SORIN CRM SAS

Patent Trials and Appeals Board

Sep 15, 2021

2021001600 (P.T.A.B. Sep. 15, 2021)

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.
15/479,095 04/04/2017 Willy Regnier 104292-1816 6954
138269 7590 09/15/2021
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
09/15/2021 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@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILLY REGNIER
____________

Appeal 2021-001600
Application 15/479,095
Technology Center 3700
____________

Before JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and
SEAN P. O’HANLON, Administrative Patent Judges.

O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 7–14, and 20. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM IN
PART.
In explaining our Decision, we refer to the Final Office Action mailed
February 13, 2020 (“Final Act.”), the Appeal Brief filed September 11, 2020

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Sorin CRM SAS.
Appeal Br. 2.
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(“Appeal Br.”), the Examiner’s Answer mailed November 5, 2020 (“Ans.”),
and the Reply Brief filed January 4, 2021 (“Reply Br.”).
SUMMARY OF THE INVENTION
Appellant’s claimed invention relates to implants for managing
cardiac rhythm. Spec. ¶ 3. Claim 1, the sole independent claim, is
reproduced below from page 23 (Claims Appendix) of the Appeal Brief:
1. An implantable autonomous heart stimulation capsule,
comprising:
an elongated tubular body structured to pass through a
portion of a vasculature and having:
at a first end, a releasable linking device
connectable to an installation lead; and
at a second end, an anchoring element for
anchoring the implantable autonomous heart stimulation
capsule to a heart wall, the elongated tubular body
housing a frame supporting an electronic unit; and
an accelerometer, wherein the accelerometer comprises:
a piezoelectric blade extending cantilevered from
an end region of the piezoelectric blade embedded into
the frame and in a direction from the first end to the
second end, and wherein the piezoelectric blade extends
cantilevered in a direction substantially parallel to a
central axis of the anchoring element.
REFERENCE
The Examiner relies on the following prior art reference in rejecting
the claims on appeal:
Gelbart US 2007/0293904 A1 Dec. 20, 2007
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REJECTION
Claims 1–4, 7–14, and 20 stand rejected under 35 U.S.C. § 102(a)(1)
as being anticipated by Gelbart.2
ANALYSIS
Claims 1–3, 10–14, and 20
In contesting this rejection, Appellant argues claims 1–3, 10–14, and
20 together as a group. See Appeal Br. 7–10; see also id. at 5 (defining
Group I). We select claim 1 as representative, and claims 2, 3, 10–14, and
20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2019).
The Examiner finds that Gelbart discloses all of the elements of
independent claim 1. Final Act. 3–4. Of particular note, the Examiner finds
that Gelbart discloses
an anchoring element (9, 12) for anchoring the implantable
autonomous heart stimulation capsule to a heart wall, . . . [and] a
piezoelectric blade (5) extending cantilevered from an end region of
the piezoelectric blade embedded into the frame (6) . . . , and wherein
the piezoelectric blade extends cantilevered in a direction substantially
parallel to a central axis of the anchoring element.
Id. at 4.
Appellant argues that the Examiner errs in finding that the identified
anchoring element of Gelbart (i.e., electrodes 9, 12) has a central axis that is
substantially parallel to the direction in which the piezoelectric blade (i.e.,
piezoelectric generator 5) extends. Appeal Br. 7–10. Appellant asserts that
“[t]he closest to a ‘central axis’ between electrodes (9, 12) would be an axis
extending from base 2 and centrally between the electrodes (9, 12)” (id. at

2 The rejection of claims 5, 6, and 15–19 under 35 U.S.C. § 102(a)(1) was
withdrawn by the Examiner. Final Act. 3–4; Ans. 4.
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9), and “piezoelectric generator 5 is perpendicular to the axis central
between electrodes (9, 12)” (id. at 10). According to Appellant, “[t]he
Examiner’s interpretation of the axis between the two electrodes as reading
on the axis of the anchoring element in claim 1 impermissibly reads out the
term ‘central’ from the claim.” Id. We are not persuaded by this argument.
The Examiner responds in the Answer that the “central axis of the
anchoring element” recited in claim 1 is not defined in the Specification or
the claim. Ans. 5. Referring to the annotated reproduction of Gelbart’s
Figure 1 provided on page 5 of the Answer, the Examiner takes the position
that the identified anchoring element (electrodes 9 and 12) has a central axis
represented by the “line defined by the central portions of electrodes 9 and
12,” which “is substantially parallel to blade 5.” Id. In this regard,
Appellant does not persuasively refute the Examiner’s position. Appellant
asserts that, “even under a broadest reasonable interpretation, ‘the first line’
defined by the Examiner is not a ‘central axis’ to the electrodes (9, 12)”
(Reply Br. 3), but does not proffer any evidence or persuasive technical
rationale to support this assertion. That Appellant identifies an alternative
“central axis” for Gelbart’s electrodes 9 and 12 (see Appeal Br. 9) does not
establish that the Examiner’s interpretation is unreasonable, and, thus, does
not apprise us of error in the Examiner’s finding. As the axis defined by the
Examiner appears to pass through a central region of electrode 9 and a
central region of electrode 12 (see Ans. 5), Appellant’s arguments fail to
explain persuasively why the Examiner’s axis is not a “central axis.”
Appellant points to Figure 2 of the Drawings as depicting anchoring
element 31 having a corresponding central axis. Appeal Br. 8. However,
although Figure 2 depicts anchoring element 31 having a particular structure
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(i.e., it appears to resemble a corkscrew or helix), claim 1 does not recite any
limitations specifying the structure of the anchoring element, much less
recite any limitations requiring the particular structure depicted in Figure 2.
See In re Self, 671 F.2d 1344, 1348, 1350 (CCPA 1982) (explaining that
limitations not appearing in the claims cannot be relied upon for
patentability).
For the above reasons, we sustain the rejection of claim 1, and claims
2, 3, 10–14, and 20 falling therewith, as anticipated by Gelbart.
Claim 4
In rejecting claim 4, which depends indirectly from claim 1, the
Examiner finds that Gelbart discloses “the inertial mass has dimensions
which decrease when moving away from the piezoelectric blade’s
embedding region.” Final Act. 4 (citing Gelbart ¶ 43).
Appellant argues that “Gelbart discloses a mass 6 with constant or
uniform dimensions.” Appeal Br. 11; see also id. (asserting that “FIGS. 3A
and 3B of Gelbart show that mass 6 is a constant size and shape in cross-
section (i.e., has uniform dimensions)”). This argument is unpersuasive.
The Examiner correctly observes that “claim 4 does not explicitly
state which ‘dimensions’ decrease when moving away from the embedding
region of the blade.” Ans. 6. The Examiner takes the position that
Figure 3B of Gelbart depicts inertial mass 6 as a cylinder, which “curves to a
wide point at the diameter, then tapers to the bottom of the curve.” Id.
Appellant’s argument does not identify error in the Examiner’s position.
Given the orientation of the cylinder-shaped inertial mass 6 relative to
generator 5 as shown in Figure 3B, a chord dimension of the cylinder
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increases when moving away from the embedded region of generator 5 (i.e.,
(mounting frame 7), reaches a maximum corresponding to the diameter of
the cylinder, then decreases. Thus, a preponderance of the evidence
supports the Examiner’s finding that Gelbart discloses an inertial mass
having dimensions that decrease when moving away from the blade’s
embedding region, as required by claim 4.
For the above reasons, we sustain the rejection of claim 4 as
anticipated by Gelbart.
Claims 7–9
Claim 7, which depends directly from claim 1, recites “the
piezoelectric blade comprises on each one of its sides a first metallization for
collecting an acceleration signal and a second metallization for collecting
electrical energy.” Appeal Br. 24 (Claims App.). Appellant argues that the
Examiner does not address this limitation adequately. See Appeal Br.
14–15; Reply Br. 7–8. We agree with Appellant.
In the Final Office Action, the Examiner does not address the
recitations of this claim. See Final Act. 3–4. In the Answer, the Examiner
states that “Gelbart’s blade collects an acceleration signal, and electrical
energy,” and, “[t]herefore, Gelbart’s blade contains metallizations as
claimed.” Ans. 7. However, the Examiner does identify any disclosure in
Gelbart identifying first and second metallizations on each side of the blade
for performing the recited functions. That Gelbart’s blade collects electrical
energy and acts as an accelerometer does not evidence that first and second
metallizations perform these functions. In short, the Examiner has not
established a finding supported by a preponderance of the evidence that
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Gelbart discloses, expressly or inherently, a first metallization for collecting
an acceleration signal and a second metallization for collecting electrical
energy on each side of the blade as required by claim 7.
Accordingly, we do not sustain the rejection of claim 7, or its
dependent claims 8 and 9, as anticipated by Gelbart.
CONCLUSION
In summary,
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7–14, 20 102(a)(1) Gelbart 1–4, 10–14,
20
7–9
Overall Outcome 1–4, 10–14,
20
7–9
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)(1)(iv).
AFFIRMED IN PART