Ex Parte Alt et alDownload PDFPatent Trial and Appeal BoardMar 10, 201711852746 (P.T.A.B. Mar. 10, 2017) Copy Citation 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, 2 Appeal 2014-003418 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, 3 Appeal 2014-003418 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 4 Appeal 2014-003418 Application 11/852,746 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 5 Appeal 2014-003418 Application 11/852,746 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 6 Appeal 2014-003418 Application 11/852,746 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 7 Copy with citationCopy as parenthetical citation