Appeal 2007-3787
Reexamination 90/006,642
Patent 4,944,298
1
2 We reject the Applicant’s assertion that Berkovits teaches against
3 implementing multiple thresholds for initiating a switched mode of
4 operations in the sense of precluding use of any teaching therein in
5 combination with a system based on having multiple thresholds. We
6 recognize that Berkovits in column 6, lines 28-45, does indicate that the
7 Wenckebach response, which according to the Applicant is based on an
8 implementation of multiple atrial thresholds, can contribute to undesirable
9 “endless loop tachycardias” and “is not the optimum upper rate behavior.”
10 But characterizing an implementation as not being the “optimum” is far from
11 expressing that it is inoperative or entirely without benefit. A less preferred
12 scheme is not without utility. Few devices and schemes are without
13 drawbacks or any room for improvement. The Applicant’s approach would
14 render teachings from a prior art reference inapplicable whenever it does not
15 present a perfect solution without any known disadvantage. We are not
16 aware of any authority to that effect and the Applicant has cited none.
17 The Applicant further argues that combining the multiple thresholds
18 feature of Fearnot or Nappholz with the physiological sensor feature of
19 Berkovits or Sholder is unnecessary because “a central problem addressed
20 by the multi-threshold approach of Nappholz et al./Fearnot et al.” was
21 independently addressed in Berkovits/Sholder et al. “by the incorporation of
22 a physiological sensor without the need to add a second rate threshold.”
23 (Br. 15:17-21)(Emphasis in original). The argument is misplaced. The
24 Applicant has overlooked that the advantage achieved by using a
25 physiological sensor, as relied on by the Examiner, i.e., to provide effective
26 stimulation of the patient to match the patient’s physiological need during
12
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: September 9, 2013