Ex Parte Libbus

Patent Trial and Appeal Board

Jan 19, 2017

13459669 (P.T.A.B. Jan. 19, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/459,669 04/30/2012 Imad Libbus 279.757US2 6183
45458 7590 01/23/2017
SCHWEGMAN LUNDBERG & WOESSNER/BSC
PO BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
01/23/2017 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IMAD LIBBUS
Appeal 2015-002020
Application 13/459,6691
Technology Center 3700
Before BRETT C. MARTIN, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Imad Libbus (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s final rejection of claims 1—20, 22, and 23 under
35 U.S.C. § 102(b) as anticipated by Kieval (US 6,073,048, iss. June 6,
2000) and claim 21 under 35 U.S.C. § 103(a) as unpatentable over Kieval.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Cardiac Pacemakers,
Inc. Appeal Br. 2.
Appeal 2015-002020
Application 13/459,669
CLAIMED SUBJECT MATTER
Claims 1 and 15 are independent. Claim 1 is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A system, comprising:
a neural stimulator configured to generate stimulation
pulses to stimulate a neural target; and
a controller configured to control the neural stimulator to
deliver the stimulation pulses to the neural target to cause a
desired physiological response, wherein the controller includes a
programmed stimulation protocol to maintain the desired
physiological response by varying a neural stimulation intensity
when the stimulation pulses cause the desired physiological
response.
ANALYSIS
Anticipation of Claims 1—20, 22, and 23 by Kieval
Claims 1, 2, 6—14, 16, 17, 19, 20, 22, and 23
Appellant argues claims 1, 2, 6—14, 16, 17, 19, 20, 22, and 23 together
in contesting the rejection of these claims as anticipated by Kieval. See
Appeal Br. 9—14; Reply Br. 2—4. We select claim 1 as the representative
claim for this group, and the remaining claims stand or fall with claim 1.
See 37 C.F.R. 41.37(c)(l)(iv). Appellant presents arguments under separate
headings for claims 3—5, 15, and 18 (Appeal Br. 14—16), which we address
infra.
The Examiner finds that Kieval anticipates the claims by disclosing a
system including, inter alia, “a neural stimulator configured to generate
stimulation pulses to stimulate a neural target” and “a controller . . .
configured to control the neural stimulator to deliver the stimulation pulses
to the neural target to cause a desired response, wherein the controller
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Appeal 2015-002020
Application 13/459,669
includes a programmed stimulation protocol to maintain the desired
physiological response by varying a neural stimulation intensity when the
stimulation pulses cause the desired physiological response.” 2 Final Act. 4
(emphasis added) (citing Kieval, Fig. 1; col. 3,1. 47—col. 4,1. 14).
Without referring to any recited limitations of claim 1, Appellant first
purports to summarize the claimed subject matter as “sustaining baroreflex
therapy. . . [b]y preventing the baroreflex from adapting to increased
baroreflex activity, [so that] long-term baroreflex stimulation can be used to
achieve reflex reduction in hypertension.” Appeal Br. 4. However,
Appellant’s contention is unavailing as it is not commensurate with the
scope of claim 1, which neither recites “baroreflex therapy” nor is limited to
“long-term baroreflex stimulation.” Appeal Br. 18, Claims App. As we are
instructed by our reviewing court, “limitations are not to be read into the
claims from the [Specification.” In re Van Geuns, 988 F.2d 1181, 1184
(Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).
Appellant next contends that “Kieval does not vary the neural
stimulation intensity when the desired response is obtained to maintain the
desired physiological response.” Id. at 9. Appellant points to Kieval,
column 10, lines 1—10, that “indicates that stimulation is increased if the
PVR level is too high, stimulation is decreased if the PVR level is too low,
and the algorithm exits the process if the PVR value is neither too high nor
too low.” Id. at 10.
2 Kieval discloses that “[ijnitial parameter settings can be set by ... a
program in the programmer [controller] that communicates with the
implanted device.” Kieval, col. 7,11. 43^46.
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Appeal 2015-002020
Application 13/459,669
Appellant also contends the cited language from Kieval relied on by
the Examiner “is referring to Kieval’s use of an activity sensor to decrease
stimulation during periods of activity when increased heart rate and blood
pressure are needed (representing an override in the normal closed loop
system/ a change in the desired response to allow higher heart rate and blood
pressure for the detected activity)” and “does not provide a programmed
stimulation protocol that is implemented to vary an intensity of the neural
stimulation pulses when the neural stimulation pulses cause the desired
response to maintain the desired physiological response.” Id. at 12.
We determine the scope of the claims in a patent application by giving
claims “their broadest reasonable interpretation consistent with the
[Specification” and “in light of the specification as it would be interpreted
by one of ordinary skill in the art.” In re Am. Acad, of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). Thus, Appellant’s
contention is not persuasive as it does not point to a lexicographic definition
of “desired physiological response” in the Specification or other disclosure
that is inconsistent with the Examiner’s finding that “the ‘desired
physiological response’ that is maintained [in Kieval] is Kieval’s
predetermined threshold activity level.” Ans. 5.
As the Examiner explains, in Kieval, “the [threshold] patient activity
level is monitored,” and “maintained by either maintaining the nerve
stimulation or varying (increasing/decreasing it) at step 137 (see col. 9, line
46-col. 10, line 14),” again pointing out that “Appellant has not provided
evidence that the [desired] physiological response as claimed is different
from the threshold patient activity level [in Kieval].” Id. at 6. We agree.
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Appeal 2015-002020
Application 13/459,669
Appellant’s final contention is that the preferred embodiment of
Kieval, as illustrated in Figures 6—8, “will not increase the stimulation is
(sic) the activity [level] is above a threshold,” and “does not ‘maintain a
desired response’ to the stimulation,” as recited by claim 1. Appeal Br. 13—
14. However, we agree with the Examiner that “it is the activity level that is
monitored and maintained by the same or varied neurostimulation of
Kieval.” Ans. 6.
Based on the foregoing, we sustain the Examiner’s rejection of claims
1, 2, 6—14, 16, 17, 19, 20, 22, and 23 as anticipated by Kieval.
Claims 3—5
To the extent Appellant is arguing that other limitations of claims 3—5
are not taught by Kieval (see Appeal Br. 14—15), merely listing claim
limitations with broad assertions is not sufficient to inform us of error in the
Examiner’s rejection. See In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[W]e hold that the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art.”).
Thus, we sustain the Examiner’s rejection of claims 3—5 as anticipated
by Kieval for the same reasons stated above with respect to the rejection of
claim 1.
Claim 15
We understand Appellant’s appeal of the rejection of method claim 15
as anticipated by Kieval to rest on the same arguments presented against
Kieval, which we found not demonstrative of error in the Examiner’s
rejection of claim 1, as set forth supra. See Appeal Br. 15—16. Accordingly,
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Appeal 2015-002020
Application 13/459,669
we sustain the rejection of claim 15 as being anticipated by Kieval for the
same reasons stated above with respect to the rejection of claim 1.
Claim 18
To the extent Appellant is arguing that other limitations of claim 18
are not taught by Kieval (see Appeal Br. 16), merely listing claim limitations
with broad assertions is not sufficient to inform us of error in the Examiner’s
rejection. See In reLovin, 652 F.3d at 1357,
Thus, we sustain the Examiner’s rejection of claim 18 as anticipated
by Kieval for the same reasons stated above with respect to the rejection of
claim 15.
Obviousness of claim 21 over Kieval
We understand Appellant’s appeal of the rejection of claim 21 to rest
on the same arguments presented against claim 15, from which claim 21
depends. See Appeal Br. 16. Accordingly, we sustain the rejection of claim
21 as being obvious over Kieval for the same reasons state above with
respect to the rejection of claim 15 over Kieval.
DECISION
We AFFIRM the Examiner’s rejections.
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
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