Ex Parte Morello

Patent Trial and Appeal Board

Apr 24, 2013

11720023 (P.T.A.B. Apr. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GINO F. MORELLO
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Appeal 2011-003048
Application 11/720,023
Technology Center 3700
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Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Gino F. Morello (“Appellant”) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1-21, 23, and 24. We have
jurisdiction under 35 U.S.C. § 6(b).
The Claimed Subject Matter
Claims 1, 9, 23, and 24 are independent. Claims 1, 9, 23, and 24 are
representative of the claimed subject matter and are reproduced below.
1. A pump control system comprising:
a controller module connectable to an implanted heart
pump; and
a monitor module adapted to communicate with the
controller module via a wireless communications medium,
wherein both the controller module and the monitor module are
external to a body in which the pump resides.
9. A method of operating a blood pump, comprising:
connecting an external controller module to an internal
blood pump; and
transmitting data between a monitor module and the
controller module via a wireless communications medium.
23. A pump control system comprising:
a controller module connectable to an implanted heart
pump; and
a monitor module adapted to communicate with the
controller module via a wireless communications medium,
wherein the controller module user interface matches the
monitor module user interface.
24. A method of operating a blood pump, comprising:
connecting a controller module to a blood pump;
transmitting data between a monitor module and the
controller module via a wireless communications medium;
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powering the pump such that the pump operates at a
desired speed;
outputting digital representations of pump operating
parameters on a user interface of the controller module;
transmitting the pump operating parameters to the
monitor module; and
displaying the pump operating parameters on a user
interface of the monitor module.
References
The Examiner relies upon the following prior art references:
Chardack US 4,957,504 Sept. 18, 1990
Lancisi US 6,149,683 Nov. 21, 2000
Fabian US 7,177,699 B2 Feb. 13, 2007

Rejections
The Examiner makes the following rejections:
I. Claims 1-15, 23, and 24 are rejected under 35 U.S.C. § 102(b)
as anticipated by Lancisi;
II. Claims 16 and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lancisi and Fabian; and
III. Claims 18-22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lancisi and Chardack.
SUMMARY OF DECISION
We REVERSE.
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OPINION
Rejection I – Anticipation
The Examiner found that Lancisi anticipates claims 1-15, 23, and 24
because it discloses each and every element of the claims. Ans. 3-7.
Because Appellant has separately argued each independent claim, we
address each below.
Claim 1
With respect to claim 1, the Examiner found that Lancisi discloses a
controller module (element 44 or 56), connectable to an implanted heart
pump (through TET coils 52 and 54, respectively). Id. at 4. The Examiner
also found that Lancisi’s monitor module 58 is adapted to communicate with
the controller module via a wireless communications medium wherein the
controller module user interface inherently matches the monitor module user
interface. Id. The Examiner further found that Lancisi’s controller module
(relying upon controller module 56) and monitor module are external to a
body in which the pump resides. Id.
Appellant raises several arguments as to why claim 1 was improperly
rejected, including whether Lancisi discloses that controller 56 and monitor
58 can necessarily communicate wirelessly. App. Br. 7-8. In particular,
Appellant asserts that the Examiner must have relied upon Lancisi’s external
controller 56, and not implanted microprocessor controller 44, because the
claim requires that both the controller module and the monitor module are
external to a body in which the pump resides, and implanted controller 44 is
not external. Id. at 7. Appellant contends that Lancisi discloses external
controller 56 wirelessly communicating with implanted controller 44 and not
monitor 58. Id. at 8. Appellant also asserts that Lancisi discloses that
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monitor 58 can communicate wirelessly with implanted controller 44. Id.
Appellant further contends that even if external controller 56 should
communicate wirelessly with monitor 58, Lancisi does not disclose that
external controller 56 is capable of RF communications. Reply Br. 2.
A determination that a claim is anticipated under 35 U.S.C. § 102(b)
involves two analytical steps. First, we interpret the claim language, where
necessary, giving the claims their broadest reasonable interpretation in light
of the Specification. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
Second, we compare the construed claim to a prior art reference and make
factual findings to determine whether “each and every limitation is found
either expressly or inherently in [that] single prior art reference.” Id.
(internal quotation and citation omitted). An Examiner’s factual finding
regarding what a reference discloses must be supported by a preponderance
of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985)
(“preponderance of the evidence is the standard that must be met by the PTO
in making rejections”); see also In re Oetiker, 977 F.2d 1443, 1449 (Fed.
Cir. 1992) (Plager, J., concurring) (“In rejecting an application, factual
determinations by the PTO must be based on a preponderance of the
evidence, and legal conclusions must be correct.”) (citation omitted).
We have thoroughly reviewed Lancisi and while it is possible that
external controller 56 and monitor 58 wirelessly communicate with each
other, we disagree with the Examiner’s conclusion that such communication
is disclosed by a preponderance of the evidence. Lancisi discloses two
controllers, 44 and 56, wherein controller 44 is implanted and controller 56
is external. See, e.g., Lancisi, Fig. 2. Two modes of communication are
disclosed: (1) using transcutaneous energy transmission (TET) coils; and (2)
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using radio frequency (RF) waves. E.g., id. at col. 3, ll. 39-67. Implanted
controller 44 and external controller 56 each include TET coils (represented
by 52 and 54, respectively) by which the controllers can wirelessly
communicate with each other. Id. at col. 3, ll. 39-44. Wireless
communication via RF is described in the following passage:
As represented by the concentric partial circles in FIG. 2,
the implanted microprocessor controller 44 could also
communicate with an external monitor 58 using radio
frequency (RF) waves with RF transmitter/receiver 60. . . . The
external monitor 58 may or may not be part of or connected to
the external power unit and controller 56. The external monitor
58 could take various forms such as a table top unit, a vest
and/or even a wrist mounted device designed to look like a
wrist watch or a heart rate monitor and having RF
communication capabilities for untethered use.
Id. at col. 3, ll. 53-64 (emphasis added). The Examiner interprets the above
passage and, in particular, the emphasized portion as indicating that monitor
58 can communicate via RF with controller 56 when untethered from
controller 56. See Ans. 11.
We disagree that this disclosure is as clear as the Examiner suggests.
First, the passage reflects that Figure 2 contains “concentric partial circles”
indicating RF waves, and hence which components—implanted controller
44 and external monitor 58—can communicate by that wireless mode.
Lancisi, col. 3, ll. 53-56. The passage does not state, and Figure 2 does not
show (by use of concentric partial circles or otherwise), that external
controller 56 has RF communication capabilities. Id. at col. 3, ll. 53-64;
Fig. 2.
Second, the passage indicates that monitor 58 may be part of or
connected to external controller 56. It also indicates that monitor 58 has RF
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communication capabilities for untethered use. We agree with the Examiner
and Appellant that untethered use refers to when monitor 58 is not part of or
physically connected to external controller 56. See Ans. 11; Reply Br. 1-2.
That understanding, however, does not resolve the issue because, as
mentioned, the disclosure does not explicitly indicate whether external
controller 56 also has RF communication capabilities. While there is a
possibility that external controller 56 may have RF communication
capability, we find it at least equally likely that it does not. For example,
when tethered, external controller 56 may communicate with monitor 58 via
a physical connection or may communicate with monitor 58 through
implanted controller 44 (external controller 56 could send a communication
through the TET coils followed by implanted controller 44 relaying that
communication to monitor 58 via RF). Thus, when untethered, it similarly
appears plausible that external controller 56 could communicate with
monitor 58 through implanted controller 44, e.g., using TET from external
controller 56 to implanted controller 44, and then using RF from implanted
controller 44 to monitor 58.
Third, the passage’s latter mention of monitor 58’s RF capability may
simply refer back to the former mention of monitor 58’s ability to
communicate with implanted controller 44 via RF, rather than monitor 58
communicating with external controller 56.
The other portions of Lancisi relied upon by the Examiner similarly
do not persuade us that it is more likely than not that Lancisi’s external
monitor 58 and external controller 56 necessarily communicate wirelessly.
For example, column 4, lines 50 through 52 (see Ans. 11), indicates that
“[t]he system can communicate with an outside monitoring system through
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means of RF telemetry communication and/or pulsed TET coil
communication.” Lancisi, col. 4, ll. 50-52. It appears equally likely,
however, that this disclosure is either repeating the earlier disclosure
regarding communication with monitor 58 by RF (from implanted controller
44) or by TET (when monitor 58 is connected to, or part of, external
controller 56). It does not persuade us that monitor 58 necessarily
communicates wirelessly with external controller 56. Similarly, column 5,
lines 2 through 5 (see Ans. 11), does not persuade us that external controller
56, more likely than not, communicates wirelessly with monitor 58. That
passage indicates that “[t]he system can be designed to allow for the external
power unit and controller 56 to supply all power and control functions in
case of emergencies or when otherwise deemed necessary.” Lancisi, col. 5,
ll. 2-5. Thus, while we agree with the Examiner that it is reasonable that
external controller 56 “should” be communicating with the external monitor
and that such communication “well could be via an RF link” (see Ans. 11),
given the other possibilities present, as discussed above, we do not agree that
this passage makes it more likely than not that Lancisi discloses wireless
communication between external controller 56 and monitor 58.
Accordingly, we do not sustain Rejection I as applied to claim 1 and
claims 2-8, which depend therefrom.
Claim 9
With respect to claim 9, the Examiner found that Lancisi discloses a
method of operating a blood pump including the step of connecting
controller module 56 to a blood pump, and transmitting data between
monitor module 58 and controller module 56 via a wireless communications
medium. Ans. 6.
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Appellant asserts that the rejection of claim 9 is in error because the
first step of the claimed method requires “connecting an external controller
module to an internal blood pump” and Lancisi’s external controller 56 is
“not actually ‘connected’ to his blood pump.” App. Br. 20.
The broadest reasonable interpretation of “connecting” in claim 9, in
light of Appellant’s Specification, is that it requires a wired connection, i.e.,
it is not wireless. The only disclosure explicitly referring to the connection
between the implanted components, which include pump 12, and external
controller module 16 refers to a connection via “a percutaneous cable.” See
Spec. 3, l. 23 – 4, l. 1 (“The implanted components are connected to the
controller module 16 via a percutaneous cable.”); see also Fig. 1. A
percutaneous cable is a physical, not wireless, connection. Accordingly, the
claim requires a physical “connecting” of an external controller module to an
internal blood pump.
Lancisi’s blood pump 10 is implanted. See, e.g., Lancisi, col. 2,
ll. 12-14 (“FIG. 1 is a longitudinal, cross-sectional view of a schematic
representation of an implantable heart pump for use in association with the
control system of the present invention.”); see also Fig. 1. As discussed
supra, Lancisi’s controller 44 is implanted whereas controller 56 is external.
External controller 56, however, is not physically connected to heart pump
10; rather, as also discussed supra, it is wirelessly connected to implanted
controller 44.
Accordingly, we do not sustain Rejection I as applied to claim 9 and
claims 10-21, which depend therefrom.
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Claim 23
The Examiner addressed claims 1 and 23 together, finding each and
every element of claim 23 disclosed by Lancisi, as discussed supra. Ans. 4.
In particular, the Examiner found that Lancisi inherently discloses a
controller module user interface that matches the monitor module user
interface so that Lancisi’s system operates properly. Id.
Appellant asserts that the Examiner misinterprets “matches” as
“compatible” when finding that Lancisi’s system inherently discloses
matching user interfaces. App. Br. 14. Rather than simply meaning
“compatible,” Appellant asserts that “matches” means that the claimed user
interfaces have “similar or identical LEDs, LCDs, keypads, and/or alarms.”
Id. Appellant thus contends that Lancisi does not inherently disclose user
interfaces that match when “matches” is correctly construed. Id. at 15.
Claim 23 requires that “the controller module user interface matches
the monitor module user interface.” The broadest reasonable interpretation
of “matches” in light of Appellant’s Specification is that the term refers to
the appearance of the user interfaces, not simply compatibility. The
Specification mentions “user interface” in three instances and each instance
confirms this interpretation. See Spec. 2, ll. 15-17 (“The remote monitor
provides a user interface similar or identical to the controller module,
providing a user the ability to remotely monitor the pump’s performance and
to respond to alarms.”) (emphasis added); id. at 5, ll. 11-13 (“The remote
data monitor (RDM) 18 . . . includes . . . a user interface 110 that effectively
replicates the user interface 111 of the controller module 16 . . . .”)
(emphasis added); id. at 7, ll. 22-23 (“The remote monitor’s 18 user interface
is identical to the VAD controller 18 interface and includes a tricolor light
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emitting diode (LED) backlit graphic liquid crystal display (LCD) . . . .”)
(emphases added).
While we agree with the Examiner’s understanding of Lancisi—that
“for such function [e.g., sending and receiving information] to happen and
for proper data interpretation[,] the user interfaces at both ends need to
match” (see Ans. 16-17)—the Examiner made no findings indicative of the
appearance of Lancisi’s user interfaces. Thus, we are not persuaded that
Lancisi discloses user interfaces that match as called for by claim 23.
Accordingly, we do not sustain Rejection I as applied to claim 23.
Claim 24
The Examiner found that Lancisi discloses each and every element of
method claim 24. Ans. 7. In particular, the Examiner found that Lancisi
discloses a method of operating a blood pump including, inter alia,
connecting a controller module (element 44 or 56) to a blood pump 10, and
outputting digital representations of pump operating parameters on a user
interface of the controller module. Id. at 7.
Appellant contends that claim 24 requires that the controller module is
connected to the blood pump and that the controller module have a user
interface. App. Br. 23. Appellant asserts that implanted controller 44 is the
only controller actually connected to Lancisi’s blood pump, and because
controller 44 does not have a user interface, Lancisi does not disclose each
and every element of claim 24. Id.
We agree. Method claim 24 calls for “connecting a controller module
to a blood pump.” As we previously discussed, Lancisi’s controller 44 is the
only controller taught as physically connected to blood pump 10. Claim 24
also calls for “outputting digital representations of pump operating
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parameters on a user interface of the controller module.” The Examiner,
however, did not find that controller 44 has a user interface. Rather, the
Examiner appears to have focused on controller 56 as satisfying this element
of the claim. See Ans. 21-22 (relying upon controller 56). Controller 56, as
we previously discussed in the context of claim 9, is not physically
connected to blood pump 10. Thus, we do not agree that Lancisi discloses
each and every element of claim 24.
Accordingly, we do not sustain Rejection I as applied to claim 24.
Rejections II and III – Obviousness
Rejection II (directed to claims 16 and 17) and Rejection III (directed
to claims 18-22) relied upon the Examiner’s findings as reflected in
Rejection I. See Ans. 8-9. Accordingly, for the reasons expressed with
respect to Rejection I, we do not sustain Rejections II and III.
DECISION
We reverse the Examiner’s decision rejecting claims 1-21, 23, and 24.

REVERSED

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