Ex Parte Rouw et al

Patent Trial and Appeal Board

Jul 18, 2013

11039766 (P.T.A.B. Jul. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MATTIAS ROUW, WILLEM BOUTE, and
PETER M. VAN DAM
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Appeal 2011-006380
Application 11/039,766
Technology Center 3700
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Before LINDA E. HORNER, BRETT C. MARTIN, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-7. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We reverse the decision of the Examiner.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to “implantable medical devices
and more particularly to implantable medical device[s] for cardiac pacing.”
Spec., p. 1. Claim 1, the sole independent claim, is representative of the
subject matter on appeal, and recites:
1. An implantable medical device (IMD)
comprising:
an atrial electrode;
a ventricular electrode;
an atrial sense amplifier coupled to the atrial
electrode and responsive to atrial events sensed via
the electrode;
a ventricular sense amplifier coupled to the
atrial electrode and responsive to ventricular
events sensed via the ventricular electrode;
a ventricular pacing pulse generator coupled
to the ventricular electrode;
a processor coupled to the atrial and
ventricular sense amplifiers and to the cardiac
pacing pulse generator and comprising a memory
storing a threshold value and executable
instructions controlling the IMD including
controlling generation of pulses by the pulse
generator, the executable instructions including a
Ventricular Pacing Protocol (VPP) module and a
cardiac rate determination module,
wherein the VPP module comprises
instructions causing the IMD to operate in a first
level of operation that triggers the pulse generator
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responsive to sensed atrial events to maintain
atrial-ventricular (A V) synchrony and in a second
level of operation that does not trigger the pulse
generator responsive to sensed atrial events and
permits cardiac cycles devoid of both ventricular
pacing pulses and sensed ventricular events; and
wherein the cardiac rate determination module
comprises instructions to determine a a [sic]
cardiac rate and compare the determined cardiac
rate to the threshold value and to cause the VPP
module to change to the first level of operation if
the determined cardiac rate exceeds the threshold
and the VPP module is in the second level of
operation.

REFERENCE
The sole reference relied upon by the Examiner is Herpers, U.S.
4,390,020, issued June 28, 1983.
REJECTION
Appellants seek review of the rejection of claims 1-7 under 35 U.S.C.
§ 102(b) as anticipated by Herpers, which is the only rejection made by the
Examiner.
ANALYSIS
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed.
Cir. 1987). “The identical invention must be shown in as complete detail as
is contained in the ... claim.” Richardson v. Suzuki Motor Co., 868 F.2d
1226, 1236 (Fed. Cir. 1989).
Appellants argue that Herpers does not disclose a Ventricular Pacing
Protocol (VPP) module that operates at two levels of operation, where one of
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the levels “permits cardiac cycles devoid of both ventricular pacing pulses
and sensed ventricular events,” as called for in independent claim 1. App.
Br. 5, 7. As argued by Appellants, the claims “require a mode of operation
in which cardiac cycles occur devoid of both paced and sensed ventricular
events.” Reply Br. 3.
The Examiner found in relevant part that Herpers discloses various
operating modes where an implantable medical device (IMD) is
programmed “to only sense” signals so that the heart is allowed to beat
without stimulation, which “permits cardiac cycles devoid of both
ventricular pacing pulses and sensed ventricular events.” Ans. 6, 7. The
Examiner does not explain how a device programmed only to sense is
devoid of sensed ventricular events.
The Examiner also found that, in some modes, Herpers discloses that
stimulation does “not lead to a ventricular pacing output.” Ans. 7.
However, the limitation in claim 1 requires a level of operation which is
devoid of both ventricular pacing output and sensed ventricular events.
Additionally, the Examiner found that not all modes in Herpers “are
programmed to deliver ventricular pacing pulses.” Ans. 8. This finding also
does not address both parts of the claim limitation, which requires cardiac
cycles devoid of both ventricular pacing pulses and sensed ventricular
events.
While Herpers discloses an IMD with a pulse generator that operates
in pre-selected modes and at pre-selected pacing rates, the Examiner has not
cited any mode in which the cardiac cycle is devoid of both ventricular
pacing pulses and sensed ventricular events, as required by all the claims.
We agree with Appellants that each mode identified by the Examiner
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requires a cardiac cycle having one or the other of a ventricular pulse or a
sensed ventricular event. App. Br. 7. Accordingly, we cannot sustain the
rejection of claims 1-7 as anticipated by Herpers.
DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence, we REVERSE the
Examiner’s decision rejecting claims 1-7.

REVERSED

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