Ex Parte Torgerson

Patent Trial and Appeal Board

May 11, 2016

12429931 (P.T.A.B. May. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/429,931 0412412009
71996 7590 05/13/2016
SHUMAKER & SIEFFERT, P,A
1625 RADIO DRIVE, SUITE 300
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Nathan A. Torgerson
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.
1023-805US01 2058
EXAMINER
MAHMOOD, NADIA AHMAD
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
05/13/2016 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
ExparteNATHAN A. TORGERSON
Appeal2014-005362
Application 12/429,931
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Nathan A. Torgerson ("Appellant") appeals under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1-28, 30, and 31. 1 We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 Claim 29 is canceled.
Appeal2014-005362
Application 12/429,931
CLAIMED SUBJECT MATTER
The claims are directed to a method and system for delivering
neurostimulation therapy. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method comprising:
storing a predetermined function specifying a relationship
between pulse amplitude and pulse width within a memory;
receiving input from a user modifying an electrical charge
value of neurostimulation therapy delivered by a medical
device, wherein the input from the user indicates the
modification with regard to electrical charge value;
modifying a pulse amplitude and a pulse width of the
neurostimulation therapy delivered by the medical device
according to the function and based on the modification to the
charge value; and
controlling the delivery of the neurostimulation therapy to
the patient according to the modified pulse amplitude and the
modified pulse width,
wherein the neurostimulation therapy comprises a
plurality of electrical stimulation pulses, and
wherein the modified pulse amplitude and the modified
pulse width are defined for each of the plurality of electrical
stimulation pulses.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Wuthrich
Forsberg
US 2003/0074025 Al Apr. 17, 2003
US 2007 /0055322 Al Mar. 8, 2007
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Application 12/429,931
REJECTIONS
I. Claims 1-7, 12, 13, 15-20, 24--28, 30, and 31 stand rejected under 35
U.S.C. § 102(b) as anticipated by Wuthrich. 2
II. Claims 8-11, 14, and 21-23 3 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Wuthrich and Forsberg.
OPINION
Rejection I
Claims 1-7, 12, 13, 15, 28, and 30
Regarding independent claims 1 and 28, the Examiner finds, inter
alia, that Wuthrich discloses a method for delivering neurostimulation
therapy in which "the therapy is pulse width and amplitude that are defined
for a particular therapy consisting of multiple electrical stimulation pulses."
Final Act. 3 (citing Wuthrich i-fi-f 15 and 16). The Examiner further finds that
"Wuthrich discloses the controller adjusting the widths of the pulses [e.g.
0075], thereby clarifying that [there] are multiple pulses being modified as
opposed to one single pulse." Id.
Appellant argues that Wuthrich fails to disclose that the
neurostimulation therapy comprises a plurality of electrical stimulation
pulses, as required by claims 1 and 28. Appeal Br. 9; see also Reply Br. 6-
2 Claim 9 depends from claim 8 which stands rejected under 35 U.S.C.
§ 103(a) as discussed infra. Accordingly, we understand the inclusion of
claim 9 in the statement of rejection under 35 U.S.C. § 102(b) to be a
typographical error.
3 The subject matter of claim 23 is discussed in the rejection under 35
U.S.C. § 103(a), but the statement of the rejection does not refer to claim 23.
Final Act. 4--5. Accordingly, we understand the omission of claim 23 from
the statement of this rejection to be a typographical error.
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Appeal2014-005362
Application 12/429,931
8. Appellant contends that "Wuthrich describes computing the necessary
amplitude and/or duration of a rectilinear voltage pulse, in a singular
fashion, to deliver a desired charge to a patient." Reply Br. 7.
Wuthrich discloses a method of determining waveform parameters,
such as amplitude and width, for a defibrillation stimulation therapy based
on a desired quantity of electric charge. Wuthrich i-fi-f 15 and 49--52. In
Wuthrich, the defibrillator stimulation therapy is administered in a single
pulse. See id. For example, Wuthrich describes receiving an input of a
desired charge of 0 .15 coulombs and determining that it "is achieved by a
rectilinear voltage pulse having a constant amplitude of 7 50 volts for 10
milliseconds (0.15 coulombs=(750 volts/50 ohms)xlO milliseconds)."
Wuthrich i153. The Examiner relies upon the controller adjusting the widths
of the pulses of control signal 620 in para. 75 of Wuthrich to show multiple
pulses are being delivered and modified. Final Act. 3. Paragraph 7 5 of
Wuthrich describes control signals 620 from a controller 215 to "control the
current flowing through inductor 530, switch 572, load resistor 580, and
switch 574 to common." Wuthrich i175. The control signals 620 do not
create a plurality of electrical stimulation pulses. See Wuthrich, Fig. 6. In
Fig. 6, the controller 215 is delivering control signals 620 and 640 to the
step-down converter and the step-up converter, respectively. See Wuthrich
i-fi-166, 73, and 74, and Fig. 6. The current and the voltage through the
resistor of the biphasic convertor are represented in lines 680 and 690, which
show that a single biphasic pulse is delivered in Fig. 6. See Wuthrich i-fi-181-
82 and Fig. 6. Accordingly, the Examiner's finding that Wuthrich discloses
the neurostimulation therapy comprises a plurality of electrical stimulation
pulses is not supported by a preponderance of the evidence.
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Appeal2014-005362
Application 12/429,931
For this reason, we do not sustain the Examiner's decision rejecting
independent claims 1 and 28, and claims 2-7, 12, 13, 15, and 30, depending
therefrom.
Claims 16-20, 24--27, and 31
Regarding independent claims 16 and 26, the Examiner finds, inter
alia, that Wuthrich discloses a system for delivering neurostimulation
therapy including a memory to store a predetermined function, a user input
to modify a charge value, and a processor configured to modify the pulse
amplitude and width based on the modified charge value. Final Act. 3
(citing Wuthrich i-fi-f 15, 16, 47, and 18). Appellant argues that Wuthrich
fails to disclose the neurostimulation therapy comprises a plurality of
electrical stimulation pulses, as required by claims 16 and 26. Appeal Br. 9;
Reply Br. 6-8.
Claims 16 and 26 do not recite any structure which differentiates the
claimed system from the defibrillator of Wuthrich. The language in claims
16 and 26 regarding "the neurostimulation therapy comprises a plurality of
electrical stimulation pulses" and the modified pulse amplitude and width
"are defined for each of the plurality of electrical stimulation pulses" are
intended use limitations. Appeal Br. 17 and 20, Claims App. Claims
directed to an apparatus must be distinguished from the prior art in terms of
structure rather than function. See In re Schreiber, 128 F.3d 1473, 1477-78
(Fed. Cir. 1997). Here, Wuthrich discloses a medical device configured to
deliver neurostimulation therapy to a patient and a processor configured to
modify a pulse amplitude and width based on a modification to the charge
value. See Final Act. 3 (citing Wuthrich i-fi-f 15, 16, and 48). Appellant does
not persuasively explain why the medical device in Wuthrich is not capable
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Appeal2014-005362
Application 12/429,931
of delivering neurostimulation therapy comprising a plurality of electrical
stimulation pulses and modifying the pulse amplitude and width of each of
the plurality of electrical stimulation pulses. See Appeal Br. 9; see also
Reply Br. 6-8.
For this reason, we sustain the Examiner's decision rejecting
independent claims 16 and 26, and claims 17-20, 24, 25, 27, and 31,
depending therefrom.
Rejection II
Claims 8-10, 11, and 14
Claims 8-10, 11, and 14 depend from independent claim 1. Forsberg
does not cure the deficiency in the rejection of claim 1. Accordingly, we do
not sustain the Examiner's decision rejecting claims 8-10, 11, and 14 for the
reasons discussed supra.
Claims 21-23
Claims 21-23 depend from independent claim 16. Appellant does not
present any arguments for the patentability of claims 21-23 apart from claim
16. See Appeal Br. 12. Accordingly, we sustain the Examiner's decision
rejecting claims 21-23 for the same reasons discussed supra.
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Appeal2014-005362
Application 12/429,931
DECISION
The Examiner's rejections of claims 1-15, 28, and 30 are
REVERSED.
The Examiner's rejections of claims 16-27 and 31 are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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