Ex Parte Batchinsky et al

Patent Trial and Appeal Board

Feb 27, 2019

13204502 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/204,502 08/05/2011
27370 7590 02/27/2019
Cahn & Samuels, LLP
1100 17th St., NW, Ste. 401
Washington, DC 20036
FIRST NAMED INVENTOR
Andriy Batchinsky
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
ISR 09- l 7B 55 1007
EXAMINER
TRAN,THOQ
ART UNIT PAPER NUMBER
3791
MAIL DATE DELIVERY MODE
02/27/2019 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDRIY BATCHINSKY, LEOPOLDO C. CANCIO,
and JOSE SALINAS
Appeal 2018-004551 1
Application 13/204,502
Technology Center 3700
Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Andriy Batchinsky et al. ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1-20 and 22. 2 We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 According to Appellants' Appeal Brief, the United States Government, as
Represented by the Secretary of the Army, U.S. Army Medical Research and
Materiel Command is the real party in interest. Appeal Br. 3.
2 Although the Examiner indicates that claim 24 is rejected (see Final Act. 1,
9), the Examiner does not include claim 24 in the heading of the Rejections,
and does not discuss claim 24 in the body of the Rejections. See Final Act.
3-9. Thus, no rejection of claim 24 is before the Board.
Appeal2018-004551
Application 13/204,502
CLAIMED SUBJECT MATTER
Appellants' invention relates to a patient care recommendation
system. Spec. ,r 3. Claims 1, 8, and 15 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A patient health determination system, comprising:
a respiration monitoring device that is operable to provide
a plurality of patient respiratory signals related to a patient;
a heart monitoring device that is operable to provide a
plurality of patient heart signals related to the patient; and
a diagnosis engine coupled to the respiration monitoring
device and the heart monitoring device, wherein the diagnosis
engine is programmed to:
receive the plurality of patient respiratory signals
from the respiration monitoring device;
receive the plurality of patient heart signals from the
heart monitoring device;
determine a degree of decoupling, where the degree
of decoupling is determined based on a ratio of a length of a R-
to-R interval within one inspiration cycle to a length of a R-to-R
interval within one expiration cycle in an electrocardiography
waveform, wherein the R-to-R interval within one inspiration
cycle and the R-to-R interval within one expiration cycle are
obtained from one respiratory cycle; and
provide a patient health indicator based on only the
degree of decoupling between the plurality of patient respiratory
signals and the plurality of patient heart signals; and
wherein the patient health indicator provides an indication
of a need for life saving intervention by medical personnel.
Appeal Br. 13 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kraf us 5,299,119
2
Mar. 29, 1994
Appeal2018-004551
Application 13/204,502
Gribkov
Ame
Wahren
US 2005/0251056 Al Nov. 10, 2005
US20I0/0316158A1 Dec.16,2010
US 7,855,177 Bl Dec. 21, 2010
REJECTIONS
(I) Claims 1, 4--8, 11-15, 17-20, and 22 are rejected under
35 U.S.C. § I03(a) as unpatentable over Kraf, Gribkov, and Wahren.
(II) Claims 2, 3, 9, 10, and 16 are rejected under 35 U.S.C. § I03(a)
as unpatentable over Kraf, Gribkov, Wahren, and Ame.
OPINION
Rejection (I)
The Examiner finds that Kraf teaches many of the features of claim 1
including a heart monitoring device and a diagnosis engine that determines a
degree of decoupling based on a ratio of a length of a R-to-R interval during
expiration to a length of an R-to-R interval during inspiration (E:I ratio) in
an electrocardiography waveform. Final Act. 4. The Examiner notes that
although Kraf does not disclose a respiratory monitoring device that
provides respiratory signals, the Examiner finds that Gribkov teaches
measuring an E:I ratio using a respiration signal obtained from an ECG
signal. Id. at 5 (citing Gribkov ,r,r 23, 102). The Examiner considers that it
would have been obvious to a person having ordinary skill in the art at the
time of the invention to modify Kraf to measure E:I ratio based on R-R
interval during inspiration and during expiration by acquiring respiration
signals, "because it provides additional functionality for patients that might
be unconscious or incapable of following cues." Id. The Examiner states
that "Kraf also does not teach that the E/I ratio is based on R-R intervals
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Appeal2018-004551
Application 13/204,502
from one inspiration and one expiration and that both intervals are obtained
from one respiratory cycle," but that Wahren does. Final Act. 5---6. The
Examiner concludes that it would have been obvious "to further modify Kraf
to include an additional E/I ratio determination ... because it provides extra
functional capabilities to determine E/I which provides for greater
characterization of a patient's health." Id. at 6.
Appellants argue that claim 1 requires obtaining an E:I ratio from one
respiratory cycle, whereas "Wahren teaches obtaining E/1 ratios from
multiple respiratory cycles." Appeal Br. 7 (citing Wahren 66:34--43).
The Examiner responds that although "each independent claim is
arguably 'based on' a single ratio[,] ... other factors may be present given
the use of the transition phrase 'comprising."' Ans. 3--4. According to the
Examiner, Appellants' arguments are not persuasive because the degree of
decoupling is not based on data "from only one respiratory [cycle]." Id. at 4.
Appellants reply that "the independent claims clearly preclude a
reading of determining a degree of decoupling based on multiple ratios of R-
to-R intervals obtained from multiple respiratory cycles." Reply Br. 3.
Appellants argue that "the Examiner is improperly using the transitional
phrase 'comprising' to read additional features into the independent claims
to make a rejection using a reference that is clearly lacking a description of
the claimed features." Id.
Appellants have the better argument. Although we appreciate the
Examiner's position that the claims do not recite "only one" respiratory
cycle, an ordinary and customary meaning of the word "one" is "being a
single unit or thing."3 Appellants' Specification is consistent with an
3 MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2005).
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Appeal2018-004551
Application 13/204,502
interpretation of this limitation as being a "single" unit. Specifically, by
referring separately to "each respiratory cycle" and "consecutive cycles," the
Specification distinguishes between one and a plurality of respiratory cycles.
See Spec. ,r 63. In particular, the Specification states "the RSA has been
quantified by the Applicants using a simple approach within each respiratory
cycle (or consecutive cycles) of the patient." Id. The Specification then
goes on to describe that an embodiment for "RSA estimation includes a 10
second ( or one respiratory cycle long) EKG tracing of the patient," followed
by determining "the RRI (e.g., in milliseconds) within one respiratory
cycle." Id. That is, Appellants distinguish between a single cycle and
multiple consecutive cycles, and use the term "one" to mean a single cycle.
As to the Examiner's position that the term "comprising" does not
exclude additional elements, in this case, the term "comprising" refers to
elements other than how decoupling is determined because the diagnosis
engine is programmed to "determine a degree of decoupling ... obtained
from one respiratory cycle." That is, the term "one" limits the decoupling
determination to one respiratory cycle. Specifically, our reviewing court has
repeatedly emphasized that an indefinite article "a" or "an" in patent
parlance carries the meaning of"' one or more"' in open-ended claims
containing the transitional phrase "'comprising."' See Elkay Mfg. Co. v.
Ebco Mfg. Co., 192 F.3d 973, 977 (Fed. Cir. 1999); Abtox, Inc. v. Exitron
Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997); N. Am. Vaccine, Inc. v. Am.
Cyanamid Co., 7 F.3d 1571, 1575-76 (Fed. Cir. 1993); see also ROBERT C.
FABER, LANDIS ON MECHANICS OF PATENT CLAIM DRAFTING 531 (3d ed.
1990). Unless the claim is specific as to the number of elements, the article
"a" receives a singular interpretation only in rare circumstances when the
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Appeal2018-004551
Application 13/204,502
patentee evinces a clear intent to so limit the article. KCJ Corp. v. Kinetic
Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). Here, the claim does
not use the broad indefinite article "a" or "an," but rather limits the specific
number to "one," and in light of the Specification, this means "only one."
By contrast, Wahren discloses that an E/I ratio is measured for "7 breathing
cycles" and that "the mean E/I value of 5 breaths was reported." Wahren
66:34--43. Thus, Wahren determines a degree of decoupling obtained from 7
cycles, even though the cycles are averaged. The Examiner does not point to
any portion of Wahren that discloses a degree of decoupling obtained from
one respiratory cycle. A preponderance of the evidence does not support the
Examiner's position that "Wahren is 'based on' a single E:I value," as
required by claim 1. Ans. 4.
Accordingly, we reverse the Examiner's rejection of claim 1, and
claims 4--7 that depend from claim 1, as unpatentable over Kraf, Gribkov,
and Wahren. The Examiner relies on the same findings and reasoning for
the rejection of independent claims 8 and 15. See Final Act. 6. Appellants
advance the same arguments for claims 8 and 15. See Appeal Br. 8-11. For
the same reasons discussed above for claim 1, we also reverse the
Examiner's rejection of claims 8 and 15, claims 11-14 and 22 depending
from claim 8, and claims 1 7-20 depending from claim 15.
Re} ection (II)
The Examiner does not rely on Ame in any way that would remedy
the deficiency in Rejection (I) discussed above. See Final Act. 8-9.
Accordingly, we reverse the rejection of claims 2, 3, 9, 10, and 16 as
unpatentable over Kraf, Gribkov, Wahren, and Ame for the same reasons.
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Appeal2018-004551
Application 13/204,502
DECISION
The Examiner's decision to reject claims 1-20 and 22 is reversed.
REVERSED
7