 110B), the far field antenna (101B)
for RF wireless communication with an IMD (100) using the
RF modulation technique [see fig. 1].
Ans. 9-10. Appellants do not contest these findings. The Examiner relied
on Grevious to teach a telemetry modulation protocol system for a medical
device wherein the processor automatically selects a modulation protocol
configuration based on information entered by a user. Ans. 10-11. The
Examiner concluded:
[I]t would have been obvious to one with ordinary skills in the
art by the time the invention was made to modify Von Arx
[‘898] to have at least one modulation type that is selectable
from a plurality of configurable far field RF modulation types
by the processor and that the processor selects the far field
modulation type using information entered by a user in view of
Grevious[‘s] teachings since both teaches [sic, teach] telemetry
transmission of data to and from an implantable device.
Ans. 11.
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Appellants argue the Examiner erred in the determination of
obviousness of claim 1 because “Grevious clearly relates to inductive and
near-field telemetry and not to far-field RF telemetry” and thus “Von Arx
‘898 with Grevious, either individually or in combination or with the
reasoning of the Office Action, do not establish all of the elements recited in
claim 1 and incorporated into claims 11-14.” App. Br. 17. Appellants’
argument does not address the rejection as set forth by the Examiner. In this
ground of rejection, the Examiner does not base the conclusion of
obviousness on a finding that Grevious discloses far-field RF telemetry.
Rather, the Examiner relies on the clear disclosure of far-field RF telemetry
in Von Arx ‘898.
In particular, Von Arx ‘898 discloses a system that includes both near
field wireless communication means, i.e., inductive coupling, and far field
wireless communication means, i.e., far field RF coupling. Para. [0007]; fig.
1. Von Arx ‘898 teaches that “[t]he ability to communicate using a plurality
of modes, such as a far field and near field mode, may provide advantages
that are not otherwise available with a single communication mode.”
Para. [0071]. Grevious teaches “a standardized telemetry system that
automatically selects a modulation protocol configuration to establish a
reliable symmetric telemetry link between medical devices and
programmers” so as to avoid higher costs for consumers due to conventional
systems, which require products and protocols to be tailored to their specific
needs and applications. Col. 2, ll. 22-28 and 51-55. We agree with the
Examiner that it would have been obvious to one of ordinary skill in the art
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at the time of the invention to implement the standardized telemetry
technique of Grevious in the telemetry system of Von Arx ‘898 because both
systems relate to telemetry transmission of data to and from an implantable
device and because Grevious’s standardized telemetry technique results in
lower costs for consumers. As such, we sustain the rejection of claims 1 and
11-14 under 35 U.S.C. § 103(a) as unpatentable over Von Arx ‘898 and
Grevious.
CONCLUSIONS
Grevious does not disclose “a reconfigurable far field radio-frequency
(RF) transceiver circuit.”
Von Arx ‘208 does not disclose a reconfigurable far field radio-
frequency (RF) transceiver circuit that is operable to modulate an outgoing
IMD data signal and demodulate an incoming IMD data signal using at least
one modulation type that is selectable from a plurality of configurable far
field RF modulation types by the processor.
Heemels discloses “a reconfigurable far field radio-frequency (RF)
transceiver circuit” and “at least one far-field antenna” as called for in
claim 1.
The combined teachings of Von Arx ‘898 and Grevious would have
led one of ordinary skill in the art to the system as called for in claim 1.
DECISION
We REVERSE the decision of the Examiner to reject claim 1 under
35 U.S.C. § 102(b) as anticipated by Grevious and claim 1 under
35 U.S.C. § 102(e) as anticipated by Von Arx ‘208. We AFFIRM the
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decision of the Examiner to reject claims 1-10 and 29 under
35 U.S.C. § 103(a) as unpatentable over Heemels and Grevious and claims 1
and 11-14 under 35 U.S.C. § 103(a) as unpatentable over Von Arx ‘898 and
Grevious.
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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