Ex Parte Bharmi et al

Patent Trial and Appeal Board

Mar 25, 2016

12264131 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/264, 131 11103/2008
36802 7590 03/29/2016
PACESETTER, INC
15900 VALLEY VIEW COURT
SYLMAR, CA 91392-9221
FIRST NAMED INVENTOR
Rupinder Bharmi
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.
A08Pl057 9554
EXAMINER
PHAM, MINH DUC GIA
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
Patent.CRMDSylmar@sjm.com
lcancino-zepeda@sjm.com
epineiro@sjm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUPINDER BHARMI and JEFFERY D. SNELL
Appeal2013-006346
Application 12/264, 131
Technology Center 3700
Before MICHELLE R. OSINSKI, JILL D. HILL, and
THOMAS F. SMEGAL, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Rupinder Bharmi and Jeffery D. Snell (Appellants) appeal under
35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-20. We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
CLAIMED SUBJECT MATTER
Independent claims 1, 9, and 18 are pending. Independent claim 1,
reproduced below, illustrates the claimed subject matter.
1. A method of detecting the time of occurrence of a
cardiac event of a heart, the method comprising:
Appeal2013-006346
Application 12/264, 131
sensing electrical activity of the heart to generate an
electro gram of the heart;
applying the electrogram to an event detector having a
plurality of thresholds, the electro gram having an amplitude for
crossing a plurality of the thresholds;
determining a characteristic identifying feature of the
electro gram at each of the plurality of threshold crossings of the
electro gram;
comparing the determined characteristic identifying
features to an electro gram template for each of the plurality of
threshold crossings; and
identifying the time of occurrence of the cardiac event
based upon the comparison.
Appeal Br. 11.
REJECTIONS
I. Claims 1-3, 6-11, and 13-20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Fischell '778 (US 2007 /0293778 Al, pub.
Dec. 20, 2007) and Vitali (US 2005/0131470 Al, pub. June 16, 2005). Final
Act 2-3.
II. Claims 4 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fischell '778, Vitali, and Mika (US 2001/0031994 Al,
pub. Oct. 18, 2001). Final Act. 7.
III. Claim 5 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Fischell '778, Vitali, and Fischell '705 (US 2005/0113705
Al, pub. May 26, 2005). Final Act. 8.
OPINION
Rejection I
2
Appeal2013-006346
Application 12/264, 131
Regarding independent claim 1, the Examiner finds that Fischell '778
discloses, inter alia, generating an electrogram, and applying the
electrogram to an event detector having plural thresholds, the "electrogram
... having an amplitude for crossing at least one of the threshold[ s]." Final
Act 3 (citing Fischell '778, i-fi-1 43--45). The Examiner also finds that Fischell
'778 discloses "determining a characteristic identifying feature of the
electro gram at each threshold crossing of the electro gram (extracted feature
of the electro gram such as signal amplitude and slope was used for detecting
purpose)," and "comparing the determined characteristic identifying features
to an electrogram template (the electrogram baseline)." Id. The Examiner
finds that Fischell '778 does not disclose using a multi-thresholds detector,
but finds this disclosure in Vitali. Id.
Appellants argue that the claimed invention uses both an event
detector having multiple thresholds, and an electrogram template, and
determines separate characteristic identifying features at each threshold
crossing, and compares the characteristic identifying features to the
electrogram template. Appeal Br. 6. Fischell '778, to the contrary, is solely
concerned with threshold crossings (e.g., thresholds for ST segments and
T-waves ), and makes no determination of a characteristic identifying feature
or comparison thereof to an electro gram template. Id. at 7. Appellants
argue that Vitali teaches thresholds, but not detecting a characteristic
identifying feature at multiple thresholds. Id. at 7-8.
The Examiner responds that paragraphs 43 to 45 of Fischell discuss "a
cardiac event detection program that is similar to" the event detection steps 2
to 5 recited in claim 1, and the program of Fischell '778 compares extracted
3
Appeal2013-006346
Application 12/264, 131
features from a recently-captured electrogram segment with the same
extracted features from a baseline electrogram segment. Ans. 4. The
Examiner also considers the extracted features from the electrogram segment
to be the claimed "characteristic identifying features," because the term
"characteristic identifying feature" is "a very vague term." Id. at 4--5.
Appellants have the better argument. Regardless of how broadly the
Examiner is entitled to read the claim term "characteristic identifying
feature," the claim still requires both an event detector with thresholds and
characteristic identifying features that are determined at each threshold and
compared to an electrogram template. While Fischell '778 discloses
comparison of a current heartbeat with a baseline heartbeat, and checks for
an amplitude above an S-T curve or T-wave threshold, this comparison can
be considered either application of an electrogram to the event detector
having thresholds, or determining characteristic identifying features of an
electrogram and comparing the identified features to an electrogram
template, but not both. Fischell' s one-step comparison of a current heartbeat
to a baseline heartbeat, even if looking at both the S-T curve and the T-wave
"thresholds," does not perform the two distinct claimed steps.
Similar to claim 1, independent claims 9 and 18 recite, inter alia,
an event detector that acts upon the electrogram, the
event detector having a plurality of thresholds, the electro gram
having an amplitude for crossing a plurality of the thresholds;
and
a processor that stores an electrogram template and
determines a characteristic identifying feature of the
electro gram at each of the plurality of threshold crossings of the
4
Appeal2013-006346
Application 12/264, 131
electrogram, compares the determined characteristic identifying
features to the electrogram template ....
Appeal Br. 12, 13.
For the reasons set forth above regarding claim 1, we agree with
Appellants that the Examiner erred in finding that Fischell '778 teaches both
application of an electro gram to the event detector having thresholds, and
determining a characteristic identifying features of an electrogram and
comparing the identified features to an electrogram template.
Claims 2, 3, 6-8, 10, 11, 13-17, 19, and 20 depend from one of claims
1, 9, and 18. We therefore do not sustain Rejection I.
Rejections II and III
Claims 4 and 5 depend from claim 1, and claim 12 depends from
claim 9. The Examiner does not make findings regarding Mika and Fischell
'705 that cure the deficiencies of Fischell '778. We therefore do not sustain
Rejections II and II for the reasons set forth above regarding Rejection I.
DECISION
We REVERSE the rejection of claims 1-3, 6-11, and 13-20 under
35 U.S.C. § 103(a) as unpatentable over Fischell '778 and Vitali.
We REVERSE the rejection of claims 4 and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Fischell '778, Vitali, and Mika.
We REVERSE the rejection of claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Fischell '778, Vitali, and Fischell '705.
5
Appeal2013-006346
Application 12/264, 131
REVERSED
6