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 .
Response to Arguments
Applicant's arguments filed 12/18/2025 have been fully considered but they are not persuasive.
The 1st 112 rejection has been withdrawn as the applicant has clarified that a ventricular pacing pulse is actually delivered.
This 2nd 112 rejection has been withdrawn as the applicant has deleted the phrase “oversensing”.
The 3rd 112 rejection is being maintained. The applicant argues on pages 8-9:
“The phrase "a time of the signal" (sensed "after the second post-ventricular atrial refractory period") as written would readily be interpreted by one of ordinary skill in the art, in light of the specification and in the context of the claim language taken as a whole, to be the time, e.g., the point or period, when the signal occurs, consistent with the dictionary definition of the word "time."”.
The examiner is not persuaded. The applicant never points out where in the specification this is found. The examiner could not find it in the specification. The examiner is not making a rejection that the phrase is not supported by the specification, the examiner is trying to understand the claims and reference to the specification would facilitate this. The applicant argues this phrase means the point or period when the signal occurs, but that is still not clear to the examiner. Is the non-refractory atrial event signal time stamped? Or is the time relative to another event in the cardiac signal? Again, if the applicant pointed to where this phrase is supported in the specification, that would clarify the claim language. The examiner cannot allow claims that do not make sense and the applicant fails to point to where the claim language is supported in the specification.
The 4th 112 rejection is being maintained. The applicant argues on page 9:
“Claim 1 (and 11 and 20) are further rejected because it is alleged that it is unclear "what applying the first/second post-ventricular atrial refractory periods to the motion signal accomplishes and how that relates to the timing of the ventricular pacing pulses that will subsequently be administered to the patient." Breadth of a claim is not to be equated with indefiniteness. The Office has provided no arguments or evidence that the limitations of the Applicant's claims relating to the phrase "based on a time of the non-refractory atrial event signal, select one of the first post- ventricular atrial refractory period or the second post-ventricular atrial refractory period to be applied to the motion signal following at least one subsequent ventricular pacing pulse" could be interpreted in such a way that it is not clear which species is covered.
Per the MPEP 2173.02, "A decision on whether a claim is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph requires a determination of whether those skilled in the art would understand what is claimed when the claim is read in light of the specification." The Examiner has not provided a determination that the claim phrase "select one of the first post- ventricular atrial refractory period or the second post-ventricular atrial refractory period to be applied to the motion signal following at least one subsequent ventricular pacing pulse" is prima facie indefinite or would not be understood by one of ordinary skill in the art. As such, Applicant respectfully submits that the rejection is improper and should be withdrawn.”
The examiner is not persuaded. The applicant never actually explains what applying the first/second post-ventricular atrial refractory periods to the motion signal accomplishes and how that relates to the timing of the ventricular pacing pulses that will subsequently be administered to the patient. The applicant also never points to where this claim language is in the specification. The examiner is not making a rejection that the phrase is not supported by the specification, the examiner is trying to understand the claims and reference to the specification would facilitate this. The examiner cannot allow claims that do not make sense. Further, the applicant does not point to where the claim language is supported in the specification.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1 line 16 (and claims 11 and 20), the phrase “based on a time of the non-refractory atrial event signal” is unclear. In particular, it is unclear whether this phrase refers to a duration of the signal or the timing of the signal. The applicant argues this phrase means the point or period when the signal occurs, but that is still not clear to the examiner. Is the non-refractory atrial event signal time stamped? Or is the time relative to another event in the cardiac signal?
Regarding claim 1 lines 16-19 (and claims 11 and 20), the phrase “select one of the first post-ventricular atrial refractory period or the second post-ventricular atrial refractory period to be applied to the motion signal following at least one subsequent ventricular pacing pulse” is unclear. In particular, it is unclear what applying the first/second post-ventricular atrial refractory periods to the motion signal accomplishes and how that relates to the timing of the ventricular pacing pulses that will subsequently be administered to the patient.
NOTE: Due to the significant 112 rejections, the claimed subject matter was unclear and was prior art not discovered to read on the claims as best understood at this time. Prior art may be applied later in prosecution after the invention is more clearly claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Cho et al. (Pub. No.: US 2016/0023000 A1), Splett et al. (Pub. No.: US 2018/0085589 A1), Splett et al. (Pub. No.: 2018/0085588), Demmer et al. (Pub. No.: US 2018/0117337 A1), and Sheldon et al. (Pub. No.: US 2018/0154154 A1).
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/P.C.E/Examiner, Art Unit 3792
/UNSU JUNG/Supervisory Patent Examiner, Art Unit 3792