CARDIAC PACEMAKERS, INC.

Patent Trials and Appeals Board

Feb 25, 2020

15232191 - (D) (P.T.A.B. Feb. 25, 2020)

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.
15/232,191 08/09/2016 Stephen J. Hahn 1001.3936101 1066
11050 7590 02/25/2020
SEAGER, TUFTE & WICKHEM, LLP
100 South 5th Street
Suite 600
Minneapolis, MN 55402
EXAMINER
PORTER, JR, GARY A
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
02/25/2020 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 STEPHEN J. HAHN, PAUL FREER, and
VENUGOPAL ALLAVATAM
Appeal 2019-003038
Application 15/232,191
Technology Center 3700
Before JENNIFER D. BAHR, JEREMY M. PLENZLER, and
BRANDON J. WARNER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5–8, 21–26, and 28–32. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Cardiac
Pacemakers, Inc. Appeal Br. 3.
Appeal 2019-003038
Application 15/232,191

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CLAIMED SUBJECT MATTER
The claims are directed to a method of terminating an arrhythmia by
delivery of therapy from an implantable medical device. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of terminating an arrhythmia by delivery of
therapy from an implantable medical device comprising:
identifying a ventricular tachycardia occurring in the heart
of a patient;
configuring an anti-tachycardia pacing therapy for the
patient;
delivering the configured anti-tachycardia pacing therapy
to the patient using first and second electrodes both disposed in
the patient without entering or touching the heart; wherein:
the anti-tachycardia pacing therapy comprises at least a
first therapy pulse and one or more additional therapy pulses;
the step of configuring the anti-tachycardia pacing therapy
comprises setting a first pace interval to be used for determining
when to deliver the first therapy pulse, and identifying a cycle
length for the ventricular tachycardia and setting one or more
parameters defining a duration between the first therapy pulse
and at least one of the one or more additional therapy pulses as a
percentage of the cycle length;
the step of delivering the configured anti-tachycardia
pacing therapy comprises:
detecting a cardiac cycle by comparing a captured
cardiac signal to a threshold and declaring a cardiac cycle
when the threshold is exceeded by the captured cardiac
signal, the cardiac signal having been captured using
electrodes implanted without entering or touching the
heart;
identifying a synchronization reference point from
the detected cardiac cycle by searching for a peak relative
to the point in time when the threshold is exceeded by the
captured cardiac signal; and
Appeal 2019-003038
Application 15/232,191

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delivering the first therapy pulse at a point in time
set relative to the synchronization reference point by
waiting for the first-pace interval to expire after the
synchronization reference point; and
the first-pace interval is set as a percentage of a cycle
length of the ventricular tachycardia.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Ostroff US 8,116,867 B2 Feb. 14, 2012
Keefe US 2012/0316613 A1 Dec. 13, 2012
REJECTIONS
Claims 1–3, 5, 7, 8, 21–26, and 29–32 are rejected under 35 U.S.C.
§ 102(a)(1) and § 102(a)(2) as being anticipated by Keefe.
Claims 6 and 28 are rejected under 35 U.S.C. § 103 as being
unpatentable over Keefe and Ostroff.
OPINION
Independent claims 1 and 24 each require “detecting a cardiac cycle
by comparing a captured cardiac signal to a threshold.” The Examiner finds
that Keefe discloses the recited “threshold” because it “compar[es] a cardiac
signal to a rate threshold of 120-250 bpm in order to identify VT.”2 Ans. 4.
The Examiner explains that “the rate threshold of Keefe can be considered
the claimed threshold since Keefe compares the cardiac signal to the rate
threshold in order to identify VT.” Id. The Examiner’s finding relies on a
claim construction that requires “the claimed threshold . . . be[ing] any value

2 “VT” means ventricular tachycardia.
Appeal 2019-003038
Application 15/232,191

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to which a cardiac signal can be compared that ultimately results in the
declaration of a cardiac cycle.” Id.
Appellant responds that “the cited portions of Keefe, in which a
ventricular tachycardia is identified and is the trigger for performing various
steps, are being misused in the Answer.” Reply Br. 3. Appellant contends
that “[t]he broadest reasonable interpretation of [the recited limitation] does
not encompass detecting a VT by observing whether cardiac rate exceeds a
rate threshold, as indicated by the Answer.” Id. Appellant directs us to page
9, lines 7–12, of the Specification for insight as to the requirements of the
recited “threshold.”3 Id. Appellant explains that “cardiac cycle detection is
. . . a way to determine whether and when cardiac cycles occur, and is used
to calculate cardiac rate” and “cardiac rate is then used to identify
ventricular tachycardia or other conditions, arrhythmic or not.” Id.
Appellant has the better position. The plain language of the claims
requires “detecting a cardiac cycle by comparing a captured cardiac signal to
a threshold.” That is, the recited “threshold” is a cardiac profile used to
determine whether a cardiac cycle has occurred, rather than a determination,
such as heart rate, based on those cycles. It is not reasonable to consider the
recited “threshold” to be simply a cardiac rate value (as relied upon in
Keefe) because the determination of cardiac cycles is needed before a
cardiac rate can be determined. This is also consistent with the
Specification, which describes the threshold as a profile, explaining that
[a] detection profile is a template used to define a detection
threshold to be applied to an ECG or EGM, as the case may be,
to detect cardiac cycles. In general detection profiles for

3 Although Appellant fails to cite the specific portion of the Specification,
that portion is reproduced in the Reply Brief.
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ventricular detection may be intended to apply a threshold that
will be crossed by the R-wave or QRS complex of each cardiac
cycle.
Spec. 9:7–11. Accordingly, we agree with Appellant that a cardiac rate
cannot reasonably be considered the recited threshold. The rejections are
flawed because the Examiner’s finding that Keefe discloses the recited
threshold is based on that threshold being a cardiac rate.
For at least this reason, we do not sustain the Examiner’s decision to
reject claims 1 and 24, or claims 2, 3, 5–8, 21–23, 25, 26, and 28–32, which
depend from claim 1 or 24.
CONCLUSION
The Examiner’s rejections are reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1–3, 5, 7, 8,
21–26, 29–
32
102(a)(1),
102(a)(2)
Keefe 1–3, 5, 7,
8, 21–26,
29–32
6, 28 103 Keefe, Ostroff 6, 28
Overall
Outcome
1–3, 5–8,
21–26, 28–
32

REVERSED