Ex Parte Davis et alDownload PDFPatent Trial and Appeal BoardMay 11, 201612986683 (P.T.A.B. May. 11, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/986,683 01107/2011 71996 7590 05/13/2016 SHUMAKER & SIEFFERT, P.A 1625 RADIO DRIVE, SUITE 300 WOODBURY, MN 55125 FIRST NAMED INVENTOR Jon P. Davis 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. 1023-916US01/P0036907.0l 6908 EXAMINER HOLMES,REXR ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 05/13/2016 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): pairdocketing@ssiplaw.com medtronic _neuro _ docketing@cardinal-ip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JON P. DA VIS, STEVEN M. GOETZ, JAMES ZIMMERMAN, LYNN A. DAVENPORT, RAJEEV M. SAHASRABUDHE, and DAVID SIMONS 1 Appeal2014-000512 Application 12/986,683 Technology Center 3700 Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and MARK A. GEIER, Administrative Patent Judges. GEIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from the Examiner's rejection of claims 1-5, 8-11, 13-16, 18-23, and 25. 2 Reply Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 Appellants indicate that the real party in interest is Medtronic, Inc. Appeal Br. 3. 2 Appellants cancelled claims 6, 7, 17, and 24 and those claims are not before us on this Appeal. Amendment After Final Action, filed Mar. 20, 2013. In addition, the Examiner withdrew the two rejections of claim 12 and that claim is not before us on this appeal. Ans. 4--5. Appeal 2014-000512 Application 12/986,683 THE CLAIMED SUBJECT MATTER The claimed subject matter relates to "medical devices and, more particularly, to programmable medical devices that deliver therapy." Spec. i-f 2. Claims 1, 10, 14, and 20 are independent. Claim 1 is illustrative and recites: 1. A method comprising: obtaining a data set recorded over time during the delivery of a medical therapy, the data set corresponding to a plurality of therapy factors associated with delivery of the medical therapy to a patient with a medical system including an implantable medical device (IMD); receiving a user selection of a subset of the data set, the subset of the data set including less than all information relating to the therapy factors in the data set; and in response to the user selection, presenting a representation, corresponding to the subset of the data set, of the therapy factors on a display of a programmer to facilitate user evaluation of the medical therapy based on the therapy factors, wherein presenting the representation of the therapy factors corresponding to the subset of the data set comprises presenting representations, corresponding to the subset of the data set, of two or more of the therapy factors simultaneously along a common time line on the display of the programmer. THE REJECTIONS ON APPEAL The Examiner rejected claims 1-5, 8-11, 13-16, 18-23, and 25 under 35 U.S.C. § 102(b) as anticipated by Miesel (US 2007/0249968 Al; pub. Oct. 25, 2007). The Examiner also rejected claims 1-5, 8-11, 13-16, 18-2 3, and 2 5 under 35 U.S.C. § 102(b) as anticipated by Heroth (US 2005/0209645 Al; pub. Sept. 22, 2005). 2 Appeal 2014-000512 Application 12/986,683 ANALYSIS Rejection of Claims 1-5, 8-11, 13-16, 18-23, and 25 as anticipated by Mies el Claim 1 The central dispute is whether Miesel discloses the limitation "wherein presenting the representation of the therapy factors corresponding to the subset of the data set comprises presenting representations, corresponding to the subset of the data set, of two or more of the therapy factors simultaneously along a common time line on the display of the programmer." See Appeal Br. 8 (emphasis added). The Examiner finds that Miesel discloses the foregoing limitation in paragraphs 10, 42, and 82. See Adv. Act. mailed March 27, 2013 at 2 ("[T]he Miesel reference clearly states that the information can be displayed as a trend diagram over time instead of the chart as shown in figure 7."); see also Ans. 6. In particular, the Examiner focuses on the following disclosure of paragraph 10: The computing device may also present other posture information to a user, such as a trend diagram of identified postures over time, or a histogram or pie chart illustrating percentages of time that the patient assumed certain postures. The computing device may generate such charts or diagrams using posture events associated with a particular one of the therapy parameter sets, or all of the posture events identified by the medical device. Miesel i-f 10; see also Ans. 6. The Examiner finds that such disclosure "show[s] more than one therapy factor and further include[s] more information than just posture, such as posture and stimulation parameters over time." Ans. 6. Appellants challenge the Examiner's findings with respect to paragraph 10 of Miesel. Appellants argue that the final sentences of 3 Appeal 2014-000512 Application 12/986,683 paragraph 10 of Miesel "only reference[] the presentation of posture information over time, and thus, does not disclose presenting representations ... of two or more of the therapy factors simultaneously along a common timeline." Reply Br. 3. We agree with Appellants' interpretation of the last two sentences of paragraph 10 of Miesel. The critical issue is whether Miesel's disclosures have the requisite identity to the relevant claim language to constitute anticipatory disclosures. In that respect, we agree with the Examiner that Miesel teaches: (1) displaying a plurality of posture events, which may be presented "as a trend diagram of identified postures over time" and (2) that the device may present "such charts or diagrams using posture events associate[ d] with" other therapy parameter sets. See Miesel i-f l O; Ans. 6. We further see no error in the Examiner's finding that put together, the foregoing disclosures mean that Miesel teaches "more information than just posture, such as posture and stimulation parameters over time." This is not, however, what the claim requires. The claim requires that posture and another factor be displayed "simultaneously along a common time line." In our view, that Miesel's charts may include posture events "associated with a particular one of the therapy parameter sets, or all of the posture events" does not disclose that Miesel displayed the posture events and another therapy parameter on a common timeline. Indeed, one could read Miesel's disclosure as relating only to the display of two subsets of posture events: ( 1) those that are associated with a therapy parameter set (e.g., changes in posture that result from a therapy being administered) and (2) all posture changes. In the latter, it is clear that only posture events are displayed. In the former, it is not clear that Miesel would display the posture event and the 4 Appeal 2014-000512 Application 12/986,683 associated therapy parameter on a common timeline or whether, for example, only the posture event would be on the timeline and the therapy parameter would be displayed in some other manner (e.g., labelling the trend line as posture changes resulting from changes in therapy factor X). In sum, we see no basis for a finding that one of skill in the art would have understood the last two sentences of Miesel' s paragraph 10 to disclose that the posture information and an additional therapy factor were displayed "simultaneously along a common time line on the display" as the claim requires. 3 For the foregoing reasons, we do not sustain the Examiner's rejection of claim 1 and dependent claims 2-5, 8, 9, 11, and 13 as anticipated by Miesel. Claim 10 Independent claim 10 recites presenting representations of two or more therapy factors simultaneously on the display of the programmer "wherein the two or more of the therapy factors include a record of patient posture and a breakdown of individual stimulation slots usage over time." Appeal Br. 26, Claims App. (emphasis added). The Examiner finds that paragraph 10 of Miesel discloses the foregoing limitation. See, e.g., Ans. 6-10. The Examiner's sole finding with respect to the disputed limitation in claim 10 is the following: ["]The computing device may generate such charts or diagrams using posture events associated with a particular one of the therapy parameter sets, or all of the posture events identified by 3 We also note that the Examiner has not provided any reasoning why paragraphs 42 and 82 include an anticipatory disclosure and also note that neither paragraph 42, nor paragraph 82, appears to include a disclosure with more detail than paragraph 10. See Miesel i-fi-142, 82. 5 Appeal 2014-000512 Application 12/986,683 the medical device." Thus showing more than one therapy factor and further including more information than just posture, such as posture and stimulation parameters for each posture over time. Ans. 7 (quoting Miesel ,-r 10).4 As argued by Appellants, the Examiner has not explained why the foregoing is an anticipatory disclosure of the claimed therapy factor including "a breakdown of individual stimulation slots usage over time." Without any reasoning or explanation from the Examiner, we do not sustain the Examiner's rejection of claim 10 as anticipated by Miesel. Claim 14 Independent claim 14 recites, inter alia, "presenting representations ... of two or more of the therapy factors simultaneously on the display of the programmer." Appeal Br. 28, Claims App. The Examiner finds that paragraph 10 of Miesel: "show[ s] more than one therapy factor and further including more information than just posture .... " Ans. 8-9. Appellants contend that the Examiner's findings are deficient "[f]or reasons similar to those expressed [] with respect to claim 1." Appeal Br. 13. With respect to claim 1, Appellants' argue that Miesel does not anticipate claim 1 because claim 1 recites presenting representations of two or more of the therapy factors simultaneously on the display of the programmer and because claim 1 requires that such representations be along a common 4 At page 7 of the Answer, the Examiner provides a heading entitled "Group 4 and/or Group 10 - (Claim 12)." The heading is in reference to claim group headings coined by Appellants (see Appeal Brief at 11 and 19, respectively) regarding claim 10, not claim 12. The Examiner's reference to claim 12 in the heading "Group 4 and/or Group 10 - (Claim 12)" is believed to be a typographical error and we will treat the discussion beneath that heading as referring to claim 10 rather than claim 12. 6 Appeal 2014-000512 Application 12/986,683 timeline. See Appeal Br. 8-10; Reply Br. 3. Notably, the limitation "along a common timeline" is not present in claim 14 and, therefore, only Appellants' first argument is pertinent to claim 14. Appeal Br. 28, Claims App. Paragraph 10 of Miesel states in part (with emphasis added): "A computing device, such as a programming device, or, in some external medical device embodiments, the medical device itself, presents a list of the plurality of parameter sets and associated posture metric values via a display." Appellants' Specification indicates that in addition to posture metric values other relevant therapy factors include "therapy parameters for therapy applied to the patient" (Spec. i-f 42), "an objective record of the electrical stimulation therapy delivered to the patient" (Spec. i-fi-1 107, 254 ), and "therapy parameters" (Spec. i-f 141 ). As noted by the Examiner, Figure 7 of Miesel "shows a representation of the [claimed] data in chart form." Ans. 9. 5 Figure 7 ofMiesel is reproduced below and lists electrical stimulation therapy parameters along with posture metric values as therapy factors that may be simultaneously displayed by a programmer. 5 Appellants likewise point to Fig. 7 of Miesel as a graphical representation of how therapy may be administered to a patient. In this regard, Appellants state: "Miesel discloses presenting therapy factors without regard to a timeline. For example, Miesel, FIG. 7 illustrates an example presentation of data associated with the delivery of a therapy .... " Appeal Br. 8-9 (emphasis added). 7 Appeal 2014-000512 Application 12/986,683 • • • N P'A"5.1>V P'il~'· ~ 21t1-m~ PR xl)QH2 f'A,,fN Fw~ 19am~ PR~'SSM:{ PA"'·HlV F'W »2~5m>l P;Ft~ tGH.r %UPRLGtff FIG. 7 Figure 7 of Miesel depicts an exemplary chart. IB.ANS!I!OOSIHQ!..!B: We agree with the Examiner that Figure 7 of Miesel includes not only posture information, but also information under the heading "parameters" that corresponds to a second therapy factor. Furthermore, as depicted in Figure 7, the two or more therapy factors are displayed simultaneously as claim 14 requires. As such, Appellants' arguments to the contrary do not apprise us that the Examiner erred in finding that Miesel discloses the disputed limitation of claim 14. For these reasons, we sustain the Examiner's rejection of claim 14 and dependent claims 15, 16, 18, and 19 as anticipated by Miesel. Claim 20 Independent claim 20 recites, inter alia, presenting representations of two or more therapy factors simultaneously on the display of a programmer. Appeal Br. 30; Claims App. And, like claim 14, the limitation "along a common timeline" is not present in claim 20. Id. 8 Appeal 2014-000512 Application 12/986,683 The Examiner's findings and Appellants' arguments with respect to claim 20 are essentially the same as those stated in respect to claim 14. See, e.g., Ans. 9--10; Appeal Br. 14--15. Accordingly, for the same reasons expressed above in connection with claim 14, we sustain the Examiner's rejection of claim 20 and dependent claims 21-23 and 25 as anticipated by Miesel. Rejection of Claims 1-5, 8-11, 13-16, 18-23, and 25 as clearly anticipated by Heruth The Examiner's rejections based upon Heroth are based upon findings and reasoning substantially identical to those the Examiner relied upon in the rejections over Miesel. Indeed, we note that Heroth and Miesel are related applications, with Heroth being the grandparent application of Miesel, and that the applications contain substantial overlapping subject matter. The Examiner's rejection relies upon paragraph 10 of Heroth. See Ans. 5-10. Paragraph l 0 of Heruth is essentially identical in content to paragraph l 0 of Miesel, and Figure 6 of Heroth is essentially identical to Figure 7 of Miesel. Compare Heroth Fig. 6 and i-f 10, with Miesel Fig. 7 and i-f 10. Further, the Examiner's reasons for relying on Figure 6 and paragraph 10 Heroth as anticipating claims 1-5, 8-11, 13-16, 18-23, and 25 are inseparable from the reasons relied upon by the Examiner regarding Figure 7 and paragraph 10 ofMiesel. See Ans. 5-10. Likewise, Appellants' arguments regarding the Examiner's rejections of claims 1-5, 8-11, 13-16, 18-23, and 25 as anticipated by Heroth are essentially the same as those offered in connection with Miesel. See Appeal Br. 15-23. Accordingly, for the same reasons stated with regard to Miesel, we do 9 Appeal 2014-000512 Application 12/986,683 not sustain the Examiner's rejection of claims 1, 2-5, 8-11, and 13 as anticipated by Heroth, and we do sustain the Examiner's rejection of claims 14--16, 18-23, and 25 as anticipated by Heroth. CONCLUSION We reverse the Examiner's rejection of claims 1-5, 8-11, and 13 under 35 U.S.C. § 102(b) as anticipated by Miesel. We affirm the Examiner's rejection of claims 14--16, 18-23, and 25 under U.S.C. § 102(b) as anticipated by Miesel. We reverse the Examiner's rejection of claims 1-5, 8-11, and 13 under 35 U.S.C. § 102(b) as anticipated by Heroth. We affirm the Examiner's rejection of claims 14--16, 18-23, and 25 under U.S.C. § 102(b) as anticipated by Heroth. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 10 Copy with citationCopy as parenthetical citation