Ex Parte 4944298 et al - Page 9

               Appeal 2007-3787                                                                            
               Reexamination 90/006,642                                                                    
               Patent 4,944,298                                                                            
           1          The Examiner relied on Berkovits or Sholder to support the finding                   
           2   that it was known to use a physiological sensor to modify pacing during a                   
           3   switched mode operation to provide effective stimulation of the patient to                  
           4   match the patient’s physiological need.                                                     
           5          In light of the rejection of claims 6, 14, and 17 based on Fearnot and               
           6   either Berkovits or Sholder, the rejection of the same claims nominally                     
           7   based on Fearnot alone while relying on Berkovits or Sholder as evidence of                 
           8   what one with ordinary skill would have known is unnecessary and not                        
           9   helpful.  In this circumstance, we decline to reach the rejection of claims 6,              
          10   14, and 17 over Fearnot alone.                                                              
          11          With regard to the rejections based on (1) Fearnot, and either                       
          12   Berkovits or Sholder, and (2) Nappholz, and either Berkovits or Sholder, the                
          13   alleged error is the Examiner’s statement:                                                  
          14          It would have been obvious to one having ordinary skill in the                       
          15          art at the time the invention was made to modify the mode                            
          16          switched pacer as taught by [Fearnot (Final Office Action 4: 8-                      
          17          14) or Nappholz (Final Office Action 10: 12-17)], with a                             
          18          physiological sensor modifying the pacing during the mode                            
          19          switched pacing as taught by Berkovits (or Sholder), since such                      
          20          a modification would provide a mode switching pacer using a                          
          21          physiological sensor to modify the pacing during the mode                            
          22          switched pacing to provide effective stimulation of the patient                      
          23          to match the patients physiological need.                                            
          25          The Applicant does not dispute that Berkovits and Sholder each                       
          26   disclose using a physiological sensor to provide control to the pulse provided              
          27   by the pacemaker in a switched mode of operation after an atrial rate has                   
          28   been detected as exceeding a threshold, to better match a patient’s                         
          29   physiological need.  The Applicant argues, instead, that the teaching from                  


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