Ex Parte Sommer et alDownload PDFPatent Trial and Appeal BoardSep 29, 201712771217 (P.T.A.B. Sep. 29, 2017) Copy Citation 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. 12/771,217 04/30/2010 John Louis Sommer P0034496.01/LG10126 1231 27581 7590 Medtronic, Inc. (CRDM) 710 MEDTRONIC PARKWAY NE MS: LC340 Legal Patents MINNEAPOLIS, MN 55432-9924 EXAMINER KAHELIN, MICHAEL WILLIAM ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 10/03/2017 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 JOHN LOUIS SOMMER, SCOTT J. BRABEC, JON FREDRIC URBAN, YONG-FU XIAO, and XIAOHONG ZHOU Appeal 2015-006198 Application 12/771,217 Technology Center 3700 Before STEVEN D.A. MCCARTHY, ANNETTE R. REIMERS, and GORDON D. KINDER, Administrative Patent Judges. KINDER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134 from a rejection of claims 14, 16, and 18—24. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We are informed that the real party in interest is Medtronic, Inc. Appeal Br. 3 (Dec. 29, 2014). Appeal 2015-006198 Application 12/771,217 CLAIMED SUBJECT MATTER The claims are directed to an implantable medical device for cardiac electrical stimulation. Claims 14, 16, and 21 are independent. Claim 14 is reproduced below to illustrate the claimed subject matter: 14. An apparatus for reducing a patient's heart rate or blood pressure, comprising: means for detecting the patient's atrial and ventricular depolarizations having associated refractory periods thereafter; means responsive to detecting an occurrence of a ventricular depolarization following a preceding atrial depolarization, for delivering a stimulus pulse to the patient's atrial and/or nodal tissue within the associated refractory period of the ventricle but outside of an associated refractory period of the stimulated atrial an/or [sic] nodal tissue; and means for defining a time window following the ventricular depolarization and wherein the stimulus pulse is delivered during the defined window. REJECTIONS Claims 14, 16, 18, 19, and 21—23 are rejected under 35 U.S.C. § 102(b) as being anticipated by Levin et al. (US 2008/0077187 A1 (Mar. 27, 2008), hereinafter "Levin").2 Claims 20 and 24 are rejected under 35 U.S.C. § 103(a) as being obvious in view of Levin. 2 Claims 1—13, 15, 17, and 25—30 have been cancelled. Appeal Br. 9-10 (Claims App.); see Amendment filed Dec. 29, 2014. 2 Appeal 2015-006198 Application 12/771,217 OPINION Appellants make a single argument for all the claims. Appeal Br. 5. We select claim 14 as representative, and the remaining claims stand or fall with claim 14. 37 C.F.R. § 41.37(c)(l)(iv). The present invention relates to a pacemaker that applies a pulse to the human heart during a particular window, namely, after the atrial refractory period has concluded and before the ventricular refractory period has concluded. Generally, this window occurs after the R wave and before the beginning of the T wave of a human ECG. Levin 199. The Examiner finds all of independent claim 14 is disclosed in Levin. Appellants concede that Levin applies pulses during the claimed window. “The time of delivery of the atrial pacing pulse is in fact during the physiological window 515, but this by itself doesn’t require that the device defines window 515.” Appeal Br. 7. In line with this reasoning, Appellants assert that the device of Levin delivers its pulses at a time which is calculated exclusively from the opening of the window and without regard to when it closes. “[Appellants] simply argue that the Levin device does not itself have to define window 515 in order to [deliver pacing pulses within physiological window 515].” Appeal Br. 6. “[Appellants] acknowledge that Levin provides pacing pulses within the window 515. However it is expressly disclosed as doing so without the device itself having to define the window.” Id. The Examiner relies on paragraphs 97—99 of Levin. The Examiner cites paragraph 99 of Levin as disclosing “how one would use different fiducial points of the acquired waveform to define this window.” Advisory Act. 2 (Continuation Sheet). In paragraph 99 Levin describes the timing of 3 Appeal 2015-006198 Application 12/771,217 pulses as being measured from “[appropriate trigger points such as P-Q-R-S waves of the ECG 603.” The pulses are delivered after a delay. This delay can be adjusted to by the physician by reprogramming the pacemaker or automatically corrected based on the patient’s heart rate. In most general terms pacing should occur after the R wave and before the T wave of the ECG 603. Levin 199 (emphasis added). We take this as a specific teaching in Levin that the therapeutic pulse can be automatically adjusted to occur after one point on the heartbeat cycle and before another, and those points define the claimed window. We therefore agree with the Examiner that Levin teaches defining the window in order to deliver a pulse within that window. Accordingly, we are not persuaded by Appellants’ argument. DECISION The Examiner’s rejection of claims 14, 16, and 18—24 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 4 Copy with citationCopy as parenthetical citation