Ex Parte Ballis

Patent Trial and Appeal Board

Nov 14, 2012

12548850 (P.T.A.B. Nov. 14, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte JOSEPH A. BALLIS
__________

Appeal 2011-013373
Application 12/548,850
Technology Center 3700
__________

Before ERIC GRIMES, JEFFREY N. FREDMAN, and ERICA A.
FRANKLIN, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
implantable medical device. The Examiner has rejected the claims as
anticipated and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
STATEMENT OF THE CASE
The Specification discloses an apparatus for detecting
“electromagnetic interference (EMI) to an implantable medical device
(IMD) and for warning the user of the device of the danger of remaining in
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the vicinity of the source of the EMI, such that the patient could move away
from the area to restore proper operation of the pacemaker” (Spec. 3:20-24).
Claims 1-22 are on appeal. Claim 1 is representative and reads as
follows:
1. An implantable medical device, comprising:
a sensor responsive to physiologic conditions of a patient;
therapy delivery circuitry coupled to the sensor and providing therapy
in response to the sensed physiologic conditions;
a detector coupled to the sensor and detecting electromagnetic
interference and providing a signal indicating the present magnitude of the
detected electromagnetic interference;
an alarm perceptible to the patient and coupled to the detector,
activated responsive to the signal indicating that the present magnitude of
the detected electromagnetic interference exceeds a defined threshold; and
control circuitry coupled to the alarm and the sensor ceasing
activation of the alarm responsive to the signal indicating that the present
magnitude of the detected electromagnetic interference is below the defined
threshold.

The claims stand rejected as follows:
• Claims 1-6, 9-14, 17, and 20 under 35 U.S.C. § 102(b) in view of
Meltzer;1
• Claims 7, 15, 18, and 21 under 35 U.S.C. § 103(a) in view of
Meltzer and Scampini;2 and
• Claims 8, 16, 19, and 22 under 35 U.S.C. § 103(a) in view of
Meltzer and Langer.3

1 Meltzer, US 5,647,379, July 15, 1997.
2 Scampini US 5,629,622, May 13, 1997.
3 Langer et al., US 4,223,678, Sept. 23, 1980.
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I.
Issue
The Examiner has rejected claims 1-6, 9-14, 17, and 20 as anticipated
by Meltzer. Claims 2-6, 9-14, 17, and 20 have not been argued separately
and therefore stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Meltzer discloses a device meeting all of the
limitations of claim 1 (Answer 4-5), but Appellant contends that the “claims
require comparing a signal indicating the present magnitude of detected
electromagnetic interference to a threshold” (Appeal Br. 8), while Meltzer
discloses comparing a sensor signal and EMI signal, which is “not a signal
indicative of the magnitude of the detected interference, but only of the
similarity between the two signals” (id. at 9).
The issue presented is: Does the evidence of record support the
Examiner’s finding that Meltzer discloses an implantable medical device
comprising a physiological sensor and “a detector coupled to the sensor and
… providing a signal indicating the present magnitude of the detected
electromagnetic interference”?
Findings of Fact
1. Meltzer discloses an “apparatus for detecting dangerous and/or
potentially dangerous intensities of EMI that could interfere with or affect
the operation of an implantable medical device, such as a cardiac pacemaker
or defibrillator” (Meltzer, col. 4, ll. 23-27).
2. Figure 1 of Meltzer is shown below:
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Figure 1 shows “a block schematic diagram that shows an apparatus for
detecting EMI in an implanted cardiac device 10” (id. at col. 4, ll. 33-35).
3. Meltzer discloses that “sensor 11 that is placed in or near a
patient’s heart 12 produces a biomedical signal that may include such
information as patient ECG. The biomedical signal is provided on line 13 …
to the input of the cardiac device.” (Id. at col. 4, ll. 36-40.)
4. Meltzer discloses that “[i]f the patient is exposed to EMI 14, the
input signal may also include an EMI component” (id. at col. 4, ll. 40-41).
5. Meltzer discloses that, “[a]fter filtering, the biomedical signal is
coupled via line 17 to a … correlator 20.… [C]orrelators have been used in
noise processing for many years.” (Id. at col. 4, ll. 56-59.)
6. Meltzer discloses that the “biomedical signal is also coupled via
line 18 to … microprocessor 21.… [I]f the device is a cardiac pacer, the
input signal can provide the device with an indication of patient ECG, and
thereby enable the device to establish a proper pacing rate.” (Id. at col. 5, ll.
4-10.)
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7. Meltzer discloses that “ [t]he EMI signal … is received or detected
at a point of reception, such as provided by an antenna 24,” and provided to
the correlator 20 (id. at col. 5, l. 12-17).
8. Meltzer discloses that the biomedical signal and the EMI signal
provided to the correlator 20 “each include[s] an EMI component. However,
the signal channel from the patient’s heart 12 comprises a biomedical signal
containing both cardiac information and an EMI component. The correlator
uses the EMI signal and the biomedical signal to produce a correlation
function … [that] indicates the relative level of the EMI component of the
biomedical signal.” (Id. at col. 5, l. 67 to col. 6, l. 8.)
9. Meltzer discloses that the
correlation function … is coupled to a threshold detector 32.…
[T]he level of the EMI component is detected by the threshold
detector 32. If the level of the EMI component exceeds any of
one or more predetermined thresholds, the threshold detector …
provides a signal to microprocessor 21 to initiate … remedial
actions, such as ... a patient warning signal.
(Id. at col. 6, l. 65-col. 7, l. 11.)
10. Meltzer discloses that “[i]n this way, the patient is alerted when
the intensity of EMI is such that it is not safe to remain at the current
location. The patient may then move to another location…. When the
intensity of the EMI decreases to a safe level the patient alarm is
discontinued.” (Id. at col. 7, ll. 13-18.)
Analysis
We agree with the Examiner that Meltzer discloses a device meeting
the limitations of claim 1. Meltzer discloses a device, such as a pacemaker
(FF 1), that includes a sensor (FF 3) and therapy delivery circuitry (FF 6).
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Meltzer’s device also includes a detector that detects electromagnetic
interference (EMI) (FF 7), an alarm that is activated when the EMI exceeds
a defined threshold (FF 9), and control circuitry that discontinues the alarm
when the EMI decreases below the threshold (FF 10).
Appellant argues, however, that the “claims require comparing a
signal indicating the present magnitude of detected electromagnetic
interference to a threshold” (Appeal Br. 8), while Meltzer’s correlation
function – which based on comparing the sensor signal and EMI signal – is
“not a signal indicative of the magnitude of the detected interference, but
only of the similarity between the two signals” (id. at 9).
We agree with the Examiner that the language of claim 1 reads on
Meltzer’s device. As the Examiner noted (Answer 8), Meltzer discloses that
the biomedical signal of its device includes an EMI component and it is the
level of this component, as indicated by the correlation function (FF 8), that
is affected by the present level of electromagnetic radiation (FF 8) and that
triggers an alarm when it exceeds a defined threshold (FF 9). Meltzer’s
device therefore includes a detector that provides a signal indicating the
present magnitude of the detected EMI (EMI detector; FF 7) and an alarm
that is responsive to that signal (as processed by the correlator) when it
exceeds a defined threshold (defined by its effect on the sensor signal, as
indicated by the correlation function).
Appellant also argues that claim 1 requires that “the magnitude of the
interference in the output of the physiological sensor is compared to the
threshold” (Appeal Br. 11). Appellant argues that although Meltzer
expressly describes “a signal indicative of the magnitude of the detected
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interference,” the signal is from “a different sensor from that which detects
the physiological signal” (id.).
This argument is also not persuasive. Claim 1 does not recite
comparing the magnitude of interference in the sensor’s output to a
threshold, but in any case, the correlation function determined by Meltzer’s
correlator determines the EMI component of the sensor signal in Meltzer’s
device, then the threshold detector determines whether that component
exceeds a defined threshold and triggers an alarm if it does (see FFs 8, 9).
Thus, Meltzer’s device reasonably appears to meet the limitations disputed
by Appellants.
Thus, we affirm the rejection of claim 1 as anticipated by Meltzer.
Claims 2-6, 9-14, 17, and 20 fall with claim 1.
Conclusion of Law
The evidence of record supports the Examiner’s finding that Meltzer
discloses an implantable medical device comprising a physiological sensor
and “a detector coupled to the sensor and … providing a signal indicating
the present magnitude of the detected electromagnetic interference.”
II.
The Examiner has rejected claims 7, 15, 18, and 21 as obvious in view
of Meltzer and Scampini and claims 8, 16, 19 and 22 as obvious in view of
Meltzer and Langer. Appellant has waived any arguments based on
Scampini and Langer (Appeal Br. 13). We therefore affirm these rejections
based on the findings and reasoning presented in the Answer (pages 5-6).
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SUMMARY
We affirm the rejection of claims 1-6, 9-14, 17, and 20 under 35
U.S.C. § 102(b). We also affirm the rejection of claims 7, 8, 15, 16, 18, 19,
21, and 22 under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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