Ex Parte Kivi et al

Patent Trial and Appeal Board

Mar 7, 2016

12565859 (P.T.A.B. Mar. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/565,859 0912412009
27581 7590 03/09/2016
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
FIRST NAMED INVENTOR
Gary P. Kivi
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.
P0033854.0l/LG10126 1325
EXAMINER
FLORY, CHRISTOPHER A
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
03/09/2016 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 GARY P. KIVI, JA VAID MASOUD, and
YUYING (MAE) CHAO
Appeal2014-000961
Application 12/565,859 1
Technology Center 3700
Before KENNETH G. SCHOPPER, BRADLEY B. BAY AT, and
MATTHEWS. MEYERS, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-24. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
BACKGROUND
According to Appellants, "[t]he disclosure relates generally to
implantable medical devices and, in particular, to recovery of a wireless
communication session between an implantable medical device and another
device." Spec. 1.
1 According to Appellants, the real party in interest is Medtronic, Inc.
Appeal Br. 4.
Appeal2014-000961
Application 12/565,859
CLAHvIS
Claims 1-24 are on appeal. Claim 1 is illustrative of the appealed
claims and recites:
1. A device for reestablishing a communication sess10n
compnsmg:
an antenna; and
a telemetry module coupled to the antenna, the telemetry
module configured to detect loss of an established
communication session, attempt to reestablish the
communication session on a same channel as the established
communication session that was lost, and attempt to reestablish
the communication session on any channel of a plurality of
available channels using a wakeup feature of the telemetry
module upon the failure to reestablish the communication
session on the same channel.
Appeal Br. 16.
REJECTION
The Examiner rejects claims 1-24 under 35 U.S.C. § 102(b) as
anticipated by Bange. 2
DISCUSSION
Appellants argue claims 1-3, 5-7, 9-12, 14--16, 18-20, 22, and 24 as
a group and direct their arguments to claim 1. Appeal Br. 7. For the reasons
set forth below, we agree with Appellants that the Examiner erred in
rejecting claim 1 as anticipated by Bange.
With respect to claim 1, the Examiner finds that Bange discloses a
method for reestablishing a communications session including an antenna
and telemetry module as claimed. Final Action 2 (citing Bange Figs. 1, 3-5;
2 Bange et al., US 2008/0055070 Al, pub. Mar. 6, 2008.
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Appeal2014-000961
Application 12/565,859
i1i15-9, 12-14, 27, 28). With respect to the requirement that the telemetry
module is configured to attempt to reestablish the communication session on
the same channel as the session that was lost, the Examiner also finds that
Bange discloses a method to maintain communications by assigning "an
alternate frequency to a same channel once the session has degraded
sufficiently to be considered failed" and "[b ]y assigning a new frequency to
the same channel, the device is attempting to reestablish communications
within that same channel." See Pre-Appeal Conference Decision, mailed
May 23, 2013. The Examiner also cites Bange's disclosure "that the device
may decide to continue communications only on one channel and suspends
the channel hoping [sic] routine." Id.
However, we agree with the Appellants that the Examiner failed to
establish that Bange discloses a telemetry module as claimed, because Bange
does not disclose that the telemetry module is configured to attempt to
reestablish communications on the same channel. See Appeal Br. 7-12.
Bange discloses a telemetry system and method for establishing and
maintaining communications between an implant and an external device
"with an improved tolerance to noise from external sources." Bange,
Abstract. Bange discloses a frequency hopping scheme in which the implant
and external device "synchronously switch from channel to channel at
predetermined times according to a synchronous channel scan list during a
communications session in order to minimize the effects of noise in one of
the channels." Id. at i-f 9. When a "frequency-hopping failure" occurs on a
particular channel, Bange discloses that the time slot for that channel may be
removed from the channel list, i.e. that channel is simply removed from the
list, or the channel list may be modified to include a previously unused
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Appeal2014-000961
Application 12/565,859
channel, i.e. a new channel replaces the old one. Id. We agree with
Appellants that this scheme fails to disclose the claimed configuration,
which would require an attempt to reestablish communications on the failed
channel.
Further, we are not persuaded that Bange discloses a method in which
an attempt is made to reestablish communications on the same channel. We
find that all portions of Bange cited by the Examiner describe the same
frequency hopping method described above and do not disclose an attempt
to reestablish communications as claimed. To the extent the Examiner relies
on Bange i-f 19 for such a disclosure, we disagree. The Examiner finds that
Bange discloses a method in which the channel is either removed or the
same channel is reassigned to a different frequency. Ans. 4 (citing Bange i-f
19). The Examiner is correct that this portion of Bange states that "[t]he first
method [of modifying the channel scan list] is channel reassignment to an
alternate frequency, while the second method is channel removal." Bange i-f
19. However, we find that the description that follows makes clear that this
first method changes the channel in the scan list from one channel to
another, e.g. from channels CO-C3 to channels C16-C19, and does not
disclose changing the frequency of a particular channel, as the Examiner
proposes. Id. at i-f 21. Finally, to the extent the Examiner attempts to
distinguish physical channels and logical channels to support the rejection
(see Ans. 4--5), we are unpersuaded for the reasons provided by Appellants,
i.e. we agree with Appellants that both logical and physical channels point to
the same frequency. See Reply Br. 3--4.
For these reasons, we determine that the Examiner failed to set forth a
prima facie showing of anticipation with respect to claim 1. Accordingly,
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Appeal2014-000961
Application 12/565,859
we do not sustain the rejection of claim 1. For the same reasons, we do not
sustain the rejection of claims 2-24.
CONCLUSION
For the reasons set forth above, we reverse the rejection of claims 1-
24.
REVERSED
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