Ex Parte Skelton et al

Patent Trial and Appeal Board

May 4, 2016

12433632 (P.T.A.B. May. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/433,632 0413012009
71996 7590 05/06/2016
SHUMAKER & SIEFFERT, P.A
1625 RADIO DRIVE, SUITE 300
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Dennis M. Skelton
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.
1023-794US01/P0032957.0l 9495
EXAMINER
MAHMOOD, NADIA AHMAD
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
05/06/2016 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 DENNIS M. SKELTON, JON P. DAVIS,
RAJEEV SAHASRABUDHE, and SHY AM GOKALDAS
Appeal2014-004093
Application 12/433,632 1
Technology Center 3700
Before ANTON W. PETTING, MICHAEL C. ASTORINO, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-38 and 43--45 under 35 U.S.C. § 103(a) as
unpatentable over Heroth (US 2005/0209511 Al, pub. Sept. 22, 2005) and
Ozaki (US 2005/0107722 Al, pub. May 19, 2005). Final Act. 3-5. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellants, "[t]he Real Party in Interest is Medtronic,
Inc." Appeal Br. 3.
Appeal2014-004093
Application 12/433,632
Claimed Subject Matter
Claims 1, 12, 23, and 33 are the independent claims on appeal.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A method comprising:
obtaining, with a computing device, posture state data sensed
by a medical device for a patient;
generating, with at least one processor of the computing
device, sleep quality information based on lying posture state
changes indicated by the posture state data, wherein the posture
state data indicates lying posture state changes during a time
period in which the medical device delivers therapy to the patient
in response to determined posture states of the patient; and
presenting the sleep quality information to a user via a user
interface of the computing device.
ANALYSIS
The Appellants argue that the Examiner's rejection is in error because
the proffered combination of teachings of Heruth and Ozaki fail to render
the subject matter of independent claims 1, 12, 23, and 33 obvious,
particularly "the posture state data indicates lying posture state changes
during a time period in which the medical device delivers therapy to the
patient in response to determined posture states of the patient" (Appeal Br.,
Claims App.). See Appeal Br. 7-10, Reply Br. 6-8. Among other things,
the Appellants contend that the proffered combination of teachings of
Heroth and Ozaki "monitor[] changes in patient posture state while also
delivering therapy to a patient[, which] is not the same as delivering therapy
to the patient in response to determined posture states of the patient."
Appeal Br. 9. We determine that the Appellants' argument is persuasive
because we cannot ascertain from the Examiner's rejection how the
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Appeal2014-004093
Application 12/433,632
proffered combined teachings of Heroth and Ozaki render obvious the
aforementioned recitation of the independent claims.
At the outset, we note that the Examiner rejects the independent
claims as a group and the rejection does not reference with clarity the
disputed recitation of the independent claims. See Final Act. 3--4.
The Examiner's rejection relies on Heroth for teaching a medical
device, such as an implantable medical device, or a programmer that
determines when a patient is attempting to sleep based on a physiological
parameter(s). Ans. 4--5; see Final Act. 3 (citing Heroth, paras. 5, 8, 25).
Heroth discloses that the monitored physiological parameter(s), such as
posture, can be used to determine sleep quality metric values. See Final
Act. 3 (citing Heroth, paras. 6, 8, 65). Heroth discloses that sleep quality
metric values include sleep efficiency and sleep latency. Heroth, paras. 9,
103, 104. However, Heroth does not disclose posture as a sleep quality
metric value. See Reply Br. 7.
The Examiner's rejection also relies on Heroth for teaching that the
medical device delivers therapy. See Final Act. 3, Ans. 5. The Examiner
references Heroth's disclosure of sleep quality metric values and delivery of
therapy by use of therapy parameter sets. More specifically, the Examiner
finds that Heroth's "therapy parameter sets may be adjusted based on a
measure of one or more sleep quality metrics (including posture) that occur
as a result of a present therapy." Ans. 5 (citing Heroth, paras. 18-19); see
Advisory Act. 2, mailed May 10, 2013. The Examiner also finds that Heroth
describes that a "user may select the [sleep quality] metric from a list of
therapy parameters" (Final Act. 3 (citing Heroth, para. 20) ).
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Appeal2014-004093
Application 12/433,632
However, Heroth's paragraphs 18-20 fail to disclose adjusting
therapy sets from a medical device based on sleep quality metrics. See
Reply Br. 6-7. In paragraph 18, Heroth discloses that "parameters of one or
more therapy parameter sets may be adjusted by the patient to create new
therapy parameter sets." However, as pointed out by the Appellants,
"Heroth provides no description as to the basis for a patient making such
adjustments, much less making such adjustments based on a measure of one
or more sleep quality metrics (including posture)." Reply Br. 7; see also
Reply Br. 8. In paragraph 19, Heroth discloses determining a sleep quality
metric value, identifying a current therapy set, and storing and associating
the sleep quality metric value with a therapy parameter set. Although
Heroth discloses associating the sleep quality metric value with a therapy
parameter set, such does not correspond to adjusting therapy sets from a
medical device based on sleep quality metrics. Put simply, Heroth teaches
collecting sleep quality metric value( s) that occur during a particular therapy
parameter set. See Heroth, para. 19. In paragraph 20, Heroth discloses that
a clinician or user may use sleep quality metric values to identify and
evaluate effective and ineffective therapy parameter sets. However,
paragraph 20 does not teach adjusting therapy sets from a medical device
based on sleep quality metrics. We fail to ascertain from the Examiner's
rejection how paragraphs 18-20, in addition to other cited disclosure of
Heroth, correspond to the disputed recitation of the independent claims that
"the posture state data indicates lying posture state changes during a time
period in which the medical device delivers therapy to the patient in
response to determined posture states of the patient." Appeal Br., Claims
App.
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Appeal2014-004093
Application 12/433,632
Further, we fail to ascertain from the Examiner's rejection how the
combined teachings of Heroth and Ozaki render obvious the disputed
recitation of the independent claims. The Examiner relies on Ozaki for
teaching an apparatus that uses sensors to determine body movement
information and posture over a period of time. Ans. 4, Final Act. 3--4 (citing
Ozaki, para. 10, Fig. 10). The Examiner concludes that it would have been
obvious to modify Heroth's system and method for collecting sleep
information with Ozaki' s teaching of detecting sleep information being over
a time interval because "such a modification would provide the predictable
results of detecting sleep quality information as a result of a different posture
state for a particular period of time." Final Act. 4. The finding attributed
from Ozaki and the conclusion based on the combined teachings of Heroth
and Ozaki fail to address completely the disputed recitation of the
independent claims that "the posture state data indicates lying posture state
changes during a time period in which the medical device delivers therapy to
the patient in response to determined posture states of the patient." Appeal
Br., Claims App.
Thus, the Examiner's rejection of claims 1-38 and 43--45 as
unpatentable over Heroth and Ozaki is not sustained.
DECISION
We REVERSE the Examiner's decision rejecting claims 1-38 and
43--45.
REVERSED
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