Ex Parte MorelloDownload PDFPatent Trial and Appeal BoardApr 24, 201311720023 (P.T.A.B. Apr. 24, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GINO F. MORELLO ____________ Appeal 2011-003048 Application 11/720,023 Technology Center 3700 ____________ Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and BART A. GERSTENBLITH, Administrative Patent Judges. GERSTENBLITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003048 Application 11/720,023 2 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; Appeal 2011-003048 Application 11/720,023 3 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. Appeal 2011-003048 Application 11/720,023 4 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 Appeal 2011-003048 Application 11/720,023 5 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) Appeal 2011-003048 Application 11/720,023 6 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 Appeal 2011-003048 Application 11/720,023 7 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 Appeal 2011-003048 Application 11/720,023 8 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. Appeal 2011-003048 Application 11/720,023 9 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. Appeal 2011-003048 Application 11/720,023 10 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 Appeal 2011-003048 Application 11/720,023 11 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 Appeal 2011-003048 Application 11/720,023 12 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 hh Copy with citationCopy as parenthetical citation