Ex Parte Gerber et al

Patent Trial and Appeal Board

Dec 11, 2013

11800653 (P.T.A.B. Dec. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARTIN T. GERBER and JOHN C. RONDONI1
____________

Appeal 2012-000902
Application 11/800,653
Technology Center 3700
____________

Before TONI R. SCHEINER, ERICA A. FRANKLIN, and
TINA E. HULSE, Administrative Patent Judges.

HULSE, Administrative Patent Judge

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims relating to
electrical stimulation therapy. The Examiner rejected the claims as obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Appellants identify the Real Party in Interest as Medtronic, Inc. (App.
Br. 3.)
Appeal 2012-000902
Application 11/800,653

2
STATEMENT OF THE CASE
Claims 1-30 are on appeal. (App. Br. 3.)
Claim 1 is representative and is reproduced below:
1. A system comprising:
an electrical stimulator comprising a device
accelerometer;
a lead coupled to the electrical stimulator to deliver
stimulation from the electrical stimulator to a target stimulation
site in a patient, the lead comprising a lead accelerometer;
a processor that receives a first signal from the device
accelerometer and a second signal from the lead accelerometer,
compares the first signal to at least the second signal to detect at
least one of a posture or posture transition of the patient, and
controls delivery of the stimulation to the patient based on the
detection.

The claims stand rejected under 35 U.S.C. § 103(a) as follows:
I. Claims 1-8, 10-17, 19-22, 24, 25, 28, and 30 over Miesel2 in
view of Johnston.3 (Ans. 4-8.)
II. Claims 9, 18, 23, 24, 26, 27, and 29 over Miesel in view of
Johnston and Singhal.4 (Id. at 8-9.)

DISCUSSION
The claimed invention relates to techniques for detecting the posture
of a patient and providing or adjusting electrical stimulation therapy based
on the detected postures. (Spec. ¶ 4.) The Examiner rejected certain claims

2 Miesel, US 7,313,440 B2, issued December 25, 2007.
3 Johnston et al., US 5,941,904, issued August 24, 1999.
4 Singhal et al., US 2005/0060001 A1, published March 17, 2005.
Appeal 2012-000902
Application 11/800,653

3
as obvious over Miesel and Johnston, and other claims as obvious over
Miesel, Johnston, and Singhal. The issue presented is whether the
preponderance of the evidence supports the Examiner’s findings that the
claims are obvious over these references.

Findings of Fact (FF)
1. Claims 1-8, 10-17, 19-22, 24, 25, 28, and 30 each recite
“compar[ing] the first signal [from the device accelerometer] to at least the
second signal [from the lead accelerometer] to detect at least one of a
posture or posture transition of the patient.” (App. Br., Appendix A.)
2. Dependent claims 3 and 15 recite “detecting the at least one of
the posture or posture transition of the patient based on a relative motion of
the device accelerometer and the lead accelerometer based on the
comparison of the first and second signals.” (Id.)
3. Dependent claims 2 and 14 recite “detecting the at least one of
the posture or posture transition of the patient based on a relative orientation
of the device accelerometer and the lead accelerometer based on the
comparison of the first and second signals.” (Id.)
4. Claim 26 recites that “the processor calculates a difference
between the first signal from the device accelerometer and the second signal
from the lead accelerometer for each of a plurality of axes to detect the at
least one of the posture or posture transition of the patient.” (Id.)
5. Johnston teaches:
The pacemaker 400 of FIG. 5 is particularly useful for
avoiding the detection of false positive signals in which a
pacemaker confuses an acceleration signal from a lead-based
Appeal 2012-000902
Application 11/800,653

4
accelerometer as a heart wall acceleration (i.e., contracting
chamber) when the signal, infact, was the result of general body
activity and not a contracting heart chamber. It should be
apparent that both lead accelerometer 200 and can
accelerometer 300 will experience motion of the patient’s body.
Thus, general body activity causes an acceleration that is
common to both accelerometers. Accordingly, amplifier 420
amplifies only the difference between the output signals from
accelerometers 200 and 300, thereby canceling the common
body activity acceleration experienced by both accelerometers
200, 300. The output signal from amplifier 420 on line 421
thus represents the acceleration experienced by lead
accelerometer 200 resulting only from heart wall accelerations
and not general body activity.

(Johnston, col. 8, ll. 10-26.)
6. Miesel relates to “techniques for evaluating a therapy delivered
to a patient by a medical device based on patient activity, posture, or both.”
(Miesel, col. 1, ll. 35-37.)
7. Miesel discloses monitoring the signals generated by a plurality
of accelerometers to “identify postures or postural transitions based on the
accelerometer signals.” (Id. at col. 6, ll. 51-55.)
8. Johnston teaches the use of accelerometers for use in
implantable medical devices to measure movement of the heart wall.
(Johnston, col. 1, ll. 9-11; see also id. at col. 8, ll. 10-26.)
9. Singhal relates to techniques for providing adjustments to
therapy in response to detecting a previously defined event, such as a posture
change, using multiple accelerometers. (Singhal ¶¶ 5, 44.)
Appeal 2012-000902
Application 11/800,653

5
Analysis
Rejection Under 35 U.S.C. § 103(a) over Miesel and Johnston
The Examiner rejected claims 1-8, 10-17, 19-22, 24, 25, 28, and 30 as
obvious over Miesel and Johnston. (Ans. 4-8.) Each of these claims
requires “compar[ing] the first signal [from the device accelerometer] to at
least the second signal [from the lead accelerometer] to detect at least one of
a posture or posture transition of the patient.” (FF 1.) The Examiner found
that Miesel teaches “compar[ing] the first and second signals (i.e., compares
the signals to one or more respective threshold values) to detect at least one
of a posture or posture transition of the patient.” (Ans. 4-5.) Because
Miesel does not teach comparing the signals to each other, the Examiner
found that Johnston teaches this limitation. (Id. at 5-6.)
Appellants assert that the Examiner erred in combining Miesel and
Johnston because Johnston teaches away from Miesel. Specifically,
Appellants argue that Johnston measures signal “‘only from heart wall
accelerations and not general body activity,’” and “fails to provide a signal
that is useful for detecting a posture or posture transition.” (App. Br. 8.) As
such, Appellants assert that there is no apparent reason to modify the Miesel
system with the teachings of Johnston because Johnston teaches away from
using accelerometer differences for detecting general body activity. (Id.)
We do not find Appellants’ argument persuasive. While we agree that
Johnston teaches measuring movement of the heart wall and “not general
body activity” (FF 5), that does not amount to teaching away from
measuring general body activity. Johnston does not teach that measuring
general body movements by comparing the signal of two accelerometers is
Appeal 2012-000902
Application 11/800,653

6
impossible or would render the system inoperative. On the contrary,
Johnston teaches that such signals are expected and must be accounted for to
determine the movement of the heart wall by stating:
It should be apparent that both lead accelerometer 200 and can
accelerometer 300 will experience motion of the patient’s body.
Thus, general body activity causes an acceleration that is
common to both accelerometers. Accordingly, amplifier 420
amplifies only the difference between the output signals from
accelerometers 200 and 300, thereby canceling the common
body activity acceleration experienced by both accelerometers
200, 300.

(Id.) Thus, we find that the Examiner reasonably concluded that one of
ordinary skill in the art would have understood from Johnston that
accelerometers can be placed at different locations of the body to measure
general body activity by comparing their signals.
Appellants argue that Johnston “fails to provide a signal that is useful
for detecting a posture or posture transition because accelerometers 200 and
300 in Johnston are implanted at locations within the patient that would not
provide different signals based on different postures or posture transitions.”
(App. Br. 8.) But teaching a different purpose or embodiment does not
constitute teaching away. See In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir.
2012) (“[T]he mere disclosure of alternative designs does not teach away.”)
(citation omitted). Thus, because one of ordinary skill in the art would not
have been discouraged from looking at the teachings of Johnston to modify
Miesel and reach the claimed invention, we reject Appellants’ teaching away
argument. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (“A reference
may be said to teach away when a person of ordinary skill, upon reading the
Appeal 2012-000902
Application 11/800,653

7
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.”).
Appellants also assert that the Examiner failed to offer a sufficient
reason for one of ordinary skill in the art to combine Miesel and Johnston.
The Examiner stated that “Miesel and Johnston are concerned with the same
field of endeavor, namely systems and methods for implantable
neurostimulators utilizing accelerometers.” (Ans. 5.) The Examiner then
found that one of skill in the art would combine the references to “more
effectively and efficiently detect a posture or posture transition.” (App. Br.
9.) We find the Examiner’s reasoning to be reasonable and sufficient,
particularly given the references’ similarities in the technical field of
endeavor using accelerometers in implantable medical devices. (FF 6-8.)
Thus, we affirm the rejection of claim 1 over Miesel and Johnston.
Appellants separately argue that dependent claims 2-3 and 14-15 are
patentable because the Examiner failed to establish a prima facie case of
obviousness with respect to these claims. For claims 2 and 3, the Examiner
stated that the “claimed subject matter is substantially similar in scope to
matter rejected earlier in claim 1 above; therefore claims 2 and 3 are rejected
for at least the same reasons by Miesel (concerned primarily with
orientation) and Johnston (concerned primarily with motion).” (Ans. 6.)
Similarly, for claims 14 and 15, the Examiner stated the “claimed subject
matter is substantially similar in scope to matter rejected earlier in claims 1-
4, respectively, above; therefore claims 13-15 and 17 are rejected for at least
the same reasons by Miesel and Johnston.” (Id. at 7.)
Appeal 2012-000902
Application 11/800,653

8
Claims 3 and 15 recite the additional limitation of detecting posture or
posture transition “based on a relative motion of the device accelerometer
and the lead accelerometer.” (FF 2.) As the Examiner noted in the rejection
of claim 1, Johnston discloses comparing the signals generated by two
accelerometers to each other “to determine a relative motion of the cardiac
wall . . . to the pacemaker’s location for capture verification or determining
other hemodynamic parameters.” (Ans. 5) (emphasis added.) Given this
disclosure of “relative motion,” we find the Examiner’s reasoning for claim
1 applies to the additional “relative motion” limitations of claims 3 and 15.
Moreover, Appellants assert a similar argument that one of ordinary skill in
the art would not look to Johnston because Johnston detects movement of
the organ and not a posture or posture transition. (App. Br. 13-14.) For the
same reasons stated above, we do not find Appellants’ argument persuasive
and find no error in the Examiner’s rejection of claims 3 and 15.
We do, however, find that the evidence of record does not support the
Examiner’s rejection of claims 2 and 14. Claims 2 and 14 include the
additional limitation of detecting a posture or posture transition “based on a
relative orientation of the device accelerometer and the lead accelerometer.”
(FF 3.) The Examiner was effectively silent—both in the Final Office
Action and the Answer—regarding where the prior art teaches or suggests
detecting posture based on “relative orientation.” (Ans. 6, 10-13.) At most,
the Examiner states that “one could derive a wealth of information about the
motion and orientation of the accelerometers (i.e. relative and absolute)”
from Johnston, but fails to show where Johnston actually teaches measuring
the relative orientation of the accelerometers. (Id. at 10.) Such a cursory
Appeal 2012-000902
Application 11/800,653

9
analysis cannot satisfy the prima facie burden of obviousness. Thus, we
reverse the Examiner’s rejections of claims 2 and 14.

Rejection Under 35 U.S.C. § 103(a) over Miesel, Johnston, and Singhal
The Examiner rejected dependent claims 9, 18, 23, 24, 26, 27, and 29
as obvious over Miesel, Johnston, and Singhal. Claim 26 recites that “the
processor calculates a difference between the first signal from the device
accelerometer and the second signal from the lead accelerometer for each of
a plurality of axes to detect the at least one of the posture or posture
transition of the patient.” (FF 4.) The Examiner found that “Miesel,
Johnston, Singhal fail to explicitly disclose calculating a difference between
the accelerometer signals for each of a plurality of axes to detect the at least
one of the posture or posture transition of the patient.” (Ans. 9.) The
Examiner then found that it would have been obvious to combine Singhal’s
multi-axes accelerometers to Johnston’s method of determining relative
motion by calculating the difference between the single-axis accelerometer
signals. The Examiner reasoned that one of ordinary skill in the art would
have combined the references “to provide more detailed velocity of motion
information for each direction to the processor about the posture of and
activity undertaken by the patient that might not otherwise be discernable
[from] multiple single-axis accelerometers.” (Id.)
Appellants argue that one of ordinary skill in the art would not have
looked “to the teachings of Johnston for relative organ movement to modify
systems for detecting posture.” (App. Br. 15.) For the same reasons stated
above, we reject Appellants’ teaching away argument.
Appeal 2012-000902
Application 11/800,653

10
Appellants also argue that the Examiner has not articulated an
apparent reason for modifying the references according to the specific
requirements of the claim. (Id. at 16.) We disagree. We find that the
Examiner’s reason to combine is sufficient, particularly where all three
references are directed to providing medical therapy to a patient based on
signals detected from multiple accelerometers. (FF 6-9.) Accordingly, we
affirm the Examiner’s rejection of claim 26.

Conclusions of Law
We affirm the Examiner’s rejection of claim 1 under
35 U.S.C. § 103(a) over Miesel and Johnston. Because Appellants did not
separately argue the patentability of claims 4-8, 10-13, 16-17, 19-22, 25, 28,
and 30, we affirm the Examiner’s rejection of these claims for the same
reasons. 37 C.F.R. § 41.37(c)(1)(vii).
We affirm the Examiner’s rejection of claims 3 and 15, and reverse
the Examiner’s rejection of claims 2 and 14 under 35 U.S.C. § 103(a) over
Miesel and Johnston.
We affirm the Examiner’s rejection of claim 26 under 35 U.S.C. §
103(a) over Miesel, Johnston, and Singhal. Because Appellants did not
separately argue the patentability of claims 27 and 29, we affirm the
Examiner’s rejection for the same reasons. 37 C.F.R. § 41.37(c)(1)(vii).
Moreover, because Appellants have waived any additional arguments based
on Singhal, we affirm the rejection of claims 9, 18, 23, and 24 under
35 U.S.C. § 103(a). See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir.
2008).
Appeal 2012-000902
Application 11/800,653

11
SUMMARY
We affirm the rejections on appeal of claims 1, 3-13, and 15-30.
We reverse the rejections on appeal of claims 2 and 14.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

cdc