Ex Parte Wilson

Patent Trial and Appeal Board

Mar 30, 2016

12879159 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/879, 159 09/10/2010
2101 7590 04/01/2016
Sunstein Kann Murphy & Timbers LLP
125 SUMMER STREET
BOSTON, MA 02110-1618
FIRST NAMED INVENTOR
Blake S. Wilson
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.
1941/C37 6408
EXAMINER
MORALES, JON ERIC C
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
usptomail@sunsteinlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BLAKE S. WILSON
Appeal2014-001258
Application 12/879,159
Technology Center 3700
Before ANTON W. PETTING, NINA L. MEDLOCK, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner's
rejections of claims 1, 4--12, and 15-22. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 "Med-El Elektromedizinische GmbH" is listed as the real party in interest.
(Appeal Br. 2.)
Appeal2014-001258
Application 12/879,159
STATEMENT OF THE CASE
The Appellant's invention relates to "electric and acoustic stimulation
techniques in cochlear implant systems and other implantable auditory
prostheses." (Spec. i-f 2.)
Illustrative Claim2
1. A method of generating stimulus signals for an auditory
prosthesis system, the method comprising:
processing an acoustic audio signal to represent:
i. a low frequency signal conveying lower audio
frequency information including periodicity and
fundamental frequency characteristics, and
ii. a high frequency signal conveying higher audio
frequency information including band-pass envelope
characteristics;
providing the low frequency signal to an associated low
frequency stimulator of the auditory system of a
patient; and
providing the high frequency signal to an associated high
frequency stimulator of the auditory system of the
patient including a cochlear implant electrode array
having a plurality of high frequency stimulation
electrodes for applying the high frequency signal to
nearby neural tissue, wherein the high frequency
stimulator provides to each stimulation electrode a
sequence of electric stimulation pulses at a pulse rate
of less than 100 Hz.
Crosby
Leysieffer
Mouine
References
us 4,532,930
US 2001/0031996 Al
US 2004/0082980 Al
Aug. 6, 1985
Oct. 18, 2001
Apr. 29, 2004
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 10-13 of the Appeal Brief.
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Appeal2014-001258
Application 12/879,159
Rejections
The Examiner rejects claims 1, 4, 6-8, 12, 15, and 17-19 under
35 U.S.C. § 102(b) as anticipated by Mouine. (Final Action 2.)
The Examiner rejects claims 5 and 16 under 35 U.S.C. § 103(a) as
unpatentable over Mouine and Crosby. (Id. at 4.)
The Examiner rejects claims 9-11 and 20-22 under 35 U.S.C.
§ 103(a) as unpatentable over Mouine and Leysieffer. (Id. at 5.)
ANALYSIS
Independent claims 1 and 12 each requires a high frequency
stimulator to provide "to each stimulation electrode a sequence of electric
stimulation pulses at a pulse rate of less than 100 Hz." (Claims App.) The
Examiner finds Mouine discloses a high frequency stimulator that provides
electrical stimulation pulses to stimulation electrodes at this pulse rate. (See
Final Action 3.) We are persuaded by the Appellant's arguments that
Mouine does not sufficiently support this finding by the Examiner. (See
Appeal Br. 6-8; see also Reply Br. 2-3.)
The Examiner's finding relies solely upon a graphical window
interface illustrated in Mouine's Figure 5. (See Final Action 6, see also
Answer 7.) The illustrated graphical window interface contains a value of
"30 I min" listed in a "pulsation frequency" field. (See Mouine Fig. 5.) The
Examiner does not point to, and we do not find, disclosure in Mouine
indicating that the listed pulsation frequency is provided by a high frequency
stimulator, and/or that the listed pulsation frequency is provided to a
stimulation electrode, as is required by independent claims 1 and 12.
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Appeal2014-001258
Application 12/879,159
Thus, we do not sustain the Examiner's rejection of independent
claims 1and12 under 35 U.S.C. § 102(b) as anticipated by Mouine. The
Examiner's further findings and determinations with respect to the
dependent claims and/or the secondary prior art references (see Final
Action 4---6) do not compensate for the above-discussed shortcoming in
Mouine. Thus, we do not sustain the Examiner's rejection of dependent
claims 4, 6-8, 15, and 17-19 under 35 U.S.C. § 102(b) as anticipated by
Mouine; we do not sustain the Examiner's rejection of claims 5 and 16 under
35 U.S.C. § 103(a) as unpatentable over Mouine and Crosby; and we do not
sustain the Examiner's rejection of claims 9-11 and 20-22 under 35 U.S.C.
§ 103(a) as unpatentable over Mouine and Leysieffer.
DECISION
We REVERSE the Examiner's rejections of claims 1, 4--12, and 15-22.
REVERSED
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