Ex Parte Causevic et al

Patent Trial and Appeal Board

Jul 15, 2016

12639357 (P.T.A.B. Jul. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/639,357 12/16/2009 Elvir CAUSEVIC
22852 7590 07119/2016
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK A VENUE, NW
WASHINGTON, DC 20001-4413
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.
10329.0036-00000 6724
EXAMINER
BERHANU, ETSUB D
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
07/19/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EL VIR CAUSEVIC and
LESLIE PRICHEP
Appeal2014-001942
Application 12/639,357
Technology Center 3700
Before JOHN C. KERINS, MICHAEL L. HOELTER, and,
JILL D. HILL, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1-36. App. Br. 1, 5. Appellants' counsel provided oral
argument on June 9, 2016 (hereinafter "Tr."). We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
Appeal2014-001942
Application 12/639,357
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to the field of neurological
assessment, and specifically, to a portable apparatus and method for
performing neurological assessment on a patient at the point-of-care." Spec.
i-f 1. Claims 1 and 14 are independent and are representative of the claims on
appeal. Claims 1 and 14 are reproduced below:
1. A method of performing neurological triage on a patient,
comprising the steps of:
providing a patient sensor comprising at most eight
disposable neurological electrodes and at least one ear phone;
acquiring spontaneous brain electrical signals using the
neurological electrodes;
providing a handheld base unit comprising a signal
processor, the base unit being operatively coupled to the patient
sensor for processing the acquired spontaneous brain electrical
signals;
extracting a set of quantitative signal features from the
acquired spontaneous brain electrical signals;
classifying the quantitative signal features into a normal
or abnormal category using a binary classification system;
calculating an index indicating a statistical probability of
the patient's brain electrical signals being normal or abnormal;
and
displaying the index in the form of a horizontal bar on the
handheld base unit.
14. An apparatus for performing neurological triage on a
patient, comprising:
a patient sensor comprising at most eight disposable
neurological electrodes and at least one ear phone; and
a handheld base unit operatively connected to the patient
sensor;
wherein the base unit comprises a digital signal
processor configured to perform automatic identification
and removal of artifacts from acquired brain electrical
signals, discriminant-based classification using pre-
2
Appeal2014-001942
Application 12/639,357
selected subsets of quantitative signal features, and a
calculation of an index capable of indicating a statistical
probability of the patient's brain electrical signals being
normal or abnormal; and
wherein the base unit further comprises a display
panel to display the index.
REFERENCES RELIED ON BY THE EXAMINER
John US 4,913,160 Apr. 3, 1990
("hereinafter "John ' 160")
Moukheibir us 6,021,404 Feb. 1,2000
Engel us 6,099,476 Aug. 8, 2000
Guerrero et al. us 6,370,423 Apr. 9, 2002
Williams US 2003/0023183 Al Jan.30,2003
Wu et al. US 6,687,527 Bl Feb.3,2004
John et al. US 7,089,927 B2 Aug. 15, 2006
("hereinafter "John '927")
Causevic et al. US 2007 /0032737 Al Feb. 8, 2007
John et al. US 2008/0249430 Al Oct. 9, 2008
("hereinafter "John '430")
Collura
Cole et al.
US 2009/0118636 Al May 7, 2009
US 2009/0247836 Al Oct. 1, 2009
THE REJECTIONS ON APPEAL 1
Claims 14--20, 23-27, 29, 33, and 34 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Causevic.
Claims 1-5 and 8-12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Causevic and Moukheibir.
1 "The rejection of claims 18, 19, 21, 22, 25-27, 29-32 and 35 under 35
U.S.C. 112, second paragraph, has been withdrawn." Ans. 9; see also Reply
Br. 3.
3
Appeal2014-001942
Application 12/639,357
Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Causevic, Moukheibir, Guerrero, and Wu.
Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic, Guerrero, and Wu.
Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic, Moukheibir, and John '927.
Claim 28 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic and Cole.
Claims 22 and 30 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Causevic and Collura.
Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic, Collura, and John '160.
Claim 32 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic and Williams.
Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic and Engel.
Claim 36 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Causevic and John '430.
ANALYSIS
The rejection of claims 14-20, 23-27, 29, 33, and 34
as anticipated by Causevic
Apparatus claim 14 is independent. Each of claims 15-20, 23-27, 29,
33, and 34 depends, directly or indirectly, from claim 14. Claim 14 recites a
calculation that is "capable of indicating a statistical probability of the
patient's brain electrical signals being normal or abnormal." Claim 14 also
recites the display of that calculated statistical probability. The Examiner
4
Appeal2014-001942
Application 12/639,357
relies on paragraphs 31 and 51 of Causevic for disclosing these limitations.
Final Act. 3; Ans. 10-11. Appellants acknowledge that Causevic' s device
"may display the percentage probability" associated with a subject, but that
this probability is directed "to a particular sub-category within the abnormal
brain state classification." App. Br. 14; see also Reply Br. 6-7. In other
words, Appellants contend, "[n]owhere does Causevic disclose calculating
the probability of a subject's brain electrical signals being normal or
abnormal." App. Br. 14; see also Reply Br. 7.
Paragraph 31 of Causevic addresses Figure 1 and states "wherein a
probability that the features extracted from a subject can be classified in one
or more diagnostic categories is determined (step 108)." Figure 1 of
Causevic shows a decision box 110 (the next step following step 108) which
asks the question "Are features normal?" Both paragraph 31 and Figure 1
indicate that if the answer is affirmative, "then the device will display that
the subject's brain activity is normal (step 122)." This paragraph and Figure
1 are silent as to calculating and displaying a "statistical probability of the
patient's brain electrical signals being normal or abnormal" as claimed.
Paragraph 31 of Causevic also states "[i]f there is a higher probability
that the subject's extracted features are not normal, the device will attempt to
classify the extracted features as an emergency or 'Alert' condition (step
112)." In view of this teaching, the Examiner reasons that in order for
Causevic to determine whether or not "there is a higher probability that the
subject's extracted features are not normal," then "Causevic must inherently
determine the probability." Ans. 11. However, as indicated in Causevic
paragraph 31, any forthcoming display arising from this inherent
determination will indicate either normal or abnormal ("Alert") conditions.
5
Appeal2014-001942
Application 12/639,357
The Examiner does not identify where Causevic teaches that this inherent
determination is "capable of indicating a statistical probability of the
patient's brain electrical signals being normal or abnormal" as recited. In
other words, Causevic discloses an indication of being either normal or
abnormal, but not the extent or chance2 of being the one or the other (except
for a subsequent analysis discussed in Causevic limited to the probability of
the signals being indicative of different types of abnormality only, see infra).
Paragraph 51 of Causevic states, "[t]he diagnostic categories may be
indicative of whether a subject is exhibiting normal or abnormal brain
function." Afterwards, this paragraph discusses determining "a probability
that the subject 201 is experiencing a particular type of abnormal brain
function." Hence, while this paragraph addresses diagnostic categories, and
whether the subject is exhibiting normal or abnormal brain functions, this
paragraph is silent as to Causevic calculating the statistical probability (i.e.,
the extent or chance) of these signals being the one or the other. Instead,
paragraph 51 only addresses providing a probability regarding different
types of abnormal brain functions.
Appellants addressed this point at oral hearing stating, "[a]nd that's
what the Causevic reference doesn't get to. The Causevic reference is only
giving simple probability measures off of what a person's abnormal brain
state can be." Tr., 11 :7-9. In describing the claimed invention, Appellants
state,
2 The claim term "probability" is defined as "the extent to which something
is likely to happen or be the case." See
http://www.oxforddictionaries.com/definition/english/probability. It is also
defined as "the chance that something will happen." See
http://www.merriam-webster.com/dictionary/probability.
6
Appeal2014-001942
Application 12/639,357
[t]he current application says let's do the normal versus abnormal
classification, but after we do this normal versus abnormal
classification, we are going to do further calculations ... to come
up with an integer value that will give the statistical probability
of the person being normal or abnormal.
Tr., 17:4-9.
In view of the record submitted, the Examiner has not established by a
preponderance of the evidence that Causevic teaches each and every element
of claim 14. We reverse the Examiner's rejection of claims 14-20, 23-27,
29, 33, and 34 as anticipated by Causevic.
The rejection of claims 1-5 and 8-12
as unpatentable over Causevic and Moukheibir
Each of claims 2-5 and 8-12 depend, directly or indirectly, from
claim 1. Similar to above claim 14, claim 1 also recites the calculation of a
statistical probability of the patient's brain "being normal or abnormal," and
further recites that the display thereof is "in the form of a horizontal bar."
The Examiner again relies on Causevic but acknowledges that Causevic
"fails to disclose details of how exactly the values are displayed. "3 Final
Act. 4; see also Final Act. 5. The Examiner relies on Moukheibir for these
display details. Final Act. 4-5 (referencing Moukheibir, 5:43-53); see also
Moukheibir, Fig. 9, 15:5---6.
3 The Examiner reiterates that Causevic "fails to provide details of how the
probabilities are displayed." Final Act. 5. However, the "values" or
"probabilities" discussed in Causevic are those pertaining solely to different
degrees of abnormal brain functions. See Causevic i-f 51. There is no
indication in Causevic that any "values" or "probabilities" associated with
normal vs. abnormal brain functions are displayed at all. See supra.
7
Appeal2014-001942
Application 12/639,357
In rendering this rejection, the Examiner states that Causevic
discloses, "classifying the quantitative signal features into a normal or
abnormal category using a binary classification system." Final Act. 4. This
is consistent with the teachings of Causevic' s paragraphs 31 and 51
discussed supra (i.e., disclosing either normal or abnormal signals, but not
the degree thereof). Further, even considering the Examiner's finding supra
that "Causevic must inherently determine the probability" (Ans. 11 ), the
Examiner's rationale is still not compelling. This is because the Examiner
again does not identify where Causevic teaches that such determination is "a
statistical probability of the patient's brain electrical signals being normal or
abnormal" rather than an initial classification of the brain signal being either
normal or abnormal, before further analysis is conducted. See Causevic i-fi-1
31,51.
Furthermore, in rendering this rejection, the Examiner again
references the display of the "probabilities" discussed in paragraph 51 of
Causevic. Final Act. 4. However, as noted supra, these "probabilities"
identified in Causevic paragraph 51 pertain to the chance or extent of the
brain signals being a particular type of brain abnormality only. They do not
pertain to any probability, chance, or extent that might designate or provide
the degree to which the signals are normal or abnormal.
Thus, the Examiner fails to provide articulated reasoning with rational
underpinning to support the conclusion of obviousness. Accordingly, we
reverse the Examiner's rejection of claims 1-5 and 8-12 as being
unpatentable over Causevic and Moukheibir.
8
Appeal2014-001942
Application 12/639,357
The rejection of (a) claims 6 and 7 as unpatentable over Causevic,
Moukheibir, Guerrero, and Wu; and, (b) claim 13 as unpatentable over
Causevic, Moukheibir, and John '927
Claims 6, 7, and 13 each depend, directly or indirectly, from claim 1.
The Examiner's reliance on the additional teachings of Guerrero, Wu, and
John '927 does not cure the defect of the combination of Causevic and
Moukheibir discussed supra. We reverse the Examiner's rejection of claims
6, 7, and 13 as being unpatentable over Causevic and Moukheibir in
combination with the respective teachings of Guerrero, Wu, and John '927.
The rejection of (a) claim 21 as unpatentable over Causevic, Guerrero, and
Wu; (b) claim 28 as unpatentable over Causevic and Cole; (c) claims 22 and
30 as unpatentable over Causevic and Collura; (d) claim 31 as unpatentable
over Causevic, Collura, and John '160; (e) claim 32 as unpatentable over
Causevic and Williams; (/) claim 35 as unpatentable over Causevic and
Engel; and, (g) claim 36 as unpatentable over Causevic and John '430
Claims 21, 22, 28, 30-32, 35, and 36 depend, directly or indirectly,
from claim 14. The Examiner's reliance on the additional teachings of
Guerrero, Wu, Cole, Collura, John '160, Williams, Engel, and John '430
does not cure the defect of Causevic discussed supra. We reverse the
Examiner's rejection of claims 21, 22, 28, 30-32, 35, and 36 as unpatentable
over Causevic in view of this additionally cited art.
DECISION
The Examiner's rejections of claims 1-36 are reversed.
REVERSED
9