Ex Parte Cazares et al

Board of Patent Appeals and Interferences

Sep 7, 2010

10995704 (B.P.A.I. Sep. 7, 2010)

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.
10/995,704 11/23/2004 Shelley Marie Cazares GUID.203PA 6245
51294 7590 09/08/2010
HOLLINGSWORTH & FUNK
8500 Normandale Lake Blvd
SUITE 320
MINNEAPOLIS, MN 55437
EXAMINER
BERTRAM, ERIC D
ART UNIT PAPER NUMBER
3766
MAIL DATE DELIVERY MODE
09/08/2010 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SHELLEY MARIE CAZARES,
YAYUN LIN, and ALOK S. SATHAYE
____________________

Appeal 2009-007189
Application 10/995,704
Technology Center 3700
____________________

Before JENNIFER D. BAHR, MICHAEL W. O’NEILL, and KEN B.
BARRETT, Administrative Patent Judges.

BARRETT, 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 2009-007189
Application 10/995,704

2
STATEMENT OF THE CASE
Shelley Marie Cazares et al. (Appellants) seek our review under 35
U.S.C. § 134 of the final rejection of claims 1-5, 7, 12-19, 22, and 232. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellants’ claimed invention pertains to cardiac methods that
generate templates based on previous patient therapy responses. Spec. 1:9-
11. Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A cardiac template generation method, comprising:
providing, patient-externally, a cardiac waveform
representative of a patient's cardiac activity comprising an
arrhythmic event;
identifying, patient-externally, a portion of the cardiac
waveform indicative of the arrhythmic event;
generating a cardiac template corresponding to the
cardiac waveform portion; and
associating a therapy with the cardiac template useful for
treating a subsequent arrhythmic event corresponding to the
cardiac template.

2 Although the first page of the Final Rejection mailed Aug. 23, 2007, lists
claims 1-23 as rejected, Appellants correctly note that claims 6, 10, 11, 20,
and 21 are not the subject of any rejection. App. Br. 11, 20-21; see Ans. 2
(agreeing with Appellants’ statement of the grounds of rejection on appeal).
It appears that those claims were the subject of a since withdrawn
obviousness-type double patenting rejection. Id.; Final Rej. 3. Thus, claims
6, 10, 11, 20, and 21 are not involved in this appeal. We leave it to the
Examiner to clarify the status of these claims upon return of jurisdiction of
this application to the Technology Center.
Appeal 2009-007189
Application 10/995,704

3

THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 1-5, 8, 9, 12-14, 17-19, 22, and 23 are rejected under 35
U.S.C. § 102(b) as being anticipated by Nappholz (US 5,312,445, issued
May 17, 1994); and
2. Claims 7, 15, and 16 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Nappholz.

OPINION
Method claim 1 recites “identifying … a portion of the cardiac
waveform indicative of the arrhythmic event; [and] generating a cardiac
template corresponding to the cardiac waveform portion ….” Independent
system claims 14 and 19 recite, respectively, a template processor
configured to generate an arrhythmic event template and a means for
generating an arrhythmic event template.
The Examiner found that Nappholz discloses the identification of a
P-wave portion of a cardiac waveform and that a template corresponding to
the portion is generated. Ans. 3 (citing Nappholz, col. 16, ll. 20-68). The
Examiner also found that Nappholz discloses that the detection of a P-wave
at a certain time (during “PVARP”) is indicative of an arrhythmic event.
Ans. 3, 5 (citing Nappholz, col. 10, ll. 49-68). The Examiner does not
explicitly find that Nappholz discloses generating a template corresponding
to an arrhythmic event (as opposed to merely detecting such an event), but
that finding seems implicit in the further finding that the average P-wave is
inherently representative of an arrhythmic event. See Ans. 3, 5.
Appeal 2009-007189
Application 10/995,704

4
Appellants acknowledge that Nappholz discloses P-wave templates
and “contemplates that arrhythmic conditions can occur,” but contends that
Nappholz fails to disclose the generation of a P-wave template
corresponding to a waveform portion indicative of an arrhythmic event.
App. Br. 13-14 (citations omitted).
The section of Nappholz’s column 10 upon which the Examiner relies
states “abnormal P-waves may lead to the incidence of cardiac arrhythmia.”
Nappholz, col. 10, ll. 63-64 (emphasis added). Thus, it does not necessarily
follow that the detection of an abnormal P-wave is an indication of an
arrhythmic event. As such, we cannot agree with the Examiner’s finding
(Ans. 5) that “the average P-wave is inherently representative of a patient’s
cardiac activity comprising an arrhythmic event.” Ans. 5 (emphasis in
original). The Examiner does not direct our attention to any disclosure in
Nappholz of the generation of a template corresponding to an arrhythmic
event, or a template processor or means for generating such a template. As
such, we are constrained to reverse the anticipation rejection of independent
claims 1, 14, and 19 and claims 2-5, 8, 9, 12, 13, 17, 18, 22, and 23, which
depend from one of those independent claims.
The rejection of dependent claims 7, 15, and 16 as obvious in view of
Nappholz is based on the above-discussed findings for the underlying
anticipation rejection. Ans. 4. Thus, we cannot sustain the § 103 rejection
of claims 7, 15, and 16.

Appeal 2009-007189
Application 10/995,704

5
DECISION
The decision of the Examiner to reject claims 1-5, 7, 12-19, 22, and
23 is reversed.
REVERSED

mls

HOLLINGSWORTH & FUNK
8500 NORMANDALE LAKE BLVD
SUITE 320
MINNEAPOLIS, MN 55437