Ex Parte Freeman et al

Patent Trial and Appeal Board

Feb 25, 2013

10786359 (P.T.A.B. Feb. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte GARY A. FREEMAN, QING TAN, and
FREDERICK GEHEB
____________________

Appeal 2010-009631
Application 10/786,359
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
HYUN J. JUNG, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-009631
Application 10/786,359
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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
5 and 7-29. App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to methods of analyzing physiological signals
output from a sensor. The methods include removing signal artifacts that
result from chest compressions, which is said to allow improved collection
of data during performance of cardiopulmonary resuscitation (CPR). Spec.
4. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A method of analyzing a physiological signal during
application of chest compressions, the method comprising:
acquiring a physiological signal during application of
chest compressions;
acquiring the output of a sensor from which information
on the velocity of chest compressions can be determined; and
using the information on the velocity to reduce at least
one signal artifact in the physiological signal resulting from the
chest compressions.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Haberl
Halperin
US 5,211,179
US 6,390,996 B1
May 18, 1993
May 21, 2002

REJECTIONS
Claims 1, 2, 7-16, 19, 23, 26 and 28 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Halperin. Ans. 4.
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Claims 3-5 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halperin. Ans. 6.
Claims 20-22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halperin and Haberl. Ans. 6.
Claims 1-29 are rejected on the ground of nonstatutory obviousness-
type double patenting as being unpatentable over claims 45-52 of U.S.
Patent No. 7,220,235. Ans. 7.

OPINION

A. 35 U.S.C. § 102 rejection of claims 1, 2, 7-16, 19, 23, 26 and 28 as
anticipated by Halperin
Both Appellants and the Examiner treat the rejections of claims 2-5,
7-16, 19-23, 26 and 28 as turning on the rejection of claim 1. App. Br. 2, last
paragraph; Ans. 10. Accordingly, those claims will stand or fall with claim
1.
Appellants argue that the rejection of claim 1 is in error and states that
Halperin does not use velocity information to reduce an artifact in a
physiological signal. App. Br. 4-6. Rather, Appellants state that Halperin
uses acceleration to reduce an artifact of chest compression. App. Br. 5.
Appellants also argue, and the Examiner has acknowledged, that the
language of the final rejection improperly refers to the obviousness standard
in an anticipation rejection. App. Br. 4; Ans. 7-8.
The Examiner found that Halperin uses velocity as an input to correct
an artifact in CPR measurements, and identifies column 11, lines 50+ as
showing this feature. Ans. 8.
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Application 10/786,359
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FIG. 12 shows several waveforms pertinent to the
processing of a CPR-affected ECG signal. A first waveform ar
represents a measurable signal which “represents” the CPR-
induced artifact. That signal may comprise a force, acceleration,
distance, velocity, motion, or vest signal, each of which
represents some aspect of the CPR-induced artifact. In the
illustrated embodiment, the signal ar comprises the acceleration
signal produced by the accelerometer 12 of the device shown in
FIG. 1.
Halperin, col. 11, ll. 50-58.
The goal of linear predictive filtering, in accordance with
the embodiment disclosed herein, is to identify the linear
system H that transforms the acceleration signal ar into the
waveform composed of the artifactural components, i.e., a, in
the measured ECG em. Once this system is identified, the
artifactual component can be predicted, using linear predictive
filtering, by taking the output ap of a simulated system H, using
the acceleration signal ar as the input. When this linearly
predicted signal ap is [subtracted] from the measured ECG em,
the resulting signal is the estimated true ECG, which is shown
as the processed ECG signal em' in the output of the system
shown in FIG. 14.
Halperin, col. 12, ll. 8-19.
The Examiner interprets this portion of Halperin to mean that any of
“force acceleration, distance, velocity, motion, or vest signal” is a suitable
measuring signal for ar, but that the discussion of the illustrated embodiment
that follows uses acceleration. Ans. 8-9. Appellants, on the other hand, argue
that “[t]he mention of velocity in col. 11 is merely in passing as an
indication that one could represent the CPR artifact using a variety of
signals, including velocity.” App. Br. 6. Appellants further argue that, while
the signal might represent velocity, that velocity is not used to remove the
artifact from the signal. Reply Br. 2.
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We find that the evidence of record supports the Examiner’s
conclusion.
Halperin’s illustrated embodiment of his device measures an
acceleration. Halperin then uses that information to reduce a CPR artifact.
However, Halperin at column 11, lines 50+ also describes a set of acceptable
alternatives for signal ar that explicitly includes velocity. The only logical
reading of Halperin therefore includes a description of a single embodiment
that uses velocity as the signal representing the CPR-induced artifact. As the
signal ar is then transformed to a signal ap and subtracted from the measured
physiological signal em as described at column 12, lines 8-19, the velocity
signal is used to reduce at least one signal artifact.
We therefore affirm the 35 U.S.C. § 102 rejection of claims 1, 2, 7-16,
19, 23, 26 and 28.

B. 35 U.S.C. § 103 rejections of claims 3-5 and 20-22
Appellants do not identify any error in the 35 U.S.C. § 103 rejections
of claims 3-5 and 20-22. Accordingly, we summarily affirm those rejections.

C. Obviousness-type double patenting rejection of claims 1-29
Claims 1-29 have been rejected on obviousness-type double patenting
grounds as not patentably distinct from claims 45-52 of U.S. Patent No.
7,220,235. Ans. 7. Appellants have not argued this rejection. App. Br. 2-3.
Accordingly, we summarily affirm the obviousness-type double patenting
rejection.

Appeal 2010-009631
Application 10/786,359
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DECISION
The Examiner’s rejection of claims 1-5 and 7-29 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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