Ex Parte Van Oort et al

Patent Trial and Appeal Board

Mar 25, 2013

11669350 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GEESKE VAN OORT, WILLEM BOUTE and
GUSTAAF A.P. STOOP
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Appeal 2011-001632
Application 11/669,350
Technology Center 3700
____________

Before JOHN C. KERINS, WILLIAM A. CAPP and NEIL T. POWELL
Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1-38. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

THE INVENTION
Appellants’ invention relates to an implantable medical device system
with wireless data communication capability. Spec. 1, para. [0001].
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1: A system for handling medical device data, the system
comprising:
an external physiological sensor device having wireless
data communication capabilities;
a telemetry transceiver device configured to wirelessly
receive implantable medical device (lMD) data from an IMD,
configured to obtain physiological sensor data generated by the
external physiological sensor device, and configured to generate
patient data that conveys the IMD data and the physiological
sensor data;
a communication module for the telemetry transceiver
device, the communication module being configured to send the
patient data; and
a remote computing architecture in data communication
with the communication module, the remote computing
architecture being configured to receive the patient data from
the communication module.

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THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:

The following rejections are before us for review:
1. Claims 1-4, 9-16, 23-25, 32-35, 37 and 38 are rejected under 35
U.S.C. § 102(b), as being anticipated by Mazar.
2. Claims 5-8, 17-22, 26-31 and 36 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mazar.
OPINION
Anticipation of Claims 1-4, 9-16, 23-25, 32-35, 37 and 38 by Mazar
Appellants argue claims 1-4, 9-16, 37 and 38 as a group and claims
23-25 and 32-35 as a group. App. Br. 6-10. We select claims 1 and 23 as
representative of each respective group. See 37 C.F.R. § 41.37(c)(1)(vii)
(2011). Claims 2-4, 9-16, 37 and 38 stand or fall with claim 1. Claims 24,
25 and 32-35 stand or fall with claim 23.
Claims 1-4, 9-16, 37 and 38
The Examiner finds that Mazar discloses all of the limitations of
claim 1. Ans. 3-4. More particularly, the Examiner finds that the limitation
directed to an external physiological sensor (“EPS”) is satisfied by Mazar’s
feature 206. Ans. 3; Mazar, Fig. 2. The limitation directed to a telemetry
transceiver device (“TTD”) that receives data from an implantable medical
device (“IMD”), according to the Examiner, is met by Mazar’s
interrogator/transmitter unit (“ITU”) 208. Ans. 3-4. The communication
module limitation, according to the Examiner, is satisfied by Mazar element
Mazar US 2004/0122488 A1 Jun. 24, 2004
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210. Ans. 4. Finally, the Examiner finds that the remote communication
architecture (“RCA”) limitation is satisfied by Mazar’s host 212. Id.
Appellants do not dispute that Mazar discloses an IMD and an EPS.
Neither do Appellants dispute that Mazar’s IMD and EPS wirelessly
communicate with a TTD. Neither do Appellants dispute that Mazar’s TTD
communicates with an RCA. Appellants traverse the Examiner’s rejection
on essentially a single ground, namely, that Mazar allegedly fails to disclose
that the ITU corresponding to Appellants’ TTD combines IMD and EPS
data. App. Br. 6-7. Appellants argue that claim 1 requires that the TTD
receive separate data inputs from each of an IMD and an EPS and then
combine the two data inputs into a singular form of data. App. Br. 7.
Appellants characterize this process of combining data as “generating patient
data.” Id. The TTD then transmits the “generated” patient data to the RCA
in what Appellants characterize as a “singular output.” App. Br. 7.
The Examiner disagrees with Appellants’ “generating patient data”
position. The Examiner takes the position that, under the broadest
reasonable construction of “generating,” there is no requirement for the TTD
to combine any received data before retransmitting it to the RCA. Ans. 11-
12. Thus, according to the Examiner, merely sending data qualifies as
“generating” it. Id.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
“Therefore, we look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation.” In re ICON Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
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Throughout the Specification, the word “generate” is used broadly and
generically with respect to functions performed not only by the TTD, but
also by the IMD, EPS, and RCA. Spec., paras. [0022], [0025] and [0031].
Appellants do not direct us to an operational definition of “generating” in the
Specification.1 In the absence of Appellants supplying an operational
definition, we agree with the Examiner that, under the broadest reasonable
construction, the mere fact that Mazar’s ITU receives IMD and EPS data
over short-range, wireless communication channels and then re-transmits the
data over an outgoing long-range communication channel is sufficient to
qualify as “generating” data within the meaning of claim 1.
In addition, we agree with the Examiner that Mazar’s TTD (ITU)
does, in fact, combine data from an IMD and EPS. Ans. 11; Mazar paras.
[0048], [0050], [0057], and [0094]. Mazar’s ITU may be configured to
conduct rudimentary analysis of data gathered from devices 202, 204, and
206 and provide reporting accordingly. Para. [0094].2
Appellants have failed to persuade us that the Examiner erred in
finding that each and every limitation of claim 1 is satisfied by Mazar.
Accordingly, we sustain the Examiner’s rejection of claims 1-4, 9-16, 37
and 38.

1 Appellants merely argue, in conclusory fashion, that their invention
generates patient data, but Mazar’s does not, stating: “Mazar does not
disclose that the ITU 208 generates the clinical data.” (emphasis added).
Reply 8.
2 There is no requirement in claim 1 that data from a plurality of
sources must be combined in any particular way before it qualifies as
“patient data.” Mazar’s ITU sends data from both the IMD and EPS to the
RCA. Even if the data from each source is retransmitted serially, the mere
fact that it forwards data from two or more sources over one outgoing
communication channel constitutes combining data.
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Claims 23-25 and 32-35
Claim 23 is a method claim, otherwise it is substantially identical in
scope to apparatus claim 1. App. Br., Clms. App’x. As with claim 1, the
only issue that Appellants raise with respect to claim 23 is the same
“generating patient data” issue that we addressed previously with respect to
claim 1. We sustain the Examiner’s rejection of claims 23-25 and 32-35 for
essentially the same reasons expressed above with respect to claim 1.
Unpatentability of Claims 5-8, 17-22, 26-31 and 36 over Mazar
Claims 5-8, 26-31 and 36
Appellants argue claims 5-8, 26-31 and 36 as a group. App. Br. 3-6.
We select claim 5 as representative of the group. See 37 C.F.R. §
41.37(c)(1)(vii) (2011).3 Claims 6-8, 26-31 and 36 stand or fall with
claim 5.
Claim 5 depends from claim 2, which we have previously found is
anticipated by Mazar. Therefore, we focus herein on the dependent
limitation of claim 5, namely: “wherein the telemetry transceiver device is
configured to wirelessly forward the physiological sensor data to the IMD.”
App. Br., Clms. App’x.
The Examiner acknowledges that Mazar fails to explicitly disclose the
dependent limitation of claim 5. Ans. 7. However, the Examiner observes
that Mazar discloses such capability in the TTD (ITU 208). Ans. 7-8.
Specifically, the Examiner finds that Mazar’s TTD (ITU) is capable of data
forwarding and each component of the system is able to communicate with

3 Claims 5-8 depend directly or indirectly from independent apparatus
claim 1. Claims 26-31 depend directly or indirectly from independent
method claim 23. Claim 36 is an independent claim. App. Br., Clms.
App’x.
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the others using communications module 210. Ans. 7-8, citing Mazar, paras.
[0032] and [0048]; Fig. 2. The Examiner concludes that it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
provide the ability to forward EPS data to an IMD. Ans. 8. According to
the Examiner, a person of ordinary skill in the art would have been
motivated to accomplish this as Mazar discusses providing patient feedback
in order to manage the system devices 202, 204, 206. Id.
Appellants argue that Mazar fails to disclose a TTD configured to
wirelessly forward EPS data to an IMD. App. Br. 13. Such fact was
previously acknowledged by the Examiner. Ans. 7. Appellants then argue,
in conclusory fashion, that an ordinary skilled artisan would not have found
it obvious to configure the TTD (or ITU) to forward EPS data to an IMD
without access to Appellant’s disclosure. App. Br. 13.
The Examiner responds by referring to devices 202, 204, and 206 in
Figure 2 of Mazar as well as Mazar paragraph [0048]. Ans. 13. Paragraph
[0048] explains that Mazar’s TTD (or ITU) may perform one or more of the
following functions: (1) data storage; (2) data analysis; (3) data forwarding;
(4) patient interaction; and (5) patient feedback. Mazar, para. [0048]. It
further explains that the TTD (ITU) may facilitate communications between
devices 202, 204, and 206, and the communications system 210. Id.
Figure 2 of Mazar depicts communication links between IMD/EPS devices
202, 204, 206 and TTD (ITU) 208. All of the communication links are
depicted with bi-directional arrows indicating two-way communication.
Mazar, Fig. 2. Thus, the Examiner’s finding that Mazar discloses the
capability of wirelessly forwarding EPS data to an IMD is amply supported
by the record.
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Appellants also argue that Mazar does not contemplate an IMD
employing an EPS to provide therapy responsive to sensed conditions. App.
Br. 14. However, there is no limitation directed to “providing therapy” in
claim 5 and, therefore, we reject this argument as not commensurate with the
scope of the claim.
The Examiner’s conclusion that a person of ordinary skill in the art
would have found it obvious to wirelessly forward EPS data to an IMD is
supported by articulated reasoning with rational underpinning. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appellants have failed to
persuade us that the Examiner erred in rejecting claim 5 as unpatentable over
Mazar. We sustain the Examiner’s rejection of claims 5-8, 26-31 and 36.
Claims 17-22
Appellants argue claims 17-22 as a group. App. Br. 10-12. We select
independent claim 17 as representative of the group. See 37 C.F.R. §
41.37(c)(1)(vii) (2011). Claims 18-22 stand or fall with claim 17.
The Examiner finds that Mazar discloses all of the limitations of claim
17, except that Mazar fails to explicitly disclose separate IMD and EPS
communication modules communicating wirelessly with their respective
devices. Ans. 8-9. The Examiner concludes that it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
make the two communications modules separate. Ans. 9, citing Nerwin v.
Erlichman, 168 USPQ 177, 179 (BPAI 1969) (hereinafter “Nerwin”).
Alternatively, the Examiner concludes that providing for separate IMD and
EPS communication modules would have been a matter of obvious design
choice as, functionally, using two separate circuits instead of just one circuit
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to communicate with the IMD and EPS devices is a minor difference.
Ans. 13.
Appellants argue that Nerwin is not competent legal authority for the
proposition that constructing a formerly integral structure in various
elements involves only routine skill in the art. App. Br. 10-11. We agree.
See Ex Parte Kawano, 2013 WL 603839, at *4 (PTAB Jan. 1, 2013)
(Nerwin does not establish that it is per se obvious to separate a single
component into two components). “The examiner’s reliance on and citation
of Nerwin v. Erlichman, 168 USPQ 177, 179 ( BPAI 1969), which according
to the examiner held that ‘constructing a formerly integral structure in
various elements involves only routine skill in the art,’ appears to us to be
misplaced. We find no such ‘holding’ in Nerwin v. Erlichman.” Ex Parte
Gruden, 1997 WL 1883962, at *3 (BPAI Jan. 1, 1997).
Notwithstanding the foregoing, the Examiner’s reliance on Nerwin
does not rise to the level of reversible error. The Examiner provided two
reasons for modifying Mazar and, although we disagree with the reason
based on Nerwin, we discern no error in the Examiner’s alternative rationale
that a person of ordinary skill in the art would have found it obvious to use
two separate communications circuits as a matter of design choice. Ans. 12-
13. The Examiner reasons that a person of ordinary skill in the art would be
inclined to choose various circuitry configurations based on considerations
such as size. Id.
The Examiner’s alternative reason for modifying Mazar based on
design choice is largely unrebutted by Appellants. Appellants have failed to
set forth any reasons why the differences between the claimed invention and
the prior art would result in a different function or give unexpected results.
In re Rice, 341 F.2d 309, 314 (CCPA 1965) (“Appellants have failed to
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show that the change [in the claimed invention] as compared to [the
reference], result in a difference in function or give unexpected results.
Such changes in design of the various features are no more than obvious
variations consistent with the principles known in that art”); In re Kuhle, 526
F.2d 553, 555 (CCPA 1975) (“Use of such means of electrical connection in
lieu of those used in the references solves no stated problem and would be
an obvious matter of design choice within the skill in the art.” (citations
omitted)).
Next, Appellants argue that Mazar does not disclose that its ITU
combines any data from multiple devices into a single output. App. Br. 11.
For similar reasons that we have discussed supra with respect to claim 1,
Appellants’ claim language directed to generating and sending patent data
from the TTD to the RCA does not require combining data into a “single
output.” The term “single output” or any reasonable facsimile thereof, does
not appear in claim 17. Thus, Appellants’ argument is not commensurate
with the scope of the claim.
Appellants have failed to persuade us that the Examiner erred in
concluding that claim 17 is unpatentable over Mazar. We sustain the
Examiner’s rejection of claims 17-22.

DECISION
The decision of the Examiner to reject claims 1-4, 9-16, 23-25, 32-35,
37 and 38 under 35 U.S.C. § 102(b), as being anticipated by Mazar, is
affirmed.
The decision of the Examiner to reject claims 5-8, 17-22, 26-31, and
36 under 35 U.S.C. § 103(a) as being unpatentable over Mazar is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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