Ex Parte Walker et alDownload PDFPatent Trial and Appeal BoardSep 21, 201613272960 (P.T.A.B. Sep. 21, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/272,960 10/13/2011 96139 7590 09/23/2016 MARGER JOHNSON -PHYSIO -CONTROL, INC. 888 SW 5th A venue, Suite 1050 PORTLAND, OR 97204 FIRST NAMED INVENTOR Robert G. Walker 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. 7257-0136_pB0010142.USV4 6405 EXAMINER PORTER, JR, GARY A ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 09/23/2016 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): docketing@techlaw.com physio_control_docketing@cardinal-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT G. WALKER, DANIEL W. PIRAINO, and JAMES M. OWEN Appeal2014-009966 Application 13/272,9601 Technology Center 3700 Before NINA L. MEDLOCK, KENNETH G. SCHOPPER, and ROBERT J. SILVERMAN, 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 and 7-19. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND According to Appellants, the "invention relates generally to external defibrillators, and more specifically to AEDs and protocols which they carry out." Spec. i-f 1. 1 According to Appellants, the real party in interest is Physio-Control, Inc. Br. 3 Appeal2014-009966 Application 13/272,960 CLAHvIS Claims 1 and 7-19 are on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A defibrillator for defibrillating a patient, comprising: a power source configured to store a charge; an energy storage device configured to receive at least a portion of the charge, in which at least a fraction of the charge portion can be delivered from the energy storage device via electrodes as a shock to defibrillate the patient; Br. 10. a user interface; and a controller configured to: obtain multiple successive data sets on at least one sensed physiological parameter of the patient, perform an analysis on each of the multiple data sets, for each performed analysis, instruct delivery of at least one of the shocks if the result of the analysis meets a predetermined criterion, adjust at least one duration that is subsequent to a first duration, each duration including a time interval between successive performed analyses, based at least in part on the at least one sensed physiological parameter, and cause the user interface to instruct delivery of CPR for at least one of the durations. 2 Appeal2014-009966 Application 13/272,960 REJECTIONS 1. The Examiner rejects claims 1, 7, 9-14, and 16-19 under 35 U.S.C. § 103(a) as unpatentable over Kroll2 in view of Callaway,3 Snyder,4 and Stickney.5 2. The Examiner rejects claims 8 and 15 under 35 U.S.C. § 103(a) as unpatentable over Kroll in view of Callaway, Snyder, Stickney, and Nova. 6 DISCUSSION Rejection 1 Appellants group all claims together with respect to this rejection. See Br. 7-8. We select independent claim 1 as representative of these claims. With respect to claim 1, the Examiner finds that Kroll discloses an automatic external defibrillator (AED), which includes instructing delivery of CPR for different intervals based on whether ventricular fibrillation (VF) is detected. Final Act. 5. Specifically, the Examiner finds that Kroll discloses if VF is not detected, the system provides an instruction to perform CPR, and that Kroll discloses "an optional embodiment wherein a 'few' manual chest compressions are given after VF is detected but before defibrillation therapy is applied (Sections [0062]) in order to 'prime the pump' and increase the success rate of defibrillation therapy." Id. The Examiner also finds, inter alia: 2 Kroll et al., US 2006/0142809 Al, pub. June 29, 2006. 3 Callaway et al., US 6,438,419 Bl, iss. Aug. 20, 2002. 4 Snyder et al., US 6,356,785 Bl, iss. Mar. 12, 2002. 5 Stickney et al., US 2006/0173501 Al, pub. Aug. 3, 2006. 6 Nova et al., US 2004/0143298 Al, pub. July 22, 2004. 3 Appeal2014-009966 Application 13/272,960 Therefore it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the device in the Kroll reference to include the capability of prompting a user to deliver a shorter period of CPR if VF is detected and a longer period of CPR if a non-shockable rhythm is detected, as taught and suggested by Kroll and Callaway and further evidenced by Snyder and Stickney, for the purpose of increasing the success rate of defibrillation of patients suffering longer periods of VF while also having the ability to maintain basic cardiac function during periods of non-shockable rhythms. Id. at 6-7. Appellants argue "that Kroll does not appear to teach anything pertaining to the recited adjusting of CPR durations because there can be no adjusting of CPR durations in situations where there are no CPR durations, and there appear to be within the teachings of Kroll no CPR durations at all in situations where VF is present." Br. 8 (emphasis omitted). More specifically, Appellants argue that Kroll does not indicate that the "prime the pump" chest compressions relied on by the Examiner are delivered after it is determined that VF is present, i.e., Appellants assert that there is no indication that these chest compressions are performed after the analysis step 310 and determination that VF is present in the process of Kroll' s Figure 3. Id. We are not persuaded of error by Appellants' argument. With respect to the "prime the pump" chest compressions cited by the Examiner, Kroll states that the device may include an instruction "prompting the rescuer to administer manual chest compressions to the patient prior to automatically administering [medium voltage therapy (MVT)]" because "a few manual chest compressions [may be necessary] before MVT can give effective electrical CPR." Kroll i-f 62. Although, Kroll does not specifically tie this 4 Appeal2014-009966 Application 13/272,960 description to the process outlined in Figure 3, we find, contrary to Appellants' assertion, that Kroll does provide an indication that these manual chest compressions would be performed after step 310 in Figure 3 because this figure indicates that MVT is only administered in the situation where the analysis at step 310 is performed and VF is detected. See Kroll Fig. 3. Thus, we find that Kroll at least suggests providing a "few manual chest compressions" after it is determined that VF is present. Further, we note that the rejection does not rely on Kroll exclusively for disclosing prompting a user to deliver a shorter period of CPR if VF is detected as the Examiner concludes that it would have been obvious to provide that functionality in light of the teachings of "Kroll and Callaway and [as] further evidenced by Snyder and Stickney." See Final Act. 6-7. Based on the foregoing, we conclude that Appellants have not shown any error in the Examiner's findings or conclusion. For these reasons, we sustain the rejection of claim 1. Claims 7, 9-14, and 16-19 have not been argued separately, and thus, we sustain the rejection of those claims for the same reasons. Rejection 2 With respect to the rejection of claims 8 and 15, Appellants rely on the same arguments discussed above with respect to claim 1. Thus, for the reasons discussed above, we also sustain the rejection of claims 8 and 15. 5 Appeal2014-009966 Application 13/272,960 DECISION The rejections of claims 1 and 7-19 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)(l )(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation