Ex Parte Burnes et al

Patent Trial and Appeal Board

Oct 18, 2012

11379886 (P.T.A.B. Oct. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHN E. BURNES and DAVID E. EULER
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Appeal 2010-004703
Application 11/379,886
Technology Center 3700
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Before: PHILLIP J. KAUFFMAN, LYNNE H. BROWNE, and
HYUN J. JUNG, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004703
Application 11/379,886

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 2-4, 17-19, 22, 27, 31, and 32 under 35 U.S.C. § 102(b)
as anticipated by Deno (US 2005/0038479 A1; pub. Feb. 17, 2005). We
have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

THE INVENTION
Appellants’ claimed invention “relates to cardiac pacing and, more
particularly, to delivery of pulse trains of electrical stimulation therapy
delivered to multiple sites within a cardiac chamber either during cardiac
pacing therapy delivery or passive cardiac monitoring.” Spec. para. [002].
Independent claim 2, reproduced below, is illustrative of the claimed subject
matter:
2. A method of delivering a refractory period stimulation
(RPS) therapy, comprising:
delivering, during a single cardiac cycle, between one
and six successive cardiac refractory period stimulation (RPS)
pulses during a refractory period of a cardiac chamber,
wherein said delivered RPS pulses occur between
a first pair of electrodes, said first pair of electrodes
defining a first stimulation vector,
wherein said successive pulses are separated by
approximately 10 milliseconds (ms) and about 20 ms,
wherein each said pulse has a pulse duration of
between 0.03 ms and 1.6 ms and wherein each said pulse
has a voltage amplitude of between 0.5 volts and 8.0
volts;
delivering, during a subsequent cardiac cycle following
said single cardiac cycle, a new set of RPS pulses between a
second pair of electrodes defining a second stimulation vector;
Appeal 2010-004703
Application 11/379,886

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interrupting delivery of the RPS pulses in the event that
one of a supra-threshold heart rate is detected and an arrhythmia
condition is detected;
monitoring a physiologic signal from one of a
mechanical cardiac sensor and a metabolic sensor wherein said
sensor operatively couples to the cardiac chamber and provides
a first output signal correlated to the first stimulation vector and
a second output signal correlated to the second stimulation
vector; and
determining an enhanced RPS therapy delivery vector
based at least in part upon a parameter of the first output signal
and the second output signal.

OPINION
Independent claims 2, 17, 33, 27, 31, and 32 call for monitoring a
physiologic signal from a sensor that provides first and second output signals
correlated to first and second stimulation vectors, respectively.
The Examiner found that Deno discloses a sensor (sensor 52) that
monitors a physiologic signal and provides first and second output signals
correlated to first and second stimulation vectors, respectively (each
stimulation vector produced by a pair of electrodes from electrodes 30-40
and 48. Ans. 3-4.
Any combination of Deno’s electrodes 30-40 and 48 is capable of
delivering neurally-excitable stimulation (NES) pulses. Deno, paras. [0023],
[0025], [0030]. Thus, we agree with the Examiner that two pairs of these
electrodes could produce a first and a second stimulation vector as claimed.
See Ans. 3, 6.
However, Deno does not disclose that the physiological parameter
sensed by sensor 52 is correlated to NES pulses (stimulation vectors)
produced by a pair of electrodes selected from electrodes 30-40 and 48.
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Application 11/379,886

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Deno, paras. [0031]-[0033]; passim. Rather, Deno’s sensor 52 generates a
signal as a function of a physiological parameter of patient 12, and delivers
NES pulses to tissue of heart 16 as a function of the that physiological
parameter. Deno, para. [0031]. Therefore, we cannot agree with the
Examiner’s finding that Deno’s sensor (sensor 52) monitors a physiologic
signal and provides first and second output signals correlated to first and
second stimulation vectors, respectively (each stimulation vector produced
by a pair of electrodes from electrodes 30-40 and 48) as called for in the
independent claims. See App. Br. 11; Reply Br. 2.
Accordingly, we do not sustain the rejection of independent claims 2,
17, 22, 27, 31, and 32, or their respective dependent claims 3, 4, 18, and 19.

DECISION
We reverse the Examiner’s decision to reject claims 2-4, 17-19, 22,
27, 31, and 32.

REVERSED

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