Ex Parte Mongeon et al

Board of Patent Appeals and Interferences

Jul 23, 2012

11312874 (B.P.A.I. Jul. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LUC R. MONGEON, KAREN J. KLECKNER, and
JOHN C. RUETER
____________________

Appeal 2010-004669
Application 11/312,874
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, WILLIAM V. SAINDON, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004669
Application 11/312,874
2
STATEMENT OF THE CASE
Luc R. Mongeon et al. (Appellants) originally appealed under 35
U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 3-13, and 15-
20. Notice of Appeal, filed July 28, 2009. Appellants subsequently
withdrew claims 1 and 3-12 from the appeal.1 App. Br. 3. Thus, only
claims 13 and 15-20 are involved in this appeal. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The Claimed Subject Matter
Claim 13, reproduced below, is illustrative of the claimed subject
matter.
13. An apparatus for monitoring, delivering and/or adjusting
cardiac therapy delivery, comprising:
means for monitoring at least one of an atrial-left
ventricular (A-LV) interval, an atrial-right ventricular (A-RV)
interval, a left ventricular (LV) to right ventricular (RV)
interval;
means for storing in a memory structure said at least one
of the A-LV interval, the A-RV interval, the LV to RV interval;
means for performing a temporal trend analysis upon said
at least one of the foregoing stored intervals over a discrete
period of time, utilizing a plurality of discrete values of said
stored intervals; and
means for performing an automated ventricular chamber
capture management pacing threshold test for at least one of the
LV and the RV, wherein said automated threshold test is
triggered by one of: a clinician, a relatively longer duration
QRS complex, a morphologically relatively different QRS
complex.

1 We suggest that the Examiner cancel these claims upon return of
jurisdiction of this application to the Examiner. See Ex Parte Ghuman, 88
USPQ2d 1478, 1480 (BPAI 2008) (precedential).
Appeal 2010-004669
Application 11/312,874
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Evidence
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Florio US 6,512,953 B2 Jan. 28, 2003
Rejections
Claims 13 and 16-20 are rejected under 35 U.S.C. 102(b) as
anticipated by Florio. Ans. 4.
Claim 15 is rejected under 35 U.S.C. § 102(b) as anticipated by or, in
the alternative, under 35 U.S.C. § 103(a) as unpatentable over Florio. Ans.
5.
OPINION
Appellants group claims 13, 16, and 17 together in contesting the
anticipation rejection. Thus, in accordance with 37 C.F.R. § 41.37(c)(1)(vii)
(2011), we select claim 13 as representative of the group, with claims 16 and
17 standing or falling with claim 13. Appellants present a separate argument
for claims 18-20.
Appellants argue that “Florio does not disclose an apparatus
comprising means for storing and trending measured intervals as required by
all pending claims.” App. Br. 11.
The Examiner found that “Florio discloses a means for monitoring the
delay interval between heart chambers at column 4, lines 45-49.” Ans. 3.
Appellants do not contest this finding.
The Examiner found that Florio discloses means for storing these
intervals in memory at column 5, lines 35-47 and column 16, lines 13-26.
Ans. 3; see Florio, col. 5, ll. 38-44 (disclosing that the interval between the
evoked response of the captured ventricle and the conducted ventricle as an
estimation of the inter-ventricular conduction time “can be stored in
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Application 11/312,874
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memory”); col. 16, ll. 31-33 (disclosing “[i]nter-ventricular conduction time,
measured as the time between two negative deflecting depolarizations 146,
148, is stored in memory 94”). We agree with and adopt this finding.
Florio’s disclosure of storing these intervals in memory satisfies the “means
for storing in a memory structure said at least one of . . . the LV to RV
interval” limitation of claim 13.
The Examiner found that Florio discloses the functionality of
performing a temporal analysis as claimed at column 4, line 64 to column 5,
line 2; column 5, lines 35-47; and column 16, lines 13-44. Ans. 3, 6.
Appellants contest this finding. App. Br. 12; Reply Br. 2-5.
Florio discloses a “means to monitor CHF [(congestive heart failure)]
progression by monitoring inter-ventricular conduction time during bi-
ventricular threshold testing and IEGM [(a.k.a. a “pacemaker”)] template
acquisition,” storing the inter-ventricular conduction time in memory, and
using inter-ventricular conduction time “as a closed-loop feedback
parameter within the stimulation device 10 to cause automatic adjustments
of pacing parameters such that pacing therapy is optimized as CHF worsens
or improves.” Col. 16, ll. 28-39. Florio also discloses that “[i]f, during
single-chamber capture, the time elapsed between a negative peak detection
146 . . . to the next negative peak detection 148 increases, [that] indicates
that interventricular conduction delay has worsened such that hemodynamic
performance has been deteriorating.” Col. 16, ll. 21-26.
Thus, Florio describes means for monitoring inter-ventricular
conduction time intervals, means for storing these time intervals in memory,
and means for performing a temporal trend analysis upon the stored intervals
over a discrete period of time utilizing a plurality of the stored intervals (i.e.,
comparing the intervals over time to determine if they are increasing or
Appeal 2010-004669
Application 11/312,874
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decreasing, for use as a closed-loop feedback parameter within the
stimulation device to cause automatic adjustments of pacing parameters to
optimize pacing therapy as CHF worsens or improves).
The Examiner found that Florio discloses performing an automated
ventricular chamber capture as required in claim 13, at column 15, lines 5-
15. Ans. 3. Appellants do not contest this finding.
In light of the above, the Examiner did not err in finding that Florio
anticipates the subject matter of claim 13. We sustain the rejection of claim
13 and of claims 16 and 17, which fall with claim 13, as anticipated by
Florio.
Appellants rely on the same unpersuasive arguments asserted for
claim 13 in contesting the rejection of claim 15 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
unpatentable over Florio. We sustain the rejection of claim 15.
Appellants point out limitations recited in each of claims 18-20, but
present the same argument for all three claims. Accordingly, we select
claim 19 as representative, with claims 18 and 20 standing or falling with
claim 18. See 37 C.F.R. § 41.37(c)(1)(vii) (stating that “[a] statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”).
In contesting the rejection of claims 18-20 as anticipated by Florio,
Appellants concede that Florio discloses means for indicating loss of capture
in a single ventricle, but argue that “there is no disclosed mechanism [in
Florio] that identifies which ventricle has lost capture.” App. Br. 13. As
correctly pointed out by the Examiner (Ans. 7), claims 18-20 do not recite
identifying which ventricle has lost capture.
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The Examiner found that Florio discloses declaring loss of capture at
column 15, lines 27-35. Ans. 4. The Examiner also pointed out that Florio
discloses determining that both the left ventricle and the right ventricle have
lost capture at step 195 of figure 7, and found that this step corresponds to
declaring loss of capture in each of the chambers. Ans. 7. Florio also
discloses independent pulse generators and independent sensing circuits and
amplifiers. Col. 8, ll. 22-27, 47-54; Ans. 4.
In column 15, lines 27-35 relied on by the Examiner, Florio discloses
that if a negative peak is detected within a short period of time, such as 16 to
40 msec, after the stimulation pulse, the depolarization is interpreted as an
evoked response, but if the depolarization occurs at a later time but still
within the sampling window, it is interpreted as an intrinsic response
indicating failure to capture either ventricle, and the system flags the failure
in memory. Florio also discloses that, in the event that a non-capture in both
chambers is flagged (i.e., step 195), the loss of capture counter is increased,
the stimulation energy is increased, and the pacing routine continues. Col.
14, ll. 60-65. Florio describes the capture failure determination process in
more detail at column 13, lines 10-52. See figs. 5A-5C (showing failure to
capture both ventricles, single-chamber capture, and successful capture,
respectively). In the particular scenario depicted in figure 5A (failure to
capture both ventricles), Florio describes detection of a stimulation pulse
134 and, after the time delay window 136, detection of a subsequent
depolarization complex 138 (e.g., an intrinsic R-wave) that represents the
intrinsic responses of the left and right ventricles. Col. 13, ll. 16-22.
For the above reasons, Florio provides a sound basis for the
Examiner’s finding that Florio describes means for declaring loss of capture
in each of the left ventricle and right ventricle that recorded the latent
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(intrinsic) ventricular event after the time delay window (i.e., 40 msec) but
within the sampling period. Thus, Appellants’ argument does not apprise us
of error in the Examiner’s rejection of claim 19.
We therefore sustain the rejection of claim 19 and of claims 18 and
20, which fall with claim 19, as anticipated by Florio.
DECISION
The Examiner’s decision rejecting claims 13 and 15-20 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)(1)(iv).
AFFIRMED

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