KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Mar 30, 2020

14440900 - (D) (P.T.A.B. Mar. 30, 2020)

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.
14/440,900 05/06/2015 FRANCISCUS NICOLAAS KOCKX 2012P00524WOUS 3701
24737 7590 03/30/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
MALAMUD, DEBORAH LESLIE
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
03/30/2020 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FRANCISCUS NICOLAAS KOCKX

Appeal 2019-004880
Application 14/440,900
Technology Center 3700
____________

Before JENNIFER D. BAHR, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1, 3–7, 9, 10, 12–14, and 16.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Koninklijke Philips Electronics, N.V. as
the real party in interest. Appeal Brief filed November 5, 2018 (“Appeal
Br.”) 3.
2 See note 3 below regarding claim 16.
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Application 14/440,900

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STATEMENT OF THE CASE
The Specification
The Specification “relates to an apparatus and method relating to an
electrostimulation device, for example a Transcutaneous Electrical Nerve
Stimulation (TENS) device.” Spec. 1:2–4.
The Claims
Claims 1, 3–7, 9, 10, 12–14, and 16 are rejected. Final Act. 1.3 The
only other pending claim, claim 15, has been withdrawn from consideration.
Id. Claims 1 and 10 are independent. Appeal Br. 13–17 (Claims App.).
Claim 1 is illustrative and reproduced below.
1. An electrostimulation device configured for
stimulating a user comprising:
at least one electrode;
a pattern generator configured to:
generate a stimulation signal selected from at least
one predetermined stimulation pattern, said selected
stimulation signal being based on a desired stimulation of
the user;
transmit through the at least one electrode the
selected stimulation pattern;
a detecting unit configured to:
detect an operating state of the device;

3 The Final Action lists claim 16 as pending but not specifically as rejected,
withdrawn, or allowed. Final Act. 2. The Final Action’s analysis likewise
does not mention claim 16. Id. at 4–5. Appellant, however, states that claim
16 is rejected and appeals that rejection. Appeal Br. 7. We treat claim 16 as
if it was rejected because doing so has no prejudice on Appellant; as set
forth below, we reverse the rejection of claim 16 on account of its
dependency from claim 1, the rejection of which we also reverse.
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select a notification signal based on the detected
operating state of the device, wherein the notification
signal is selected from at least one predetermined
notification pattern, wherein the pattern generator is
further configured to:
alter the stimulation signal by introducing at least
one pause in the stimulation signal according to a
predetermined pattern of pauses;
mix the selected notification signal within at least
one of the pauses of the predetermined pattern of pauses
of the stimulation signal, and
output the altered stimulation signal and the
selected notification signal.
Id. at 13.
The Examiner’s Rejection
The Examiner rejected claims 1, 3–7, 9, 10, 12–14, and 16 under 35
U.S.C. §102(b), as anticipated by US 5,792,205, issued August 11, 1998 to
Alt et al. (“Alt”). Final Act. 4.
DISCUSSION
Alt discloses “an implantable cardiac pacemaker which is
implemented with the capability to provide bidirectional communication not
only with a programmer or telemetry receiver external to the patient’s body
but with the patient himself.” Alt 1:7–11. The Examiner finds that Alt
teaches both a stimulation signal and a notification signal and indeed all
limitations of the rejected claims. See Final Act. 4–5 (citing Alt 7:3–8,
9:13–30, 10:7–12).
Appellant disputes, however, that Alt teaches such signals as
specifically recited in claims 1 and 10. Appeal Br. 9–11; Reply Br. 4–6. In
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particular, Appellant argues that the following limitations of claims 1 and 10
are not taught in Alt:
[claim 1:] alter the stimulation signal by introducing at least one
pause in the stimulation signal according to a predetermined
pattern of pauses; mix the selected notification signal within at
least one of the pauses of the predetermined pattern of pauses of
the stimulation signal, and output the altered stimulation signal
and the selected notification signal;
and
[claim 10:] altering the stimulation signal by introducing a
predetermined pattern of pauses within the stimulation signal;
mixing the selected notification pattern within at least one pause
of the altered stimulation pattern; and outputting the altered
stimulation pattern and the selected notification pattern.
Appeal Br. 13 (claim 1), 15 (claim 10).
The Examiner cites Alt at column 10, lines 7 through 12, as meeting
these limitations. Final Act. 4–5. There, Alt states:
The transmission of both [of the asserted stimulation signal and
asserted notification signal] helps to facilitate the diagnosis of a
possible lead or device failure and to enhance the differentiation
between a pacemaker-based problem and a heart-based problem,
and is achieved by transmission of the two in parallel.
Alt 10:7–12. The Examiner further finds, upon quoting Alt at column 7,
lines 15 through 38, that:
It is clear that both types of signals, device failure signals and
arrhythmia signals, are output at given intervals to the electrodes
and delivered to the patient as needed, since the patient would be
able to determine based on the pattern of twitches (or beeps as
disclosed a few lines later) whether the problem detected is a
device failure or a detected arrhythmia. By using the phrase
“respective pulse sequence”, it is clear that Alt discloses separate
signals, since only one sequence would be given at once for
clarity to the patient. Therefore, Alt discloses the pause between
the stimulation signal and the notification signal as claimed.
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Final Act. 3–4.
Appellant argues that Alt’s teaching of separate signals undermines
the rejection and does not support it. Appeal Br. 9–10 (“Alt explicitly
teaches the transmission of two separate signals; a stimulation signal and a
fault detection signal, which are transmitted in parallel” and, thus, no
altering or mixing of signals.). The Examiner responds to Appellant’s
argument by “not[ing] that the features upon which applicant relies (i.e.,
‘separate’ output signals) are not recited in the rejected claim(s).” Ans. 6.
Appellant has the better position. The Examiner’s findings lack
adequate support. First, the Examiner does not support the finding that, in
Alt, “only one sequence would be given at once for clarity to the patient.”
See Final Act. 3–4 (no citation provided). That finding, although not
illogical, is based on speculation. Second, even if Alt were to transmit only
one signal sequence at a time, that alone would be insufficient to meet the
claim language, which requires altering a notification signal by introducing
one or more pauses, mixing in a notification signal within at least one of the
pauses, and outputting the altered signal, as required by the claim. More
specifically, even if “only one sequence would be given at once for clarity to
the patient,” as the Examiner speculates, it does not follow that Alt’s
stimulation signal would be altered by introducing one or more pauses and
that the notification signal would be mixed within the pause(s). Rather, Alt
could sequentially output a stimulation signal and a notification signal
without altering the former and without introducing any pauses.
The Examiner has not shown that Alt discloses each and every
limitation of claim 1 and claim 10. Accordingly, we reverse the rejection of
claims 1 and 10, as well as that of claims 3–7, 9, 12–14, and 16, which
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ultimately depend from either claim 1 or claim 10. See, e.g., Verdegaal
Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987) (“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.”).

SUMMARY
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 3–7, 9, 10,
12–14, 16
102(b) Alt 1, 3–7, 9,
10, 12–14,
16

REVERSED