DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1, 4-8, 11, 14-18, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11,666,763 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claim 1 represents the combination of allowed claims 1 and 9, wherein when properly viewed the allowed claim 9 therefore serves to anticipate the instant independent claim 1. Likewise, the instant independent claim 11 represents the combination of patented method claims 11 with 19. Instant claim 21 similarly compares with patented claim 21 directed to a non-transitory, computer-readable medium.
Instant claims 4 and 14 relate to patented claims 3, 10, 13 and 20.
Instant claims 5 and 15 relate to patented claims 8 and 18.
Instant claims 6 and 16 relates to the remaining portions of patented claims 9 and 19.
Regarding claims 7 and 17, a threshold voltage range of up to forty volts is within an obvious range that fails to distinguish over the patented claims.
Regarding claims 8 and 18, comparison against a threshold utilizing a percentage or ration value is an obvious mathematical means of comparison that fails to distinguish over the patented claims.
Allowable Subject Matter
Claims 2, 3, 9, 10, 12, 13, 19, and 20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Claims 1, 4-8, 11, 14-18, and 21 are rejected solely on the equitable grounds of nonstatutory double patenting. The most pertinent prior art fails to teach or fairly suggest an implantable medical system for delivering anti-tachycardia pacing (ATP) therapy in which a therapy delivery module comprises a high voltage capacitor chargeable to a shock voltage amplitude for delivering of a cardioversion/defibrillation shock pulse, and wherein the same high voltage capacitor can have the charge adjusted to a lower pacing voltage amplitude during a delay period in order to use the same HV capacitor in delivery of the ATP therapy at the lower pacing voltage, in combination with the other remaining limitations in the claim. Regarding claims 11 and 21, the prior art also does not teach or fairly suggest, mutatis mutandis, the method of delivering ATP therapy utilizing such a device or a non-transitory computer-readable medium storing instructions to perform such a method.
Claims 2, 3, 9, 10, 12, 13, 19, and 20 are not subject to the nonstatutory double patenting rejection based on U.S. Patent No. 11,666,763 B2, and therefore would be allowable if written in independent form to overcome that rejection.
Regarding claims 2 and 12, neither the ’763 patent nor the prior art, alone or when considered as a whole, teach or render obvious, in combination with the other recited limitations, determination of a synchronization interval and one or more RR intervals sensed during an ATP therapy delay period, and determining whether to deliver or cancel the delayed ATP therapy based on a comparison of the synchronization and RR intervals.
Regarding claims 3and 13, neither the ’763 patent nor the prior art, alone or when considered as a whole, teach or render obvious, in combination with the other recited limitations, a menu of therapies programmed into the medical device, and advancing to a next therapy in the list when a current ATP therapy is canceled.
Regarding claims 9 and 19, neither the ’763 patent nor the prior art, alone or when considered as a whole, teach or render obvious, in combination with the other recited limitations, determination of an estimated charge adjustment time based on a difference between a current charge of the capacitor and its threshold voltage.
Regarding claims 10 and 20, neither the ’763 patent nor the prior art, alone or when considered as a whole, teach or render obvious, in combination with the other recited limitations, adjusting the charge of the HV capacitor to at least a pacing capture threshold of an extra-cardiovascular pacing electrode vector.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER A FLORY whose telephone number is (571)270-5305. The examiner can normally be reached Monday, Tuesday, and Thursday, 8:30am-4:30pm (PST).
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/CHRISTOPHER A FLORY/Primary Examiner, Art Unit 3792
19 December 2025