Ex Parte Sullivan et al

Patent Trial and Appeal Board

Apr 16, 2018

14292720 (P.T.A.B. Apr. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/292,720 05/30/2014
126679 7590 04/18/2018
Lane Powell, PC
601 S.W. Second Avenue
Suite 2100
Portland, OR 97204
FIRST NAMED INVENTOR
Joseph L. Sullivan
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.
130424.004503 8451
EXAMINER
MAHMOOD, NADIA AHMAD
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
04/18/2018 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):
physio_control_docketing@cardinal-ip.com
IPMail.MedSurgGroup@stryker.com
patents@lanepowell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH L. SULLIVAN and FRED CHAPMAN
(APPLICANT: PHYSIO-CONTROL, INC.)
Appeal2017-005662
Application 14/292, 720 1
Technology Center 3700
Before DONALD E. ADAMS, ERIC B. GRIMES, and RYAN H. FLAX,
Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This Appeal under 35 U.S.C. § 134(a) involves claims 1-23 (Final
Act. 1). Examiner entered rejections under 35 U.S.C. § 102(a)(2) and 35
U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as "Physio-Control, Inc."
(App. Br. 3).
Appeal2017-005662
Application 14/292,720
STATEMENT OF THE CASE
Appellants' disclosure "relates to medical devices, such as external
defibrillators" (Spec. 1: 10). Claims 1 and 9 are representative and
reproduced below:
1. A medical device, comprising:
a housing;
an energy storage module within the housing configured
to store an electrical charge;
a defibrillation port configured to guide via electrodes the
stored electrical charge to a person; and
a processor configured to, responsive at least in part to a
determination that the person is experiencing ventricular
fibrillation (VF), perform a patient signal analysis on an
electrocardiogram (ECG) signal corresponding to the person
and further determine, based at least in part on a result of the
patient signal analysis, whether transcutaneous pacing should
be performed on the person subsequent to the defibrillation port
guiding the stored electrical charge to the person, wherein the
processor is further configured to cause the defibrillation port to
provide the transcutaneous pacing to the person via the
electrodes.
(App. Br. 12.)
9. The medical device of claim 1, in which
The patient signal analysis is based at least in part on
amplitude spectral area (AMSA) and slope.
(Id. at 13.)
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Appeal2017-005662
Application 14/292,720
The claims stand rejected as follows:
Claims 1-8 and 10-23 stand rejected under 35 U.S.C. § 102(a)(2) as
anticipated by Tan. 2
Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Tan and Johnson. 3
Anticipation:
ISSUE
Does the preponderance of evidence on this record support
Examiner's finding that Tan teaches Appellants' claimed invention?
ANALYSIS
The medical device of Appellants' claim 1, reproduced above,
comprises, inter alia, a processor that is configured to, inter alia,
perform a patient signal analysis on an electrocardiogram
(ECG) signal corresponding to the person and further
determine, based at least in part on a result of the patient signal
analysis, whether transcutaneous pacing should be performed
on the person subsequent to the defibrillation port guiding the
stored electrical charge to the person
and "cause the defibrillation port to provide the transcutaneous pacing to the
person via the electrodes" (App. Br. 12). The system of Appellants'
independent claim 10 requires a processor configured as set forth above,
with respect to Appellants' claim 1 (see id. at 13-14). In addition, the
method of Appellants' claim 18, the only other independent claim before
this Panel for review, requires a medical device to determine, "based at least
2 Tan et al., US 2011/0202100 Al, published Aug. 18, 2011.
3 Johnson et al., US 8,725,253 B2, issued May 13, 2014.
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Appeal2017-005662
Application 14/292,720
in part on a result of the patient signal analysis, whether transcutaneous
pacing should be performed on the person subsequent to delivery of a stored
electrical charge to the person; and ... perform[] the transcutaneous pacing
on the person" (see id. at 15).
Examiner finds that Tan anticipates Appellants' claimed invention
(Ans. 2-3). We are not persuaded.
Tan "relates to cardiac resuscitation, and in particular to systems and
techniques for assisting rescuers in performing cardio-pulmonary
resuscitation (CPR)" (Tan i-f 2; see generally Ans. 3). In this regard, Tan
discloses the use of techniques that allow
a system [to] analyze a patient's needs in advance of the time to
deliver[] defibrillation pulse (e.g., while a rescuer is performing
chest compressions) and can begin charging a capacitor or other
appropriate energy delivery mechanism sufficiently in advance
of the time that a shock will be needed, so that the shock can be
delivered as soon as it is needed.
(Tan i-f 50; see generally Ans. 3.) In particular, Tan discloses that "charging
the defibrillation device in addition to analyzing an ECG signal during chest
compressions can provide the advantage of reducing the amount of time that
a rescuer is not administering chest compressions to the victim," wherein
"[a ]t the end of the CPR interval, a decision of whether to shock the victim
is made based on the ECG signal analysis, and the stored charge is either
administered to the victim or dissipated internally" (Tan i-f 69; see Ans. 3).
Tan further discloses that "ECG signals [are analyzed] to predict
defibrillation success as well as to decide whether it is appropriate to
defibrillate or to deliver an alternative therapy such as chest compressions,
drugs such as epinephrine, constitutive nutrients such as glucose, or other
electrical therapy such as pacing" (Tan i-f 58 (emphasis added); see Final
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Appeal2017-005662
Application 14/292,720
Act. 4 2 ("Examiner finds that Tan's disclosure of "electrical therapy with
pacing([] is capable of including transcutaneous pacing"))).
As Appellants explain, however, "neither of [Tan's paragraphs 58 or
69], nor any other portions of Tan, appear to teach the perform[ance] of
post-shock transcutaneous pacing, let alone a processor configured to cause
a defibrillation port to provide post-shock transcutaneous pacing to a person
via electrodes" (App. Br. 9; cf App. Br. 12, 13-14, and 15 (Appellants'
independent claims 1, 10, and 18, respectively)). Likewise, we find no
evidence that Tan indicates its disclosed device is capable of performing
such transcutaneous pacing. We are not persuaded by Examiner's assertion
that Tan's disclosure of the "[d]eliver[y] of defibrillation shock" is the same
as performing post-shock transcutaneous pacing, as is required by
Appellants' claimed invention (see Ans. 5 (wherein Examiner directs
attention to Tan's "Figure 4C: Item 446, where shock is delivered after the
device is charged")). "A claim is anticipated only if each and every element
as set forth in the claim is found, either expressly or inherently described, in
a single prior art reference." Verdegaal Bros., Inc. v. Union Oil Co., 814
F.2d 628, 631 (Fed. Cir. 1987). On this record, we agree with Appellants'
contention that Examiner failed to establish an evidentiary basis to support a
finding of anticipation.
CONCLUSION
The preponderance of evidence on this record fails to support
Examiner's finding that Tan teaches Appellants' claimed invention. The
rejection of claim 1-8 and 10-23 under 35 U.S.C. § 102(a)(2) as anticipated
by Tan is reversed.
4 Office Action mailed March 11, 2016.
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Appeal2017-005662
Application 14/292,720
Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
ANALYSIS
Appellants' claim 9 is reproduced above. Examiner finds that "Tan
discloses a medical device for defibrillation but fails to disclose where the
quality analysis is based at least in part on amplitude area or slope" and
relies on Johnson to make up for this deficiency in Tan (Ans. 4). Thus,
based on the combination of Tan and Johnson, Examiner concludes that, at
the time Appellants' invention was made, it would have been prima facie
obvious "to modify the device of [Tan] to include a slope analysis as taught
by Johnson, since such a modification would provide the predictable results
of being above to determine if the quality has increased or decreased" (id.).
Examiner failed to establish an evidentiary basis to support a
conclusion that Johnson makes up for the deficiencies in Tan, discussed
above with regard to the anticipation rejection. Therefore, we agree with
Appellants' contention that "Johnson fails to cure the deficiencies of Tan"
(App. Br. 11).
CONCLUSION
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness. The rejection of claim 9 under 35
U.S.C. § 103(a) as unpatentable over the combination of Tan and Johnson is
reversed.
REVERSED
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