Ex Parte Warren et al

Patent Trial and Appeal Board

Jan 25, 2018

13588808 (P.T.A.B. Jan. 25, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/588,808 08/17/2012 Jay A. Warren 1001.3677103 2794
11050 7590 01/29/2018
SEAGER, TUFTE & WICKHEM, LLP
100 South 5th Street
Suite 600
Minneapolis, MN 55402
EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
BSC.USPTO@stwiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY A. WARREN and GUST H. BARDY
Appeal 2017-002759
Application 13/588,808
Technology Center 3700
Before DEMETRA J. MILLS, ERIC B. GRIMES, and RYAN H. FLAX,
Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a). The Examiner has rejected
the claims for anticipation and obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
Appeal 2017-002759
Application 13/588,808
NATURE OF THE INVENTION
According to the Specification, page 1, “[t]he present invention relates
generally to implantable cardiac systems that detect, sense and classify
cardiac signals. More particularly, the present invention relates to
implantable medical devices that can adapt the initiation of a therapeutic
therapy for patients who experience recurring non-sustained arrhythmic
episodes.”
CLAIMED SUBJECT MATTER
The following claim is representative.
1. A method of avoiding inappropriate therapy delivery
to a patient in an implantable defibrillator, the implantable
defibrillator comprising a number of implantable electrodes and
operational circuitry for performing cardiac signal analysis and
therapy delivery using the implantable electrodes, the method
comprising, at a first time:
detecting cardiac events in a patient using the
implantable electrodes;
filling an X-out-of-Y filter with data related to the
detected cardiac events and using the X-out-of-Y filter to
determine that X exceeds a predetermined treatment threshold;
when X exceeds the predetermined treatment threshold,
using a predetermined persistence threshold, N, and applying a
persistence rule calling for X to exceed the predetermined
treatment threshold for at least N consecutive cardiac events;
when the persistence rule is met, initiating a charging
sequence to charge a capacitor for therapy delivery,
after initiating the charging sequence but before therapy
delivery, determining that the cardiac signal data of the patient
no longer indicates a need for therapy; and
upon determining, after initiating the charging sequence
but before therapy delivery, that the cardiac signal data of the
patient no longer indicates a need for therapy, modifying N to
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Application 13/588,808
increase the quantity of consecutive cardiac events required to
meet the persistence threshold and storing N for use in the
future; and
the method further comprising, at a second time:
detecting cardiac events in the patient using the
implantable electrodes;
filling the X-out-of-Y filter with data related to the
detected cardiac events and using the X-out-of-Y filter to
determine that X exceeds a predetermined treatment threshold;
when X exceeds the predetermined treatment threshold,
applying the persistence rule calling for X to exceed the
predetermined treatment threshold for at least N consecutive
cardiac events, wherein N, when applied at the second time, is
modified in view of the occurrence of the first time; and
finding that the persistence rule is not met due to the
increase in N at least once.1
Cited Reference
Stadler US 6,567,691 B1 May 20,2003
Grounds of Rejection
Claims 1,3,7, 9, and 12—15 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Stadler.
Claims 6 and 10 are rejected under pre-AIA 35 U.S.C. §103(a) as
being unpatentable over Stadler.
1 Italicized emphasis added.
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Application 13/588,808
FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Final Action at
pages 2—13.
PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. See In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997).
In determining obviousness “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007). However, “[i]n rejecting claims under 35 U.S.C. § 103, the
examiner bears the initial burden of presenting a prima facie case of
obviousness. Only if that burden is met, does the burden of coming forward
with evidence or argument shift to the applicant.” In re Rijckaert, 9 F.3d
1531, 1532 (Fed. Cir. 1993) (citation omitted). “[Tjhere must be a showing
of a suggestion or motivation to modify the teachings of [a] reference.” In
re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000). “[Rejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR, 550
U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). When
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Application 13/588,808
a prima facie case of obviousness has not been established, the rejection
must be reversed. In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988).
“[Dependent claims are nonobvious [or not anticipated] if the
independent claims from which they depend are nonobvious [or not
anticipated].” In reFritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992).
ANALYSIS
Anticipation Rejection
The Examiner finds that Stadler teaches each element claimed. Ans.
2-3.
Appellants contend that they have:
repeatedly shown - by detailed analysis of the Stadler reference,
that Stadler does not show several individual elements of the
independent claims:
- Appellant has argued that X-out-of-Y filters are not used
at all in the portions of Stadler that have been cited in the
rejection [.]
- Appellant has argued that the reference fails to disclose a
Persistence Rule as recited in the claim[.]
- Appellant has argued that the reference fails to apply
such concepts after charging has begun and/or in the
order and sequence recited[.]
Reply Br. 3.
We find that the Examiner has not provided evidence to support a
prima facie case of anticipation.
Appellants argue, in particular, that the reference fails to apply the
claimed concept of, “when the persistence rule is met, initiating a charging
sequence to charge a capacitor for therapy delivery; [and] after initiating the
charging sequence but before therapy delivery, determining that the cardiac
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Application 13/588,808
signal data of the patient no longer indicates a need for therapy.” App. Br.
4; claim 1.
We do not find that the Examiner has adequately shown that Stadler
describes the claim element that “when the persistence rule is met, initiating
a charging sequence to charge a capacitor for therapy delivery, after
initiating the charging sequence but before therapy delivery, determining
that the cardiac signal data of the patient no longer indicates a need for
therapy,” as recited in claim 1. While we agree with the Examiner that
Stadler does describe rules which block the delivery of therapies and which
adapt therapies based on patient need, we do not find that the Examiner has
specifically indicated where the cited prior art discloses the initiation of a
charge sequence to charge a capacitor and then determining that the cardiac
signal data of the patient no longer indicates a need for therapy.
The Examiner’s statement of the rejection fails to mention anything
about Stadler describing “initiating a charging sequence” before therapy
delivery and determining that the cardiac signal data of the patient no longer
indicates a need for therapy. Thus, the Examiner has not shown that Stadler
teaches each element claimed and the anticipation rejection is reversed.
Obviousness Rejection
The Examiner determined that claims 6 and 10 would have been
obvious over Stadler, stating:
Stadler discloses the claimed invention except for the X-out-of-
Y filter is applied by using an 18-out-of-24 rule as the
predetermined treatment threshold. It would have been obvious
to one having ordinary skill in the art at the time the invention
was made to provide an X of 18 and a Y of 24, since it has been
held that discovering the optimum value of a result of effective
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variable involves only routine skill in the art. In re Boesch, 617
F.2d 272, 205 USPQ 215 (CCPA 1980).
Answer 4.
Claim 6 depends from independent claim 1, which we addressed
above and concluded it was not anticipated because the Examiner did not
identify how Stadler disclosed the limitation, “after initiating the charging
sequence but before therapy delivery, determining that the cardiac signal
data of the patient no longer indicates a need for therapy.” Claim 10
depends from independent claim 7, which also recites, “after initiating the
charging sequence but before therapy delivery, determining that the cardiac
signal data of the patient no longer indicates a need for therapy.” The
Examiner has not explained why this limitation would have been taught or
suggested by Stadler; therefore, we conclude no prima facie case has been
established for obviousness. See App. Br. 29-30.
CONCLUSION OF LAW
The cited reference fails support the Examiner’s anticipation and
obviousness rejections, which are each reversed.
REVERSED
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