Viktoria A. Averina et al.Download PDFPatent Trials and Appeals BoardOct 31, 201913325354 - (D) (P.T.A.B. Oct. 31, 2019) Copy Citation 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. 13/325,354 12/14/2011 Viktoria A. Averina 279.I93US1 8571 45458 7590 10/31/2019 SCHWEGMAN LUNDBERG & WOESSNER/BSC PO BOX 2938 MINNEAPOLIS, MN 55402 EXAMINER MORALES, JON ERIC C ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 10/31/2019 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): SLW@blackhillsip.com uspto@slwip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VIKTORIA A. AVERINA, JOHN D. HATLESTAD, ABHILASH PATANGAY, PRAMODSINGH HIRASINGH THAKUR, YI ZHANG, and KENNETH C. BECK Appeal 2019-002791 Application 13/325,354 Technology Center 3700 ____________ Before BRETT C. MARTIN, MICHAEL J. FITZPATRICK, and LISA M. GUIJT, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1–12 and 17–20. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies Cardiac Pacemakers, Inc. as the sole real party in interest. Appeal Br. 2. Appeal 2019-002791 Application 13/325,354 2 STATEMENT OF THE CASE The Specification The Specification’s disclosure “relates to systems, devices, and methods for monitoring one or more physiologic aspects of a patient or subject in association with posture of the patient or subject.” Spec. 2:9–12. The Claims Claims 1–12 and 17–20 are rejected. Final Act. 1. No other claims are pending. Id. Claims 1 and 17 are independent. Claim 1 is illustrative and reproduced below. 1. An implantable or other ambulatory medical apparatus comprising: a posture sensing circuit configured to provide a time varying electrical posture signal representative of posture of a subject; a physiologic sensing circuit configured to sense one or more time varying physiologic signals, wherein the physiologic signal includes physiologic information of the subject; and a processor circuit, communicatively coupled to the posture sensing circuit and the physiologic sensing circuit, wherein the processor circuit includes: a posture calculation circuit configured to determine a posture of the subject and that the posture of the subject is steady state using posture data obtained using the posture signal; and a measurement circuit configured to derive a physiologic measurement indicative of heart failure (HF) status of the subject using physiologic data extracted from the physiologic signal, wherein the physiologic measurement is triggered by the posture calculation circuit determining that posture is steady state; and a memory circuit, wherein the processor circuit is configured to store the physiologic measurement indicative of Appeal 2019-002791 Application 13/325,354 3 HF status in association with the determined corresponding steady state posture in response to the posture calculation circuit determining that posture is steady state, wherein the corresponding posture is substantially the same for the stored physiological measurement indicative of HF status and level of activity of the subject varies for the stored physiological measurement indicative of HF status, and provide the physiologic measurement indicative of HF status to at least one of a user or process in association with the determined corresponding steady state posture. Appeal Br. 18. The Examiner’s Rejections The rejections before us, all of which are pursuant to 35 U.S.C. § 103(a) (pre-AIA), are: 1. claims 1–3, 6–12, 17, 18, and 20 as unpatentable over Sloman2 and Beck3 (Final Act. 2); and 2. claims 4, 5, and 19 as unpatentable over Sloman, Beck, and Heruth4 (id. at 8). DISCUSSION Rejection 1 Appellant argues the rejection of these claims together. Appeal Br. 9– 15. We select claim 1 as representative, with claims 2, 3, 6–12, 17, 18, and 20 standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner found that Sloman discloses all of the subject matter of claim 1, save that the derived “physiologic measurement” being “indicative of heart failure (HF)” and “triggered by the posture calculation circuit 2 US 6,975,904 B1, issued Dec. 13, 2005 (“Sloman”). 3 US 2007/0021678 Al, published Jan. 25, 2007 (“Beck”). 4 US 2005/0209645 A1, published Sept. 22, 2005 (“Heruth”). Appeal 2019-002791 Application 13/325,354 4 determining that posture is steady state,” as recited in the claim. See Final Act. 2–3 (citing Sloman, [57], 2:59–64, 3:51–65, 8:54–67, 9:1–7, 10:19–35, 12:22–45, 12:46–67, 13:1–24, 13:44–57, 14:4–6, 14:43–55, 14:60–67, 15:1– 13, Figs. 1, 4–6). The Examiner found that Beck teaches these additional limitations. Id. at 3–4 (citing Beck ¶¶39–40, 51–52, 58, Fig. 6B). The Examiner concluded: Therefore, it would have been obvious to one of ordinary skill in the art, at the time of the invention, to modify the device of Sloman by adding physiologic measurement is indicative of heart failure (HF) status of the subject as taught by Beck in order to facilitate proper therapy to be delivered to the subject. Id. at 4. Notably absent from the rejection is a determination that the skilled person would have modified Sloman further by having the physiological measurement be “triggered by the posture calculation circuit determining that posture is steady state,” as recited in the claim. Id. The Examiner found that Beck teaches such a limitation, but the Examiner did not determine—at least not explicitly—that the skilled person would have incorporated it into Sloman. Id. Further, the Examiner did not provide a reason for incorporating such a teaching into Sloman. Rather, the Examiner provided a reason for incorporating only the teaching that the physiologic measurement could be indicative of heart failure status. Id. And that reasoning (i.e., “to facilitate proper therapy to be delivered to the subject” undergoing, or at risk of, heart failure) without more would not support a conclusion that the skilled person would measure such a physiological response only in response to determining that posture is steady state. Appeal 2019-002791 Application 13/325,354 5 “An examiner bears the initial burden of presenting a prima facie case of obviousness.” See, e.g., In re Huai-Hung Kao, 639 F.3d 1057, 1066 (Fed. Cir. 2011) (citations omitted); see also 35 U.S.C. § 132(a). The Examiner has not done so here. Additionally, Appellant persuasively argues that, contrary to the Examiner’s finding on page 4 of the Final Action, Beck does not teach that its physiological measurement is “triggered by the posture calculation circuit determining that posture is steady state,” as recited in claim 1. For example, Appellant argues: “Beck refers to using physiological data to provide a diagnostic indicator when physical activity is deemed to be in steady state (Beck at [0032]). Thus, Beck does not refer to the physiologic measurement [being] triggered by the posture calculation circuit determining that posture is steady state.” Appeal Br. 13. In the Answer, the Examiner does not rebut, or even address, this argument. See Ans. 10–12. For the forgoing reasons, we reverse the rejection of claim 1, as well as that of claims 2, 3, 6–12, 17, 18, and 20, which stand therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection 2 The Examiner rejects claims 4, 5, and 19 “as being unpatentable over Sloman in view of Beck as applied to claim 1 above, and further in view of Heruth.” Final Act. 8. The Examiner applies Heruth to meet additional limitations of claims 4, 5, and 19, but not in a way that would remedy the deficiency in the rejection of claim 1. Id. at 8–9. Accordingly, for similar reasons as set forth supra, we reverse the rejection of claims 4, 5, and 19. Appeal 2019-002791 Application 13/325,354 6 SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–3, 6–12, 17, 18, 20 103(a) Sloman, Beck 1–3, 6–12, 17, 18, 20 4, 5, 19 103(a) Sloman, Beck, Heruth 4, 5, 19 Overall Outcome 1–12, 17–20 REVERSED Copy with citationCopy as parenthetical citation