Ex Parte Rouw et alDownload PDFPatent Trial and Appeal BoardJul 18, 201311039766 (P.T.A.B. Jul. 18, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTIAS ROUW, WILLEM BOUTE, and PETER M. VAN DAM ____________ Appeal 2011-006380 Application 11/039,766 Technology Center 3700 ____________ Before LINDA E. HORNER, BRETT C. MARTIN, and BARRY L. GROSSMAN, Administrative Patent Judges. GROSSMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006380 Application 11/039,766 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-7. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We reverse the decision of the Examiner. CLAIMED SUBJECT MATTER The claimed subject matter relates to “implantable medical devices and more particularly to implantable medical device[s] for cardiac pacing.” Spec., p. 1. Claim 1, the sole independent claim, is representative of the subject matter on appeal, and recites: 1. An implantable medical device (IMD) comprising: an atrial electrode; a ventricular electrode; an atrial sense amplifier coupled to the atrial electrode and responsive to atrial events sensed via the electrode; a ventricular sense amplifier coupled to the atrial electrode and responsive to ventricular events sensed via the ventricular electrode; a ventricular pacing pulse generator coupled to the ventricular electrode; a processor coupled to the atrial and ventricular sense amplifiers and to the cardiac pacing pulse generator and comprising a memory storing a threshold value and executable instructions controlling the IMD including controlling generation of pulses by the pulse generator, the executable instructions including a Ventricular Pacing Protocol (VPP) module and a cardiac rate determination module, wherein the VPP module comprises instructions causing the IMD to operate in a first level of operation that triggers the pulse generator Appeal 2011-006380 Application 11/039,766 3 responsive to sensed atrial events to maintain atrial-ventricular (A V) synchrony and in a second level of operation that does not trigger the pulse generator responsive to sensed atrial events and permits cardiac cycles devoid of both ventricular pacing pulses and sensed ventricular events; and wherein the cardiac rate determination module comprises instructions to determine a a [sic] cardiac rate and compare the determined cardiac rate to the threshold value and to cause the VPP module to change to the first level of operation if the determined cardiac rate exceeds the threshold and the VPP module is in the second level of operation. REFERENCE The sole reference relied upon by the Examiner is Herpers, U.S. 4,390,020, issued June 28, 1983. REJECTION Appellants seek review of the rejection of claims 1-7 under 35 U.S.C. § 102(b) as anticipated by Herpers, which is the only rejection made by the Examiner. ANALYSIS “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987). “The identical invention must be shown in as complete detail as is contained in the ... claim.” Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989). Appellants argue that Herpers does not disclose a Ventricular Pacing Protocol (VPP) module that operates at two levels of operation, where one of Appeal 2011-006380 Application 11/039,766 4 the levels “permits cardiac cycles devoid of both ventricular pacing pulses and sensed ventricular events,” as called for in independent claim 1. App. Br. 5, 7. As argued by Appellants, the claims “require a mode of operation in which cardiac cycles occur devoid of both paced and sensed ventricular events.” Reply Br. 3. The Examiner found in relevant part that Herpers discloses various operating modes where an implantable medical device (IMD) is programmed “to only sense” signals so that the heart is allowed to beat without stimulation, which “permits cardiac cycles devoid of both ventricular pacing pulses and sensed ventricular events.” Ans. 6, 7. The Examiner does not explain how a device programmed only to sense is devoid of sensed ventricular events. The Examiner also found that, in some modes, Herpers discloses that stimulation does “not lead to a ventricular pacing output.” Ans. 7. However, the limitation in claim 1 requires a level of operation which is devoid of both ventricular pacing output and sensed ventricular events. Additionally, the Examiner found that not all modes in Herpers “are programmed to deliver ventricular pacing pulses.” Ans. 8. This finding also does not address both parts of the claim limitation, which requires cardiac cycles devoid of both ventricular pacing pulses and sensed ventricular events. While Herpers discloses an IMD with a pulse generator that operates in pre-selected modes and at pre-selected pacing rates, the Examiner has not cited any mode in which the cardiac cycle is devoid of both ventricular pacing pulses and sensed ventricular events, as required by all the claims. We agree with Appellants that each mode identified by the Examiner Appeal 2011-006380 Application 11/039,766 5 requires a cardiac cycle having one or the other of a ventricular pulse or a sensed ventricular event. App. Br. 7. Accordingly, we cannot sustain the rejection of claims 1-7 as anticipated by Herpers. DECISION Upon consideration of the record as a whole in light of Appellants’ contentions and the preponderance of relevant evidence, we REVERSE the Examiner’s decision rejecting claims 1-7. REVERSED hh Copy with citationCopy as parenthetical citation