Ex Parte Arzbaecher et al

Board of Patent Appeals and Interferences

May 31, 2012

10979995 (B.P.A.I. May. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT C. ARZBAECHER, JANICE M. JENKINS, and
MICHAEL C. GARRETT
____________________

Appeal 2010-009449
Application 10/979,995
Technology Center 3700
____________________

Before EDWARD A. BROWN, CHARLES N. GREENHUT, and
JAMES P. CALVE, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-009449
Application 10/979,995
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1-36. (App. Br. 2). We have jurisdiction over this appeal under 35
U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
The invention is directed to a cardiac arrest monitor and alarm system
that monitors a patient's heart and detects deviations from normal heart
electrical activity to alert bystanders. (Spec. 2, ll. 3-7). Independent claim
1, reproduced below, is representative of the appealed claims.
1. A cardiac arrest monitor and alarm system
comprising:
a medical device having at least three
electrodes positioned with respect to a heart organ
and forming an orthogonal lead configuration to
monitor an electrocardiographic signal of the heart
organ;
a microdevice operatively connected to the
medical device, each of the at least three electrodes
positioned on an exterior surface of the
microdevice, the microdevice detecting a deviation
from a normal heart electrical activity; and
an external receiver detecting a signal from
the microdevice and activating a programmed
annunciator circuit to activate a local alarm,
wherein the local alarm is an audible bystander
alert signal and audible bystander voice
instructions.

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THE REJECTIONS
The following rejections are before us for review:
1. The rejection of claims 1-19, 21-23, and 33-35 under 35 U.S.C.
§ 103(a) as being unpatentable over Duffin (US 6,292,698 B1, issued Sep.
18, 2001), Guck (US 6,631,290 B1, issued Oct. 7, 2003), Petersen (US
6,616,606 B1, Sep. 9, 2003), and Nova (US 6,697,671 B1, issued Feb. 24,
2004).
2. The rejection of claim 20 under 35 U.S.C. § 103(a) as being
unpatentable over Duffin, Guck, Petersen, Nova, and Widmer (US
5,265,128, issued Nov. 23, 1993).
3. The rejection of claims 24-31 and 36 under 35 U.S.C. § 103(a)
as being unpatentable over Duffin, Natarajan (US 6,501,983 B1, issued Dec.
31, 2002), Petersen, and Nova.
4. The rejection of claim 32 under 35 U.S.C. § 103(a) as being
unpatentable over Duffin, Natarajan, Petersen, Nova, and Bornn (US
5,353,793, issued Oct. 11, 1994).
ANALYSIS
Claims 1-19, 21-23, and 33-35 - Duffin, Guck, Petersen, and Nova
The Examiner found Duffin discloses a position identifier and data
telemetry system for implantable devices that interfaces with a remote
patient communication device to provide automatic emergency medical
support assistance. (Ans. 5). The Examiner found that Duffin's
communication system is based on RF, cellular telephone, hard-wired,
and/or satellite systems, and the associated medical device may detect a
deviation from a normal heart electrical activity. (Id.).
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The Examiner found Duffin does not disclose a subcutaneous medical
device with three subcutaneous electrodes forming an orthogonal lead
configuration positioned on the external surface of the device. (Id.). The
Examiner found that Guck teaches these features, and concluded that it
would have been obvious to modify Duffin's system in view of Guck to
provide accurate rapid patient treatment. (Id. at 6).
The Examiner found the modified Duffin system does not include a
programmed annunciator circuit to deliver a local alarm that is an audible
bystander alert signal. (Id.). The Examiner found Petersen discloses patient
alerting using a programmed annunciator circuit to deliver an audible local
alarm signal, and concluded that it would have been obvious to one of
ordinary skill in the art to use a programmed annunciator circuit in the
modified Duffin system to deliver a local alarm signal to a bystander so that
proper medical treatment can be secured. (Id. at 6-7).
The Examiner found that the modified Duffin system does not provide
audible bystander voice instructions. (Id. at 7). The Examiner found that
Nova teaches automatic external defibrillation using aural instructions to
allow a non-medical bystander to provide effective care for an individual
with a potentially fatal cardiac condition, and concluded that it would have
been obvious to one of ordinary skill in the art to provide aural instructions
for a bystander in the modified Duffin system, the instructions providing the
bystander with the necessary information to effectively intervene for the
cardiac victim. (Id.).
Appellants contend that the combination of Duffin, Guck, and
Petersen already provides a system having two-way communication with a
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trained medical professional at the patient's location, and so a person skilled
in the art would have had no reason to add audible bystander voice
instructions to the system. (App. Br. 9-10). Appellants contend that the
system already allows trained medical personnel monitoring the patient's
condition to instruct a bystander in an emergency situation, during which the
patient or others at the scene can verbally communicate directly with the
medical personnel via two-way communications provided by the patient
monitor, and receive instructions, such that the patient monitor does not need
to provide automated audio instructions during the emergency. (Id. at 11).
In response, the Examiner found
relative to the reliability of the communication
system, Duffin et al. acknowledges that two way
communication between the patient and the
medical professional is prohibited if the patient
does not have a cellular telephone system link, if
the cellular telephone system link is not available
at the patient location, or if the patient does not
have a satellite-based link.
(Ans. 16-17, citing Duffin col. 6, ll. 28-40; Fig. 1) (emphasis added). The
Examiner found that "[g]iven these potential scenarios where there would be
no two-way communication between the medical professional and the
patient and/or caregiver who might be a bystander," it would be reasonable
to provide audible bystander voice instructions so that the bystander would
be able to aid the patient. (Id. at 17).
Appellants contend that the Examiner misread the cited passage in
Petersen [sic. Duffin], and Petersen [sic. Duffin] does not teach or suggest
the unavailability of communication between the medical support network
and patient location, but rather teaches the ability of the Global
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Communications and Monitoring System (GCMS) to function in
geographically remote locations. (Reply Br. 2). Column 6, lines 28-40, of
Duffin discloses:
The GCMS in its most comprehensive form of
FIGS. 1 and 2 is intended to function no matter
how geographically remote the patient may be
relative to the monitoring site or medical support
network. In this form, the GCMS provides an
alarm to notify the medical support network should
device or patient problems arise, determines
patient location via the Geopositioning Satellite
System (GSS), and allows verbal communication
between the patient and monitoring personnel via a
cellular telephone system link (if available at the
patient location) or a satellite based
telecommunications link if the patient is outside
the range of a cellular link or subscribes only to
the satellite-based link.
The Examiner correctly found that Duffin discloses the use of cellular
systems, or satellite systems when cellular systems are not available or the
patient only subscribes to a satellite system. We agree with the Examiner
that cellular or satellite systems may not always be available to the patient.
In this regard, the Examiner found that "the citation [i.e., Duffin col. 6, ll.
28-40] allows that portions of the system may or may not work or be used in
a given scenario such that the system is less than 'comprehensive.'" (Office
Comm. dated Mar. 24, 2010 p. 1, fourth para.). The Examiner found that if
there is no cellular connection and/or the patient elected not to subscribe to
the satellite-based link, then two-way communication would not be
available. (Id.).
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Appellants also contend that one skilled in the art would not have
substituted Nova's AED device in the modified Duffin device. (App. Br.
12). However, the Examiner relied on Nova for its teaching of providing
audible bystander voice instructions, not to incorporate its system into the
combination that the Examiner found includes the system. (Ans. 20).
Accordingly, Appellants' contention is not persuasive.
Appellants also contend that Petersen does not teach an annunciator
circuit that provides a local alarm. (Reply Br. 3). Appellants describe
annunciating device 28 of Petersen. However, the Examiner explained that
the annunciating device 28 was not relied on in the combination. (Office
Comm. dated Mar. 24, 2010 p. 1, fifth para. – p. 2, first para.). Accordingly,
Appellants' contentions directed to the annunciating device 28 do not apprise
of error in the Examiner's finding.
Accordingly, the Examiner has articulated an adequate reason with
rational underpinnings as to why one of ordinary skill in the art would have
modified the Duffin /Guck /Petersen system in view of Nova to add a local
source of aural instructions for a bystander if Duffin's communications are
not available to a patient. Therefore, we sustain the rejection of claim 1.
Appellants do not separately argue any specific limitations for claims 2-14,
19, 21, 23, and 33-35, which depend from claim 1. Accordingly, we also
sustain the rejection of these dependent claims.
Independent claim 15 is directed to a cardiac arrest monitor and alarm
system similar to the system recited in claim 1. For claim 15, the Examiner's
findings (Ans. 8-11) and Appellants' arguments for patentability (App. Br.
13) are similar to those discussed supra with respect to claim 1. Hence, we
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sustain the rejection of claim 15, and claims 16-18 and 22 which depend
from claim 15.
Claim 20 - Duffin, Guck, Petersen, Nova, and Widmer
The Examiner relied on Widmer for teachings regarding the use of a
short-wave radio to transmit signals. (Ans. 11). Appellants contend that
Widner does not remedy the deficiencies of the Examiner's reliance on
Duffin, Guck, Petersen, and Nova with respect to the rejection of claim 1
from which claim 20 ultimately depends. However, because we find no
deficiencies in the Examiner's rejection of claim 1 as discussed supra, we
sustain the rejection of claim 20 for similar reasons.
Claims 24-31 and 36 - Duffin, Natarajan, Petersen, and Nova
Claim 24 is directed to a method of detecting a deviation from a
normal heart electrical activity and transmitting an alarm upon detecting the
deviation, and recites, inter alia, "activating a programmed annunciator
circuit to deliver an audible bystander alert signal and audible bystander
voice instructions." The Examiner's findings in regard to Duffin, Petersen,
and Nova (Ans. 12-13, 14-15) are similar to those discussed supra for claim
1. The Examiner relied on Natarajan for teachings regarding monitoring
using an algorithm to detect ischemia. (Ans. 13). Appellants contend that
Natarajan does not remedy the deficiencies of the Examiner's reliance on
Duffin, Petersen, and Nova. However, these contentions are not persuasive
for similar reasons as discussed supra. Hence, we sustain the rejection of
claim 20 for similar reasons.

Appeal 2010-009449
Application 10/979,995
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Claim 32 - Duffin, Natarajan, Petersen, Nova, and Bornn
The Examiner relied on Bornn for teachings regarding a mechanism to
disengage an alarm. (Ans. 15). Appellants contend that Bornn does not
remedy the deficiencies of the Examiner's reliance on Duffin, Natarajan,
Petersen, and Nova with respect to the rejection of claim 24 from which
claim 32 depends. These contentions are not persuasive for reasons
discussed supra. Hence, we sustain the rejection of claim 32.
DECISION
The decision rejecting claims 1-36 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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