Ex Parte Ellingson

Patent Trial and Appeal Board

Aug 18, 2016

13035349 (P.T.A.B. Aug. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/035,349 02/25/2011
27581 7590 08/22/2016
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
FIRST NAMED INVENTOR
Michael L. Ellingson
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.
P0039060.00/LG10126.L33 2614
EXAMINER
D ABREU, MICHAEL JOSEPH
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
08/22/2016 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 MICHAEL L. ELLINGSON
Appeal2014-008806
Application 13/035,349
Technology Center 3700
Before LYNNE H. BROWNE, LISA M. GUIJT, and
GORDON D. KINDER, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael L. Ellingson (Appellant) appeals under 35 U.S.C. § 134 from
the rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2014-008806
Application 13/035,349
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method comprising:
transitioning operation of the implantable medical device
to a first exposure operating mode in which the implantable
medical device does not provide pacing prior to or upon the
implantable medical device being exposed to an environment
having one or more external fields known to possibly cause
undesirable effects on the implantable medical device;
monitoring signals on at least one lead while operating in
the first exposure operating mode; and
upon failing to sense a minimum number of signals on the
at least one lead while operating in the first exposure operating
mode, transitioning operation of the implantable medical device
from the first exposure operating mode to a second exposure
operating mode in which the implantable medical device
provides pacing that is not responsive to sensing.
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lib bus US 2006/0271118 Al Nov. 30, 2006
REJECTIONS 1
I. Claims 1, 2, 6-9, 13-16, and 18-20 stand rejected under 35
U.S.C. § 102(b) as anticipated by Libbus.
II. Claims 3-5, 10-12, and 17 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Libbus.
1 The Examiner withdrew the rejection of claims 1-20 under 35 U.S.C.
§ 112, first paragraph, in the Advisory Action mailed December 5, 2013.
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Appeal2014-008806
Application 13/035,349
DISCUSSION
Rejection I
The Examiner finds that Libbus discloses each and every limitation of
claim 1. See Final Act. 3--4. In particular, the Examiner finds that Libbus
discloses the step of
transitioning operation of the implantable medical device (e.g.
Fig. 1169; [ 49] - where the triggering effect can be a detected
change in activity) from the first exposure operating mode to a
second exposure operating mode (e.g. Fig. 11, #1168; Fig. 12,
#1278) in which the implantable medical device provides pacing
that is not responsive to sensing (e.g. where the stimulation mode
#1278 only provides stimulation and no sensing) upon failing to
sense a minimum number of signals on the at least one lead while
operating in the first exposure operating mode (i.e. [31] - due to
failing to sense a heartbeat within the escape interval).
Id. at 4 (emphasis added).
Appellant argues that:
The Examiner appeared to misunderstand the demand
pacing mode described in paragraph [0031] of Lib bus .... The
demand pacing mode described in paragraph [0031] of Lib bus is
clearly an operating mode that provides pacing that is responsive
to sensing. The demand pacing mode does not include a
triggering event that causes the device to change operating
modes (such as any of the triggering events listed in paragraphs
[0049] and [0050]). To the contrary, the demand pacing mode is
a single pacing mode in which sensed cardiac events trigger or
inhibit a pacing pulse.
Appeal Br. 7 (emphasis added). The Examiner responds to this argument
by explaining that "[ t ]he examiner is not relying on [31] for rejection of the
step of transitioning." Ans. 3. The Examiner further explains that
paragraphs 49--50, which are relied upon, refer to the inhibited stimulation
mode, not the stimulation and sensing mode. Id. (emphasis added).
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Appeal2014-008806
Application 13/035,349
Paragraph 31 of Lib bus states:
The controller or microprocessor controls the overall
operation of the device in accordance with programmed
instructions and a number of adjustable parameters stored in
memory 327, including controlling the delivery of stimulation
via the channels, interpreting sense signals received from the
sensing channels, and implementing timers for defining escape
intervals and sensory refractory periods. The controller is
capable of operating the device in a number of programmed
stimulation modes which define how pulses are output in
response to sensed events and expiration of time intervals. Most
pacemakers for treating bradycardia are programmed to operate
synchronously in a so-called demand mode where sensed cardiac
events occurring within a defined interval either trigger or inhibit
a pacing pulse. Inhibited stimulation modes utilize escape
intervals to control pacing in accordance with sensed intrinsic
activity such that a stimulation pulse is delivered to a heart
chamber during a cardiac cycle only after expiration of a defined
escape interval during which no intrinsic beat by the chamber is
detected. Escape intervals for ventricular stimulation can be
restarted by ventricular or atrial events, the latter allowing the
pacing to track intrinsic atrial beats. A telemetry interface 328 is
also provided which enables the controller to communicate with
an external programmer or remote monitor.
Lib bus i-f 31 (emphasis added). Thus, in both the demand mode and the
inhibited stimulation mode the pacing is responsive to sensing. See Id.
Accordingly, the Examiner's finding that the inhibited stimulation mode is
not responsive to sensing (see Ans. 3) is in error.
For this reason, we do not sustain the Examiner's decision rejecting
claim 1, and claims 2, 6, 7, and 18 which depend therefrom. The rejection
of independent claims 8 and 15 relies on the same erroneous finding as the
rejection of claim 1. Accordingly, we do not sustain the Examiner's
decision rejecting claims 8 and 15, and claims 9, 13, 14, 16, 19, and 20
which depend therefrom for the same reason.
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Appeal2014-008806
Application 13/035,349
Rejection II
The rejection of claims 3-5, 10-12, and 17 relies upon the same
erroneous finding as the rejection of claim 1 discussed supra. Therefore, we
do not sustain the Examiner's decision rejecting claims 3-5, 10-12, and 17
for the same reason we do not sustain the rejection of claim 1.
DECISION
The Examiner's rejections of claims 1-20 are REVERSED.
REVERSED
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