Ex Parte Wilder et al

Patent Trial and Appeal Board

Jan 30, 2018

13170775 (P.T.A.B. Jan. 30, 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.
13/170,775 06/28/2011 Steven E. Wilder QIG-47852 4423
12243 7590 02/01/2018
Haynes and Boone, LLP (46901)
2323 Victory Avenue
Suite 700
Dallas, TX 75219
EXAMINER
EVANISKO, GEORGE ROBERT
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
02/01/2018 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEVEN E. WILDER, MICHAEL S. LABBE,
JEFF GAGNON, and BEN COTRILL1
Appeal 2017-001216
Application 13/170,775
Technology Center 3700
Before JOHN G. NEW, RICHARD J. SMITH, and
KRISTI L. R. SAWERT, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants state that the real party-in-interest is QIG Group, LLC. App.
Br. 3.
Appeal 2017-001216
Application 13/170,775
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—10, 12—17, 32, 33, 40-44, 46, and
48—53. Specifically, claims 50—52 stand rejected as unpatentable under
35 U.S.C. § 102(e) as being anticipated by Skelton et al. (US 8,447,411 B2,
May 21, 2013) (“Skelton”).
Claims 1—4, 6, 8—10, 14—16, 32, 40-44, 48, and 50—53 stand rejected
as unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Skelton, Chen et al. (US 2009/0118796 Al, May 7, 2009)
(“Chen”), Kivi et al. (US 2011/0046698 Al, Feb. 24, 2011) (“Kivi”), and
Wikman et al. (US 2011/0202103 Al, Aug. 18, 2011) (“Wikman”).
Claims 5—7, 10, 12, 13, 17, 33, and 46 also stand rejected as
unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Skelton, Chen, Kivi, and Wikman.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CFAIMED INVENTION
Appellants’ invention is directed to devices, systems, and methods
incorporating the most-used functions of an electrical stimulator’s controller
into a small, thin pocket controller. A separate patient controller charger is
used to charge and control the implanted medical device. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
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1. An integrated controller charger operable to both charge a
rechargeable power source of an implantable medical device and
control the implantable medical device, the controller charger
comprising:
a first housing;
a user interface including a display;
a communication module including:
a transceiver operable in a first frequency range
adapted for use by implanted medical devices
and configured to transmit information from
the controller charger to the implantable
medical device and configured to receive
information from the implanted medical
device including information about which
features are currently activated and/or
programmed in the implanted medical
device, and
a wake-up transmitter operable in a second
frequency range for transmitting a signal to
the implanted medical device using an
antenna;
a power charging module having an inductive coil, said
power charging module being configured to
transmit energy from the controller charger to a
battery in the implantable medical device for
charging said battery, wherein
a control module located in said first housing, said control
module comprising a memory and a processor
configured to provide control signals to the
transceiver, the wakeup transmitter and to the power
charging module, said control module being
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operable to convey the information received from the
implanted medical device to the user and to generate
signals to activate the stimulation programs on the
implanted medical device according to inputs
received from the user via the user interface,
wherein
said first housing of the integrated controller-charger is
adapted to be of a size for handheld operation, and
further wherein.
said integrated controller charger is programmed with a
capability to display representations of a plurality of
user control functions on said display, wherein a
subset of said representations of said user control
functions that are actually displayed on said display
are limited to those which correspond to the features
currently activated and/or programmed in the
implanted medical device based on the information
that was received from the implanted medical
device such that another subset of said
representations of said user control functions which
correspond to features not activated or programmed
in the implanted medical device cannot be displayed
on said display.
App. Br. 27—28.
ISSUES AND ANALYSES
We are persuaded by, and expressly adopt, the Examiner’s findings
and conclusions establishing that Appellants’ claims areprima facie
anticipated by and/or obvious over the cited prior art. We address the
arguments raised by Appellants below.
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A. Rejection of claims 50—52 under 35 U.S.C. $ 102(e)
Issue
Appellants argue the Examiner erred in finding that Skelton discloses
the limitation of claim 50 requiring any capability to receive information
from the implanted medical device, including information about which
features are currently activated and/or programmed in the implanted medical
device. App. Br. 13
Analysis
The Examiner finds Skelton discloses a programmer that can also be
used to charge a device and can transmit and receive information to and
from the implantable medical device (“IMD”). Final Act. 2 (citing Skelton
cols. 24, 37—38, Fig. 6). The Examiner finds Skelton also discloses that the
programmer’s display can show icons of features activated, and not display
features that are not activated/programmed, by displaying a subset of
representations of user control functions. Id. (citing Skelton Figs. 6, 9-11,
13, cols. 37—38, cols. 39-40,11. 38—60). The Examiner finds Skelton
expressly discloses that a subset of the icons that are displayed are limited to
those which correspond to information about features currently activated
and/or programmed in the IMD, and that a different subset that is not
activated is not displayed. Id. (citing Skelton cols. 39-40). Furthermore, the
Examiner finds, Skelton also expressly states that the information used in
determining which group is currently active or inactive is received from the
IMD for presentation on the display. Id. (citing Skelton col. 40,11. 48—59).
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Appellants argue that claim 50 requires that the claimed integrated
controller charger is configured to receive information from the IMD about
features currently activated and/or programmed in the IMD, and uses that
information to determine which control functions to display (so that users
only have access to those functions currently activated and/or programmed
in the IMD). App. Br. 14.
Appellants contend that Skelton does not disclose that its IMD
informs the controller what features are activated and/or programmed in the
IMD itself. App. Br. 14. Hence, Appellants argue, when the user turns a
group on or off, or the user turns posture therapy on or off, the controller
determines what material to display based on such user input (rather than
based upon IMD input, as required by the claims). Id. According to
Appellants, the Skelton display is rather based on a user setting input to the
controller. Id. at 15.
Appellants argue that the Examiner’s reliance upon the disclosures of
Skelton’s columns 39 and 40 is misplaced, because Skelton fails to disclose
that the IMD communicates which features are currently activated or
programmed in the IMD to the controller. App. Br. 15. To the contrary,
Appellants assert, Skelton does not disclose any ability of its IMD to
communicate information about features of the IMD to the controller that
would affect what is displayed (or not displayed). Id.
Appellants also argue that Skelton discloses that its controller will, at
some point, display all the groups and icons at some point depending on the
user settings, regardless of any information received by the IMD. App. Br.
15. Therefore, Appellants assert, the Examiner cannot reasonably find that
such information “cannot be displayed” as required by claim 50, because it
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is displayed under certain circumstances based not on information obtained
from the IMD. Id.
Appellants argue further that Skelton discloses that, in communicating
with the IMD, the IMD informs the controller of only the posture state of the
patient, which does not correspond to the required activation/programming
status of a feature of the IMD. App. Br. 16 (citing Skelton col. 39,11. 63—
66). Rather, Appellants contend, the posture state reflects instead the status
of the patient detected by an operation of the IMD, and the information
subsequently displayed by the controller is thus based on the detected
posture state. Id. Appellants emphasize that this operation is not the IMD
notifying the controller of its programmed or activated features, as required
by the claim, rather it is merely the IMD reporting a detected posture state of
the patient and is, therefore, reporting only the status of a particular feature
that is operating. Id. Appellants assert that the posture-detecting feature of
Skelton is always available and, therefore, Skelton at most discloses that the
user may turn off the posture therapy using the controller, and does not
involve the IMD communicating with the controller, but rather vice versa.
Id. (citing Skelton Figs. 12, 14; see also col. 49,11. 28—62).
The Examiner responds that Skelton discloses that:
To accurately display the status of respective groups with regard
to posture-responsive therapy, programmer 30 may determine
the operational status of individual groups by interrogating IMD
14. For example, programmer 30 may obtain therapy information
from IMD 14 including which groups are currently active and
which groups are currently inactive for delivery of therapy based
on the detected posture state of patient 12 via a telemetry circuit,
such as telemetry circuit 110 (FIG. 6). Programmer 30 may store
such information in a memory, such as memory 108 shown in
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FIG. 6. Programmer 30 may then present the information to
patient 12, e.g., via user interface 168.
Ans. 2—3 (quoting Skelton col. 40,11. 48—59). The Examiner finds this
passage discloses that the programmer, i.e., Appellants’ claimed “integrated
controller,” interrogates the IMD and receives from the IMD therapy
information “including which groups are currently active and which groups
are currently inactive,” so that the programmer can accurately display the
status of respective groups on the user interface. Id. at 3.
The Examiner also finds Skelton discloses that the “groups” disclosed
in the passage quoted above are a set of stimulation parameters and,
therefore, active groups represent the claimed “information” about the
claimed “features” that are “currently activated and/or programmed” in the
IMD. Ans. 3. The Examiner points to Skelton’s disclosure that:
Processor 80 stores stimulation parameters in memory 82,
e.g., as programs and groups of programs. Upon selection of a
particular program group, processor 80 may control stimulation
generator 84 to deliver stimulation according to the programs in
the groups, e.g., simultaneously or on a time-interleaved basis.
A group may include a single program or multiple programs. As
mentioned previously, each program may specify a set of
stimulation parameters, such as amplitude, pulse width and
pulse rate. In addition, each program may specify a particular
electrode combination for delivery of stimulation. Again, the
electrode combination may specify particular electrodes in a
single array or multiple arrays, e.g., on a single lead or among
multiple leads. Processor 80 also may control telemetry circuit
88 to send and receive information to and from external
programmer 20. For example, telemetry circuit 88 may send
information to and receive information from patient
programmer 30.
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Id. (quoting Skelton col. 19,11. 51—67).
The Examiner further finds that Skelton discloses that those groups
that are not active can be hidden so that only current groups are shown on
the user interface. Ans. 4. Specifically, the Examiner points to Skelton’s
disclosure that:
Although respective groups typically may be presented in
alphabetical order, user interface 168 may be configured to
display to patient 12 only groups that are activated for posture-
responsive therapy and hide those groups that are inactive for
posture-responsive therapy. If the user has generally activated
posture-responsive therapy for IMD 14, and if groups A and D
are active for posture-responsive therapy, for example, user
interface 168 may permit the user to view only groups A and D
by transition via navigation arrows 180.
Id. (quoting Skelton col. 39,11. 50-54).
The Examiner therefore concludes that Skelton discloses the disputed
limitation of claim 50 since the reference discloses that the IMD sends
current settings/groups to the controller, so that the controller will display
active groups and hide inactive groups. Ans. 4.
Appellants reply that the passage of Skelton’s column 40 cited by the
Examiner also discloses that the user interface “may be used to present all
therapy groups inactive for posture responsive therapy on a single screen” in
which case “the user may readily identify groups that are active and
inactive” and that in some cases “the user may be permitted to selectively
activate and deactivate the displayed groups....” Reply Br. 3 (quoting
Skelton col. 40,11. 33—47). Therefore, Appellants argue, even the “inactive”
Skelton features can be displayed to the user in some circumstances, in
contradiction to the claim language. Id.
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Appellants argue further that, with respect to the passage of column
39 quoted by the Examiner supra and disclosing that the user interface may
be configured to display “only groups that are activated for posture-
responsive therapy and hide those groups that are inactive for posture-
responsive therapy,” the Examiner fails to note that this “blocking” is at the
discretion of the user, can be overridden by the user as well, thereby
displaying those inactive features. Id.
We are not persuaded by Appellants’ arguments. The passages of
Skelton relied upon by the Examiner, and quoted supra, expressly disclose
that, contrary to Appellants’ arguments, the controller may: “send and
receive information to and from external programmer 20.” Furthermore,
Skelton discloses that: “To accurately display the status of respective groups
with regard to posture-responsive therapy, programmer 30 may determine
the operational status of individual groups by interrogating IMD 14” and
that the: “[programmer 30 may then present the information to patient 12,
e.g., via user interface 168.” Skelton col. 48,11. 48—59 (emphasis added).
Furthermore, Skelton discloses, by way of example, that the: “user interface
168 may be configured to display to patient 12 only groups that are activated
for posture-responsive therapy and hide those groups that are inactive for
posture-responsive therapy.” Skelton col. 39,11. 50-54. We agree with the
Examiner’s conclusion that Skelton thus discloses that its programmer, i.e.,
the “controller” of claim 50, possesses:
[A] capability to display representations of a plurality of user
control functions on said display, wherein a subset of said
representations of said user control functions that are actually
displayed on said display are limited to those which correspond
to the features currently activated and/or programmed in the
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implanted medical device based on the information that was
received from the implanted medical device such that another
subset of said representations of said user control functions
which correspond to features not activated or programmed in the
implanted medical device cannot be displayed on said display
as recited in the claim.
We are similarly not persuaded by Appellants’ argument that, because
“the user may be permitted to selectively activate and deactivate the
displayed groups” (emphasis added), the controller somehow lacks the
“capability to display representations of a plurality of user control functions
... [which] are limited to those which correspond to the features currently
activated and/or programmed in the implanted medical device.” The plain
language of the claim states that the display only of those features that are
activated or programmed is a capability of the controller, whereas Skelton
teaches that the controller “may be configured to display ... only groups that
are activated.” We agree with the Examiner that the language of Skelton
stating “may be configured” corresponds directly to the capability of the
controller recited in the claims, i.e., the claim’s requirement of a “capability”
of displaying only the active features of the IMD is directly disclosed by
Skelton’s statement that the controller “may be configured” to perform as
the claim requires. We consequently affirm the Examiner’s rejection of
claim 50.
Appellants rely upon the same arguments with respect to claims 51
and 52, which depend from claim 50. App. Br. 19. For the same reasons,
we affirm the Examiner’s rejection of these claims.
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B. Rejection of claims 1—4, 6, 8—10, 14—16, 32, 40-44, 48, and 50-53
under 35 U.S.C. $ 103(a)
Appellants argue that the disclosures of Chen, Kivi, and Wikman fail
to overcome the alleged shortcomings of Skelton argued by Appellants
supra, with respect to claims 50—52. App. Br. 20.
We have explained why we are not persuaded by Appellants’
arguments that the teachings of Skelton do not anticipate Appellants’
claimed invention. We incorporate here, by reference, our reasoning and
conclusion that Skelton anticipates (and therefore renders obvious ) the
disputed limitation with respect to these claims. See In re Kalm, 378 F.2d
959, 962 (C.C.P.A. 1967) (anticipation is the epitome of obviousness).
C. Rejection of dependent claims 2-A. 6, 8—10, 14—16, 32, 40-44, and 53
under 35 U.S.C. $ 103(a)
Appellants also argue these claims separately. App. Br. 21. In
addition to their arguments presented supra, Appellants argue that claim 2
recites the feature of displaying “information to a user ... relating to
stimulation programs enabled on the implantable medical device.” Id.
Appellants contend that the Examiner has not cited any teaching of Skelton
for this particular feature. Id. The Examiner responds that, as explained
with respect to the claims already argued, Skelton teaches that the active
groups are displayed in the controller, where the active groups represent
stimulation programs. Ans. 5 (citing Skelton col. 40,11. 48—59; col. 19,11.
51-67).
We agree with the Examiner. Skelton discloses:
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[Programmer 30 may obtain therapy information from IMD 14
including which groups are currently active and which groups are
currently inactive for delivery of therapy based on the detected
posture state of 55 patient 12 via a telemetry circuit....
Programmer 30 may then present the information to patient 12,
e.g., via user interface 168.
Skelton col. 40,11. 48—59. Moreover, Skelton teaches that “groups” refers to
specific stimulation programs or regimes. See Skelton col. 19,11. 51—52
(“Processor 80 stores stimulation parameters in memory 82, e.g., as
programs and groups of programs”). We agree with the Examiner that
Skelton thus expressly teaches displaying “information to a user ... relating
to stimulation programs enabled on the implantable medical device.”
With respect to claim 4, Appellants argue that the claim recites the
feature of a serial interface that is: “configured to receive inputs selecting a
stimulation program operable on the implantable medical device such that
only stimulations programs indicated as being enabled on the implantable
medical device by the information about the current settings of the
implantable medical device are presented by the user interface to the user.”
App. Br. 21. Appellants contend the Examiner has not cited any teaching in
Skelton for such a feature. Id.
The Examiner responds that the passage of Skelton previously cited
expressly teaches that the user interface receives the current settings from
the IMD to display active groups. Ans. 5. The Examiner also finds that
Skelton teaches that those groups that are not active can be hidden so that
only the current groups are shown on the user interface. Id. (citing Skelton
col. 39,11. 50-54).
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We are not persuaded by Appellants’ argument. Claim 4 recites:
“The controller charger of claim 2, wherein the user interface is further
configured to receive inputs selecting a stimulation program operable on an
implanted medical device” incorporating the requirements of claim 2 that
such information is “relating to stimulation programs enabled on the
implantable medical device.” App. Br. 28. We agree, for the reasons
explained supra, that the cited passages of Skelton disclose that the
controller can display the stimulation program(s) operable on the implanted
device.
Appellants next argue that claim 9 requires “an external connector
configured to receive power from an external power source and charge a
rechargeable power source of the controller charger” and that claim 10
requires that the rechargeable power source is disposed between the external
connector and the power charging module, and that the rechargeable power
source is disposed between the external connector and the control module.
App. Br. 22. Appellants contend that this limitation is not taught by any of
the cited references.
The Examiner responds that Chen expressly teaches the cited
limitation of claim 9 in Figure 3 and paragraphs [0031]—[0033]. Ans. 6.
Similarly, the Examiner finds that Chen teaches that the rechargeable power
source provides power to all the components of the controller charger,
including the power charging module and control module, and therefore
must necessarily be disposed between those elements and the external
connector where the rechargeable power source is recharged. Id. (citing e.g.,
Chen 131).
We agree with the Examiner. Chen teaches:
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Power to operate the external controller 210, including the power
needed to energize the telemetry coils 62 a and 62 b and the
external charging coil 250 comes from a battery 126.... [I]n a
preferred embodiment, the battery 126 is rechargeable, which
reduces battery costs and waste.
The battery 126 can be recharged much like a cellular telephone,
and so can essentially be plugged into a 120V AC wall outlet. A
power port 280 (FIG. 3) can receive power using an AC power
source 292 (e.g., a wall plug), which is rectified to DC levels by
an AC-DC adapter 291.
Chen || 31, 33. We consequently agree with the Examiner that Chen
teaches the disputed limitations of claims 9 and 10.
Appellants also contend that claims 48—52 are patentable for the same
reasons argued by Appellants with respect to claims 1 and 50 supra. We
have explained why these arguments do not persuade us with respect to the
latter claims and we incorporate that explanation by reference to our
conclusions with respect to claims 48—52.
Finally, Appellants argue that Examiner has rejected claims 1—4, 6, 8—
10, 14—16, 32, 40-44, 48, and 50—53 based on the combination using several
different references. App. Br. 23. In essence, contend Appellants, the
Examiner is merely picking and choosing various features of the claims
based on improper hindsight analysis, as one skilled in the art would not
arbitrarily combine four different references to obtain the claimed subject
matter. Id.
We disagree. Appellants allege that the Examiner has improperly
relied upon hindsight analysis. However:
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
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takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made and
does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (C.C.P.A. 1971). Appellants’
allegation of improper hindsight analysis is entirely unsupported, let alone
supported by evidence that, in his obviousness analysis, the Examiner used
knowledge that could have been gleaned only from the disclosures of
Appellants’ Specification. We therefore affirm the Examiner’s rejection of
the claims on this ground.
C. Rejection of dependent claims 5—7, 10, 12, 13, 17, 33, and 46 under
35 U.S.C. $ 103(a)
Appellants repeat their arguments presented supra with respect to
independent claims 1 and 50 and dependent claims 9 and 10. App. Br. 24.
We are, for the reasons explained, not persuaded by their repetition with
respect to these claims.
Appellants also argue claim 17 separately. App. Br. 24. Claim 17
recites:
The controller charger of claim 1, wherein the control module is
operable to permit a user to control features on an implantable
medical device including a) electrical stimulation on/off
selection, b) stimulation amplitude adjustment, c) electrical
stimulation program selection, d) adjusting stimulation program
frequency, e) providing detailed IPG status, f) enabling PPC
setup/configuration, and g) indicating both PPC and IPG battery
status.
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Id. at 29—30. Appellants argue that the Examiner has not shown that every
one of these user control features are provided by any of the cited prior art.
Id. at 24.
Appellants argue further that claim 33 recites a user interface
comprising a touchscreen, among other components. App. Br. 24.
Appellants assert that the Examiner admits that the cited prior art fails to
teach such features. Id.
The Examiner notes that certain of these features are expressly taught
by Chen. See Non-Final Rej. 5—6, September 10, 2012 (citing Chen || 26,
30). With respect to the remaining limitations, the Examiner finds that these
limitations were originally rejected as being well-known or common
knowledge in the art. Ans. 8; see, e.g., Final Act. 8—9 (the limitations of
claim 17 are “admitted prior art as the applicant has not shown that the
examiner erred in these findings or provided other evidence to show that the
claimed subject matter would have been nonobvious”). The Examiner
points out that evidence traversing rejections must be timely or seasonably
filed to be entered and entitled to consideration. Id. (citing In re Rothermel,
276 F.2d 393 (C.C.P.A. I960)). The Examiner also points to MPEP
§ 2144.03 (C), which states:
[I]f applicant does not traverse the examiner’s assertion of
official notice or appellant’s traverse is not adequate, the
examiner should clearly indicate in the next Office action that the
common knowledge or well-known in the art statement is taken
to be admitted prior art because applicant either failed to traverse
the examiner’s assertion of official notice or that the traverse was
inadequate. If the traverse was inadequate, the examiner should
include an explanation as to why it was inadequate.
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As an initial matter, we note that Appellants do not adduce any
evidence in support of their argument other than an unsupported statement
that the limitations are neither taught nor suggested by the references. Such
conclusory statements are insufficient to overcome the Examiner’s prima
facie conclusion of obviousness. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) (stating that attorney arguments and conclusory statements
that are unsupported by factual evidence are entitled to little probative
value). Furthermore, Appellants advance no evidence to contest the
Examiner’s findings that the features recited in claims 17 and 33 are
common knowledge in the art of controllers. Absent any such argument
supported by evidence or a timely traversal of the Examiner’s assertion of
official notice, we affirm the Examiner’s rejection of the claims. See, e.g.,
In re Chevenard, 139 F.2d 711, 713 (C.C.P.A. 1943) (“In the absence of
anything in the record to contradict the examiner’s holding, and in the
absence of any demand by appellant for the examiner to produce authority
for his statement, we will not consider this contention.”).
DECISION
The Examiner’s rejection of claims 50—52 under 35 U.S.C. § 102(e) is
affirmed.
The Examiner’s rejection of claims 1—10, 12—17, 32, 33, 40-44, 46,
and 48—53 under 35 U.S.C. § 103(a) is affirmed.
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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
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