Ex Parte Denison et alDownload PDFPatent Trial and Appeal BoardMay 13, 201611799051 (P.T.A.B. May. 13, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111799,051 0413012007 71996 7590 05/17/2016 SHUMAKER & SIEFFERT, P.A 1625 RADIO DRIVE, SUITE 100 WOODBURY, MN 55125 FIRST NAMED INVENTOR Timothy J. Denison 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. 1023-61 lUSOl 3982 EXAMINER JANG, CHRISTIAN YONGKYUN ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 05/1712016 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): pairdocketing@ssiplaw.com medtronic _neuro _ docketing@cardinal-ip .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte TIMOTHY J. DENISON and WESLEY A. SANTA Appeal2014-002952 Application 11/799,051 Technology Center 3700 Before LINDA E. HORNER, LISA M. GUIJT, and ERIC C. JESCHKE, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Timothy J. Denison and Wesley A. Santa (Appellants) 1 seek our review under 35 U.S.C. § 134 of the Examiner's decision rejecting claims 22-29, 31-42, 55-57, 59, and 61-63.2 We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Appellants identify the real party in interest as Medtronic, Inc. Appeal Br. 3. 2 Claims 5, 51, and 58 have been canceled, claims 1-4, 6-21, 43-50, 52-54, and 60 have been withdrawn from consideration, and claim 30 has been objected to as being dependent upon a rejected base claim. Reply Br. 3. Appeal2014-002952 Application 11/799,051 CLAIMED SUBJECT MATTER Appellants' claimed subject matter relates to "physiological monitoring of the brain for seizure prediction." Spec. para. 1. Claims 22, 37, and 55 are independent claims. Claim 22 is illustrative of the subject matter on appeal and is reproduced below. 22. A system comprising: an impedance sensing module configured to measure an impedance of a brain of a patient, and generate impedance measurements indicative of the impedance of the brain, wherein the impedance of the brain is indicative of a physiological state of the brain; and a processor coupled to the impedance sensing module, wherein the processor is configured to receive impedance measurements from the impedance sensing module, determine a trend in the impedance measurements over time, and determine whether the brain is in a state indicative of a possibility of a future seizure based on the trend. REJECTIONS Appellants appeal from the Final Action, dated March 4, 2013, which contained the following rejections: 1. Claims 22-25, 27-29, 31, 34, 35, 37--41, 55-57, 59, and 63 under 35 U.S.C. § 102(e) as anticipated by Asirvatham (US 2012/0220890 Al; issued August 30, 2012). 2. Claim 26 under 35 U.S.C. § 103(a) as unpatentable over Asirvatham and Gielen (US 6,671,555 B2; issued December 30, 2003). 2 Appeal2014-002952 Application 11/799,051 3. Claims 32 and 33 under 35 U.S.C. § 103(a) as unpatentable over Asirvatham and Holder (D.S. Holder, "Electrical Impedance Tomography (EIT) of Brain Function," Brain Topography, Vol. 5, No. 2, pp. 87-93 (1992)). 4. Claims 36, 42, 61, and 62 under the judicially created doctrine of obviousness-type double patenting as unpatentable over claims 1- 41 of Denison (US 7,391,257 Bl, issued June 24, 2008) and Asirvatham. ANALYSIS Independent claims 22 and 3 7 are each directed to a system that determines a "trend" in a plurality of impedance measurements over time. Appeal Br. 19, 22, 24 (Claims App.). Appellants' Specification describes, with reference to Figure lB, a method that "involves continuously monitoring a pattern (also referred to as a trend) in the measured impedance values." Spec. para. 47. For example, the Specification describes that "a trend in the measured impedance values may be compared to a predetermined template." Id., para. 6. The Specification further describes that one may compare "a slope of the amplitude of the signal over time ... to trend information or timing between inflection points or other critical points in the pattern of the amplitude of the impedance signal over time ... to trend information." Id., para. 36. In light of the description provided in the Specification, we understand the claimed "trend" to refer to a pattern of impedance measurements over time. 3 Appeal2014-002952 Application 11/799,051 As to each of these independent claims, the Examiner found that Asirvatham anticipates the claimed subject matter, in part, by disclosing a processor (939) configured to receive impedance measurements, determine a trend in the impedance measurements over time by determining a change in a signal over a threshold, and determine whether the brain is in a state indicative of a possibility of a future seizure based on the trend by determining whether the impedance measurements are abnormal in the moments before a seizure. Final Act. 3-4 (citing Asirvatham, para. 83). Paragraph 83 of Asirvatham discloses a controller circuit 939 that is "programmed to predict an imminent vascular event (e.g., a stroke), electrical event (e.g., a seizure), or both based upon the data signals from the electrodes 920 and 922 in the brain 10." Asirvatham teaches that "[i]n some instances, the electrophysiological signals in the brain 10, the impedance parameters in the brain, or both may become measurably abnormal in the moments before a vascular event (e.g., a stroke) or electrical event (e.g., a seizure)." Id. Paragraph 83 of Asirvatham states: The controller circuit 939 may comprise a computer memory unit that store[s] data indicating normal brain activity. The controller circuit 939 may be configured to receive data signals from the electrodes 920 and 922 and to compare the data signals with normal brain activity data stored by the control unit 930. If abnormal signals or parameters are detected by the electrodes 920 and 922, the controller circuit 939 or other portion of the control unit 930 may respond. For example, a change in the 4 Appeal2014-002952 Application 11/799,051 threshold signal of 30 to 60% may indicate abnormal signals or parameters that triggers a response from the control unit 930. The Examiner explained that "Asirvatham clearly states that it is the 'change' in the threshold signal of '30 to 60%' which would indicate abnormal signals" and that "[a] 'change' in a data inherently indicates at least two measurement data points, over a predetermined unit of time" and that "a change in data can be considered a trend." Ans. 6. Appellants assert that the Examiner erred in these findings because "Asirvatham fails in any manner to disclose that the 'change in the threshold signal' represents a trend (e.g., a pattern) in the impedance measurements, i.e., more than one impedance measurement, over time." Appeal Br. 7. We cannot find by a preponderance of the evidence that the "change in the threshold signal of 30 to 60%" is a disclosure of determining a trend in the impedance measurements over time. We must look to the entirety of paragraph 83 to determine what is meant by "threshold signal." The paragraph discusses "compar[ing] the data signals [received from the electrodes] with normal brain activity data stored by the control unit 930" to determine if abnormal signals or parameters are detected that may indicate possibility of a future seizure. In light of this discussion, the subsequent reference to "the threshold signal" is understood to refer to a value above which the received signal is characterized as "abnormal." For instance, if the received signal at one instance differs by 30% from the normal signal stored in control unit 930, then the system will indicate an abnormal signal. Under this interpretation, the prior art system is not determining a trend 5 Appeal2014-002952 Application 11/799,051 (e.g., a pattern) in impedance measurements over time, as called for in the claims. See Appeal Br. 9 (Appellants correctly noting that the stored normal brain activity data in Asirvatham does not necessarily represent part of the same signal, such that any differences between the single data point and the stored normal brain activity data do not represent a change in signal (e.g., slope over that duration in time between signals)). Further, as noted by Appellants, "Asirvatham does not provide any specific details regarding characteristics of the 'threshold signal' that are analyzed to determine the 'change in the threshold signal' or what the 'change' represents." Id. (noting that "Asirvatham fails to indicate whether an amplitude, a frequency, a phase, etc., of the 'threshold signal' is utilized to determine the 'change in threshold signal of 30 to 60%. "'). For these reasons, the Examiner's determination that independent claims 22, 37, and 55 are anticipated by Asrivatham is not supported by a preponderance of the evidence. Accordingly, we do not sustain the rejection of independent claims 22, 37, and 55, or their dependent claims 23-25, 27-29, 31, 34, 35, 38--41, 56, 57, 59, and 63 under 35 U.S.C. § 102(e). The rejections under 35 U.S.C. § 103(a) of claims 26, 32, and 33 based on Asirvatham and one of Gielen and Holder are based on the same unsupported finding as to Asirvatham anticipating independent claim 22, from which these claims depend. Final Act. 5-6. For the reasons set forth above, we likewise do not sustain the rejections of claims 26, 32, and 33 under 35 U.S.C. § 103(a). 6 Appeal2014-002952 Application 11/799,051 The obviousness-type double patenting rejection of dependent claims 36, 42, 61, and 62 also are based on the same unsupported finding as to Asirvatham anticipating independent claims 22 and 37, from which these claims depend. Final Act. 3. For the reasons set forth above, we likewise do not sustain the rejections of claims 36, 42, 61, and 62 under the doctrine of obviousness-type double patenting. DECISION The decision of the Examiner to reject claims 22-29, 31--42, 55-57, 59, and 61-63 is REVERSED. REVERSED 7 Copy with citationCopy as parenthetical citation