Appeal 2007-3787
Reexamination 90/006,642
Patent 4,944,298
1 same rewards is typically not outside of the scope of ordinary skill. To say
2 otherwise is tantamount to ruling as a matter of law that a person of ordinary
3 skill is incapable of applying a general teaching to any particular situation.
4 Berkovits and Sholder each disclose the general teaching of using a
5 physiological sensor to control pacing in a pacemaker in a switched mode of
6 operation initiated after the atrial rate has been detected as exceeding a
7 threshold. One with ordinary skill in the art would take that general teaching
8 and apply it in any circumstance that involves a pacemaker operating in a
9 switched mode initiated after the atrial rate has been detected as exceeding a
10 threshold and expect to obtain benefits. The fact that Berkovits and
11 Sholder’s pacemaker uses only a single threshold as the trigger to change to
12 a switched mode of operation does not mean the general teaching of using a
13 physiological sensor to control pacing during the switched mode has benefits
14 only if the switched mode is triggered on a first threshold and not a second.
15 The Applicant has not presented persuasive evidence why one with ordinary
16 skill in the art would perceive the general teaching as being limited to only a
17 particular circumstance, one involving the exceeding of a single threshold to
18 initiate the switched mode of operation in a pacemaker, not two thresholds.
19 As the Examiner correctly determined (Answer 16:21 to 17:13):
20 It does not matter if there were one, two, or more atrial
21 thresholds described in Berkovits or Sholder since the sensor is
22 used to indicate the metabolic/physiological need of the patient
23 when ventricular pacing is provided in the alternate pacing
24 mode and not in the atrial triggered modes where the atrial
25 thresholds are used. . . . Neither Sholder [nor] Berkovits
26 specifically state that the sensor should not be used with
27 multiple thresholds or that the sensor should only be used with
28 a single threshold. (Emphasis in original.)
11
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