Ex Parte Alt et al

Patent Trial and Appeal Board

Mar 10, 2017

11852746 (P.T.A.B. Mar. 10, 2017)

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.
11/852,746 09/10/2007 Eckhard Alt P0028935.02/LG10126 1788
27581 7590
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
EXAMINER
HOLMES, REX R
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
03/14/2017 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):
medtronic_crdm_docketing @ c ardinal-ip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ECKHARD ALT and JOHN PHILIP BRINKMANN
Appeal 2014-003418
Application 11/852,746
Technology Center 3700
Before MICHAEL C. ASTORINO, CYNTHIA L. MURPHY, and
MATTHEW S. METERS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’
rejections of claims 3, 4, 7—12, 18—21, 23, 41—47, and 56—59. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify the real party in interest as “Medtronic, Inc.”
(Appeal Br. 3.)
Appeal 2014-003418
Application 11/852,746
STATEMENT OF THE CASE
The Appellants’ invention “relates to electronic medical devices that
are implanted in the body of a patient” and, “[m]ore particularly, it relates to
a congestive heart failure [(“CHF”)] monitor for detecting and monitoring
the progression of congestive heart failure and the method of remote control
and communication with the device.” (Spec. 12.)
Illustrative Claim2
56. A system for detecting and monitoring an event indicative of
congestive heart failure in a patient, comprising:
a body-implantable device comprising a circuit module having
surface electrodes on the device arranged and adapted, when the
device is implanted, for exposure to tissue in a portion of the
patient’s body generally occupied by the lungs, to perform
ongoing measurements of impedance of said body portion, the
impedance of the body portion being indicative, at least in part, of
the event indicative of congestive heart failure;
a radio-frequency transceiver within the body-implantable device
in data communication with the circuit module for transmitting
transmissions including the measurements of impedance at a
transmission time being based, at least in part, on an occurrence
of the event indicative of congestive heart failure; and
a base station comprising a radio-frequency transceiver for
receiving data from the body implantable device and sending
instructions to the body-implantable device, and an interface for
sending the data received from the body-implantable device to a
remote location and for receiving instructions from a remote
location;
wherein the transmission time is based, at least in part, on each
occurrence of congestive heart failure.
2 This illustrative claim is quoted from the Claims Appendix set forth on
pages 11—13 of the Appeal Brief,
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Application 11/852,746
Rejections
I. The Examiner rejects claims 3, 4, 7—12, 18—21, 23, 41—47, and
56—59 under 35U.S.C. § 112, second paragraph, as indefinite. (Final
Action 3.)
II. The Examiner rejects claims 3, 4, 7—12, 18—21, 23, 41—47, and
56—59 under 35 U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement. (Final Action 3.)
ANALYSIS
Claims 56, 57, 58, and 59 are the independent claims on appeal with
the rest of the claims on appeal (i.e., claims 3, 4, 7—12, 18—21, 23, and 41—47)
depending therefrom. (See Appeal Br., Claims App.)
Notes on Our Interpretation of Independent Claims 56, 57, 58, and 59
Independent claim 56 recites “an event indicative of congestive heart
failure in a patient,” recites “the impedance of [a] body portion being
indicative, at least in part, of the event indicative of congestive heart
failure,” recites “ongoing impedance measurements of said body portion,”
and recites “transmitting transmissions including the measurements of
impedance.” (Appeal Br., Claims App.) Independent claims 57, 58, and 59
recite similar limitations regarding a CHF-indicative event, the impedance of
a body portion being indicative of the CHF-indicative event, impedance
measurements of this body portion, and transmissions of these impedance
measurements. (Id.)
Independent claims 56, 57, 58, and 59 also each recite “a transmission
time being based, at least in part, on an occurrence of the event indicative of
congestive heart failure.” (Appeal Br., Claims App.) Independent claims 56,
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Application 11/852,746
57, 58, and 59 further each recite that “the transmission time is based, at least
in part, on each occurrence of congestive heart failure.” (Id.)
We agree with the Examiner that “the occurrence of an event indicative
of congestive heart failure is not the same as an occurrence of congestive
heart failure.” (Final Action 2.) Thus, independent claims 56, 57, 58, and 59
recite that a transmission time is based, at least in part, on two parameters: 1)
an occurrence of an event indicative of congestive heart failure; and 2) each
occurrence of congestive heart failure.
Rejection I
The Examiner determines that the claims on appeal are “indefinite” in
that the transmission time is based “on a parameter that has never been
determined,” namely the “occurrence of congestive heart failure.” (Final
Action 4.)
The Appellants argue that the latter recital (“the transmission time is
based, at least in part, on each occurrence of congestive heart failure”) is
“tied to” the earlier recited event (“a transmission time being based, at least
in part, on an occurrence of the event indicative of congestive heart failure”)
and “does not require an imagined event that has not been recited.” (Appeal
Br. 8.) The Appellants assert that although these two recitals “contain
slightly variant language,” “it is clear that both recitals are referring to the
same transmission.” (Id. at 7.)
We are not persuaded by these arguments because the Appellants’
position that the two recited parameters (i.e., 1) an occurrence of an event
indicative of congestive heart failure; and 2) each occurrence of congestive
heart failure) apply to the same transmission time is aligned with the
Examiner’s position that each parameter requires its own determination. We
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agree with the Examiner that “[a]n event indicative of congestive heart
failure does not actually confirm congestive heart failure.” (Answer 7.)
Independent claims 56, 57, 58, and 59 recite a CHF-indicative event, recite
that the impedance of a body portion can be indicative of the CHF-indicative
event, and recite impedance measurements of this body portion. (See
Appeal Br., Claims App.) Thus, impedance measurements could be data
indicative of congestive heart failure. But independent claims 56, 57, 58,
and 59 do not recite that this CHF-indicative data, or other data, confirms
that a patient is actually suffering from congestive heart failure.
In view of the foregoing, the Appellants do not adequately establish
that the Examiner errs in determining that the phrase “on each occurrence of
congestive heart failure” creates indefmiteness in the claim language. (See
Answer 7.) Thus, we sustain the Examiner’s rejection of claims 3, 4, 7—12,
18—21, 23, 41—47, and 56—59 under 35 U.S.C. § 112, second paragraph.
Rejection II
The Examiner determines that the claims on appeal “fail[] to comply
with the written description requirement” in that the Specification states that
the transmission time can be based on an event indicative of congestive heart
failure, but does not state that the transmission time is “based on congestive
heart failure itself.” (Final Action 3.)
The Appellants argue that the Specification “provides clear and
adequate written description support for detecting congestive heart failure
and transmitting data based, at least in part, on the occurrence of congestive
heart failure” via “the intervening description of impedance measurements,
data analysis and data transmission.” (Reply Br. 5.) The Appellants point in
particular to the statement in the Specification that “data indicative of an
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emergency condition can be made to transfer on a priority basis, such as
immediately, if sensor data from [an implant device] indicates a life
threatening condition such as tachycardia or an abnormal slow rate.”
(Spec. 1 86, emphasis added.)
We are not persuaded by this argument because the Specification
conveys that a transmission time (i.e., immediately) can be based upon sensor
data indicative of an emergency condition (i.e., CHF-indicative data).
However, the Specification does not convey that this immediate transmission
time is altered, notwithstanding CHF-indicative data, based upon whether a
patient is actually experiencing congestive heart failure. For example, the
Specification does not implicate that this immediate transmission time would
be aborted for false-positive CHF-indicative data. And the Specification does
not describe a degree of exactitude such that false-positive CHF-indicative
data is outside the realm of possibility and will never transpire.
The Appellants contend that the Specification “is replete with
description” of an implant device performing “ongoing measurements of
impedance” and “[t]he use and purpose of these ongoing measurements of
impedance is tied to the detection of congestive heart failure.” (Reply Br. 4.)
Insofar as the Appellants are contending that the Specification conveys that
the timing of the transmittal of CHF-indicative data relates directly to the
desire for early detection of congestive heart failure, we agree with this
contention. (See Spec. ]ff[ 15, 36—51.) However, this does not equate to a
transmission time being altered, notwithstanding CHF-indicative data, based
upon whether congestive heart failure is actually occurring.
In view of the foregoing, the Appellants do not adequately establish
that the Examiner errs in determining that the Specification “does not provide
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support for basing transmission times on the occurrence of congestive heart
failure.” (Final Action 2.) Thus, we sustain the Examiner’s rejection of
claims 3, 4, 7—12, 18—21, 23, 41—47, and 56—59 under 35 U.S.C. § 112, first
paragraph.
DECISION
We AFFIRM the Examiner’s rejections of claims 3, 4, 7—12, 18—21,
23, 41—47, and 56—59.
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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