CARDIAC PACEMAKERS, INC.

Patent Trials and Appeals Board

Feb 24, 2022

2021000039 (P.T.A.B. Feb. 24, 2022)

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. 16/033,852 07/12/2018 Jacob M. Ludwig 1001.3854102 1368 11050 7590 02/24/2022 SEAGER, TUFTE & WICKHEM, LLP 100 South 5th Street Suite 600 Minneapolis, MN 55402 EXAMINER FLEMING-HALL, ERICA L ART UNIT PAPER NUMBER 2649 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): BSC.USPTO@stwiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _______________ Ex parte JACOB M. LUDWIG, MICHAEL J. KANE, BRENDAN E. KOOP, WILLIAM J. LINDER, KEITH R. MAILE, and JEFFREY E. STAHMANN _______________ Appeal 2021-000039 Application 16/033,852 Technology Center 2600 _______________ Before MAHSHID D. SAADAT, JASON J. CHUNG, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-12 and 21-28. Appellant has canceled claims 13-20. See Appeal Br. 16. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). We reverse. 1 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies Cardiac Pacemakers, Inc. as the real party in interest. Appeal Br. 3. Appeal 2021-000039 Application 16/033,852 2 STATEMENT OF THE CASE Introduction Appellant’s disclosed and claimed invention relates to “communications between medical devices in a multi-device system.” Spec. 1:12-13. More particularly, Appellant’s invention relates to optimizing the time when a medical device attempts to communicate with another device. Spec. 1:26-28, 10:7-8. In a disclosed example, an implanted device (e.g., a pacemaker) may communicate to another device using conducted communication. See Spec. 7:27-8:15. According to the Specification, conducted communication “is communication via electrical signals [that] propagate via patient tissue and are generated by more or less ordinary electrodes.” Spec. 8:11-13. Appellant further describes that conducted communication may be subject to interference from various biological functions, such as a patient’s breathing and heartbeats. Spec. 10:26-27. As such, “a temporal optimization may be highly useful to enhance communication reliability.” Spec. 12:16-17. In a disclosed embodiment, may detect the presence of a particular recurring biological function (e.g., a heartbeat) a schedule timing for communication such that the recurring biological function does not interfere with the communication. See Spec. 10:30-11:4, 12:1-6, 12:26- 13:10, 15:1-14, Figs. 3-7. Claim 1 is illustrative of the subject matter on appeal and is reproduced below with the disputed limitation emphasized in italics: 1. A first medical device comprising a communication module for communicating with a second medical device and a controller operatively coupled to the communication module, the controller configured to optimize communication by: Appeal 2021-000039 Application 16/033,852 3 determining a recurring event in a cyclic biological phenomenon is present; selecting timing for issuing a data packet relative to the recurring event for communication with the second medical device based on the determination that the recurring event in the cyclic biological phenomenon is present; and attempting communication, triggered by the recurring event m the cyclic biological phenomenon, with the second medical device using the selected timing; wherein at least one of the first and second medical devices is implantable. The Examiner’s Rejections 1. Claims 1-3, 12, 21, and 22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Von Arx et al. (US 2006/0116744 A1; June 1, 2006) (“Von Arx”) and Haller et al. (US 2002/0082665 A1; June 27, 2002) (“Haller”). Final Act. 2-5; see also Ans. 4.2 2. Claims 4 and 23 stand rejected under 35 U.S.C. § 103 as being unpatentable over Von Arx, Haller, and Milbocker (US 2013/0296959 A1; Nov. 7, 2013). Final Act. 5-6. 3. Claims 5, 6, 10, 11, 24, and 25 stand rejected under 35 U.S.C. § 103 as being unpatentable over Von Arx, Haller, and Greenhut et al. (US 8,744,572 B1; June 3, 2014) (“Greenhut”). Final Act. 6-8. 2 In the statement of rejection, the Examiner incorrectly identifies that the claims are rejected under 35 U.S.C. § 102(a)(1)/(a)(2). See Final Act. 2. In the Answer, the Examiner corrects the statement and identifies that the rejection is under 35 U.S.C. § 103. See Ans. 4. Appellant has not alleged prejudice regarding the Examiner’s incorrect statement of rejection. Rather, Appellant has indicated that “the rejection is treated as being one of obviousness.” Appeal Br. 6. Accordingly, we treat the Examiner’s inadvertent error as harmless. Appeal 2021-000039 Application 16/033,852 4 4. Claims 7-9 and 26-28 stand rejected under 35 U.S.C. § 103 as being unpatentable over Von Arx, Haller, and Markowitz et al. (US 2006/0241701 A1; Oct. 26, 2006) (“Markowitz”). Final Act. 8-9. ANALYSIS3 In rejecting independent claims 1 and 21, the Examiner relies on the combined teachings of Von Arx and Haller. See Final Act. 3-4. More specifically, the Examiner finds Von Arx teaches the claimed medical device configured to (i) determine that a recurring event in a cyclic biological phenomenon is present; (ii) select timing for issuing a data packet relative to the recurring event for communication; and (iii) attempt communication with a second medical device using the selected timing. Final Act. 3 (citing Von Arx ¶ 38, Abstr.). The Examiner finds Haller teaches an implantable medical device (“IMD”) senses a threshold event based on physiological events sensed in a patient. Final Act. 3-4 (citing Haller ¶ 202). Additionally, the Examiner finds Haller teaches a remote system in communication with a patient in response to the IMD initiating communication with the remote system in response to detecting a condition in the patient warranting monitoring, further analysis, or remedial action. Final Act. 4 (citing Haller ¶ 193). Appellant asserts that neither Von Arx nor Haller (alone or in combination) teaches selecting timing for issuing a data packet relative to a 3 Throughout this Decision, we have considered the Appeal Brief, filed April 7, 2020 (“Appeal Br.”); the Reply Brief, filed September 29, 2020 (“Reply Br.”); the Examiner’s Answer, mailed August 12, 2020 (“Ans.”); and the Final Office Action, mailed October 4, 2019 (“Final Act.”), from which this Appeal is taken. Appeal 2021-000039 Application 16/033,852 5 recurring event in a cyclic biological phenomenon. Appeal Br. 8-10; Reply Br. 2-6. That is, “[n]either reference suggests selecting the timing relative to whatever the trigger for communication is.” Appeal Br. 9. In particular, Appellant argues that Von Arx describes using scheduled wakeups determined by clocks within the implanted devices to schedule communications. Appeal Br. 8; Reply Br. 2-3. Additionally, Appellant argues that rather than attempting communication triggered by a recurring event in the cyclic biological phenomenon (i.e., communicating in a timing interval selected relative to the recurring event), Haller teaches communicating according to a predetermined schedule or in response to a threshold event (e.g., detection of an arrhythmia)-i.e., not relative to a recurring event in a cyclic biological phenomenon. Appeal Br. 8-9. Von Arx generally relates to “managing the duty cycles of RF telemetry components in an implantable medical device and an external device in order to lessen power consumption.” Von Arx ¶¶ 6, 26. In a disclosed embodiment, Von Arx describes a power management scheme in which the RF receiver and transmitter of an IMD are duty cycled based upon synchronized timer wakeups. Von Arx ¶ 30. As relied on by the Examiner, Von Arx teaches the “wakeup interval can be a fixed value set by clinician input or can be made to vary in accordance with detection of particular events.” Von Arx ¶ 38. Von Arx provides that when the IMD includes a cardiac rhythm management device and an arrhythmia is detected, the IMD may be programmed “to increase the frequency at which communications sessions occur.” Von Arx ¶ 38. Haller generally relates to communication between an IMD and a remote computer and/or health care provider. Haller ¶ 3. Haller describes Appeal 2021-000039 Application 16/033,852 6 the uplinking of information contained in the IMD may be initiated automatically “in response to a detected physiologic[al] event (e.g., cardiac arrythmia, cardiac tachycardia, syncope, cardiac fibrillation, vital signs of patient 5 being outside normal ranges, etc.).” Haller ¶ 156; see also Haller ¶¶ 193, 202. Rather than determining that a recurring event in a cyclic biological phenomenon is present and selecting timing for issuing a data packet relative to that recurring event, Von Arx and Haller, as relied on by the Examiner, detect a triggering condition that may initiate communication (as in Haller) or increase the frequency of a communication duty cycle (as in Von Arx). An example of the triggering condition identified in the cited portions is an arrhythmia condition. Arrhythmia is not a recurring event in a cyclic biological phenomenon (such as a heartbeat), but is an irregular heartbeat. Thus, instead of selecting timing for communication relative to a detected heartbeat (e.g., during the diastole phase), the cited portions of the references merely describe a triggering condition for communication, and the Examiner has not provided persuasive evidence or technical reasoning that such communication timing is selected relative to a detected recurring event in a cyclic biological phenomenon. Because we find it dispositive that Von Arx and Haller, as relied on by the Examiner, do not teach selecting timing for issuing a data packet relative to the recurring event, we do not address other issues raised by Appellant’s arguments. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). Appeal 2021-000039 Application 16/033,852 7 For the reasons discussed supra, we are persuaded of Examiner error. Accordingly, we do not sustain the Examiner’s rejection of independent claim 1 over the combined teachings of Von Arx and Haller. For similar reasons, we do not sustain the Examiner’s rejection of independent claim 21, which recites limitations commensurate in scope to those of claim 1. Additionally, we do not sustain the Examiner’s rejections of claims 2-12 and 22-28, which depend directly or indirectly therefrom. CONCLUSION We reverse the Examiner’s decision rejecting claims 1-12 and 21-28 under 35 U.S.C. § 103. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 12, 21, 22 103 Von Arx, Haller 1-3, 12, 21, 22 4, 23 103 Von Arx, Haller, Milbocker 4, 23 5, 6, 10, 11, 24, 25 103 Von Arx, Haller, Greenhut 5, 6, 10, 11, 24, 25 7-9, 26- 28 103 Von Arx, Haller, Markowitz 7-9, 26- 28 Overall Outcome 1-12, 21- 28 REVERSED