Appeal 2006-3319
Application 10/366,585
be monitored for arterial perfusion of the heart, a cardiac surgeon having
ordinary skill in the art exercising ordinary common sense would appreciate
that a patient who is the recipient of a mitral valve therapy device, such as
the cinching device of Cohn, should be monitored for any common
indications of cardiac distress, including myocardial ischemia, that could
result from either the procedure itself or complications arising from the
underlying problem being treated during the procedure. Such a surgeon
would therefore have recognized that a myocardial ischemia diagnosing and
monitoring system and method would improve the Cohn method, especially
in light of Bardy's identification of a recipient of such an implantable
therapeutic device being a suitable patient for Bardy's automated care system
for diagnosing and monitoring myocardial ischemia. Such a combination
strikes us as nothing more than the predictable use of prior art elements
according to their established functions. Furthermore, Appellants have not
alleged, much less shown, that a person of ordinary skill in the art would
have been discouraged from following the suggestion in Bardy to utilize the
disclosed myocardial diagnosis and monitoring system and method in a
recipient of an implantable therapeutic device by combining it with the
mitral valve therapeutic device implantation method of Cohn. Nor have
Appellants shown that the result of such a combination would be unexpected
or unpredictable.
In light of the above, we conclude that Appellants have not met their
burden of demonstrating the Examiner erred in determining that the subject
matter of claims 15 and 16 would have been obvious to one of ordinary skill
in the art. The rejection is sustained.
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