Ex Parte Sieracki et al

Patent Trial and Appeal Board

Jun 10, 2016

13015230 (P.T.A.B. Jun. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/015,230 01127/2011
71996 7590 06/14/2016
SHUMAKER & SIEFFERT, P.A
1625 RADIO DRIVE, SUITE 100
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Jeffrey M. Sieracki
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.
1023-227US03/P0011555.09 2229
EXAMINER
D ABREU, MICHAEL JOSEPH
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
06/14/2016 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):
pairdocketing@ssiplaw.com
medtronic _neuro _ docketing@cardinal-ip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY M. SIERACKI and RICHARD B. NORTH 1
Appeal2014-002018
Application 13/015,230
Technology Center 3700
Before HUBERT C. LORIN, ROBERT L. KINDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing of our Decision entered March 23, 2016,
in which we affirmed the Examiner's rejection of claims 1-12 under 35
U.S.C. § 103(a) (Request for Rehearing filed May 20, 2016, hereinafter
"Req. Reh'g"). Because Appellants' arguments do not persuade us that we
misapprehended or overlooked any points that would justify a different
outcome, we deny Appellants' request to modify our Decision.
1 According to Appellants, the real party in interest is Medtronic, Inc. App.
Br. 3.
Appeal2014-002018
Application 13/015,230
Requests for Rehearing are limited to matters misapprehended or
overlooked by the Board in rendering the original decision. Appellants first
contend the Board "the Board misapprehended or overlooked the
significance of the Appellant's arguments." Req. Reh'g 2. More
specifically, Appellants contend we failed to properly consider:
the failure of the disclosure of Lebel to disclose or
suggest sending stay-alive signals to a watchdog unit to reset a
watchdog timer and to detect failure of wireless telemetry
session based on whether the watchdog time has expired[;]
[and]
the Examiner's failure to establish a proper basis for why
one of ordinary skill in the art would look to modify the
systems or methods of Lebel to arrive at the invention as
claimed in Appellant's claims.
Id. On pages 2 and 3 of the Request for Rehearing, Appellants quote
significant portions of the Appeal Brief and contend we ignore the
arguments provided in the Appeal Brief. Id. at 3. On page 4 of the Request
for Rehearing, Appellants quote arguments from their Reply Brief and
conclude "Appellant's arguments related to the disclosures of both
paragraph [0309] and paragraph [0332] of Lebel have been fully addressed
in the Appeal Brief and the Reply Brief, and the Decision's apparent
dismissal of these arguments as being 'piecemeal' fails to give proper weight
to, and overlooks the arguments provided that show that Lebel fails to
disclose or suggest the subject matter of Appellant's claims." Id. at 4.
Simply quoting large portions of prior briefing and concluding these
arguments were overlooked, or improperly weighed, does not particularly
point out any issue of fact or law misapprehended or overlooked by the
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Application 13/015,230
Board in rendering the original decision. See 37 C.F.R. § 41.52 ("The
request for rehearing must state with particularity the points believed to have
been misapprehended or overlooked by the Board."). Our Decision
considered and adequately addressed these arguments. See Dec. 3-7. Thus,
Appellants' contentions through the middle of page 4 do not establish a basis
to grant its Request for Rehearing.
The remaining portions of Appellants' Request for Rehearing likewise
fail to particularity any point misapprehended or overlooked by the Board.
For example, Appellants contend "the Examiner and the Decision appear to
agree that a modification of Lebel, which is not disclosed or suggested by
Lebel, would be required in order to arrive at the subject matter of
Appellant's claims." Req. Reh'g 4--5.
We disagree. The Examiner's proposed combination, including the
modification to Lebel, was well-established. As we explain in the Decision:
The Examiner has persuasiveiy estabiished it wouid have been
a simple modification to incorporate Lebel's watchdog timer
(i-f 332) into the existing wireless telemetry session also
described in Lebel (i-f 309) for detecting the failure of a wireless
telemetry session. Indeed, Lebel's main processor is described
as controlling implantable device telemetry operations, as well
as communicating with the monitor processor through inter-
processor messages, and sending an acknowledge message that
may cause the watchdog to be tripped. See, e.g., Lebel, i1i1215,
332, 393, 394. We agree that this watchdog module could be
integrated into the existing bolus type communication structure
as proposed by the Examiner and also be used to detect the
failure of a wireless telemetry session. Likewise, we agree that
once combined, as proposed by the Examiner, Lebel's
disclosure teaches or suggests the functions of the claimed
watchdog unit such as "reset a watchdog timer ... to detect
failure of a wireless telemetry session between a programming
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Application 13/015,230
device and the implantable medical device during the
programming session," as required by claim 1. See id.
Dec. 6. Appellants do not particularly point to any error in our Decision as
to these determinations.
Appellants then repeat the argument made in their Reply that:
This disclosure of Lebel is not even suggestive of sending stay-
alive signals to a watchdog unit during the programming
session, wherein the stay-alive signals are configured to reset a
watchdog timer of the watchdog unit to allow the watchdog unit
to detect failure of a wireless telemetry session ....
Id. at 5 (quoting Reply Br. 6). Appellants contend the Decision ignores this
argument, and then Appellants quote portions of the Decision and Answer as
allegedly supporting this contention. Id. (quoting Dec. 7-8). Again,
Appellants fail to identify any particular point misapprehended or
overlooked.
Appellants also contend the Examiner's reliance of paragraph 276 of
Lebel as describing the function of watchdog units is misapprehended
because "this paragraph describes, '[a] watchdog monitor circuit 928 is
provided to ensure that detection and system reset will occur if the CPU
ceases to properly execute instructions."' Id. Such a disclosure, according
to Appellants, has nothing to do with time based communication limits on
messages. Id.
We agree with the Examiner's finding that Lebel teaches telemetry
communications between internal and external devices as well as
communication between processors. We also agree that it would have been
a simple substitution to adopt the described watchdog timer into the existing
telemetry communication network between internal and external devices.
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Application 13/015,230
See Dec. 5 (citing Ans. 3--4). The Examiner relies on paragraph 276, as well
as Figure 5 and paragraph 127 of Lebel to support the modification because
Lebel describes a processor used in both the implantable and external
communication device that may incorporate a watchdog module, which is
known to establish time based communication limits. Id. Appellants do not
persuasively rebut the Examiners finding that the combined teachings of
Lebel "highlight[] the well[-]known incorporation of watchdog timers with
processors that communicate data between devices." Ans. 4; see also Lebel
i-f 394 (describing inter-processor messages that require a corresponding
acknowledgement message and if message "is not received before this time-
out period elapses, the monitor processor software ... causes the watchdog
to be tripped").
Appellants also contend the modification to the system of Lebel
appears to be based on use of impermissible hindsight. Req. Reh'g 2, 5.
These argument were considered, but found unpersuasive. See Dec. 6-8.
Appellants have not established that the proposed modification would have
been uniquely challenging or difficult for one of ordinary skill in the art. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007). For example, Appellants have not persuasively rebutted the
Examiner's finding that the proposed combination would "obtain the
predictable results of having a time based communication limit on messages
between the internal and external devices." Ans. 4, Dec. 7-8.
Appellants have not established that the Board misapprehended or
overlooked any point of fact or law in rendering the original decision. We
therefore maintain our affirmance of the Examiner's rejection under 35
U.S.C. § 103(a) of claims 1-12 over Lebel.
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Appeal2014-002018
Application 13/015,230
DECISION
The Examiner's rejection of claims 1-12 remain affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
DENIED
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