Ex Parte 4944298 et al - Page 12

               Appeal 2007-3787                                                                            
               Reexamination 90/006,642                                                                    
               Patent 4,944,298                                                                            
           2          We reject the Applicant’s assertion that Berkovits teaches against                   
           3   implementing multiple thresholds for initiating a switched mode of                          
           4   operations in the sense of precluding use of any teaching therein in                        
           5   combination with a system based on having multiple thresholds.  We                          
           6   recognize that Berkovits in column 6, lines 28-45, does indicate that the                   
           7   Wenckebach response, which according to the Applicant is based on an                        
           8   implementation of multiple atrial thresholds, can contribute to undesirable                 
           9   “endless loop tachycardias” and “is not the optimum upper rate behavior.”                   
          10   But characterizing an implementation as not being the “optimum” is far from                 
          11   expressing that it is inoperative or entirely without benefit.  A less preferred            
          12   scheme is not without utility.  Few devices and schemes are without                         
          13   drawbacks or any room for improvement.  The Applicant’s approach would                      
          14   render teachings from a prior art reference inapplicable whenever it does not               
          15   present a perfect solution without any known disadvantage.  We are not                      
          16   aware of any authority to that effect and the Applicant has cited none.                     
          17          The Applicant further argues that combining the multiple thresholds                  
          18   feature of Fearnot or Nappholz with the physiological sensor feature of                     
          19   Berkovits or Sholder is unnecessary because “a central problem addressed                    
          20   by the multi-threshold approach of Nappholz et al./Fearnot et al.” was                      
          21   independently addressed in Berkovits/Sholder et al. “by the incorporation of                
          22   a physiological sensor without the need to add a second rate threshold.”                    
          23   (Br. 15:17-21)(Emphasis in original).  The argument is misplaced.  The                      
          24   Applicant has overlooked that the advantage achieved by using a                             
          25   physiological sensor, as relied on by the Examiner, i.e., to provide effective              
          26   stimulation of the patient to match the patient’s physiological need during                 


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