Ex Parte Meskens

Patent Trial and Appeal Board

Sep 20, 2017

12391029 (P.T.A.B. Sep. 20, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/391,029 02/23/2009 Werner Meskens 3065.0042C 6271
110239 7590 09/22/2017
Edell Shapiro & Finnan LLC
9801 Washingtonian Blvd., Suite 750
Gaithersburg, MD 20878
EXAMINER
LEVICKY, WILLIAM J
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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):
epatent@usiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WERNER MESKENS1
Appeal 2016-003617
Application 12/391,029
Technology Center 3700
Before ERIC B. GRIMES, RICHARD J. SMITH, and TIMOTHY G.
MAJORS, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a cochlear
implant, which have been rejected as obvious. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
“Cochlear implants are to a specific type of hearing prostheses that
deliver electrical stimulation to the cochlea of a recipient.” (Spec. 1 5.) The
Specification discloses a cochlear implant in which power and data are
1 Appellant identifies the Real Party in Interest as Cochlear Limited.
(Appeal Br. 2.)
Appeal 2016-003617
Application 12/391,029
transmitted transcutaneously over a single frequency channel to an
implanted component. {Id. 1 6.)
To transfer the power and data, the transcutaneous
communication link implements a time interleaving scheme
having successive time frames that are each divided into two or
more time slots. One or more of the time slots in each frame is
allocated to the data transmitter unit, and one or more of the time
slots in each frame is allocated to the power transmitter unit. The
data and power are transmitted by the respective transmitter units
to the receiver unit during the time slots allocated thereto.
{Id. 129.)
Claims 1, 2, 4, 6—16, 18, 19, 21, 22, 24, and 26—37 are on appeal.
Claim 1 is illustrative and reads as follows (emphasis added):
1. A cochlear implant comprising:
an implantable component having an electrode assembly insertable in
a recipient’s cochlea and a stimulator/receiver unit configured to deliver
stimulation signals to the recipient's cochlea via the electrode assembly;
an external charging module having a power transmitter unit; and
a data module that is physically separate from the external charging
module, wherein the data module comprises a data transmitter unit;
wherein the data transmitter unit and the power transmitter unit are
each configured to establish a transcutaneous communication link with the
implantable component over which data and power, respectively, are
transmitted on a single shared frequency channel, and wherein the data
transmitter unit and the power transmitter unit collectively implement a time
interleaving scheme comprising successive frames each divided into at least
two time slots in order to share the single shared frequency channel;
wherein one or more of the time slots in each frame is allocated to the
data transmitter unit and one or more of the time slots in each frame is
allocated to the power transmitter unit,
wherein data and power are transmitted by the transmitter units during
different time slots;
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Application 12/391,029
wherein the one or more time slots in each frame are dynamically
allocated to the power transmitter unit and the data transmitter unit in real­
time based on a state of the cochlear implant; and
wherein the data module and external charging module are configured
to directly exchange data with one another to synchronize the transmission
of power and data on the single shared frequency channel.
Claims 15 and 21, the only other independent claims, both include
substantially the same limitation italicized above in claim 1.
The claims stand rejected as follows:
Claims 1, 2, 6, 7, 10, 13—16, 18, 21, 22, 26, 27, 30, and 33—37 under
35 U.S.C. § 103(a) as obvious based on Stokes2 and Wahlstrand3 (Final
Action4 4);
Claims 4, 19, and 24 under 35 U.S.C. § 103(a) as obvious based on
Stokes, Wahlstrand, and Patrias5 (Final Action 9);
Claims 8, 9, 28, and 29 under 35 U.S.C. § 103(a) as obvious based on
Stokes, Wahlstrand, and Faltys6 (Final Action 9-10); and
Claims 11, 12, 31, and 32 under 35 U.S.C. § 103(a) as obvious based
on Stokes, Wahlstrand, and Griffith7 (Final Action 11).
DISCUSSION
The Examiner has rejected all of the claims on appeal as obvious
based on Stokes and Wahlstrand, by themselves or combined with one of
2 Stokes et al., US 5,814,089, issued September 29, 1989.
3 Wahlstrand et al., US 2005/0004619, published January 6, 2005.
4 Office Action mailed Apr. 23, 2015.
5 Patrias, US 7,162,307 B2, issued January 9, 2007.
6 Faltys et al., US 6,308,101 Bl, issued October 23, 2001.
7 Griffith, US 2006/0190059 Al, published August 24, 2006.
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Appeal 2016-003617
Application 12/391,029
Patrias, Faltys, or Griffith. The same issue is dispositive for all of the
rejections.
The Examiner finds that Stokes discloses most of the limitations of
claim 1, including the recited time interleaving scheme. (Final Action 5—6.)
The Examiner finds that Wahlstrand discloses a data module that is
physically separate from a charging module, where the two modules are
configured to exchange data with each other. (Id. at 6.) The Examiner
concludes that it would have been obvious to modify Stokes’ device to have
separate data and charging modules to “provid[e] improved processing
power and/or improved safety and control over the controller.” (Id.)
Appellant argues that “the cited references, taken alone or in
combination, fail to teach or suggest all elements of claim 1,” including the
specific time interleaving scheme recited in claim 1. (Appeal Br. 11, 15.)
Appellant argues that
no where [sic] does Stokes state that there is any type of framing
structure for transmission of power and/or data. Additionally, no
where [sic] does Stokes state that power transmissions occur in
allocated time slots. In fact, Stokes states that “power is
transmitted between ‘events’ such as stimulation, sensing data
transmission from a remote unit, etc.” Stokes at col. 5, Ins 49-
51. In other words, in Stokes, power is received at irregular times
(i.e., unpredictable power slot timing structure).
(Id.)
In response to this argument, the Examiner reasons that “the frame
could be day(s), month(s) or year(s), since the claim does not establish what
is meant by a frame. . . . Therefore, it is assumed that the frame ends after
every indication that charging has ended and after the frame ends a new
frame begins until the next indication that the charge has ended.” (Ans. 4.)
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Application 12/391,029
We agree with Appellant that the Examiner has not persuasively
shown that Stokes discloses the time interleaving scheme recited in claim 1,
when the claim language is given its broadest reasonable interpretation in
light of the Specification.
[T]he PTO applies to the verbiage of the proposed claims 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 relevant part, claim 1 recites “a time interleaving scheme
comprising successive frames each divided into at least two time slots in
order to share the single shared frequency channel; wherein one or more of
the time slots in each frame is allocated to the data transmitter unit and one
or more of the time slots in each frame is allocated to the power transmitter
unit.” (Claim 1.)
The Specification states that “[a]s used herein, a time interleaving
scheme is a channel access protocol in which two or more devices share a
common or overlapping frequency channel band. The scheme includes
successive time frames which are each divided into two or more time slots.
The two or more devices are each allocated time slots within each frame for
transmission of data or power.” (Spec. 1 59.)
The Specification illustrates examples of time interleaving schemes in
Figures 4A through 4E. {Id. | 60.) In all of the exemplary schemes, each
time frame has a fixed time length and is divided into two or more time slots
that are allocated for transmission of either data or power. {Id. Tflf 60, 68.)
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Application 12/391,029
Those allocations can be made dynamically “based on the power demands of
the implantable component, or the need to transfer a large amount of data.”
{Id. 65, 75.) However, the claim language, read in light of the
Specification, nonetheless requires the time interleaving scheme to be based
on successive time frames, each of which has a fixed time length, that are
divided into time slots that can be allocated for transfer of either power or
data, “wherein one or more of the time slots in each frame is allocated to the
data transmitter unit and one or more of the time slots in each frame is
allocated to the power transmitter unit.” (Claim 1.)
Stokes discloses “an implantable leadless system for stimulating
plural sites in a patient and/or collecting data from such sites for external
transmission. . . . [T]he term Teadless’ refers to the absence of a lead
interconnecting the plural sites.” (Stokes 2:24—28.) Stokes’ system includes
an “implantable controller unit. . . which provides transmission of power
and data to each of remote units.” {Id. at 3:30-32.) The implantable
controller unit includes modulator portion 36, and “[t]he output of the
modulator/power converter circuit 36 is coupled to transmitter 37, which
transmits a high frequency signal containing a power component and a data
component.” {Id. at 4:9-10, 22—28.)
Stokes’ Figure 2B is reproduced below:
76
Figure 2B shows “a time diagram illustrating the nature of data
encoded onto a high frequency carrier, which is transmitted from transmitter
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Application 12/391,029
37 to one or more external implanted devices.” (Id. at 5:8—11.) Specifically,
“at 75 there is shown a constant asynchronous ‘trickle charge’ signal, which
is a power carrying signal.” (Id. at 5:32—34.) “[Tjhere may optionally be a
reset code as illustrated at 76, to communicate to the remote device that the
trickle charge has been completed.” (Id. at 5:36—38.) Another optional
feature is identification code 78, which “may be used to direct control data
. . . to selected one or more remote devices.” (Id. at 5:39-44.) “Following
this, the information or data signal is delivered, as illustrated at 80. This
data . . . carries control data to instruct the remote stimulator or device as to
its operation.” (Id. at 5:44-47.)
Stokes states that “[t]he power is transmitted between ‘events’ such as
stimulation, sensing data transmission from a remote unit, etc.” (Id. at 5:50—
52.) Stokes also states that its Figures 4A and 4B “illustrat[e] the method of
this invention for providing power to one or more of the remote units ‘on
request,’ i.e., when and as the remote unit signals that it needs power.” (Id.
at 6:67 to 7:3.)
Thus, although Stokes discloses providing power and data over a
single frequency channel, it does not disclose a time interleaving scheme as
required by claim 1 because it does not disclose successive time frames
having a fixed time length, that are divided into time slots allocated for
transfer of power or data, “wherein one or more of the time slots in each
frame is allocated to the data transmitter unit and one or more of the time
slots in each frame is allocated to the power transmitter unit.” As noted
above, independent claims 15 and 21 also include substantially the same
limitation, and the rejection of these claims, as well as dependent claims 2,
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6, 7, 10, 13, 14, 16, 18, 22, 26, 27, 30, and 33—37, suffers from the same
deficiency.
With regard to the rejections based on Stokes and Wahlstrand,
combined with Patrias, Faltys, or Griffith, the Examiner finds that the
additional references disclose limitations of dependent claims but does not
point to anything in them that remedies the deficiency discussed above.
(Final Action 9—12.) We therefore reverse those rejections for the reasons
discussed above.
SUMMARY
We reverse all of the rejections on appeal.
REVERSED
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