Ex Parte Lee et al

Patent Trial and Appeal Board

Mar 10, 2014

12498645 (P.T.A.B. Mar. 10, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MICHAEL T. LEE, DANIEL K. VINUP,
and STEVEN M. GOETZ1
__________

Appeal 2012-002892
Application 12/498,645
Technology Center 3700
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and
LORA M. GREEN, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-29, directed to a device for management of information relating to
neurostimulation therapy. The Examiner has rejected the claims on the
grounds of anticipation and nonstatutory obviousness-type double patenting.
We have jurisdiction under 35 U.S.C. § 6(b).

1 Appellants identify the Real Party-In-Interest as Medtronic, Inc. (App. Br.
3.)

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STATEMENT OF THE CASE
Claims 1-29 are pending and on appeal. Representative claim 1 is
reproduced below:
1. A device comprising:
a memory that stores a plurality of neurostimulation therapy
parameter sets, wherein each of the neurostimulation therapy parameter sets
includes at least one program, and each of the programs includes a plurality
of neurostimulation therapy parameters; and
a processor configured to receive subjective rating information
relating to at least one of effectiveness of delivery of neurostimulation
therapy according to the parameter sets in treating symptoms of the patient
or side effects experienced by the patient due to the delivery of
neurostimulation therapy according to the parameter sets, store the rating
information and information relating to use of the neurostimulation therapy
parameter sets to control the delivery of therapy within the memory in
association with the respective parameter sets, and provide the stored
information to a user,
wherein the information relating to use of the neurostimulation
therapy parameters sets to control the delivery of therapy comprises
information relating to at least one of a total number of times or a total
amount of time that the neurostimulation therapy parameter sets have been
used to control the delivery of the therapy during a period of time.
Claims 1-7, 9, 12, 13, 15, 18, 22, 23, 25, 26, 28, and 29 stand rejected
under 35 U.S.C. § 102(b) as anticipated by Torgerson et al. (US 5,893,883,
patented April 13, 1999) (Ans. 4-6).
Claims 1-29 stand rejected under the doctrine of nonstatutory
obviousness-type double patenting as unpatentable over claims 1-9 and 22-
25 of Application No. 11/685,611 (now US 8,095,220 B2, patented January
10, 2012) (Ans. 3).

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FINDINGS OF FACT
1. Torgerson discloses “a method and apparatus for screening
therapeutic effects” of electrical stimulation of neural tissue (Torgerson, col.
1, ll. 10-30).
2. Torgerson discloses:
Once a set of parameters for the stimulation signals has
been selected, and the respective stimulation signal with those
parameters have been applied on each of the electrodes, [a]
[patient-]user inputs a rating of the pain reduction
corresponding to those stimulation signals via a set of rating
scrolling buttons 420.
(Torgerson, col. 9, ll. 13-18.)
3. Torgerson further discloses:
Once the patient-user has tried a sufficient number of various
parameters and has entered in the respective rating for each set
of those selected parameters, the patient-user returns the
stimulation device to the clinician or physician. Switch 322 is
then set at “PHY” for physician mode. All of the sets of
selected parameters and a respective rating for each set of the
selected parameters has been stored in memory.
(Torgerson, col. 10, ll. 14-21.)
4. Torgerson discloses:
The clinician or physician can scroll through all of the
sets of selected parameters and corresponding ratings.
Alternatively, the stimulation device of the present invention
can include a microprocessor that can rank the sets of selected
parameters according to the level of rating to determine
optimum selected parameters that produced a highest rating of
all ratings stored in memory. In an alternative embodiment, the
data of selected parameters and corresponding ratings stored in
memory can be downloaded to a computer or a printer for
further data analysis.
(Torgerson, col. 10, ll. 52-61.)
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DISCUSSION
Anticipation
The Examiner finds that Torgerson discloses a device that meets all
the limitations of the claim 1, including:
[R]eceiv[ing] subjective rating information relating to the
effectiveness of the delivery of the neurostimulation therapy
according to the parameter sets in treating symptoms of the
patient . . . , stor[ing] the rating information and information
relating to use of the neurostimulation therapy parameter sets
. . . and provid[ing] the stored information to a user on a
display[.]
(Ans. 5.)
Specifically, the Examiner finds that:
[Torgerson] discloses that a patient tries a significant number of
stimulation parameters and enters a respective rating for each
set of selected parameters. Then, all of the sets of parameters
and ratings for each set are stored in memory . . . [and]
displayed so that the physician can scroll through all of the sets
of parameters and ratings[.]
(id. at 7 (emphasis omitted).)
The Examiner finds that the information stored and displayed by
Torgerson includes information “‘related to’ the total number of times a
[neurostimulation therapy parameter] set was used to control therapy” (id. at
6), “since EACH set that is used is stored and rated, and ALL sets are
displayed” (id. at 7). “Therefore,” the Examiner finds that “the displayed
sets will indicate the total number of times the set was used” (id. at 7-8). In
other words, the Examiner finds that the total number of times a parameter
set was used can be derived from the information stored and displayed by
Torgerson.
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Claims 1-7
Appellants contend that the Examiner’s interpretation of the term
“relating to at least one of a total number of times or a total amount of time
that the neurostimulation therapy parameter sets have been used” is
unreasonably broad (App. Br. 10).
During examination, the USPTO must interpret terms in a claim using
“the broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or otherwise that
may be afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
In this case, Appellants do not direct us to anything in the
Specification that explains what is meant by “information relating . . . to a
total number of times.” Turning to the language of claim 1 itself, it is
reasonable to infer that “information . . . compris[ing] information relating
to . . . a total number of times . . . that the neurostimulation therapy
parameter sets have been used” is different from, i.e., broader than,
information that is the “total number of times” that the neurostimulation
parameter sets have been used.
Having considered the plain language of the claims in light of the
Specification, and keeping in mind that Torgerson teaches that the patient
enters a rating for each set of parameters used, that all sets of parameters
used and their respective ratings are stored, and the physician can scroll
through all of the sets of selected parameters and corresponding ratings (FFs
3, 4), we find that the Examiner’s interpretation of claim 1 is not
unreasonably broad. If Appellants wished to limit the claims to the
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interpretation urged, they were free to amend the claims to recite that
specific limitation. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)
(“[D]uring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed.”).
Appellants also argue that Torgerson does not disclose “that
parameter sets are used a plurality [of] times and rated each time the
parameter set was used, as would be required for a list of ratings to indicate
a number of times a parameter set was used” (App. Br. 9).
This argument is not persuasive. Even if we assume for the sake of
argument that Torgerson’s device only stores the most recent rating if a
patient uses a parameter set more than once, claim 1 does not require that
any one parameter set is used a plurality of times.
The rejection of claim 1 as anticipated by Torgerson is affirmed, as is
the rejection of claims 2-7, which were not separately argued. See 37 C.F.R.
§ 41.37(c)(1).
Claims 13 and 22
Appellants contend that the Examiner “failed to show that Torgerson
discloses . . . all the elements of claim 13” for at least the reasons presented
above with respect to independent claim 1, and “claim 22 is also not
anticipated by . . . Torgerson for at least the reasons put forth above with
respect to independent claim[] 13” (App. Br. 13).
We are not persuaded for the reasons discussed above in connection
with claim 1.
The rejection of claims 13 and 22 as anticipated by Torgerson is
affirmed.
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Claims 9, 15, and 25
We agree with Appellants that the Examiner has not established that
Torgerson discloses “a processor configured to generate a diagram that
illustrates which of the parameter sets was being used to provide
neurostimulation therapy at various times throughout a day and display the
diagram via the display” (App. Br. 15), as required by claims 9, 15, and 25.
The rejection of claims 9, 15, and 25 as anticipated by Torgerson is
reversed.
Claims 12, 18, and 28
We agree with Appellants that the Examiner has not established that
Torgerson discloses that its “processor is configured to generate a trend
diagram of a value of a neurostimulation program parameter over time based
on the recorded information and display the trend diagram via the display”
(App. Br. 16), as required by claims 12, 18, and 28.
The rejection of claims 12, 18, and 28 as anticipated by Torgerson is
reversed.
Claims 23, 26, and 29
We agree with Appellants that the Examiner has not established that
Torgerson discloses that its “processor is configured to generate a diagram
that illustrates the activation, deactivation and modification of the
neurostimulation therapy during consecutive time periods . . . and display
the diagram via the display” (App. Br. 13), as required by claim 23 and its
dependent claims.
The rejection of claim 23 and dependent claims 26 and 29 as
anticipated by Torgerson is reversed.
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Accordingly, the rejection of claims 1-7, 9, 12, 13, 15, 18, 22, 23, 25,
26, 28, and 29 as anticipated by Torgerson is affirmed with respect to claims
1-7, 13, and 22, and reversed with respect to claims 23, 25, 26, 28, and 29.
Double Patenting
Claims 1-29 stand rejected under the doctrine of nonstatutory
obviousness-type double patenting as unpatentable over claims 1-9 and 22-
25 of Application No. 11/685,611, now US 8,095,220.
Appellants acknowledge the rejection (App. Br. 3; Reply Br. 3), but
have not addressed it otherwise.
Accordingly, the rejection of claims 1-29 under the doctrine of
nonstatutory obviousness-type double patenting is summarily affirmed.
SUMMARY
The rejection of claims 1-7, 9, 12, 13, 15, 18, 22, 23, 25, 26, 28, and
29 as anticipated by Torgerson is affirmed with respect to claims 1-7, 13,
and 22, and reversed with respect to claims 23, 25, 26, 28, and 29.
The rejection of claims 1-29 under the doctrine of nonstatutory
obviousness-type double patenting is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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