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.
24
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
9
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