Ex Parte Ideker

Board of Patent Appeals and Interferences

Feb 3, 2011

10648162 (B.P.A.I. Feb. 3, 2011)

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.
10/648,162 08/26/2003 Raymond E. Ideker 5656-33 3541
20792 7590 02/03/2011
MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
BERTRAM, ERIC D
ART UNIT PAPER NUMBER
3766
MAIL DATE DELIVERY MODE
02/03/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte RAYMOND E. IDEKER
____________________

Appeal 2009-009664
Application 10/648,162
Technology Center 3700
____________________

Before: WILLIAM F. PATE III, JENNIFER D. BAHR, and
FRED A. SILVERBERG, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009664
Application 10/648,162
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
12, 15-18, 21-49 and 52-57. Br. 1We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
The claims are directed to methods, systems and computer program
products for selectively initiating interventional therapy to reduce the risk of
arrhythmia. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for selectively initiating interventional therapy in a
subject, comprising:
chronically detecting electrical activity in first and
second cardiac regions in the subject;
identifying discordant alternans in at least one component
of the detected electrical activity based on a comparison of the
electrical activity in the first and second cardiac regions; and
initiating interventional therapy in the subject responsive
to the identification of discordant alternans, wherein the
electrical activity comprises an electrogram from internally
implanted electrodes positioned in an internal chamber and/or
vessel of the heart of the subject.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Christini
Pastore
US 6,915,156 B2
US 6,965,797 B2
Jul. 5, 2005
Nov. 15, 2005
Tsuyoshi Konta et al., Significance of Discordant ST Alternans in Ventricular
Fibrillation, 82 Circulation, 2185, 2185-2190 (1990) (hereinafter “Konta”).

Appeal 2009-009664
Application 10/648,162
3
REJECTIONS
Claims 1-3, 5-12, 15-18, 21-26, 28-40, 42-49 and 52-57 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Konta and Christini.
Ans. 4.
Claims 4, 27 and 41 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Konta, Christini and Pastore. Ans. 6.

OPINION
Appellant argues claims 1-3, 5-12, 15-18, 21-26, 28-40, 42-49 and 52-
57 as a group2. Br. 5-7. We select claim 1 as the representative claim, and
claims 2, 3, 5-12, 15-18, 21-26, 28-40, 42-49 and 52-57 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii). Although argued under a separate
subheading, Appellant’s argument regarding the rejection of claims 4, 27
and 41 is premised solely upon dependence. Br. 7.
Appellant summarizes the prior art as follows:
Christini proposes that a single electrode can be used to detect
concordant alternans. Christini uses a relatively small number
of electrodes, such as can be connected to a pacemaker or
implantable cardiac defibrillator. See Christini, col. 5, lines 60-
62. Christini does not teach the analysis of discordant alternans
or that alternans are identified “based on a comparison of the
electrical activity in the first and second cardiac regions” as
recited in independent Claims 1, 18 and 38. Although the
Action takes the position that Konta discloses these features,
Konta requires 60 electrodes that are attached to the exposed
pericardium of a dog. See Konta, page 2185, col. 2. Thus,
neither reference discloses or renders obvious identifying
discordant alternans based on a comparison of the electrical
activity in the first and second cardiac regions using electrodes

2 We note that on pages 5 and 7 of the Brief this list should apparently
include claims 52-57 to be consistent with page 1. See also Ans. 2-3.
Appeal 2009-009664
Application 10/648,162
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that are internally implantable and positioned in an internal
chamber and/or vessel of the heart of the subject.
Br. 6.
We agree with Appellant that no single reference discloses identifying
discordant alternans based on a comparison of the electrical activity in the
first and second cardiac regions using electrodes that are internally
implantable and positioned in an internal chamber and/or vessel of the heart
of the subject. However, “[n]on-obviousness cannot be established by
attacking the references individually when the rejection is predicated upon a
combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citation omitted). The subject matter of claim 1
involves nothing more than applying the known technique described by
Christini to the known process described by Konta in order to yield the
predictable result of rapidly detecting discordant alternans, and therefore
would have been obvious to one of ordinary skill in the art.
Konta demonstrates the desirability of detecting discordant alternans
since “an increased amplitude and discordance of ST alternans during acute
myocardial ischemia are related to ventricular fibrillation and act as
indicators of time and spatial unevenness of ventricular repolarization.”
Abst. Konta uses an electrode sock attached to the epicardium to detect
discordant alternans. P. 2185, col. 2, fig. 1. Konta also suggests using a body
surface electrocardiographic mapping technique to perform this detection.
P. 2188, col. 2. Konta suggests that suppression of the detected alternans
may be accomplished via drug therapy. P. 2188, col. 1.
Christini also recognizes the desirability of detecting repolarization, or
T-wave alternans since they have been closely associated with vulnerability
to ventricular arrhythmias, including fibrillation. Col. 2, ll. 3-39. Christini,
Appeal 2009-009664
Application 10/648,162
5
like Konta, recognizes that surface electrocardiographic techniques may be
used to detect repolarization alternans. Col. 2, ll. 54-62. Christini seeks to
improve upon that technique by using intracardiac electrodes, such as those
contained in the leads of pacemakers and implantable cardiac defibrillators,
in order to perform a much more rapid detection than surface
electrocardiographic analysis. Id. Christini recognizes that alternans may be
concordant or discordant. Col. 2, ll. 7-9. Although Christini contemplates
placing the internal electrodes at a plurality of locations, Christini’s signal
analysis discussion focuses on analyzing a signal from a single electrode to
detect alternans. See case study 2, particularly col. 8, ll. 63-67; col. 10, ll.
63-65 and claims 10 and 20. Thus, as Appellant points out, Christini is likely
detecting only concordant alternans since there is no discussion of
comparing the phases of signals from multiple electrodes. See Br. 7; see also
Spec. 4:8-12 and Fig. 6 (defining discordant alternans).
Appellant contends that there would be no reasonable expectation of
success in using Christini’s intracardiac electrodes to identify discordant
alternans. Br. 7. This argument is not persuasive. Although Christini does
not expressly describe this capability, as noted above, the structure to
perform this function, multiple intracardiac electrodes at a plurality of
locations, is disclosed. Absolute predictability that a substitution will be
successful is not required; all that is required is a reasonable expectation of
success. See In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988). Since
Christini specifically suggests that intracardiac electrodes provide certain
advantages over surface electrocardiographic techniques, one of ordinary
skill in the art would have a reasonable expectation that the same analysis
that Konta suggests, which can be performed via surface
electrocardiographic techniques, could also be performed using Christini’s
Appeal 2009-009664
Application 10/648,162
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intracardiac electrodes. Detecting discordant, as opposed to concordant,
alternans would only require a comparison of the signals received from the
electrodes at multiple locations. See Spec. 4:8-12 and Fig. 6. One of
ordinary skill in the art would have known how to implement Christini’s
intracardiac electrodes into Konta’s process in order to arrive at a device that
rapidly detects discordant alternans.

DECISION
For the above reasons, the Examiner’s rejections of claims 1-12, 15-
18, 21-49 and 52-57 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)(1)(iv).

AFFIRMED

nlk

MYERS BIGEL SIBLEY & SAJOVEC
PO BOX 37428
RALEIGH NC 27627