Ex Parte Stubbs et al

Patent Trial and Appeal Board

Aug 16, 2016

12917101 (P.T.A.B. Aug. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/917,101 11/01/2010
45458 7590 08/18/2016
SCHWEGMAN LUNDBERG & WOESSNER/BSC
POBOX2938
MINNEAPOLIS, MN 55402
Scott R. Stubbs
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.
279.IlOUSl 1850
EXAMINER
PIA TES KI, ERIN M
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
08/18/2016 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT R. STUBBS and JEFFREY E. ST AHMANN
Appeal2014-002387
Application 12/917,101 1
Technology Center 3700
Before CYNTHIA L. MURPHY, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-12 and 21-25. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
BACKGROUND
The Specification relates to:
An implantable device, such as a pacer, defibrillator, or
other cardiac rhythm management device, [which] can include
an automatic testing and adjusting of cardiac signal sensing after
an MRI scanning procedure, such as to accommodate an MRI-
induced physiological change in sensed cardiac depolarization
1 According to Appellants, the real party in interest is Cardiac Pacemakers,
Inc. Appeal Br. 2.
Appeal2014-002387
Application 12/917,101
amplitude or in lead impedance such as at an electrode/tissue
interface.
Spec. 2, 11. 9-13.
CLAIMS
Claims 1-12 and 21-25 are on appeal. Claim 1 is illustrative of the
appealed claims and recites:
1. An apparatus comprising:
an ambulatory or implantable medical device comprising:
a cardiac signal sensing circuit; and
a controller circuit, coupled to the cardiac signal
sensing circuit, the controller configured to receive an
indication that a magnetic resonance imaging (MRI)
scanning procedure has completed and, in response, to
automatically test a cardiac signal sensing of the cardiac
signal sensing circuit, and to automatically adjust and then
automatically use the adjusted cardiac signal sensing
parameter when a physiological change in depolarization
amplitude or lead impedance causes a post-MRI scanning
procedure loss of cardiac depolarization sensing.
Appeal Br. 1 7.
REJECTION
The Examiner rejects claims 1-12 and 21-25 under 35 U.S.C.
§ 103(a) as unpatentable over Ginggen2 in view of Terry.3
DISCUSSION
We are persuaded that the Examiner has not shown that the art of
record teaches or suggests a controller circuit configured as claimed.
2 Ginggen, US 2007/0239231 Al, pub. Oct. 11, 2007.
3 Terry et al., US 6,937,906 B2, iss. Aug. 30, 2005.
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Appeal2014-002387
Application 12/917,101
Specifically, the art of record fails to teach or suggest the claim requirement
that the controller is configured to automatically adjust and use cardiac
signal sensing parameters "when a physiological change in depolarization
amplitude or lead impedance causes a post-MRI scanning procedure loss of
cardiac depolarization sensing," as recited in each of the independent claims.
Appeal Br. 17, 18, 20.
The Examiner relies on a combination of Ginggen and Terry to reject
the claims. Final Act. 3-5, 9-11. Ginggen and Terry each disclose a device
concerned with preventing/detecting changes within an implantable medical
device due to magnetic fields, e.g. MRI procedures. See, e.g., Ginggen
Abstract; see also Terry col. 9, 11. 46-49. More specifically, Ginggen and
Terry are concerned with ensuring the implantable medical device is still
working properly after an MRI procedure takes place, which may be
distinguished from the claimed device in that the claims require a controller
adapted to adjust cardiac sensing parameters in the implantable device based
on a physiological change, i.e. a change in the physiology of the patient and
not a change related to the device itself, occurring because of an MRI
procedure.
With respect to this particular requirement, the Examiner finds:
It would have been well-known to persons having ordinary skill
in the art that MRI scans can interfere with the correct
functionality of pacing sensors, and also well-known that
pacemaker sensors can be tuned to different sensitivities.
Therefore it would have been obvious to a person having
ordinary skill in the art to use Ginggen's invention to adjust
cardiac signal sensing parameters after an MRI scanning
procedure caused a physiological change in depolarization
amplitude or lead impedance.
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Appeal2014-002387
Application 12/917,101
Final Act. 3--4. However, we agree with Appellants that the Examiner has
not adequately supported the findings that it would have been known that an
MRI scanning procedure can cause physiological changes and that the art of
record teaches or suggests that the implantable medical device should be
adjusted based on those changes. See Reply Br. 2--4. Further, as noted by
Appellants, the references are completely silent regarding any such
physiological changes and are only focused on possible malfunctioning of
the implanted device. Id.
For the reasons set forth above, we find that the Examiner erred in
rejecting each independent claims as obvious over Ginggen and Terry.
Accordingly, we do not sustain the rejection of claims 1-12 and 21-25.
CONCLUSION
For the reasons set forth above, we reverse the rejection of claims 1-
12 and 21-25
REVERSED
4