Appeal 2007-3787
Reexamination 90/006,642
Patent 4,944,298
1 (c) monitoring the atrial rate above said first rate
2 threshold up to a second rate threshold; and
3
4 (d) automatically switching the mode of operation of said
5 pacemaker from said atrial rate based mode of operation to a
6 selected alternate mode of operation in the event the atrial rate
7 exceeds said second rate threshold;
8
9 the method further comprising the steps of:
10
11 (e) controlling the rate at which stimulating pulses are
12 provided by said pacemaker during said alternate mode of
13 operation in accordance with a rate signal provided by a
14 physiological sensor coupled to said pacemaker.
15
16 E. Principles of Law
17 Obviousness is a legal determination made on the basis of underlying
18 factual inquiries including (1) the scope and content of the prior art; (2) the
19 differences between the claimed invention and the prior art; (3) the level of
20 ordinary skill in the art; and (4) any objective evidence of unobviousness,
21 Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966).
22 One with ordinary skill in the art is presumed to have skills apart from what
23 the prior art references explicitly say. See In re Sovish, 769 F.2d 738, 743,
24 226 USPQ 771, 774 (Fed. Cir. 1985). A person of ordinary skill in the art is
25 also a person of ordinary creativity, not an automaton. KSR International
26 Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007).
27 In KSR International Co., 127 S. Ct. at 1742, 82 USPQ2d at 1397,
28 with regard to motivation to combine teachings, the Supreme Court stated:
29 “Rigid preventive rules that deny factfinders recourse to common sense,
30 however, are neither necessary under our case law nor consistent with it.”
4
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