Ex Parte Skelton

Patent Trial and Appeal BoardFeb 26, 2016

12771854 (P.T.A.B. Feb. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121771,854 04/30/2010 71996 7590 03/01/2016 SHUMAKER & SIEFFERT, P.A 1625 RADIO DRIVE, SUITE 300 WOODBURY, MN 55125 FIRST NAMED INVENTOR Dennis M. Skelton 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 1023-917US01/P0036418.00 2590 EXAMINER MALAMUD, DEBORAH LESLIE ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 03/01/2016 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): pairdocketing@ssiplaw.com medtronic _neuro _ docketing@cardinal-ip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DENNIS M. SKELTON Appeal2014-001652 Application 12/771,854 Technology Center 3700 Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and LEE L. STEPINA, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Dennis M. Skelton ("Appellant")1 appeals under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1-9 and 12-34.2 The Board has jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM-IN-PART. 1 The Appeal Brief identifies Medtronic, Inc. as the real party in interest. Appeal Br. 3. 2 The Examiner objects to claims 10 and 11 as dependent upon a rejected base claim, but indicates they would be allowable if rewritten in independent form. Final Act. 12; Reply Br. 3. Appeal2014-001652 Application 12/771,854 CLAIMED SUBJECT MATTER Claims 1, 16, 31, and 32 are independent. Claim 1 illustrates the subject matter on appeal: 1. A method comprising: receiving posture sensor data from a posture sensor; determining a posture state of a patient based on the posture sensor data; controlling delivery of therapy to the patient according to the determined posture state; comparing the posture sensor data from the posture sensor to reference posture sensor data; and detecting the presence of at least one of sensor signal drift or sensor signal shift for the posture sensor based at least in part on the comparison, and wherein at least one of the receiving, the determining, the comparing, and the detecting is performed via one or more processors. Appeal Br. 17 (Claims App.). REJECTIONS ON APPEAL3 Claims 1-8, 12-23, and 25-34 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Timmons (US 2008/0312553 Al, pub. Dec. 18, 2008). Claims 9 and 24 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Timmons and Aminian (US 7,141,026 B2, iss. Nov. 28, 2006). 3 The Final Office Action contains a section titled "Claim Rejections - 35 USC Â§ 112," but the Answer clarifies "[t]his is not a rejection, merely an interpretation by the Examiner of the structure required" by claim 32 under 35 U.S.C. Â§ 112, i-f 6. Final Act. 3--4; Ans. 8-9. Thus, there is noÂ§ 112 rejection for us to review. Further, Appellant does not contest the Examiner's interpretation of claim 32. Appeal Br. 6-7; Reply Br. 5. 2 Appeal2014-001652 Application 12/771,854 Claims 1-7, 9, 13-15, and 31-33 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Kameyama (US 2007/0192038 Al, pub. Aug. 16, 2007). ANALYSIS A. Anticipation by Timmons (claims 1--8, 12-23, and 25-34) Claims 1--8, 12-15, and 33 Appellant argues for the patentability of claim 1 and its dependent claims 2-8, 12-15, and 33 together as a group. Appeal Br. 7-9. We select claim 1 as the representative claim to decide the appeal of the Timmons anticipation rejection with respect to this group of claims. 37 C.F.R. Â§ 41.37(c)(l)(iv) (2014). Appellant argues the Examiner errs in finding Timmons discloses, as recited in claim 1, "determining a posture state of a patient based on" posture sensor data received from internal reference pressure sensor 34. Appeal Br. 8-9; Reply Br. 5-7. Appellant further contends that, assuming the signal of sensor 34 contains posture sensor data as claimed, Timmons does not describe using that data in any way to determine a posture state of a patient. Appeal Br. 8; Reply Br. 5-7. Instead, according to Appellants, to the extent Timmons discloses determining a posture state, Timmons appears to describe doing so using condition indicator 36, not sensor 34. Appeal Br. 8. We, initially, disagree with Appellant's reading of the Examiner's rejection. The Examiner refers to sensor 34 in order to discuss the teaching in Timmons that the signal from sensor 34 is corrected by an offset that accounts for the patient's posture. In order to account for the patient's 3 Appeal2014-001652 Application 12/771,854 posture, Timmons teaches using condition indicator 36 to obtain the body posture data. Timmons i-fi-132-33. Thus, the Examiner does not find that Timmons discloses determining a posture state of a patient based on data received from sensor 34. Final Act. 4--5, 7; Ans. 9. Instead, the Examiner finds the claimed step of determining a posture state based on posture sensor data is disclosed by the following passage in Timmons: [T]he signal from internal reference pressure sensor 34 will be related to the local atmospheric pressure by a constant offset. In some cases, the correlation of internal reference pressure sensor 34 to actual local atmospheric pressure will vary by an offset amount that depends on the patient's posture, physical activity, and/or pulmonary activity and the offset amount can be uniquely determined for each combination of posture, physical activity, and/or pulmonary activity. As described in greater detail below, in some embodiments these offsets for each combination of posture, physical activity, and/or pulmonary activity can be stored in a calibration table or matrix and then later used by the system 10 order to correct the internal reference pressure signal values. Timmons i128 (emphases added); Final Act. 4--5, 7; Ans. 9. That is, the Examiner determines Timmons discloses the claimed "determining" step by using patient posture data to determine an offset to correlate the pressure data provided by sensor 34, so that it more accurately reflects the local atmospheric pressure outside of the patient. That finding is supported by a preponderance of the evidence. The cited Timmons paragraph 28 indicates the patient posture offsets to be stored in a calibration table or matrix are "described in greater detail below." Timmons i128. Timmons correspondingly describes a condition indicator 36 that "is a body posture sensor, such as an accelerometer." Id. i133. Timmons further indicates the signal from the body posture sensor is 4 Appeal2014-001652 Application 12/771,854 categorized to reflect various postural positions (id. if 53), that are then used to determine a "correlation factor" from a calibration matrix to offset pressure readings from sensor 34 (id. if 57, Fig. 11 ). Thus, the Examiner's finding that Timmons discloses the claimed "determining a posture state of a patient based on the posture sensor data" is supported by a preponderance of the evidence. Appellant also argues the Examiner errs in finding Timmons discloses, as recited in claim 1, "controlling delivery of therapy to the patient according to the determined posture state." Appeal Br. 8-9; Reply Br. 7. According to Appellant, Timmons controls delivery of therapy based on physiological pressure values, "rather than the posture of a patient determined based on the output signal of condition indicator 36." Reply Br. 7 (citing Timmons if 60). The Examiner relies on Timmons paragraph 60 as disclosing the "use of pressure signal data to effect a therapy to a patient." Final Act. 5; Ans. 9- 10. We agree with the Examiner that Timmons discloses controlling delivery of therapy to a patient according to a determined posture state. In particular, as discussed above, Timmons discloses using posture sensor data to offset pressure readings from internal reference pressure sensor 34, so that they more accurately reflect the local atmospheric pressure outside of the patient. Timmons further describes using such offset pressure readings from sensor 34 to correct pressure readings from implantable target pressure sensor 24, to account for changes in local atmospheric pressure. Timmons iii! 4--5, 21, 45, 60. It is the corrected data from target pressure sensor 24 that is used to determine a therapy to administer to a patient. Id. if 60. Because posture sensor data is used to correct readings from target pressure 5 Appeal2014-001652 Application 12/771,854 sensor 24 to account for changes in local atmospheric pressure, Timmons satisfies the "controlling" step of claim 1. For the foregoing reasons, we sustain the rejection of claims 1-8, 12- 15, and 33 as anticipated by Timmons. Claims 16--23, 25-32, and 34 Independent claims 16, 31, and 32 each contain limitations similar to those in claim 1 discussed above. Appellant argues the Examiner errs in finding these limitations to be disclosed in Timmons. Appeal Br. 9-11. For the reasons provided in connection with claim 1, we are not persuaded of Examiner error, and we thus likewise sustain the rejection of claims 16, 31, and 32, and of claims 17-23, 25-30, and 34 depending directly or indirectly from claim 16, as anticipated by Timmons. B. Obviousness based on Timmons and Aminian (claims 9 and 24) Appellant argues the Examiner errs in rejecting claims 9 and 24 as unpatentable over Timmons and Aminian, because Aminian fails to overcome the deficiencies of Timmons in anticipating respective parent claims 1 and 16. Appeal Br. 15; Reply Br. 11-12. For the reasons provided above, we are not persuaded of Examiner error in determining claims 1 and 16 to be anticipated by Timmons, and we likewise sustain the rejection of claims 9 and 24 as unpatentable over Timmons and Aminian. C. Anticipation by Kameyama (claims 1-7, 9, 13-15, and 31-33) Appellant argues the Examiner errs in finding Kameyama discloses, as recited in claim 1, "detecting the presence of at least one of sensor signal drift or sensor signal shift for the posture sensor." Appeal Br. 12-14; Reply Br. 8-11. Appellant contends the Examiner applies an unreasonably broad 6 Appeal2014-001652 Application 12/771,854 claim interpretation of sensor signal "drift" and "shift," as those terms would be understood by a person of ordinary skill in the art in light of Appellant's Specification. Appeal Br. 12-14 (citing Spec. i-f 41); Reply Br. 8-11 (citing Spec. i-fi-141, 172, and Appellant's Figs. 9A-9D). Appellant particularly contends Kameyama determines differences between outputs of various sensors to generate a signal indicating if a driver in a car seat has shifted either to the left or right, which is different from the claimed sensor signal drift or shift. Appeal Br. 12-13. The Examiner relies on Kameyama paragraph 187 and Figure 58 as disclosing the detection of sensor signal drift and shift. Final Act. 10-11; Ans. 10-11. According to the Examiner, Appellant's Specification lacks "positive language that limits the definition apparently relied upon by the Appellant." Ans. 10-11. In particular, the Examiner determines Appellant's Specification repeatedly uses the term "may," so "the Examiner does not consider the definition of the terms 'sensor signal drift' and 'sensor signal shift' to be limited to these examples." Id. at 11 (citing Spec. i-f 41). During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Trans logic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, our reviewing court admonishes us that: [U]nder the broadest reasonable interpretation, the Board's construction "cannot be divorced from the specification and the record evidence," In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir. 7 Appeal2014-001652 Application 12/771,854 2011 ), and "must be consistent with the one that those skilled in the art would reach," In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999). A construction that is "unreasonably broad" and which does not "reasonably reflect the plain language and disclosure" will not pass muster. Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) (quoting In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010)). We determine the Examiner's rejection, which equates sensor signal changes resulting from changes in a person's posture with sensor signal "drift" and "shift," rests upon an unreasonably broad interpretation of those terms in light of Appellant's Specification. In particular, the Specification detects sensor signal drift and shift as a difference in sensor signals when the patient occupies approximately the same posture state, or as sensor signals differing from typical values by more than a difference threshold. Spec. i-fi-129-30, 41--42, 95. The Specification further indicates that, when sensor signal drift or shift is detected, the medical device may apply "an offset correction to a posture state detection algorithm" to "account for any inaccuracies in the detection of patient posture state," or suspend delivery of therapy until the detected drift or shift is addressed. Id. i-fi-130, 42. Given these disclosures in Appellant's Specification, the Examiner's interpretation that the claimed detecting of sensor signal drift or shift may correspond to changes in pressure sensor signals resulting from changes in a person's posture is unreasonably broad, and is therefore in error. Kameyama discloses only detecting differences in seating sensors that result from changes in a person's posture. Kameyama, i-f 187, Fig. 58. That is not, as recited in claim 1, detecting sensor signal drift or shift. We, therefore, do not sustain the rejection of claim 1, and its dependent claims 2- 8 Appeal2014-001652 Application 12/771,854 7, 9, 13-15, and 33 as anticipated by Kameyama. Independent claims 31 and 32 recite detecting sensor signal drift or shift similarly to claim 1, and we likewise do not sustain the rejection of claims 31 and 32 as anticipated by Kameyama. DECISION The rejection of claims 1-8, 12-23, and 25-34 as anticipated by Timmons is affirmed. The rejection of claims 9 and 24 as unpatentable over Timmons and Aminian is affirmed. The rejection of claims 1-7, 9, 13-15, and 31-33 as anticipated by Kameyama is reversed. No time period for taking any subsequent action in connection with this appeal may be extended, under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 9