Ex Parte Sommer et al

Patent Trial and Appeal Board

Sep 29, 2017

12771217 (P.T.A.B. Sep. 29, 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.
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.
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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
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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
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