11168614 (B.P.A.I. Sep. 28, 2010)

Ex Parte Carlson et al

Board of Patent Appeals and InterferencesSep 28, 2010

11168614 (B.P.A.I. Sep. 28, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GERRARD MERRILL CARLSON, BRUCE H. KENKNIGHT and QINGSHENG ZHU ____________ Appeal 2009-008725 Application 11/168,614 Technology Center 3700 ____________ Before LINDA E. HORNER, JOHN C. KERINS and STEVEN D.A. McCARTHY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-008725 Application 11/168,614 2 The Appellants appeal under 35 U.S.C. § 134 of the Examiner’s final 1 decision rejecting claims 1, 3-7 and 10-20 under 35 U.S.C. § 102(a) and 2 § 102(e) as being unpatentable over Poezevara (US 2004/0176695 A1, publ. 3 Sep. 9, 2004); and rejecting claim 8 under 35 U.S.C. § 103(a) as being 4 unpatentable over Poezevara and Turcott (US 6,480,733 B1, issued Nov. 12, 5 2002). The Appellant has cancelled claim 2. The Examiner indicates that 6 the subject matter of claim 9 is allowable. We have jurisdiction over the 7 appeal under 35 U.S.C. § 6(b). 8 We REVERSE. 9 Claims 1, 12 and 16 are independent claims. Claim 12 is illustrative 10 of the claims on appeal: 11 12. A cardiac system, comprising: 12 a housing configured for implantation in a 13 patient; 14 a plurality of electrodes coupled to the 15 housing and configured for sensing a cardiac 16 waveform; 17 a memory; and 18 a controller provided in the housing and 19 coupled to the memory and the plurality of 20 electrodes, the controller configured to detect one 21 or more characteristics associated with an 22 autonomic balance of the patient, and use the one 23 or more autonomic balance characteristics to detect 24 patient sleep and evaluate a patient condition. 25 26 The first issue raised in this appeal, with respect to claim 1, is whether 27 Poezevara describes using one or more autonomic balance characteristics to 28 evaluate sleep onset. (See App. Br. 9, Reply Br. 4.) 29 The second issue raised in this appeal is whether Poezevara describes 30 “a controller configured to . . . use the one or more autonomic balance 31 Appeal 2009-008725 Application 11/168,614 3 characteristics to detect patient sleep” as in claim 12 or “means for detecting 1 patient sleep . . . using the one or more characteristics associated with the 2 autonomic balance” as recited in claim 16. (See App. Br. 12, Reply Br. 5.) 3 Poezevara discloses a method for detecting sleep disorders by an 4 analysis of sinusal variability, that is, variations of the heart rate. 5 (Poezevara, para. 0020.) More particularly, Poezevara calculates an index of 6 sinusal variability in stage 320. (Poezevara, paras. 0042.) Poezevara 7 determines sleep state in stage 340. (Poezevara, para. 0043.) Poezevara 8 validates possible sleep respiratory disorders by detecting either of two 9 conditions: first, if the index of sinusal variability of the night passes a 10 predetermined threshold; or second, if the ratio of indices of sinusal 11 variability of night/day reaches a predetermined threshold. (Id.) 12 13 First Issue 14 The Examiner finds that, when the threshold for sinusal variability is 15 met, i.e. the first condition, an evaluation of sleep onset occurs. (See Ans. 3 16 and 5.) The Examiner reasons that: 17 Poezevara discloses the use of a predetermined 18 threshold that when the sinusal variability, that is 19 detected, reaches the threshold the patient has 20 reached a sleep phase the threshold for the sinusal 21 variability is used to evaluate the sleep onset of the 22 patient (section 0043). Therefore Poezevara 23 discloses use of an autonomic balance 24 characteristic to evaluate sleep onset. 25 (Ans. 5.) 26 The disclosure of Poezevara does not support this reasoning. As the 27 Appellants point out, “Poezevara does not contemplate evaluating a sleep 28 Appeal 2009-008725 Application 11/168,614 4 onset condition. Instead, Poezevara appears to evaluate just awake and 1 asleep phases.” (App. Br. 9 (italics in original).) In addition, “Poezevara is 2 silent as to using an autonomic balance characteristic to evaluate a sleep 3 onset phase.” (Reply Br. 4 (italics in original).) Poezevara does not 4 describe using one or more autonomic balance characteristics to evaluate 5 sleep onset. We do not sustain the Examiner’s final decision rejecting 6 claims 1, 3-7 and 10-11 under § 102(a) and § 102(e) as being anticipated by 7 Poezevara. 8 Turning to the rejection of claim 8 under § 103(a), Turcott briefly 9 describes a known implantable electrocardiogram monitor using 10 transthoracic impedance to detect minute ventilation and ultrasound 11 transducers to detect arterial pressure, along with other sensors, to allow 12 discrimination of arrhythmias from normal cardiac rhythms caused by 13 exertion or physiological stress. (Turcott, col. 3, ll. 44-47 and 55-59.) 14 Turcott also teaches that changes in the autonomic balance can be detected 15 in a pulse signal measured using vascular plethysmography. (Turcott, col. 16 18, ll. 60-62.) The Examiner does not point out how the teachings of Turcott 17 might remedy the deficiency in the disclosure of Poezevara pointed out in 18 connection with the rejection of claim 1. Since the Examiner’s conclusion 19 of obviousness lacks rational underpinning, we do not sustain the 20 Examiner’s final decision rejecting claim 8 under § 103(a) as being 21 unpatentable over Poezevara and Turcott. 22 Appeal 2009-008725 Application 11/168,614 5 Second Issue 1 The Examiner finds that patient sleep onset may be detected when the 2 threshold for sinusal variability, that is, the first condition, is met. (See Ans. 3 3 and 5-6.) The Examiner reasons that: 4 Poezevara discloses the use of a predetermined 5 threshold that when the sinusal variability, that is 6 detected, reaches the threshold the patient has 7 reached a sleep phase the threshold for the sinusal 8 variability is used to evaluate the sleep onset of the 9 patient (section 0043). Therefore Poezevara 10 discloses the use of sinusal variability to detect 11 sleep. 12 (Ans. 5-6). 13 In other words, the Examiner appears to find that Poezevara discloses 14 detecting when the sinusal variability exceeds a predetermined threshold 15 indicative of a sleeping subject, and that this detection performs the function 16 of “us[ing] the one or more autonomic balance characteristics to detect 17 patient sleep” performed by the controller of claim 12 as well as the function 18 of “detecting patient sleep . . . using the one or more characteristics 19 associated with the autonomic balance” performed by the “means for 20 detecting patient sleep . . . using the one or more characteristics associated 21 with the autonomic balance” of claim 16. 22 Nevertheless, the Appellants are correct in pointing out that Poezevara 23 does not use the predetermined threshold to detect patient sleep. (See Reply 24 Br. 5.) The Appellants explain that: 25 Poezevara discloses methods to calculate sinusal 26 variability and use the calculation to evaluate sleep 27 [0042], yet must refer to non-sinusal variability 28 based methods to actually detect when the patient 29 is awake or asleep (paragraphs [0043] and [0056]), 30 Appeal 2009-008725 Application 11/168,614 6 Poezevara clearly does not teach, nor even 1 envision, the use of the disclosed sinusal 2 variability methods to determine whether a patient 3 is asleep or awake. 4 (App. Br. 12 (italics in original, underline added).) 5 Although Poezevara discloses the use of sinusal variation to evaluate 6 sleep disorders (see Poezevara, paras. 0020 and 0042), Poezevara does not 7 disclose the use of sinusal variation or any other characteristic associated 8 with autonomic balance to detect patient sleep. As a consequence, 9 Poezevara does not describe “a controller configured to . . . use the one or 10 more autonomic balance characteristics to detect patient sleep” as recited in 11 claim 12 or “means for detecting patient sleep . . . using the one or more 12 characteristics associated with the autonomic balance” as recited in claim 16. 13 We do not sustain the Examiner’s final decision rejecting claims 12-20 14 under § 102(a) and § 102 (e) as being anticipated by Poezevara. 15 16 DECISION 17 We REVERSE the Examiner’s decision rejecting claims 1, 3-8 and 18 10-20. 19 20 REVERSED 21 22 Klh 23 24 25 HOLLINGSWORTH & FUNK 26 8500 NORMANDALE LAKE BLVD. 27 SUITE 320 28 MINNEAPOLIS, MN 55437 29