Ex Parte HintzDownload PDFPatent Trial and Appeal BoardDec 30, 201612907481 (P.T.A.B. Dec. 30, 2016) 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. 12/907,481 10/19/2010 William J. Hintz P0035739.00/1111-220US01 2076 80584 7590 Medtronic, Inc. 710 Medtronic Parkway Minneapolis, MN 55432 EXAMINER SCHAETZLE, KENNEDY ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 01/04/2017 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_crdm_docketing @ c ardinal-ip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILLIAM J. HINTZ Appeal 2014-006237 Application 12/907,4811 Technology Center 3700 Before ANTON W. FETTING, MICHAEL C. ASTORINO, and CYNTHIA L. MURPHY, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—4, 6—11, and 13—20 under 35 U.S.C. § 103(a) as unpatentable over Mouchawar (US 5,480,412, iss. Jan. 2, 1996) and Cho (US 6,885,891 B2, iss. Apr. 26, 2005). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to the Appellant, “[t]he Real Party in Interest is Medtronic, Inc., of Minneapolis, MN, the assignee of record.” Appeal Br. 3. Appeal 2014-006237 Application 12/907,481 Claimed Subject Matter Claims 1, 8, 19, and 20 are the independent claims on appeal. Claim 1 is illustrative of the subject matter on appeal. 1. A method comprising: filtering a signal received by an electrical sensing channel of an implantable medical device (IMD) configured to detect electrical depolarizations of a heart of a patient; identifying a failure of the electrical sensing channel of the IMD based on the filtered signal; in response to identifying the failure, initiating a mechanical sensing channel of the implantable medical device to identify mechanical cardiac contractions; and controlling delivery of therapeutic electrical stimulation to the patient based on the identified mechanical cardiac contractions. ANALYSIS Independent claim 1 and dependent claims 2—4, 6, and 7 The Appellant argues that the Examiner’s rejection, which combines the teachings of Mouchawar and Cho, fails to disclose the following steps of claim 1: “identifying a failure of the electrical sensing channel of the IMD based on the filtered signal” and “in response to identifying the failure, initiating a mechanical sensing channel of the implantable medical device to identify mechanical cardiac contractions.” See Appeal Br. 11—14. As discussed below, the Appellant’s argument is based on assertions that are not persuasive. The Appellant asserts that “because the object of Mouchawar is mechanically sensing cardiac wall displacement to better detect and discriminate cardiac arrhythmias, a person of ordinary skill would have consciously avoided modification of Mouchawar to . . . wait for failure of an 2 Appeal 2014-006237 Application 12/907,481 electrical sensing channel to initiate sensing of cardiac wall displacement.” Appeal Br. 11. However, we agree with the Examiner’s finding that “Mouchawar explicitly teaches that the device may be programmed to operate in one of several modes,” and in one of those modes the device “may be programmed to respond to either processing system 350 (motion sensing channel) or to the IEGM sensing circuit 316 (cardiac electrical signal sensing channel) exclusively,” i.e., “that the electrical sensing channel may be used as the exclusive source (i.e., the only sensor being used).” Ans. 6—7 (citing Mouchawar, col. 10,11. 1—20). Because Mouchawar discloses that the cardiac electrical signal sensing channel may be the only active channel, the Appellant’s assertion that a person of ordinary skill would have consciously avoided modification of Mouchawar in the proposed manner is not persuasive. Notably, the Appellant asserts that “Mouchawar discloses that the system may be programmed to respond exclusively to one of two active sensing channels, motion sensing or cardiac electrical signal sensing.” Reply Br. 6. The Appellant’s assertion is not persuasive because it fails to explain how a person of ordinary skill in the art would understand that when Mouchawar is operating in an exclusive mode that both the electrical sensing channel (i.e., IEGM sensing circuit 316) and mechanical sensing channel (i.e., processing system 350 (motion sensing channel)) are active. Rather, we find that a person of ordinary skill in the art would understand the opposite, i.e., that when Mouchawar’s device is programmed to the respond to IEGM sensing circuit 316 exclusively, the channel for system 350 particular to mechanically sensing cardiac wall displacement is not active. 3 Appeal 2014-006237 Application 12/907,481 The Appellant asserts that “Cho teaches how to identify whether a sensor or sensors in a dual integrated sensor mode may be failing, and to switch into either a single sensor mode or a non-rate responsive mode” and “disabling one or more faulty sensors, rather than initiating one sensor in response to failure of another sensor.” Appeal Br. 13; see Reply Br. 7—8. However, the Examiner finds that “Cho teaches . . . that when operating a multi-sensor device in an exclusive mode (‘Activity Only’ or ‘MV Only’), failure of the active sensor results in deactivation of said problem sensor and activation of a remaining working sensor.” Ans. 8; see id. at 8—9 (citing to Cho, Figs. 5—6). We agree with the Examiner. Cho discloses the use of a patient activated switch 19 that “may be used by the patient initiate sensor(s)... to switch from the active sensor(s) to another sensor.” Cho, col. 8,11. 41—44 (emphasis added). The use of this control switch is depicted in the flow diagrams of Cho’s Figures 5 and 6. As such, Cho teaches control over the type and number of sensors that are active and initiated. Here, a person of ordinary skill in the art would understand that Cho teaches the use of a single sensor mode and that the flow diagrams of Figures 5 and 6 detail situations where one sensor is experiencing problems and so a second workable sensor is activated (i.e., initiated). See Ans. 8—9. As such, a person of ordinary skill in the art would understand that Cho teaches switching from a failed sensing channel to a different sensing channel by initiating the latter channel. The Appellant asserts that: Cho does not teach how to initiate a mechanical sensing channel in response to the identification of a failure of the electrical sensing channel both of which sense the same physical aspects of the patient, but rather teaches how to identify whether two 4 Appeal 2014-006237 Application 12/907,481 distinctly different sensors in a dual integrated sensor mode may be failing, and to disable the faulty sensor or activate a recovered sensor. Reply Br. 8. However, the Examiner’s rejection does not rely solely on Cho to teach all of the features of the claimed method. Rather, the Examiner relies on Mouchawar to disclose the types of sensing channels and Cho to disclose “activating] a second sensor upon detection of a failure in a first sensor.” Ans. 7; see Final Act. 2—3. Similarly, the Appellant asserts “Cho teaches identifying a problematic sensor based on an accelerometer signal and then switching a sensor mode” and that “[sjwitching a sensing channel is not the same as controlling delivery of therap[e]u[]tic stimulation.” Appeal Br. 12. However, as pointed out by the Examiner, the rejection relies on Mouchawar — not Cho — to teach “controlling delivery of therapeutic stimulation.” Ans. 10; see Final Act. 3—A. Thus, we sustain the Examiner’s rejection of independent claim 1 and dependent claims 2—4, 6, and 7, which are not separately argued. Independent claims 8, 19, and 20, and dependent claims 9—11 and 13—18 The Appellant provides separate headings (i.e., groups) for independent claims 8 and dependent claims 9—11 and 13—18, independent claim 19, and independent claim 20. Appeal Br. 14—16. For each group, the Appellant asserts that the limitations of claims 8, 19, and 20 are substantially similar to those of claim 1 and rely on the argument presented for claim 1 for claims 8, 19, and 20. Id. The Appellant also relies on the argument for claim 8 for the claims that depend from claim 8. See id. at 15. Thus, for the same reasons we have sustained the rejection of claim 1, we likewise sustain the rejection of claims 8—11 and 13—20. 5 Appeal 2014-006237 Application 12/907,481 DECISION We AFFIRM the Examiner’s decision rejecting claims 1—4, 6—11, and 13-20. 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 6 Copy with citationCopy as parenthetical citation