Appeal No. 2006-3056 6
Application No. 10/278,769
The examiner’s reliance on the disclosure of Fischell at col. 31, lines 40-52, and Figure
21 as teaching a controller that determines the total dose to be delivered over the specified
time period based on the assigned basal and interval rates, compares the total dose to be
delivered to the maximum dose, and then, if necessary, adjusts the basal rate to prevent
exceeding the maximum dose, appears to be misplaced. The 3-hour and 24-hour integral
rate limiting software means of Fischell is described in some detail in column 18 of the
patent and in the disclosure bridging columns 30 and 31. From that disclosure, it is clear
to us that the controller in Fischell determines the number of pump actuations which have
occurred over the last eleven quarter-hour periods (called SUM 11) and over the last
twenty-three hour periods (called SUM 23), and then compares those quantities that have
already been delivered respectively to the 3-hour dosage limit and 24-hour dosage limit so
as to arrive at a quarter-hour limit which is the smaller of [(3-hour limit)-(SUM 11)] and
[(24-hour limit)-(SUM 23)]. The quarter-hour limit tells the controller how many pump
actuations will be allowed in the next quarter-hour. Pump activity is suspended when the
number of pump actuations occurring during the next quarter-hour equals the quarter-hour
limit. Such activity is exactly what has occurred toward the end of the 3-hour window
shown at (362) in Figure 21 of Fischell, where the last two supplemental (358, 359) and
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