Ex Parte Betzold et al

Patent Trial and Appeal Board

Aug 14, 2017

11538711 (P.T.A.B. Aug. 14, 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.
11/538,711 10/04/2006 Robert A. Betzold P0010424.01/LG10126 2459
27581 7590 08/16/2017
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
EXAMINER
EVANISKO, GEORGE ROBERT
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
08/16/2017 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 ROBERT A. BETZOLD and JAMES W. BUSACKER
Appeal 2014-002978
Application 11/538,711
Technology Center 3700
Before DEMETRA J. MILLS, RICHARD M. LEBOVITZ, and JEFFREY
N. FREDMAN,1 Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants filed a Request for Rehearing in response to the Decision
on Appeal of November 16, 2016 (“Req. 1 Reh’g”), and the Board issued a
Decision on Request for Rehearing of March 28, 2017 (“Dec. 1. Reh’g”) (i)
granting the rehearing and (ii) setting forth a new ground of rejection
affirming the previous 35 U.S.C. § 103(a) rejection of claims 1—4, 7—18, 21,
22, 25, and 26 over Ekwall (US Patent No. 5,193,538) and Gurewitsch (US
Patent No. 6,400,988 Bl). Appellants request rehearing of that Decision.
Appellants’ Second Request for Rehearing (May 25, 2017) (“Req. 2
Reh’g”).
1 Judge Fredman has replaced Judge McCollum who was on the original
Decision and first request for rehearing.
Appeal 2014-002978
Application 11/538,711
CLAIM
Claim 1, the only independent claim 1 on appeal reads as follows
(indentations added for clarity; italics indicate disputed limitation):
1. An implantable medical device, the implantable medical
device comprising:
a battery to power the implantable medical device; and
a replacement indicator timer defining a replacement
time period,
wherein the replacement time period is the time from the
start of the replacement time period to a determined
replacement date for the implantable medical device,
wherein the determined replacement date is the date at
which the implantable medical device should be replaced,
wherein the replacement indicator timer is configured
such that the replacement indicator timer is activated to start
the replacement time period when an operational characteristic
of the battery reaches a non-varying defined value, and further
wherein the implantable medical device is configured to
make a status indicative of a remaining time of the replacement
time period available after the replacement indicator timer has
been activated.
The issue is whether Ekwall describes “the replacement indicator
timer is activated to start the replacement time period when an operational
characteristic of the battery reaches a non-varying defined value. ”
REJECTION
Ekwall describes two embodiments at column 6. In the second
embodiment, Ekwall discloses:
The voltage on the line 46 is now compared to a fixed reference
voltage on the line 48a corresponding to a predetermined value in the
counter 49. This predetermined value may be the ERT-value selected
for the operation of the pacemaker 2 in the standard stimulating mode.
2
Appeal 2014-002978
Application 11/538,711
Id. at col. 6,11. 57—62 (emphasis added).
No activation takes place at battery tests when the terminal voltage of
the battery 10 exceeds the reference voltage on line 48a. If, however,
the terminal voltage on line 46 agrees with or is lower than the
reference voltage, the voltage comparator 47 changes its output state
and starts the safety time.
Id. at col. 6,11. 63—68 (emphasis added).
Based on these disclosures in Ekwall, the Decision on Rehearing
concluded that Ekwall discloses the disputed limitation:
The “fixed reference voltage” of Ekwall... is a “non-varying
defined value” as required by the claim. The device is therefore
programmed with this non-varying value. The timer is activated
when a certain voltage is reached with respect to the non­
varying fixed reference voltage. Id., col. 6, 11. 57—68
(reproduced above). In other words, when the terminal voltage
agrees with, or is lower than, the reference voltage, the timer
starts. In this embodiment, the reference voltage is a “non­
varying defined value” as recited in the claim. The timer starts
when the measured voltage agrees with this non-varying value.
Thus, when the condition is satisfied of having a terminal
voltage agreeing with, or being lower, than the non-varying
reference voltage, "the replacement indicator timer is activated
to start the replacement time period when an operational
characteristic of the battery reaches a non-varying defined
value" as recited in the claim.
Dec. 1. Reh’g 3.
DISCUSSION
As explained by Appellants, there are two sensing and evaluating
circuits disclosed in column 6 of Ekwall, both described in reference to
Figure 4. In the first Decision on Rehearing, we focused attention on the
second embodiment in column 6 because we found that it referred to a
comparison between a battery voltage and a “fixed reference voltage” to
determine when to activate a timer to replace the battery (the ERT or
3
Appeal 2014-002978
Application 11/538,711
elective replacement time). The Decision on Rehearing found that the
“fixed reference voltage” serves as the recited “non-varying defined value”
of claim 1. See above. Appellants contend that this finding is “clear error.”
Req. 2 Reh’g 8.
Appellants contend that the comparison performed by Ekwall in the
second embodiment is between an "ERT-dependent testing voltage” (voltage
46) and not an “an operational characteristic of the battery” as required by
rejected claim 1. Id. at 8. According to Appellants, “the ERT-dependent
testing voltage on line 46 varies in accordance with the varying ERT value.”
Id. at 9. An understanding of voltage 46 is therefore determinative of the
outcome of this appeal.
As shown in Figure 4, a comparison is made by the voltage
comparator 47 between the voltage on line 46 and the “fixed” reference
voltage on line 48a. See Req. 2 Reh’g 6. In the Decision 1 on Rehearing,
we found that the voltage on line 46 corresponded to “an operational
characteristic of the battery” and voltage on line 48a to the “non-varying
defined value” of claim 1. Appellants contend that the voltage on line 46 is
not an operational characteristic of the battery. Id. at 8.
As indicated by Appellants, Ekwall teaches that, in the second
embodiment relied upon in the new ground of rejection, the elective
replacement time is adapted to the selected stimulating mode.
The circuit diagram of the sensing and evaluating means shown
in FIG. 4 also offers another possibility to adapt the ERT-value
to the selected stimulating mode. In this case, a number of
current sources 43, 44 and 45, or, alternatively, different loads,
can be set separately or together with or without the standard
load 60 according to the energy consumption of the selected
stimulating mode.
4
Appeal 2014-002978
Application 11/538,711
Ekwall, col. 6,11. 45—52.
In other words, the ERT-value is changed depending on the
stimulating mode.
Figure 4 shows that current sources 43, 44, and 45 contribute to the
voltage in line 46. Req. 2 Reh’g 6. As explained by Appellants:
[T]he second testing circuit, or configuration, varies the number
of current sources [current sources 43, 44, 45], or loads, to
vary the voltage on line 46 in according with the varying ERT-
value to test the battery 10 against the varying ERT-value.
Id. at 5.
Appellants contend that the current sources and the resulting voltage
in line 46 “is set by the register 52, which is adjustable by the stimulating
mode selector means 12 via the data bus 51 to the varying ERT-value in a
very similar way as the first testing circuit.” Req. 2 Reh’g 7—8.
In agreement with Appellants’ contention, Figure 4 shows register 52
connected to voltage sources 43, 44, and 45. Id. at 6. Ekwall also expressly
teaches:
The amount of the test load, i.e., the load during battery test, is
controlled by a register 52. This register 52 is set via the data
bus 51 by the stimulating mode selector means 12 as described
above for register 50.
Ekwall, col. 6,11. 52—56.
As described for register 50, register 52 is set based on the energy
consumption of the stimulating mode of the device. Id. at col. 6,11. 26—32.
Register 52, in turn, as explained above, adjusts the load on line 46. Id. at
col. 6,11. 52—56. Thus, the description in Ekwall supports Appellants’
argument that the voltage in line 46 is not an operational characteristic of the
battery, but rather a voltage set based on currents 43, 44, and 45, and the
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Appeal 2014-002978
Application 11/538,711
stimulating mode of the device. Thus, even if the voltage in 48a is fixed, it
is not compared to an operational characteristic of the battery as required by
rejected claim 1,
For the foregoing reasons, the rejections of claim 1—4, 7—18, 21, 22,
25, and 26 as obvious in view of Ekwall and Gurewitsch is reversed.
GRANTED
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