Ex Parte Ousdigian et al

Patent Trial and Appeal Board

Apr 25, 2018

14187695 (P.T.A.B. Apr. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/187,695 02/24/2014
27581 7590 04/27/2018
Medtronic, Inc. (CRDM)
710 MEDTRONIC PARKWAY NE
MS: LC340 Legal Patents
MINNEAPOLIS, MN 55432-9924
FIRST NAMED INVENTOR
Kevin T. Ousdigian
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
C0005396.USU2/LG10126.L33 8235
EXAMINER
LEVICKY, WILLIAM J
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
04/27/2018 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):
medtronic_crdm_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN T. OUSDIGIAN, JOEL R. LAUER, and
ADAM C. RICHARDSON
Appeal2017-004256
Application 14/187 ,695 1
Technology Center 3700
Before JEFFREY N. FREDMAN, ELIZABETH A. LA VIER, and
RICHARD J. SMITH, Administrative Patent Judges.
LA VIER, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants seek review of the
Examiner's rejections of claims 1-27. We have jurisdiction under 35 U.S.C.
§ 6(b). For the reasons set forth below, we AFFIRM.
BACKGROUND
The Specification describes "an electrogram (EGM) summary
generated by an external computing device for presentation at a display
device." Spec. 1: 10-11.
Claim 1 is illustrative:
1 Appellants state the real parties in interest are Medtronic, Inc. and Medtronic
plc. Appeal Br. 3.
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A method comprising:
receiving cardiac electrogram (EGM) signal data
collected from a medical device associated with a patient,
wherein the EGM signal data is representative of a detected
cardiac episode identified as one of a plurality of episode types;
selecting, by one or more processors and based on the
identified one of the plurality of episode types, a plurality of
non-overlapping portions of the EGM signal data associated
with the detected cardiac episode, wherein each episode type of
the plurality of episode types is associated with a respective
selection of portions of the EGM signal data; and
outputting, by the one or more processors, the selected
plurality of non-overlapping portions of the EGM signal data as
an episode summary for the detected cardiac episode.
Appeal Br. 43 (Claims Appendix).
REJECTIONS MAINTAINED ON APPEAL
1. Claims 1-27 stand rejected under 35 U.S.C. § 101 as directed to
non-statutory subject matter. Ans. 2.
2. Claims 1-8, 11-20, and 23-27 stand rejected under 35 U.S.C.
§ I02(a)(l) as anticipated by Gunderson. 2 Ans. 6.
3. Claims 1-8, 11-20, and 23-27 stand rejected under 35 U.S.C.
§ I02(a)(l) as anticipated by Dong. 3 Ans. 9.
4. Claims 1-8, 11-20, and 23-27 stand rejected under 35 U.S.C.
§ 102( a )(1) as anticipated by Sauer. 4 Ans. 11.
2 Gunderson et al., US 2013/0085406 Al, published Apr. 4, 2013.
3 Dong et al., US 2011/0077541 Al, published Mar. 31, 2011.
4 Sauer et al., US 2008/0125824 Al, published May 29, 2008.
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A. Claim Construction
DISCUSSION
Before turning to the rejections at issue on appeal, we begin by
addressing the meaning of "a detected cardiac episode," as recited in claim
1. Specifically, this phrase implicates three issues 5 of claim construction:
(1) whether "a detected cardiac episode" and "the detected cardiac episode"
as recited in claim 1 can encompass more than one cardiac episode, (2) the
definition of "cardiac episode," and (3) the definition of "plurality ofnon-
overlapping portions of the EGM signal data."
1 " " . a
"[A]n indefinite article 'a' or 'an' in patent parlance carries the
meaning of 'one or more' in open-ended claims containing the transitional
phrase 'comprising."' KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351,
1356 (Fed. Cir. 2000). Furthermore:
That "a" or "an" can mean "one or more" is best described as a
rule, rather than merely as a presumption or even a convention.
The exceptions to this rule are extremely limited: a patentee
must "evince[ ] a clear intent" to limit "a" or "an" to "one."
The subsequent use of definite articles "the" or "said" in a
claim to refer back to the same claim term does not change the
general plural rule, but simply reinvokes that non-singular
meaning. An exception to the general rule that "a" or "an"
means more than one only arises where the language of the
claims themselves, the specification, or the prosecution history
necessitate a departure from the rule.
5 More precisely, the phrase implicates two issues of claim construction that
are necessary to fully resolve the issues before us on appeal. See Vivid Techs.,
Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) ("[O]nly
those terms need be construed that are in controversy, and only to the extent
necessary to resolve the controversy.").
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Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342--43 (Fed.
Cir. 2008).
Here, we discern nothing in the claims themselves or the record that
would necessarily limit "a detected cardiac episode" as recited in claim 1 to
a single episode. Insofar as claim 1 also recites that the detected episode is
"identified as one of a plurality of episode types," this does not exclude
multiple episodes, so long as they are of the same "type," as further
discussed below. Accordingly, we find that the broadest reasonable
interpretation of "a detected cardiac episode" is "one or more detected
cardiac episodes."
2. "cardiac episode"
Claim 1 places no limitations on the detected "cardiac episode" except
that such episode(s) must be "identified as one of a plurality of episode
types." Claim 2, which depends from claim 1, recites various episode types,
involving abnormal heart rhythms such as ventricular tachycardia:
The method of claim 1, wherein the plurality of episode types
comprise at least two of a treated ventricular
tachycardia/ventricular fibrillation (VT /VF) episode, a
monitored VT episode, a non-sustained ventricular tachycardia
(VTNS) episode, a high-rate non-sustained ventricular
tachycardia (VTNS) episode, a VT/VF episode with treatment
withheld, a supraventricular tachycardia (SVT) episode, a
ventricular oversensing (VOS) episode, a fast atrial and
ventricular rate episode, a treated atrial tachycardia/ atrial
fibrillation (AT/AF) episode, and a monitored AT/AF episode.
Appeal Br. 43 (Claims Appendix). Claim 8, which also depends from claim
1, describes "events" associated with the plurality of non-overlapping
portions of the data regarding the cardiac episode, which can "comprise one
or more of an onset of the cardiac episode, a medical device detection of the
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cardiac episode, a delivered therapy, or a termination of the cardiac
episode." Id. at 45. This open-ended claim language tells us that a cardiac
episode could (but need not necessarily) include some or all of the events
recited in claim 8. As is often the case, the dependent claims here provide
useful examples identifying subject matter that falls within the bounds of the
independent claim, but little direction as to the nature of those bounds.
Thus, we agree with the Examiner that "a cardiac episode is broad enough to
include anything from arrhythmia to fibrillation to normal sinus rhythm."
Advisory Action 2 6 (see also Ans. 10 ("Appellant has not defined cardiac
episode to be a particular cardiac episode and therefore includes anything
from the PVT episode of Dong to the identification of each R-wave.")).
Appellants direct us to nothing in the claims, the Specification, or the record
as a whole that counters the Examiner's interpretation, and we discern none.
3. ''plurality of non-overlapping portions of the EGM signal
data"
Claim 1 does not meaningfully limit the "plurality of non-overlapping
portions of the EGM signal data," insofar as claim 1 does not, for example,
delineate how the "portions" are distinguished or divided from one another.
Claim 9 describes "comparing time windows for each portion of the
respective selection of portions of EGM signal data" (Appeal Br. 45),
indicating that, at the very least, the "non-overlapping portions" of claim 1
include data divided into segments by time, and which do not include
common time points. The Examiner finds, and we agree, that "the selection
of EGM signal data is broad enough to include any portion of the heart
pumping which is shown in a P-wave or any other characteristic represented
6 Advisory Action dated June 21, 2016.
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by the PQRST segments." Advisory Action 2. By extension, a "plurality of
non-overlapping portions" of those data includes (but is not necessarily
limited to) 7 any set of more than one of such portions, for which no two
portions encompass data from common time points.
B. Rejection 1: § 1 OJ
Section 101, which provides that a patent may be obtained for the
invention of "any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof," is
limited implicitly insofar as "[l]aws of nature, natural phenomena, and
abstract ideas are not patentable." Alice Corp. Pty. Ltd. v. CLS Bank Int 'l,
134 S. Ct. 2347, 2354 (2014) (quoting Ass 'nfor Molecular Pathology v.
Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The Supreme Court
has established a two-step framework for this analysis, wherein a claim does
not satisfy § 101 if
(1) it is "directed to" a patent-ineligible concept, i.e., a law of
nature, natural phenomenon, or abstract idea, and (2), if so, the
particular elements of the claim, considered "both individually
and 'as an ordered combination,"' do not add enough to
"transform the nature of the claim into a patent-eligible
application."
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)
( quoting Alice, 134 S. Ct. at 2355).
The Examiner finds that the appealed claims are directed to an
abstract idea without significantly more, because:
7 We need not reach how or if other kinds of non-overlaps (i.e., not related to
time) fall within the scope of claim 1, as doing so is unnecessary to resolve
the issues before us in this appeal.
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the claims receive EGM signal data and associate a cardiac
episode with the EGM signal data without significantly more.
The claims use a generic identifier of a processor to associate
the EGM signal data with the detected cardiac episode and
output the selected one or more portions of the EGM signal data
as a summary. Associating data using a processor and
outputting the selected one or more portions of the EGM signal
data does not contribute "significantly more" than the mere idea
of associating well known medical conditions shown on EGM
signal data with the arrhythmia/episode detected on the EGM
signal.
Final Action 6.
We discern no reversible error in the Examiner's rejection.
Appellants' arguments to the contrary (see Appeal Br. 7-16; see also Reply
Br. 2-5) are not persuasive, as discussed below.
1. Alice Step 1
Appellants assert that the Examiner has "overly generalized the
features of claim 1." Appeal Br. 8. In particular, Appellants allege that the
"selecting, by one or more processors and based on the identified one of the
plurality of episode types, a plurality of non-overlapping portions of the
EGM signal data associated with the detected cardiac episode" element of
claim 1 is not abstract but rather "is explicitly directed to the concrete step of
selecting a plurality of non-overlapping portions of EGM signal data. The
claimed features require a specific technical data type (i.e., EGM signal
data) and performing specific actions on that EGM signal data." Id. at 10.
This is not persuasive. That the data are specific (here, from EGM signals)
does not make their manipulation any less abstract. Nor does the specificity
of such manipulation change its intrinsic abstractness. See Elec. Power
Grp., 830 F.3d at 1353 ("Accordingly, we have treated collecting
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information, including when limited to particular content ( which does not
change its character as information), as within the realm of abstract ideas.").
Appellants' suggestion that "without the Examiner identifying court
decisions in which abstract ideas were identified, the Examiner has failed to
establish a prima facie case of non-patentability for the claims" (Appeal Br.
9), mistakes one manner of illustrating the ineligibility of subject matter as
the exclusive means of doing so. In any event, the "receiving," "selecting,"
and "outputting" data elements of claim 1 are similar to the abstract ideas
that courts have deemed outside the scope of§ 101. For example, in
Electric Power Group, "[t]he focus of the asserted claims ... [was] on
collecting information, analyzing it, and displaying certain results of the
collection and analysis." 830 F.3d at 1353. And contrary to Appellants'
implication that the Examiner erred in "not [having] shown that the features
of claim 1 could even be performed mentally" (Appeal Br. 10), Electric
Power Group also stands for the proposition that "analyzing information by
steps people go through in their minds, or by mathematical algorithms,
without more, as essentially mental processes within the abstract-idea
category," 830 F.3d at 1354 (emphasis added).
Nor is this a case in which "the claimed solution is necessarily rooted
in computer technology in order to overcome a problem specifically arising
in the realm of computer networks," DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), as Appellants suggest (see
Appeal Br. 11 ). Unlike the claims in DDR Holdings, which "address[ ed] a
business challenge (retaining website visitors), ... a challenge particular to
the Internet," 773 F.3d at 1257, the data in claim 1 are "collected from a
medical device associated with a patient."
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Accordingly, we discern no error in the Examiner's finding that claim
1 is directed to an abstract idea.
2. Alice Step 2
Appellants argue that, even if claim 1 recites an abstract idea, it
"provide[s] and improvement to a technical field" and therefore amounts to
"significantly more" than an abstract idea. Appeal Br. 13-14 ( discussing
Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016)). We are not persuaded. Appellants quote the Examiner's
statement that "the steps being performed are a part of solving a specific
technical problem" (id. at 13 (quoting Final Action 2)), and then present a
logic-based argument: "[i]f the features of claim 1 solve a specific technical
problem, a contention to which the Office appears to agree, the claim 1 must
provide an improvement to a technical field" (id. at 13-14). The problem
with this line of reasoning is that it reads out the Examiner's qualification
that the claimed steps "are a part of' the solution to a technical problem.
Further, Appellants purport to give an example of how claim 1 improves a
technical field, but the example is merely a recitation of much of the
language of claim 1, not an explanation. See Appeal Br. 14. Appellants'
suggestion that because (in Appellants' view) "no art of record discloses the
claimed features, claim 1 does not merely include purely conventional
activity" (id.) conflates § 102 with § 101. Although "in evaluating the
significance of additional steps, the § 101 patent-eligibility inquiry and, say,
the § 102 novelty inquiry might sometimes overlap," Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 90, (2012), these
inquiries are not the same. If the novelty of the claim lies in the abstraction,
law of nature, or other unpatentable subject matter, the claim may be novel
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or nonobvious and yet still fail under § 101. See Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1377 (Fed. Cir. 2015) ("For process claims
that encompass natural phenomenon, the process steps are the additional
features that must be new and useful." (citing Parker v. Flook, 437 U.S. 584,
591 (1978) ("The process itself, not merely the mathematical algorithm,
must be new and useful.")).
The Examiner finds that "[i]t is well known in the art to select non-
overlapping portions of EGM signal data and output the results" (Ans. 4), a
finding supporting our affirmance of the several anticipation rejections
below. The Examiner explains:
[ o ]ne such example is a heart beat monitor which identifies a
cardiac episode (peak of an R-wave) and then identifies the next
peak of an R-wave in the next heart beat to determine the time
difference and uses that time different to identify beats per
minute. In this example the peak R-waves do not occur during
the same period of time and therefore are non-overlapping
portions of the EGM signal data. Or in the identification of P-R
intervals the device identifies the episode corresponding to the
P-wave and the episode corresponding to the R-wave and
calculates a time differential from the two episodes which can
be used to indicate a first degree heart block.
Id. at 4--5.
As the Examiner's analysis and examples amply demonstrate, claim 1
does not recite "significantly more" than an abstract idea. Accordingly, we
affirm the Examiner's rejection of claim 1 under § 101. Appellants organize
some of the claims as part of different groups from the group containing
claim 1, but argue only by way of reference to claim 1. See Appeal Br. 14--
15 (discussing Groups 2 and 3)). These do not amount to separate
arguments. See 37 C.F.R. § 4I.37(c)(l)(iv) (2011). Accordingly, claims 2-
27 fall with claim 1.
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C. Rejection 2: § 102 (Gunderson)
Gunderson describes an implantable device that "transmits EGM
signal data for a number of cardiac episodes to an external computing
device," which "selects a subset of the cardiac episodes for which
information or images are displayed to the user." Gunderson, Abstract. The
Examiner finds:
Gunderson et al teaches a method/system comprising: receiving
cardiac electrogram (EGM) signal data collected from a
medical device associated with a patient, wherein the EGM
signal data is representative of a detected cardiac episode
identified as one of a plurality of episode types ( e.g. Paragraphs
[0001], [0011], [0057] discloses receiving cardiac electrogram
signal data from an implantable medical device, the EGM
signal data including a plurality of detected cardiac episodes);
selecting, by one or more processors and based on the identified
one of the plurality of episode types, a plurality of non-
overlapping portions of the EGM signal data associated with
the detected cardiac episode, wherein each episode type of the
plurality of episode types is associated with a respective
selection of portions of the EGM signal data ( e.g. Paragraph
[0093] and processor(s)106 discloses associating images of
EGM signals with cardiac episodes); outputting, by the one or
more processors, the selected plurality of non-overlapping
portions of the EGM signal data as an episode summary for the
detected cardiac episode ( e.g. Paragraphs [0055], [0093], and
[0122] discloses processor generating a EGM summary report).
Final Action 6-7.
Appellants argue that Gunderson's disclosure "relate[s] to comparing
or displaying two episodes," not "selecting a plurality of non-overlapping
portions of EGM data associated with !!. detected cardiac episode, as recited
by claim 1." Appeal Br. 17. This argument (and those like it (see id. at 17-
19; see also Reply Br. 5-7)) fails because it presumes an unduly narrow
construction of claim 1.
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As the Examiner explains:
in Gunderson the physician selects the episodes to view,
therefore using a user interface the physician controls the
processor to select the episodes. The examiner notes that the
claims as currently written does not prohibit the viewing of
overlapping portions, but requires the selecting of a plurality of
portions that are non-overlapping. Gunderson et al discloses in
Paragraph [0140] a user selecting an EGM snippet from a first
episode and a second EGM snippet from a second episode and
any intervening episodes are hidden so the two episodes are
adjacent to one another. Therefore, disclosing that the two
episodes are non-overlapping, since there are intervening
episodes that are hidden, and outputting the plurality of non-
overlapping portions of the EGM signal data so that the user
can compare the morphology of the two EGM snippets
(portions).
Final Action 3--4.
Further, the "snippets" in Gunderson may comprise various segments
of a given "episode":
For example, an EGM snippet window may show a portion of
the EGM used by IMD 16 to make its final classification
decision. In some examples the EGM snippet may include both
the EGM before and after anti-tachycardia pacing, both the
EGM before and after shock or episode termination, or enough
of the EGM snipped to show a change in ventricular
morphology. The portion of the snippet shown may also be
based on information from the retrospective analysis performed
by computing device 104.
Gunderson ,r 118. Indeed, Gunderson's inclusion of snippets of, for
example, "both the EGM before and after" treatment or termination of the
episode (id.) tracks closely the types of "events" described in claim 8 of the
present appeal. Thus, even under Appellants' more restrictive interpretation
of "a detected cardiac episode," Gunderson teaches selecting a plurality of
non-overlapping portions of the EGM signal data ( e.g., the before and after
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data) from a single episode (e.g., of tachycardia). To the extent Gunderson
conceives of the before and after data as a single "snippet" rather than
multiple "snippets," this is a matter of labeling, leaning too heavily on
Gunderson's choice of terminology instead of that of claim 1. Contrary to
Appellants' suggestion (see Appeal Br. 18 ("The Examiner has still failed to
show how selection of the 'snippet' for 'each selected cardiac episode'
discloses or suggests selecting a plurality of nonoverlapping portions of the
EGM data associated with a detected cardiac episode, as recited by claim
1.")), this is a distinction without a difference given the breadth of claim 1.
Claim 1 does not require, for example, that its "plurality of non-overlapping
portions of the EGM signal data" are discontinuous, or otherwise recite any
limitations on how the portions are divided or distinct from one another, as
discussed above. The "before" data from Gunderson and the "after" data
from Gunderson read on "a plurality of non-overlapping portions of the
EGM signal data associated with the detected cardiac episode."
As Appellants have not persuaded us of any reversible error by the
Examiner in rejecting claim 1 over Gunderson, we affirm the rejection of
claim 1. Claims 2-8, 11, and 12 are argued together with claim 1. See
Appeal Br. 16-19. Appellants group claims 13-20, and 23-27 together
under headings separate from claim 1, but offer no separate arguments in
support. See id. at 22, 24. Accordingly, claims 2-8, 11-20, and 23-27 fall
with claim 1.
D. Rejection 3: § 102 (Dong)
Dong relates to a "method for automatically analyzing a cardiac
signal, including the step of providing an episode database." Dong,
Abstract. The Examiner finds:
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Dong et al teaches a method/system omprising: receiving
cardiac electrogram (EGM) signal data collected from a
medical device associated with a patient, wherein the EGM
signal data is representative of a detected cardiac episode
identified as one of a plurality of episode types ( e.g. Paragraphs
[0019] and [0069]); selecting, by plurality of non-overlapping
processors and based on the identified one of the plurality of
episode types, one or more portions of the EGM signal data
associated with the detected cardiac episode, wherein each
episode type of the plurality of episode types is associated with
a respective selection of portions of the EGM signal data ( e.g.
Paragraph [0067-0071 ]); outputting, by the one or more
processors, the selected plurality of non-overlapping portions of
the EGM signal data as an episode summary for the detected
cardiac episode (e.g. Paragraphs [0083], [0089] and [0109]).
Final Action 11-12.
As with the rejection over Gunderson, Appellants' arguments in
regard to Dong largely rely on an overly narrow construction of claim 1. See
Appeal Br. 25-27; see also Reply Br. 8-9. For example, Appellants argue
that even under the Examiner's interpretation of "cardiac episode,"
the Examiner has failed to show how the disclosure of Dong
including that "[t]he episode data can also include
electrocardiogram (EGM) recorded before, during and after the
duration of the episode" discloses or suggests selecting a
plurality of non-overlapping portions of the EGM signal data
associated with a detected cardiac episode.
Appeal Br. 26-27 ( quoting Dong ,r 71 ). This is not persuasive. Again, as
discussed above with respect to Gunderson, EGM data from before and after
(to which Dong expressly adds "during") a cardiac episode read on the
claimed "plurality of non-overlapping portions of the EGM signal data,"
because data from each of "before," "during," and "after" a cardiac episode
can each constitute such a non-overlapping portion.
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As Appellants have not persuaded us of any reversible error by the
Examiner in rejecting claim 1 over Dong, we affirm the rejection of claim 1.
As with Rejection 2, Appellants again ostensibly divide some of the rejected
claims into separate groups from the group including claim 1, but fail to
articulate distinct arguments on behalf of those claims. See generally
Appeal Br. 16-19, 22, 24. Accordingly, claims 2-8, 11-20, and 23-27 fall
with claim 1.
E. Rejection 4: § 102 (Sauer)
Sauer describes methods "for identifying tachyarrhythmia episode
types and delivering therapy," using an implanted cardiac device to sense
and store electrogram signals. Sauer, Abstract. The Examiner finds:
Sauer et al teaches a method/system comprising: receiving
cardiac electrogram (EGM) signal data collected from a
medical device associated with a patient, wherein the EGM
signal data is representative of a detected cardiac episode
identified as one of a plurality of episode types ( e.g. Paragraph
[0010] and Figure 3, Element 370); selecting, by one or more
processors and based on the identified one of the plurality of
episode types, plurality of nonoverlapping portions of the EGM
signal data associated with the detected cardiac episode,
wherein each episode type of the plurality of episode types is
associated with a respective selection of portions of the EGM
signal data (e.g. Paragraph [0073] and Figure 3, Element 366);
outputting, by the one or more processors, the selected plurality
of non-overlapping portions of the EGM signal data as an
episode summary for the detected cardiac episode ( e.g.
Paragraph [0075] and Figure 3, Element 368).
Final Action 16-17. The Examiner further explains that "Paragraph [0010]
discloses the device identifies tachyarrhythmia episodes (the examiner
emphasizes that this is episodes, plural, and not a single episode). It is
further noted that a plurality of tachyarrhythmia episodes would be
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nonoverlapping otherwise it would be a long continuous tachyarrhythmia
episode." Id. at 5.
Appellants' arguments again presuppose an erroneously narrow
interpretation of claim 1. See Appeal Br. 33-36; see also Reply Br. 9-11.
As applied to Sauer in particular, however, we note that because "a detected
cardiac episode" as recited in claim 1 encompasses more than one detected
cardiac episode, Appellants cannot distinguish Sauer on the basis of its
detection of "many episodes" (Appeal Br. 34).
As Appellants have not persuaded us of any reversible error by the
Examiner in rejecting claim 1 over Sauer, we affirm the rejection of claim 1.
As with Rejection 2 and 3, Appellants again ostensibly divide some of the
rejected claims into separate groups from the group including claim 1, but
fail to articulate distinct arguments on behalf of those claims. See generally
Appeal Br. 33-35, 39, 41. Accordingly, claims 2-8, 11-20, and 23-27 fall
with claim 1.
CONCLUSION
The rejection of claims 1-27 under 35 U.S.C. § 101 is affirmed. The
rejections of claims 1-8, 11-20, and 23-27 under 35 U.S.C. § 102 are
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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