Ex Parte Torgerson et al

Board of Patent Appeals and Interferences

May 12, 2012

11184718 (B.P.A.I. May. 12, 2012)

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.
11/184,718 07/19/2005 Nathan A. Torgerson 151-P-21386USU1 9859
54228 7590 05/12/2012
IPLM GROUP, P.A.
POST OFFICE BOX 18455
MINNEAPOLIS, MN 55418
EXAMINER
DIETRICH, JOSEPH M
ART UNIT PAPER NUMBER
3762
MAIL DATE DELIVERY MODE
05/12/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte NATHAN A. TORGERSON, CHRISTOPHER M. ARNETT,
STEVEN J. NELSON, and ALLEN D. ALMENDINGER
__________

Appeal 2011-001330
Application 11/184,718
Technology Center 3700
__________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a medical
device communication system. The Examiner rejected the claims as obvious
and provisionally under the ground of nonstatutory obviousness-type double
patenting. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

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Statement of the Case
The Claims
Claims 1-25 are on appeal. Claim 1 is representative and reads as
follows:
1. A medical device communication system,
comprising:
a plurality of implantable medical devices; and
an external device being configured to
transcutaneously send an identification command to at
least one of said plurality of implantable medical devices;
said plurality of implantable medical devices being
configured to respond to said identification command
with an uplink response in one of a plurality of uplink
time slots;
said external device being configured to receive
said uplink response from each of said at least one of said
plurality of implanted medical devices;
said external device being configured to arbitrate
among individual ones of said plurality of implantable
medical devices by establishing transcutaneous
communication only to a selected one of said plurality of
implanted medical devices based, at least in part, upon an
order in time of which said plurality of implanted
medical devices respond with said uplink response.

The issues

A. The Examiner provisionally rejected claims 1-25 on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1-16 of copending Application No. 11/184,550 and Haubrich
1
(Ans.
4-5).

1
Haubrich et al., US 6,482,154 B1, issued Nov. 19, 2002.
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B. The Examiner provisionally rejected claims 1-25 on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1-23 of copending Application No. 11/184,717 and Haubrich (Ans. 5-
6).
C. The Examiner rejected claims 1-5, 11, 14-17, and 23 under 35 U.S.C.
§ 103(a) as obvious over Haubrich and Marsan
2
(Ans. 6-7).
D. The Examiner rejected claims 12 and 24 under 35 U.S.C. § 103(a) as
obvious over Haubrich and Marsan (Ans. 7-8).
E. The Examiner rejected claims 6-10 and 18-22 under 35 U.S.C. §
103(a) as obvious over Haubrich, Marsan, and Wu
3
(Ans. 8-10).
F. The Examiner rejected claims 13 and 25 under 35 U.S.C. § 103(a) as
obvious over Haubrich, Marsan, and Snell
4
(Ans. 11-12).
A. & B Double Patenting
The Examiner finds the claims of copending Applications 11/184,550
and 11/184,717 “are not patentably distinct . . . because claim 1 of
Application 11/184,550 [or claim 1 of Application 11/184,717] comprises
every limitation of those in claim 1 of the instant application, except
selecting a device based, at least in part, upon an order of time” (Ans. 4, 6).
The Examiner finds that “Haubrich teaches it is known to use an external
device being configured to arbitrate among individual ones of said plurality
medical devices by establishing transcutaneous communication with only a
selected one of said plurality . . . based, primarily, upon an order in time of

2
Marsan et al., US 6,570,861 B1, issued May 27, 2003.
3
Wu, C., US 6,836,469 B1, issued Dec. 28, 2004.
4
Snell, J., US 2003/0220673 A1, published Nov. 27, 2003.
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which the IMDs respond” (Ans. 4-5). The Examiner finds it obvious “to
modify the selection based upon user selection as taught by Application No.
11/184,550 with a selection based upon an order of time as taught by
Haubrich, since such a modification would provide the predictable results of
allowing the devices to be accessed on a first come, first serve basis” (Ans.
5).
Appellants contend that “neither of Application Nos. 11/184,550 nor
11/184,717 contain claims making a selection based on an order in time in
which the uplink response is received” (App. Br. 11). Appellants contend
that “Haubrich et al „154 does not show, disclose or suggest the subject
matter of an order in time as it is defined by the claims” (App. Br. 11).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner‟s conclusion that the claims of copending applications
11/184,550 and 11/184,717 in combination with Haubrich render claim 1
obvious?
Findings of Fact
1. Claim 1 of copending application 11/184,717 is reproduced
below:
1. A medical device communication system, comprising:
an external device being configured to
transcutaneously send an identification command to at least
one of a plurality of implantable medical devices;
said plurality of implantable medical devices being
configured to respond to said identification command with
an uplink response in one of a plurality of uplink time slots;
said external device being configured to receive said
uplink response from each of said at least one of said
plurality of implanted medical devices;
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said external device being configured to arbitrate
among individual ones of said plurality of implantable
medical devices by establishing transcutaneous
communication with only a selected one of said plurality of
implanted medical devices based, at least in part, upon a
signal strength of said uplink response of at least one of said
plurality of implanted medical devices.

2. Claim 7 copending application 11/184,717 is reproduced
below:
7. A medical device communication system as in claim 4
wherein said external device is configured to select based
upon, at least in part, upon which of said plurality of
implanted medical devices are first to respond with said
uplink response.

3. Claim 1 copending application 11/184,550 is reproduced
below:
1. A medical device communication system, comprising:
a plurality of implantable medical devices;
an external device being configured to
transcutaneously send an identification command to at least
one of said plurality of implantable medical devices;
said plurality of implantable medical devices being
configured to respond to said identification command with
an uplink response in one of a plurality of uplink time slots;
said external device being configured to receive said
uplink response from each of said at least one of said
plurality of implanted medical devices;
said external device being configured to arbitrate
among individual ones of said plurality of implantable
medical devices by establishing transcutaneous
communication with only a selected one of said plurality of
implanted medical devices based, at least in part, upon a
user selection of one of said plurality of implanted medical
devices.
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4. Haubrich teaches that
it is possible that multiple patients, each with an implanted
device, may simultaneously be within communication range
of the associated external device. In such cases, even if a
telemetry link is established between the external device and
an implanted device, there may still be uncertainty as to
which patient‟s device is communicating with the external
device.

(Haubrich, col. 1, ll. 43-49).
5. Haubrich teaches that the “external device preferably issues a
request for communication, which may be received by any of a population of
implantable devices that employ the inventive telemetry system” (Haubrich,
col. 1, ll. 63-66).
6. Haubrich teaches that the “operator may then determine
whether the received event signal correlates in time to the response-
provoking event. If so, the operator can conclude that the device that
transmitted the event signal is the device with which communication is
desired, and may initiate a telemetry session with that implanted, device”
(Haubrich, col. 2, ll. 20-25).
Principles of Law
It is well settled that during examination, the PTO must interpret
terms in a claim using “the broadest reasonable meaning of the words in
their ordinary usage as they would be understood by one of ordinary skill in
the art, taking into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in the
applicant‟s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997).
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“Obviousness-type double patenting is a judicially created doctrine
intended to prevent improper timewise extension of the patent right by
prohibiting the issuance of claims in a second patent which are not
„patentably distinct‟ from the claims of a first patent.” In re Braat, 937 F.2d
589, 592-93 (Fed. Cir. 1991). “It is the claims, not the specification, that
define an invention…. And it is the claims that are compared when assessing
double patenting.” Ortho Pharmaceutical Corp. v. Smith, 959 F.2d 936, 943
(Fed. Cir. 1992).
Analysis
Claim Interpretation
Claim interpretation is at the heart of patent examination because
before a claim is properly interpreted, its scope cannot be compared to the
prior art. In this case, the limitation in claim 1 at issue is the requirement that
communication is “based, at least in part, upon an order in time of which
said plurality of implanted medical devices respond” (Claim 1).
During prosecution, claim terms are given their broadest reasonable
interpretation as they would be understood by persons of ordinary skill in the
art in the light of the Specification. Therefore, we first turn to the
Specification to determine whether the phrase “based, at least in part, upon
an order in time” has any specified definition.
The Specification teaches that “[o]ne of the plurality of implanted
medical devices is selected to establish transcutaneous communication
based, at least in part, on upon an order in time of which the plurality of
implanted medical devices respond with the uplink response” (Spec. 2 ¶ 8).
The Specification provides no specific definition of “order in time” and is
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also permissive that the device selection may be “based, at least in part” on
the “order in time”, but may also be based on other criteria.
In light of Claim 1 and the Specification, the “based, at least in part,
upon an order in time of which said plurality of implanted medical devices
respond” requirement of claim 1 is reasonably interpreted as simply
requiring that some correlation in time exists between the signal and the
device with which communication is desired. See In re Zletz, 893 F.2d 319,
322 (Fed. Cir. 1989) (“[D]uring patent prosecution when claims can be
amended, ambiguities should be recognized, scope and breadth of language
explored, and clarification imposed.”)
Provisional Double Patenting – copending application - 11/184,717
There is no dispute that claim 1 of copending application 11/184,717
teaches all of the limitations of the instant claim 1, differing only in
requiring that the criteria for selection is “based, at least in part, upon a
signal strength” of the uplink, rather than being based in part upon an order
in time as in the instant claim.
However, claim 7 of copending application 11/184,717, which
indirectly depends from claim 1 of copending application 11/184,717,
expressly teaches that the “external device is configured to select based
upon, at least in part, upon which of said plurality of implanted medical
devices are first to respond with said uplink response” (Claim 7 of
copending application 11/184,717; FF 2).
This teaching of claim 7 of copending application 11/184,717
expressly suggests the use of the device which is “first to respond”, which is
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reasonably interpreted as being based, at least in part, upon an order in time,
since “first to respond” indicates an earlier time than all other responses.
In addition, Haubrich teaches that the “operator may then determine
whether the received event signal correlates in time to the response-
provoking event. If so, the operator can conclude that the device that
transmitted the event signal is the device with which communication is
desired, and may initiate a telemetry session with that implanted, device”
(Haubrich, col. 2, ll. 20-25; FF 6). The teaching that the selection is based
upon whether a signal “correlates in time” is reasonably interpreted as
basing the selection, at least in part, upon the order in time with which the
devices contact the external device.
We therefore agree with the Examiner that it would have been
obvious over claims 1 and 7 of copending application 11/184,717 and
Haubrich to base the selection of an implanted medical device for
communication, at least in part, upon an order in time since both claim 7 of
copending application 11/184,717 and Haubrich teach the use of correlations
in time to select which device to contact (FF 2, 6).
Provisional Double Patenting – copending application - 11/184,550
There is no dispute that claim 1 of copending application 11/184,550
teaches all of the limitations of the instant claim 1, differing only in
requiring that the criteria for selection is “based, at least in part, upon a user
selection” of the uplink, rather than being based in part upon an order in time
as in the instant claim (FF 3).
Haubrich teaches that the “operator may then determine whether the
received event signal correlates in time to the response-provoking event. If
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so, the operator can conclude that the device that transmitted the event signal
is the device with which communication is desired, and may initiate a
telemetry session with that implanted, device” (Haubrich, col. 2, ll. 20-25;
FF 6). The teaching that the selection is based upon whether a signal
“correlates in time” is reasonably interpreted as basing the selection, at least
in part, upon the order in time with which the devices contact the external
device.
We therefore agree with the Examiner that it would have been
obvious over claim 1 of copending application 11/184,550 and Haubrich to
base the selection of an implanted medical device for communication, at
least in part, upon an order in time since Haubrich teaches the use of
correlations in time to select which device to contact (FF 3, 6).
Conclusion of Law
The evidence of record supports the Examiner‟s conclusion that the
claims of copending applications 11/184,550 and 11/184,717 in combination
with Haubrich render claim 1 obvious.
C. & D. 35 U.S.C. § 103(a) over Haubrich and Marsan
The Examiner finds that
Haubrich discloses a system and method comprising: a
plurality of IMDs (e.g. column 1, lines 43 - 46); an external
device configured to transcutaneously send an identification
command and receive a response(e.g. column 1, lines 63 -
66); said plurality of IMDs configured to respond to the
command (e.g. column 1, line 66 - column 2, line 1) in a
plurality of channels . . . said external device being
configured to arbitrate among individual ones of said
plurality medical devices by establishing transcutaneous
communication with only a selected one of said plurality
(e.g. column 2, lines 3 - 14) based, primarily, upon an order
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in time of which the IMDs respond (column 12, lines 24 -
28); but fails to explicitly say that the channels are uplink
time slots.

(Ans. 6-7).
The Examiner finds that “Marsan teaches that it is known to have a
plurality of remote devices respond to a single device in a plurality time slots
. . . and that the implantable medical devices determine in which of the time
slots in which to provide the uplink response based, at least in part, upon a
strength of signal” (Ans. 7).
The Examiner finds it obvious “to modify the telemetry signal as
taught by Haubrich with the telemetric network using the time slots as taught
by Marsan, since such a modification would provide the predictable results
of allowing the plurality of IMDs to be sorted and chosen without
interference between the signals” (Ans. 7).
Appellants contend that “Haubrich et al „154 does not show, disclose
or suggest that the external device arbitrates among the responding
implantable medical devices” (App. Br. 13). Appellants contend that the
“external device arbitrates, decides or determines nothing, instead merely
identifying a list of implantable medical devices which are within
communication range. A separate, manual event must be conducted in order
to identify the desired implantable medical device, which may then be
selected from the list” (App. Br. 13).
Appellants contend that “Marsan et al „861 does not utilize order in
time, or any other measure, to determine whether or not to establish
communication or with which communication device to establish
communication. Rather, Marsan et al „861 is only concerned with facilitating
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communication, not with arbitrating among devices to establish
communication with one” (App. Br. 14).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner‟s conclusion that Haubrich and Marsan render obvious
a device which is “configured to arbitrate” between medical devices based in
part “upon an order in time” as required by claim 1?
Findings of Fact
7. The Specification teaches that:
external device 15 must still determine which of the medical
devices 22 with which to establish communication. This can
be done by building a list of medical devices 22 responding
to the identification request and allowing a user of the
external device 15, e.g., a physician or the patient, to select
the appropriate medical device 22.

(Spec. 8 ¶ 41).
8. The Specification teaches that in a “first exemplary technique
implanted medical devices respond to an identification command (sent by an
external unit) with various random delays to prevent the uplink response
from multiple implanted medical devices from overlapping . . . The user
may select from the list of devices” (Spec. 9 ¶ 43).
9. The Specification teaches that a
second exemplary technique uses a pseudo-random system
that is based on downlink telemetry strength. . . . The user
can then select the implanted medical device that first
responds to the identification command . . . The arbitration
is faster than the first exemplary technique, since it doesn't
need to find and identify every implanted medical device
within range, but only needs to find the closest implanted
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medical device, which responds in one of the earliest
timeslots.

(Spec. 10 ¶ 45).
10. The Specification teaches that in a “third exemplary technique,
the user may look at the strength of the uplink signal from each of the
plurality of implanted medical devices. . . .The user may then select the
implanted device having the strongest uplink response signal” (Spec. 12 ¶
52).
11. Haubrich teaches that
it is possible that multiple patients, each with an implanted
device, may simultaneously be within communication range
of the associated external device. In such cases, even if a
telemetry link is established between the external device and
an implanted device, there may still be uncertainty as to
which patient‟s device is communicating with the external
device.

(Haubrich, col. 1, ll. 43-49).
12. Haubrich teaches
a telemetry system for communications between an
implanted medical device and an associated external medical
device located at a distance from the implanted device, the
present invention is intended to assure that there is no
ambiguity as to which implanted device is communicating
with the external device or as to which patient has the device
implanted.

(Haubrich, col. 1, ll. 52-58).
13. Haubrich teaches that the “external device preferably issues a
request for communication, which may be received by any of a population of
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implantable devices that employ the inventive telemetry system” (Haubrich,
col. 1, ll. 63-66).
14. Haubrich teaches that “[t]hose devices within range of the
external device may in response send a telemetry transmission indicating
that the request for communication has been received” (Haubrich, col. 1, ll.
66 to col. 2, l. 1).
15. Haubrich teaches that a “separate mechanism is provided for
activating only the implantable device within a specific patient to send a
telemetry transmission including an event signal indicative that the
implanted device has been so activated” (Haubrich, col. 2, ll. 3-7).
16. Haubrich teaches that the “one or a number of communication
channels may be available” (Haubrich, col. 3, ll. 19-20).
17. Haubrich teaches that “each IMD may be provided with
programming allowing the microprocessor 304 . . . to define randomly
variable time intervals between received EMD discovery signals and
transmissions of IMD discovery signals” (Haubrich, col. 12, ll. 24-28).
18. Marsan teaches that the “communication system determines a
signal strength of a signal received from a user of the communication
resource and, based on the signal strength determination, assigns the user
one or more of the communication channels that are then available”
(Marsan, col. 2, ll. 27-31).
19. Marsan teaches that “the processor 204 assigns the time slot in
the highest signal strength set of the different sets of time slots (e.g., time
slot 433 would be assigned since it is in a higher signal strength set of time
slots than time slots 413 and 414)” (Marsan, col. 5, ll. 43-47).
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Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“If a person of ordinary skill can implement a predictable variation, §
103 likely bars its patentability.” Id. at 417. As noted by the Court in KSR,
“[a] person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.
Analysis
Claim Interpretation
We again begin with claim interpretation, and in particular, the phrase
“external device being configured to arbitrate” in Claim 1. As discussed
above, claim terms are given their broadest reasonable interpretation as they
would be understood by persons of ordinary skill in the art in the light of the
Specification. Therefore, we first turn to the Specification to determine
whether the phrase “external device being configured to arbitrate” has any
specified definition.
The Specification provides no specific definition for an “external
device being configured to arbitrate”. The phrase “being configured to
arbitrate” does not exclude the situation where the device presents a list of
implanted devices to a user for selection, since such a device is “configured
to arbitrate” with the assistance of the user.
The Specification provides three exemplary techniques, but in each
technique, the “external device being configured to arbitrate” functions to
obtain information after which the “user may select from the list of devices”
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(Spec. 9 ¶ 43; FF 8); “[t]he user can then select the implanted medical
device that first responds to the identification command” (Spec. 10 ¶ 45; FF
9); and “[t]he user may then select the implanted device having the strongest
uplink response signal” (Spec. 12 ¶ 52; FF 10).
Thus, in each case, the device obtains data which is subsequently used
by a user to perform the actual selection of the implanted medical device (FF
8-10). Therefore, the phrase “external device being configured to arbitrate”
is most reasonably interpreted as a device which captures information from
implanted medical devices and presents it to a user who selects the desired
medical device using the external medical device, resulting in a selected
implanted medical device for connection.
Obviousness
Haubrich teaches
a telemetry system for communications between an
implanted medical device and an associated external medical
device located at a distance from the implanted device, the
present invention is intended to assure that there is no
ambiguity as to which implanted device is communicating
with the external device or as to which patient has the device
implanted.

(Haubrich, col. 1, ll. 52-58; FF 6). Haubrich teaches that the “external
device preferably issues a request for communication, which may be
received by any of a population of implantable devices that employ the
inventive telemetry system” (Haubrich, col. 1, ll. 63-66; FF 5). Haubrich
teaches that the “operator may then determine whether the received event
signal correlates in time to the response-provoking event. If so, the operator
can conclude that the device that transmitted the event signal is the device
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with which communication is desired, and may initiate a telemetry session
with that implanted, device” (Haubrich, col. 2, ll. 20-25; FF 6).
Marsan teaches a radio communication system where a “processor
204 assigns the time slot in the highest signal strength set of the different
sets of time slots (e.g., time slot 433 would be assigned since it is in a higher
signal strength set of time slots than time slots 413 and 414)” (Marsan, col.
5, ll. 43-47; FF 12).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that an ordinary artisan would have reasonably found that
Haubrich and Marsan render obvious a medical communication system with
an external device which communicates to and receives responses from a
plurality of implanted medical devices (FF 5, 6, 11-17) where the external
device establishes communication based in part upon the order in time of the
implanted medical device response (FF 6). Such a combination is merely a
“predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.
Appellants contend that “Haubrich et al „154 does not show, disclose
or suggest that the external device arbitrates among the responding
implantable medical devices” (App. Br. 13). Appellants contend that the
“external device arbitrates, decides or determines nothing, instead merely
identifying a list of implantable medical devices which are within
communication range. A separate, manual event must be conducted in order
to identify the desired implantable medical device, which may then be
selected from the list” (App. Br. 13).
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We are not persuaded. Appellants wish to interpret “arbitrate” so that
the external device selects the implantable medical device with which to
communicate without any input from the user. However, this interpretation
of the term “arbitrate” is not consistent with the Specification, as we
discussed above in our claim interpretation, which not only permits
interaction of a user for the selection, but each and every example requires
user participation (FF 8-10). In addition, Haubrich teaches that the “operator
may then determine whether the received event signal correlates in time to
the response-provoking event. If so, the operator can conclude that the
device that transmitted the event signal is the device with which
communication is desired, and may initiate a telemetry session with that
implanted, device” (Haubrich, col. 2, ll. 20-25; FF 6). The teaching that the
selection is based upon whether a signal “correlates in time” is reasonably
interpreted as arbitrating, by use of the external device which of the
implanted devices will receive communication based in part upon the order
in time with which the devices contact the external device (FF 6, 11-17).
Appellants contend that “Marsan et al „861 does not utilize order in
time, or any other measure, to determine whether or not to establish
communication or with which communication device to establish
communication. Rather, Marsan et al „861 is only concerned with facilitating
communication, not with arbitrating among devices to establish
communication with one” (App. Br. 14).
While we agree that Marsan is not utilizing order in time to establish
whether or not to communicate with a device, Marsan clearly teaches order
in time to assign communication with devices (FF 18-19). More
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importantly, Marsan teaches that the processor itself performs the selection
without user input (FF 19), so that even if the claim was interpreted to
require the device to “arbitrate” without any user or other input, Marsan
teaches the use of processors to perform selection of communication
channels based upon input criteria (FF 18-19).
Conclusion of Law
The evidence of record supports the Examiner‟s conclusion that
Haubrich and Marsan render obvious a device which is “configured to
arbitrate” between medical devices based in part “upon an order in time” as
required by claim 1.
E. 35 U.S.C. § 103(a) over Haubrich, Marsan, and Wu
The Examiner finds that “Wu teaches that it is known to instruct
medical devices to cease responding to the identification command if at least
two of the medical devices respond with an uplink signal in one of the
uplink time slots and to repeat sending the identification command and to
repeat receiving the uplink signal” (Ans. 8). The Examiner finds it obvious
to “modify the invention as taught by Haubrich in view of Marsan with the
command as taught by Wu, since such a modification would provide the
predictable results of allowing further communications with base sites
(implantable medical devices) even when interference occurs between two
or more of the devices” (Ans. 9).
The Examiner provides sound fact-based reasoning for combining Wu
with Haubrich and Marsan. We adopt the fact finding and analysis of the
Examiner as our own. Appellants argue the underlying obviousness
rejection, but Appellants do not identify any material defect in the
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Examiner‟s reasoning for combining Haubrich and Marsan with Wu. Since
Appellants only argue the underlying rejection which we affirmed above, we
affirm this rejection for the reasons stated by the Examiner.
F. 35 U.S.C. § 103(a) over Haubrich, Marsan, and Snell
The Examiner finds that “Snell teaches that it is known that the
external device is configured to instruct a user to move at least a portion of
the external device closer to one of said plurality of implanted medical
devices with which said user wishes to establish transcutaneous
communication” (Ans. 11). The Examiner finds it obvious to “modify the
system and method as taught by Haubrich in view of Marsan with the
command as taught by Snell, since such a modification would provide the
predictable results of allowing the devices to be properly aligned to
maximize the signal strength between the two for transcutaneous
communication” (Ans. 11).
The Examiner provides sound fact-based reasoning for combining
Snell with Haubrich and Marsan. We adopt the fact finding and analysis of
the Examiner as our own. Appellants argue the underlying obviousness
rejection, but Appellants do not identify any material defect in the
Examiner‟s reasoning for combining Haubrich and Marsan with Snell. Since
Appellants only argue the underlying rejection which we affirmed above, we
affirm this rejection for the reasons stated by the Examiner.

Appeal 2011-001330
Application 11/184,718

21
SUMMARY
In summary, we affirm the provisional rejection of claims 1-25 on the
ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 1-16 of copending Application No. 11/184,550 and
Haubrich.
We affirm the provisional rejection of claims 1-25 on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1-23 of copending Application No. 11/184,717 and Haubrich.
We affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
obvious over Haubrich and Marsan. Pursuant to 37 C.F.R. § 41.37(c)(1), we
also affirm the rejection of claims 2-5, 11, 14-17, and 23 as these claims
were not argued separately.
We affirm the rejection of claims 12 and 24 under 35 U.S.C. § 103(a)
as obvious over Haubrich and Marsan.
We affirm the rejection of claims 6-10 and 18-22 under 35 U.S.C. §
103(a) as obvious over Haubrich, Marsan, and Wu.
We affirm the rejection of claims 13 and 25 under 35 U.S.C. § 103(a)
as obvious over Haubrich, Marsan, and Snell.

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
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