Ex Parte Davis et al

Patent Trial and Appeal Board

Jul 19, 2017

12771475 (P.T.A.B. Jul. 19, 2017)

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.
12/771,475 04/30/2010 Jon P. Davis 1023-899US01 1805
71996 7590 07/21/2017
SHUMAKER & SIEFFERT , P.A
1625 RADIO DRIVE , SUITE 100
WOODBURY, MN 55125
EXAMINER
ALTER MORSCHAUSER, ALYSSA MARGO
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
07/21/2017 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):
pairdocketing @ ssiplaw.com
medtronic_neuro_docketing @ cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JON P. DAVIS, STEVEN M. GOETZ,
NATHAN A. TORGERSON, ASHISH SINGAL, LYNN A. DAVENPORT,
RAJEEV M. SAHASRABUDHE, SHYAM GOKALADAS,
JOEL A. ANDERSON, LEROY L. PERZ, and SCOTT E. STRAKA
Appeal 2016-006059
Application 12/771,4751
Technology Center 3700
Before DONALD E. ADAMS, JOHN G. NEW, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims 1—30 (Non-
Final Act. I).2 Examiner entered rejections under 35 U.S.C. § 112, second
paragraph and 35 U.S.C. § 102(e). We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE and enter a NEW GROUND OF REJECTION.
1 Appellants identify the real party in interest as “Medtronic, Inc. [], the
assignee of record, and Medtronic pic of Dublin, Ireland, the ultimate parent
entity of Medtronic, Inc.” (App. Br. 3).
2 Examiner’s March 24, 2016 Non-Final Office Action.
Appeal 2016-006059
Application 12/771,475
STATEMENT OF THE CASE
Appellants’ “disclosure relates to medical devices and, more
particularly, to medical devices for delivery of electrical stimulation
therapy” (Spec. 12). Claims 1, 11, 15, 21, 25, and 26 are representative and
reproduced below:
I. A programmer for an implantable medical device comprising:
a user interface that receives user input corresponding to
one or more selected stimulation therapy parameters for
delivering stimulation therapy to a patient with the implantable
medical device and presents an energy consumption estimate of
a power source based on the selected stimulation therapy
parameters; and
a processor that determines one or more programming
options that, if selected, would alter the selected stimulation
therapy parameters and reduce the energy consumption
estimate,
wherein the processor determines when the energy
consumption estimate is above a certain level,
wherein, in response to the determination that the energy
consumption estimate is above the certain level, the user
interface presents a recommendation of at least one of the
programming options to reduce the energy consumption
estimate to the user with an indication that user selection of one
or more of the recommended programming options would alter
the selected stimulation therapy parameters to reduce energy
consumption of the implantable medical device.
(App. Br. 30.)
II. A programmer for an implantable medical device comprising:
a user interface that receives user input corresponding to
one or more selected stimulation therapy parameters for
delivering stimulation therapy to a patient with the implantable
medical device and presents an energy consumption estimate of
a power source based on the selected stimulation therapy
parameters; and
2
Appeal 2016-006059
Application 12/771,475
a processor that determines one or more programming
options that, if selected, would alter the selected stimulation
therapy parameters and reduce the energy consumption
estimate,
wherein the user interface presents a recommendation of
at least one of the programming options to reduce the energy
consumption estimate to the user with an indication that user
selection of one or more of the recommended programming
options would alter the selected stimulation therapy parameters
to reduce energy consumption of the implantable medical
device,
wherein the processor determines the energy
consumption estimate, and wherein the processor estimates the
future drain on the power source, based on an association
between the selected stimulation therapy parameters and
historical usage of actual therapy parameters due to manual
patient therapy parameter adjustments, to determine the energy
consumption estimate.
{Id. at 33.)
15. A method comprising:
receiving, with a user interface of a programmer for an
implantable medical device, user input corresponding to one or
more selected stimulation therapy parameters for delivering
stimulation therapy to a patient with the implantable medical
device;
presenting, with the user interface, an energy
consumption estimate of a power source based on the selected
stimulation therapy parameters;
determining, with a processor of the programmer, one or
more programming options that, if selected, would alter the
selected stimulation therapy parameters and reduce the energy
consumption estimate;
determining, with the processor, when the energy
consumption estimate is above a certain level; and
in response to determining that the energy consumption
estimate is above the certain level, presenting, with the user
3
Appeal 2016-006059
Application 12/771,475
interface, a recommendation of at least one of the programming
options to reduce the energy consumption estimate to the user
with an indication that user selection of one or more of the
recommended programming options would alter the selected
stimulation therapy parameters to reduce energy consumption
of the implantable medical device.
(Id. 35.)
21. A method comprising:
receiving, with a user interface of a programmer for an
implantable medical device, user input corresponding to one or
more selected stimulation therapy parameters for delivering
stimulation therapy to a patient with the implantable medical
device;
presenting, with the user interface, an energy
consumption estimate of a power source based on the selected
stimulation therapy parameters;
determining, with a processor of the programmer, one or
more programming options that, if selected, would alter the
selected stimulation therapy parameters and reduce the energy
consumption estimate;
presenting, with the user interface, a recommendation of
at least one of the programming options to reduce the energy
consumption estimate to the user with an indication that user
selection of one or more of the recommended programming
options would alter the selected stimulation therapy parameters
to reduce energy consumption of the implantable medical
device;
determining, with the processor, the energy consumption
estimate; and estimating, with the processor, the future drain on
the power source, based on an association between the selected
stimulation therapy parameters and historical usage of actual
therapy parameters due to manual patient therapy adjustments,
to determine the energy consumption estimate.
(Id. at 37.)
4
Appeal 2016-006059
Application 12/771,475
25. A system comprising:
means for delivering a stimulation therapy to a patient;
means for receiving user input corresponding to one or
more selected stimulation therapy parameters for delivering the
stimulation therapy to the patient;
means for determining one or more programming options
that, if selected, would alter the selected stimulation therapy
parameters and reduce an energy consumption estimate for the
stimulation therapy;
means for determining when the energy consumption
estimate is above a certain level; and
means for presenting, in response to determining that the
energy consumption estimate is above the certain level, a
recommendation of at least one of the programming options to
reduce the energy consumption estimate to the user with an
indication that user selection of one or more of the
recommended programming options would alter the selected
stimulation therapy parameters to reduce the energy
consumption estimate.
{Id. at 39.)
26. A non-transitory computer-readable medium comprising
instructions that, upon execution, cause a processor to:
determine an energy consumption estimate for selected
stimulation therapy parameters for delivering medical therapy
to a patient with an implantable medical device;
determine one or more programming options that, if
selected, would alter selected stimulation therapy parameters
and reduce the energy consumption estimate,
determine when the energy consumption estimate is
above a certain level, and
in response to the determination that the energy
consumption estimate is above the certain level, present, via a
user interface, a recommendation of at least one of the
programming options to reduce the energy consumption
estimate to a user with an indication that user selection of one
5
Appeal 2016-006059
Application 12/771,475
or more of the recommended programming options would alter
the selected stimulation therapy parameters to reduce energy
consumption of the implantable medical device.
(Id. at 40.)
The claims stand rejected as follows:
Claims 2-A and 16—20 stand rejected under 35 U.S.C. § 112, second
paragraph.
Claims 1—30 stand rejected under 35 U.S.C. § 102(e) as anticipated by
Crowley.3
Definiteness'.
ISSUE
Does the preponderance of evidence support Examiner’s conclusion
that the term/phrase “by each program,” “program,” “plurality of programs,”
or “program group,” as respectively set forth in Appellants’ claims, is
indefinite?
ANALYSIS
Examiner finds that Appellants’ claims lack “antecedent basis for
th[e]” phrase “by each program” and finds “unclear what constitutes a
‘program’, ‘plurality of programs’ or a ‘program group’” (Ans. 2).
Appellants provided rebuttal arguments (App. Br. 27—28). Examiner failed
to respond to Appellants’ rebuttal. Therefore, we are compelled to reverse
the rejection under 35 U.S.C. § 112, second paragraph.
3 Crowley et al., US 2009/0099625 Al, published Apr. 16, 2009.
6
Appeal 2016-006059
Application 12/771,475
CONCLUSION OF LAW
The preponderance of evidence fails to support Examiner’s conclusion
that the respective term/phrase “by each program,” “program,” “plurality of
programs,” or “program group,” as set forth in Appellants’ claims, is
indefinite. The rejection of claims 2-4 and 16—20 under 35 U.S.C. § 112,
second paragraph is reversed.
Anticipation'.
ISSUE
Does the preponderance of evidence on this record support
Examiner’s finding that Crowley teaches Appellants’ claimed invention?
Examiner finds that Crowley anticipates Appellants’ claimed
invention (Ans. 3—7; FF 1—10). Appellants contend that Examiner failed to
address or adequately rebut many of the arguments made by Appellants in
their Appeal Brief (Reply Br. 6 and 8). We agree with Appellants and
consequently reverse Examiner’s rejection and enter a NEW GROUND of
rejection based upon our findings of fact and conclusion below.
NEW GROUND OF REJECTION
Claims 1—30 are rejected as unpatentable under 35 U.S.C. 102(e) as
being anticipated by Crowley.
7
Appeal 2016-006059
Application 12/771,475
FACTUAL FINDINGS (FF)
FF 1. Crowley “relates to a device and method for indicating when the
power source of an implantable device is in need of service” (Crowley 12;
see generally Ans. 3—7).
FF 2. Crowley discloses “an implantable tissue stimulation therapy system,
comprising an implantable tissue stimulation device including a power
source of a known stored energy amount. . (Crowley, Abstract; id. 114;
see also id. 115 (Crowley discloses a method of operating a programmable
implantable tissue stimulation device having a power source of a known
energy amount. . .”); id. 113 (Crowley discloses “a method of programming
a tissue stimulation therapy device based on an elective power source service
date,” wherein the device has “a power source of a known energy amount”);
see generally id. 123 (describing various medical devices with the scope of
Crowley’s disclosure); Ans. 3—5 and 7).
FF 3. Crowley discloses that “an implantable tissue stimulation therapy
system includes a control system [] coupled to a tissue stimulation device [].
By way of example, the control system [] includes a control block []
comprising a processor [] and a memory []” (Crowley 129).
FF 4. Crowley discloses a “[cjontrol system [that] includes an algorithm
contained in memory [] that is configured to predict future energy usage of
the [device] based on past energy usage and one or more programmed
parameters” (Crowley 138 see also 143 (Crowley’s “control system [] may
adjust one or more therapy parameters during the therapy to attain or
maintain a desired result, such as battery longevity or therapy efficacy”);
Ans. 5—6).).
8
Appeal 2016-006059
Application 12/771,475
FF 5. Crowley discloses that the “control system [] stores a log of each
time a therapy parameter has been adjusted or modified,” wherein “[t]he log
may be manually retrieved at any time, or automatically reported to an
operator on a periodic basis” (Crowley 143; Ans. 5—6 and 9-10).
FF 6. Crowley’s system comprises “a programmer [(i.e., an input device or
user interface)] communicably coupled to the device and adapted to propose
one or more therapy parameters for the device” (Crowley, Abstract; see also
id. 1114 and 41 (“An operator such as a physician uses the programmer or
input device to propose one or more therapy parameters . . .”); see also id.
115 (relating to a method of operating a programmable implantable tissue
stimulation device); id. 113 (relating to “a method of programming a tissue
stimulation therapy device,” wherein an input device (i.e. programmer) “is
used to propose one or more therapy parameters for the device . . .”); Ans.
3-5).
FF 7. “[E]ach therapy parameter [of Crowley’s system has] a known
energy consumption associated therewith . . .” (Crowley, Abstract; id. 114;
see also id. 115 (relating to a method of operating a programmable
implantable tissue stimulation device); id. 113 (relating to “a method of
programming a tissue stimulation therapy device”); id. 145 (Crowley
discloses that “[o]ne or more programmed therapy parameters are associated
with operation of the therapy device, with each of the parameters having an
energy consumption associated therewith”); Ans. 3—5).
FF 8. Crowley discloses that
A number of the parameters of the control signal and/or the
output signal can be adjusted or modified by a physician in
order to tailor the [] therapy as desired. Adjusting one or more
of the parameters may, and often does, have an effect on the
9
Appeal 2016-006059
Application 12/771,475
amount of energy consumed by the power source which in turn
has an effect on the estimated life of the power source.
(Crowley 133; see also id. 132 (Crowley discloses that “the output (power
or energy) level of [Crowley’s] device may be changed by adjusting
parameters such as the output signal voltage level, current level and/or signal
duration”); Ans. 7; cf. Spec. 1 56 (“stimulation amplitude including current
and/or voltage amplitude, pulse width, pulse rate [and] the power output of
each of the leads in a group or program” are among the parameters that may
be adjusted for a given therapy).)
FF 9. Crowley’s system automatically determines “a predicted elective
service date of the power source based on the one or more proposed therapy
parameters and the known energy amount of the power source . . .”
(Crowley, Abstract; id. 114; see also id. 115 (relating to a method of
operating a programmable implantable tissue stimulation device); id. 113
(relating to “a method of programming a tissue stimulation therapy device”);
Ans. 3—5 and 7—8).
FF 10. Crowley’s system further comprises “a display communicatively
coupled to the [] device, the display being configured to indicate the
predicted elective power source service date to an operator . . .” (Crowley,
Abstract; id. 114; see also id. 115 (relating to a method of operating a
programmable implantable tissue stimulation device); id. 113 (relating to “a
method of programming a tissue stimulation therapy device”); Ans. 3—5 and
7).
FF 11. Crowley’s system is configured such that: (1) “the operator may
choose to select the one or more proposed therapy parameters based on the
indicated predicted elective service date ...” and (2) “the selected one or
more therapy parameters are transmitted to the device” (Crowley, Abstract;
10
Appeal 2016-006059
Application 12/771,475
id. 114; see also id. 115 (Crowley’s method of operating a programmable
implantable tissue stimulation device comprises “reviewing the predicted
elective service date of the power source and selecting or declining the one
or more proposed therapy parameters based on the indicated predicted
elective service date, and transmitting the selected therapy parameters to the
device”); id. 113 (relating to “a method of programming a tissue stimulation
therapy device”); Ans. 3—5).
FF 12. Crowley discloses that
[t]he operator can accept, decline, or modify the one or more
proposed therapy parameters []. If the proposed parameters are
accepted, the parameters are transmitted to the device []. If the
proposed parameters are declined, the original power source
service date is indicated to the operator. In one embodiment [of
Crowley’s disclosure], the operator is given [an] immediate
indication of how the proposed changes to the therapy
parameters will affect power source longevity, therapy efficacy,
or both.
(Crowley 141; Ans. 4 and 6—9; cf. Spec. 6 (“The ability to view an
indication of an energy consumption estimate for selected parameters may
permit a user to actively balance therapeutic benefit with energy
consumption”).)
FF 13. Crowley’s discloses:
In one embodiment, one or more therapy parameters are
selected by an operator to optimize battery life. In another
embodiment, one or more therapy parameters are selected by an
operator to optimize therapy efficacy. In a further embodiment,
one or more therapy parameters are selected by an operator to
balance battery longevity with therapy efficacy.
(Crowley 142; see generally Ans. 4 and 6—9.)
FF 14. Another embodiment of Crowley’s disclosure configures the
“control system ... to operate in a closed-loop auto-adjust mode so as to
11
Appeal 2016-006059
Application 12/771,475
automatically select parameters to optimize battery life, or optimize therapy
efficacy, or both, by using [the] processor [] and/or an algorithm contained
in memory” (Crowley 143; see generally Ans. 6).
FF 15. Crowley exemplifies a “tissue stimulation therapy [that] comprises
delivered pulses,” wherein
the amount of energy consumed for each pulse can be
determined []. The number of times the therapy is delivered for
a given period is known or can be determined, and is used to
calculate the energy consumption for a given period []. This
periodic energy consumption is compared to the known energy
amount of the battery [] to calculate the useful lifespan of the
battery, and from that, an elective service date [].
(Crowley 146.)
FF 16. Appellants disclose:
In some examples, [Appellants’] implantable stimulator []
delivers stimulation according to a group of programs at a given
time. Each program of such a program group may include
respective values for each of a plurality of therapy parameters,
such as respective values for each of current or voltage
amplitude, pulse width, pulse shape, pulse rate and electrode
configuration (e.g., electrode combination and polarity).
[Appellants’] [i]mplantable stimulator [] may interleave pulses
or other signals according to the different programs of a
program group, e.g., cycle through the programs, to
simultaneously treat different symptoms or different body
regions, or provide a combined therapeutic effect. In such
examples, clinician programmer may be used to create
programs, and assemble the programs into program groups. A
patient programmer may also be used to adjust stimulation
parameters of one or more programs of a program group, and
select a program group, e.g., from among a plurality of stored
program groups, as the current program group to control
delivery of stimulation by [Appellants’] implantable stimulator
[]•
(Spec. 149.)
12
Appeal 2016-006059
Application 12/771,475
ANALYSIS
Claim 1:
Appellants’ claim 1 is reproduced above.
The programmer of Appellants’ claim 1 comprises:
a user interface that receives user input corresponding to one or
more selected stimulation therapy parameters for delivering
stimulation therapy to a patient with an implantable medical
device ....
(See App. Br. 30.) Crowley discloses the “programming [of] a tissue
stimulation therapy device” with a programmer comprising a user interface
or input device, wherein an “operator such as a physician uses the
programmer or input device to propose one or more therapy parameters” of
the tissue stimulation therapy device’s program (FF 6; see also FF 7
(“[E]ach therapy parameter [of Crowley’s system has] a known energy
consumption associated therewith . . .”)). According to Crowley, “[a]
number of the parameters of the control signal and/or the output signal can
be adjusted or modified by a physician in order to tailor the [] therapy as
desired,” wherein therapy parameters include “output signal voltage level,
current level and/or signal duration” (FF 8; cf. FF 16).
The user interface, set forth in Appellants’ claim 1, also
presents an energy consumption estimate of a power source
based on the selected stimulation therapy parameters ....
(See App. Br. 30.) Crowley discloses the automatic determination of “a
predicted elective service date of the power source based on the one or more
proposed therapy parameters and the known energy amount of the power
source ...” (FF 9). Crowley further discloses “a display communicatively
coupled to the [] device . . .,” including the programmer, which is
13
Appeal 2016-006059
Application 12/771,475
“configured to indicate the predicted elective power source service date to an
operator . . (FF 10).
The programmer of Appellants’ claim 1 also comprises:
a processor that determines one or more programming options
that, if selected, would alter the selected stimulation therapy
parameters and reduce the energy consumption estimate ....
(See App. Br. 30.) Crowley discloses that an operator may select “one or
more therapy parameters[, which relate to programming options, that]
optimize battery life[,] optimize therapy efficacy[, or] balance battery
longevity with therapy efficacy” (FF 13, see FF 6). In this regard, Crowley
discloses that an “operator is given [an] immediate indication of how the
proposed changes to the therapy parameters will affect [programming
options such as] power source longevity, therapy efficacy, or both” and
“[t]he operator can accept, decline, or modify the one or more proposed
therapy parameters []” (FF 12; see also FF 11 (Crowley discloses a method
of operating a programmable device that comprises “reviewing the predicted
elective service date of the power source and selecting or declining the one
or more proposed therapy parameters based on the indicated predicted
elective service date, and transmitting the selected therapy parameters to the
device”)).
Thus, if the therapy parameters proposed by Crowley’s operator do
not result in a tissue stimulation therapy device program having an energy
consumption estimate that is below the energy consumption for the original
parameters, Crowley’s operator can decline the proposed parameter changes,
thereby resetting the user/operator selected therapy parameters back to their
original state, and “the original power source service date[, i.e. reduced
14
Appeal 2016-006059
Application 12/771,475
energy consumption estimate,] is indicated to the operator” (FF 11—12; see
Reply Br. 3—4).
Appellants’ claim 1 requires the processor to determine:
when the energy consumption estimate is above a certain level....
(See App. Br. 30). We interpret this clause of Appellants’ claimed invention
to read on an energy consumption estimate based on the proposed therapy
parameters that is above the energy consumption of the original therapy
parameters. For the reasons discussed above, Crowley inherently teaches a
processor that determines when the energy consumption estimate is above a
certain level as required by Appellants’ claimed invention. “Under the
principles of inherency, if the prior art necessarily functions in accordance
with, or includes, the claimed limitations, it anticipates.” In re Cruciferous
Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002) (citations and internal
quotation marks omitted).
Appellants’ claim 1 further requires that
in response to [a] determination that the energy consumption
estimate is above [a] certain level, the user interface presents a
recommendation of at least one of the programming options to
reduce the energy consumption estimate to the user with an
indication that user selection of one or more of the
recommended programming options would alter the selected
stimulation therapy parameters to reduce energy consumption
of the implantable medical device.
(See App. Br. 30 (emphasis added).) For the reasons set forth above
Crowley inherently teaches this feature of Appellants’ claimed invention,
wherein, for example, Crowley’s user is provided with the option to decline
a proposed change in the device’s programming, which results in a change in
the device’s proposed programming, i.e. resetting the therapy parameters
back to an original setting, to reduce the energy consumption of the
15
Appeal 2016-006059
Application 12/771,475
implantable medical device (see FF 12). See In re Cruciferous Sprout Litig.,
301 F.3d at 1349.
For the foregoing reasons, we are not persuaded by Appellants’
contentions that “Crowley does not disclose recommending programming
options, much less recommending programming options to reduce the
energy consumption estimate;” Crowley
fails to disclose a processor that determines when the energy
consumption estimate is above a certain level, and also fails to
disclose a user interface that presents a recommendation of at
least one of the programming options to reduce the energy
consumption estimate to the user in response to the
determination that the energy consumption estimate is above
the certain level, as set forth in Appellant’s Tsic] claim 1;
or “otherwise fails to disclose that the presentation of the predicted elective
power source service date occurs in response to a determination that the
energy consumption estimate is above [a] certain level, as provided by
Appellant’s [sic] claim 1 (App. Br. 11—12; see Reply Br. 4—5).
Claim 2\
Appellants’ claim 2 depends from and further limits the programmer
of Appellants’ claim 1 to require that
the processor determines the one or more programming options
that, if selected, would alter the selected stimulation therapy
parameters and reduce the energy consumption estimate in part
by evaluating the proportional effect on the energy
consumption estimate contributed by each program of a
plurality of programs in a program group.
(App. Br. 30.)
16
Appeal 2016-006059
Application 12/771,475
For the foregoing reasons, we are not persuaded by Appellants’
contentions as they relate to Appellants’ contentions regarding Appellants’
claim 1 (see App. Br. 13; Reply Br. 6).
Crowley further discloses a “control system [that] operate[s] in a
closed-loop auto-adjust mode . . (FF 14). If Crowley’s operator selects
Crowley’s “closed-loop auto-adjust mode [the device] automatically
select[s] parameters to optimize battery life, or optimize therapy efficacy, or
both, by using [the] processor [] and/or an algorithm contained in memory”
(id.). Thus, Crowley’s “closed-loop auto-adjust mode” necessarily evaluates
the proportional effect on the energy consumption estimate contributed by
each program of a plurality of programs in a program group.
Appellants fail to provide persuasive evidence or argument to support
a finding that Crowley’s disclosure of a “closed-loop auto-adjust mode” fails
to read on, or otherwise inherently teach, “program groups” as that term is
used in Appellants’ claim 2 and characterized in Appellants’ Specification
(see App. Br. 13; Reply Br. 6; see also FF 16).
For the foregoing reasons, we are not persuaded by Appellants’
contention that:
Because Crowley fails to disclose program groups, Crowley
also necessarily fails to disclose a processor that determines the
one or more programming options that, if selected, would alter
the selected stimulation therapy parameters and reduce the
energy consumption estimate in part by evaluating the
proportional effect on the energy consumption estimate
contributed by each program of a plurality of programs in a
program group, as further provided by Appellant’s rsicl claim
2.
(App. Br. 13; see also Reply Br. 6.)
17
Appeal 2016-006059
Application 12/771,475
Claim 4:
Appellants’ claim 4 depends from and further limits the programmer
of Appellants’ claim 1 to require that “the user interface presents a
representation of the proportional effect on the energy consumption estimate
contributed by each program of a plurality of programs in a program group”
(App. Br. 30).
For the foregoing reasons, we are not persuaded by Appellants’
contentions as they relate to Appellants’ contentions regarding to
Appellants’ claims 1 and 2 (App. Br. 14; see Reply Br. 6).
Appellants fail to provide persuasive evidence or argument to support
a finding that Crowley’s display fails to read on, or otherwise inherently
teach, the requirement in Appellants’ claim 4 of a “user interface [that]
presents a representation of the proportional effect on the energy
consumption estimate contributed by each program of a plurality of
programs in a program group” (see App. Br. 14; Reply Br. 6 cf. FF 5).
Claim 11:
Appellants’ claim 11 is reproduced above.
For the foregoing reasons, we are not persuaded by Appellants’
contentions as they relate to Appellants’ contentions regarding Appellants’
claim 1 (see App. Br. 13; Reply Br. 6—7).
Crowley discloses a “[cjontrol system [that] includes an algorithm
contained in memory [] that is configured to predict future energy usage of
the [device] based on past energy usage and one or more programmed
parameters,” wherein the “control system [] may adjust one or more therapy
parameters during the therapy to attain or maintain a desired result, such as
18
Appeal 2016-006059
Application 12/771,475
battery longevity or therapy efficacy” (FF 4). Therefore, we are not
persuaded by Appellants’ contention that “Crowley fails to disclose a
processor that estimates the future drain on the power source using a record
of manual patient therapy parameter adjustments to determine the energy
consumption estimate, per claim 11” (Reply Br. 7; see also App. Br. 16—17;
Reply Br. 7—8).
Claim 15:
Appellants’ claim 15 is reproduced above.
In addition to teaching Appellants’ programmer, as set forth in
Appellants’ claim 1; Crowley teaches the method of Appellants’ claim 15
(see e.g., FF 1 (Crowley “relates to a device and method for indicating when
the power of an implantable device is in need of service”); see also FF 6—
13).
Appellants’ contentions with respect to the method of Appellants’
claim 15 are similar to Appellants’ contentions regarding the programmer of
Appellants’ claim 1 (see App. Br. 18—19; see id. at 19 (“Crowley fails to
anticipate claim 15 for reasons similar to the reasons Crowley fails to
anticipate claim 1”)). Therefore, for the reasons set forth above with respect
to Appellants’ claim 1, we are not persuaded by Appellants’ contentions
regarding the method of Appellants’ claim 15 (see App. Br. 18—19; Reply
Br. 8).
Claim 16:
Appellants’ claim 16 depends from and further limits the method of
Appellants’ claim 15 to
19
Appeal 2016-006059
Application 12/771,475
further compris[e] determining, with the processor, the one or
more programming options that, if selected, would alter the
selected stimulation therapy parameters and reduce the energy
consumption estimate in part by evaluating the proportional
effect on the energy consumption estimate contributed by each
program of a plurality of programs in a program group.
(App. Br. 35.)
For the foregoing reasons, we are not persuaded by Appellants’
contentions as they relate to Appellants’ contentions regarding Appellants’
claim 15 (see App. Br. 19-20). In addition, for the reasons set forth above,
with respect to Appellants’ claim 2, we are not persuaded by Appellants’
contentions regarding “program groups” (see id. at 20; see also Reply Br. 8).
Claim 21:
Appellants’ claim 21 is reproduced above.
For the foregoing reasons, we are not persuaded by Appellants’
contentions regarding Appellants’ claim 15 (see App. Br. 21; see also Reply
Br. 8). In addition, for the reasons set forth above, with respect to
Appellants’ claim 11, we are not persuaded by Appellants’ contention that
Crowley fails to disclose a processor that estimates ‘“the future drain on the
power source, based on an association between the selected stimulation
therapy parameters and historical usage of actual therapy parameters due to
manual patient therapy adjustments, to determine the energy consumption
estimate’” (App. Br. 21—22; see also Reply Br. 8).
Claim 25:
Appellants’ claim 25 is reproduced above.
20
Appeal 2016-006059
Application 12/771,475
In addition to teaching Appellants’ programmer, as set forth in
Appellants’ claim 1 and method, as set forth in Appellants’ claim 15;
Crowley teaches the system of Appellants’ claim 25 (see e.g., FF 2 (Crowley
discloses “an implantable tissue stimulation therapy system . . see also
FF 6-13).
Appellants’ contentions with respect to the method of Appellants’
claim 25 are similar to Appellants’ contentions regarding the programmer of
Appellants’ claim 1 (see App. Br. 23—24; see id. at 24 (“Crowley fails to
anticipate claim 25 for reasons similar to the reasons Crowley fails to
anticipate claim 1”)). Therefore, for the reasons set forth above with respect
to Appellants’ claim 1, we are not persuaded by Appellants’ contentions
regarding the method of Appellants’ claim 15 (see App. Br. 18—19; Reply
Br. 8).
Claim 26:
Appellants’ claim 26 is reproduced above.
For the reasons set forth above, Crowley discloses Appellants’
method, system, and device that comprises a programmer (see e.g., FF 6—
13). In this regard, Crowley discloses a non-transitory computer-readable
medium, i.e., memory, comprising instructions that act on a processor as
required by Appellants’ claim 26 (see FF 3, 4, and 14). Therefore, we are
not persuaded by Appellants’ contention that Crowley fails to disclose “a
non-transitory computer-readable medium comprising instructions . . .” as
required by Appellants’ claim 26 (see App. Br. 24—25; Reply Br. 9).
Further, for the reasons set forth with above with respect to Appellants’
claim 1, we are also not persuaded by Appellants’ contention that “Crowley
21
Appeal 2016-006059
Application 12/771,475
fails to anticipate claim 26 for reasons similar to the reasons Crowley fails to
anticipate claim 1” (App. Br. 25; see Reply Br. 9).
Claim 27:
Appellants’ claim 27 depends from and further limits the computer-
readable medium of Appellants’ claim 26 to “comprise[] instructions that,
upon execution, cause the processor to estimate a future drain on a power
source using a record of manual patient therapy parameter adjustments to
determine the energy consumption estimate” (App. Br. 40).
For the foregoing reasons, we are not persuaded by Appellants’
contentions as they relate to Appellants’ contentions regarding Appellants’
claims 11,21, and 26 (see App. Br. 25; Reply Br. 9). In addition, for the
reasons set forth above, with respect to Appellants’ claims 11 and 26, we are
not persuaded by Appellants’ contention that Crowley fails to disclose a
‘“computer-readable medium [that] comprises instructions that, upon
execution, cause the processor to estimate a future drain on a power source
using a record of manual patient therapy parameter adjustments to determine
the energy consumption estimate’” (App. Br. 25—26; see Reply Br. 9).
Claim 30:
Appellants’ claim 30 depends from and further limits the programmer
of Appellants’ claim 1 to require that “determining the one or more
programming options that, if selected, would alter the selected stimulation
therapy parameters and reduce the energy consumption estimate includes
determining modifications to the one or more programming options that, if
22
Appeal 2016-006059
Application 12/771,475
selected, would reduce the energy consumption estimate while limiting any
expected reduction in efficacy” (App. Br. 42).
For the reasons set forth with respect to Appellants’ claim 1, we are
not persuaded by Appellants’ contentions that Crowley fails to teach
Appellants’ claimed programmer (see App. Br. 15; see also Reply Br. 6).
Further, as discussed above, Crowley discloses the selection of parameters
that relate to program options, wherein the program options seek to balance
battery longevity with therapy efficacy (see FF 12—13). Therefore, we are
not persuaded by Appellants’ contention that
Crowley fails to disclose determining the one or more
programming options that, if selected, would alter the selected
stimulation therapy parameters and reduce the energy
consumption estimate includes determining modifications to the
one or more programming options that, if selected, would
reduce the energy consumption estimate while limiting any
expected reduction in efficacy.
(App. Br. 15.)
CONCLUSION OF LAW
The preponderance of evidence on this record supports Examiner’s
finding that Crowley teaches Appellants’ claimed invention.
The rejection of claims 1, 2, 4, 11, 15, 16, 21, 25, 26, 27, and 30 under
35 U.S.C. § 102(e) as anticipated by Crowley is reversed and we enter a new
ground of rejection. Claim 3 is not separately argued and falls with claim 2.
Claims 5—10 and 12—14 are not separately argued and fall with claim 1.
Claim 17 is not separately argued and falls with claim 16. Claims 18—20 and
22—24 are not separately argued and fall with claim 15. Claims 28 and 29
are not separately argued and fall with claim 26.
23
Appeal 2016-006059
Application 12/771,475
TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REVERSED 37 C.F.R, $ 41,501b)
24