Ex Parte Guillemaud et al

Patent Trial and Appeal Board

Jul 27, 2018

11962944 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/962,944 12/21/2007 Regis Guillemaud
22850 7590 07/31/2018
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
318924US2CIP 9091
EXAMINER
NGUYEN, HUONG Q
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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):
OBLONPAT@OBLON.COM
tfarrell@oblon.com
patentdocket@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte REGIS GUILLEMAUD and Y ANIS CARITU
Appeal2016-007322 1
Application 11/962,9442
Technology Center 3700
Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 7-22. An oral hearing was held on July 12, 2018. We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
Nov. 5, 2015) and Reply Brief ("Reply Br.," filed July 22, 2016), and the
Examiner's Answer ("Ans.," mailed May 23, 2016) and Non-Final Office
Action ("Non-Final Act.," mailed Jan. 5, 2015). The record includes a
transcript of the hearing held July 12, 2018.
2 Appellants identify Commissariat a L 'Energie Atomique as the real party
in interest. App. Br. 1.
Appeal2016-007322
Application 11/962,944
CLAIMED INVENTION
Appellants' claimed invention relates to "a method to measure the
movements of a person wearing a portable detector." Spec. 1: 13-14.
Claims 7 and 15 are the independent claims on appeal. Claim 7,
reproduced below, is illustrative of the claimed subject matter:
7. A process for detecting an external activity signal
and a separated physiological activity signal of a person, the
process compnsmg:
obtaining a signal from a sensor measuring movements of
a person to which the sensor is attached, the signal composed of
a first component due to physiological activity of the person and
a second component due to external activity of the person;
repeatedly computing a value of a criterion of either a
minimal level or a minimal instability of the signal obtained from
the sensor; and
filtering, in a filter, the signal from the sensor to derive a
filtered signal representative of the person's external activity, the
filtering comprising a partition of the signal from the sensor into
a low frequency component and a high frequency component, the
filtered signal comprising the low frequency component of the
signal of the sensor and a portion of the high frequency
component, the portion being variable in the signal obtained from
the sensor and depending, in each time portion of the filtered
signal, on the value of the criterion, the position of the high
frequency component being greater when either the minimal
level or the minimal instability of the signal of the sensor is
reached; and
subtracting the filtered signal from the signal obtained
from the sensor, to obtain the first component of the signal due
to physiological activity separated from the external activity
signal.
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Application 11/962,944
REJECTIONS
Claims 7-22 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 7-11, 14--19, and 22 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kadhiresan (US 5,935,081, iss. Aug. 10, 1999), Nakajima
(US 2002/0062204 Al, pub. May 23, 2002), and Freeman
(US 2005/0101889 Al, pub. May 12, 2005).
Claims 12, 13, 20, and 21 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Kadhiresan, Nakajima, Freeman, and Alt (US 5,354,317,
pub. Oct. 11, 1994).
ANALYSIS
Non-Statutory Subject Matter
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
Bank Int'!, 134 S. Ct. 2347, 2354 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), "for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355.
The first step in that analysis is to "determine whether the claims at issue are
directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
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of the claims are considered "individually and 'as an ordered combination'"
to determine whether there are additional elements that "'transform the
nature of the claim' into a patent-eligible application." Id. (quoting Mayo,
566 U.S. at 79, 78).
In rejecting the claims under 35 U.S.C. § 101, the Examiner
determined that the claims are "directed to the abstract idea of signal
processing, i.e.[,] a mathematical relationship or formula." Final Act. 3.
The step-one analysis requires us to consider the claims "in their entirety to
ascertain whether their character as a whole is directed to excluded subject
matter." Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343,
1346 (Fed. Cir. 2015). We, therefore, look to "whether the focus of the
claims is on [a] specific asserted improvement in computer capabilities ...
or, instead, on a process that qualifies as an 'abstract idea' for which
computers are invoked merely as a tool." Enfzsh, LLC v. Microsoft Corp.,
822 F.3d 1327, 1335-36 (Fed. Cir. 2016).
Here, the Specification provides that the invention relates to
measuring the movements of a person wearing a portable detector.
Spec. 1: 13-14. The prior art includes movement sensors, such as
accelerometers, to monitor movements of the thorax cage and deduce heart
rate from these movements. Id. at 1: 18-20. However, a problem with such
conventional movement sensors is that they require particular conditions or
postures of the patient, namely, a lack of effort or movement, to provide a
reliable measurement. Id. at 1 :20-24.
Prior art devices isolate an estimation of the physiological activity by
successive filtering, namely, applying a low-pass filter to remove high
frequency noise, and a high-pass filter to remove low-frequency physical
activity. Id. at 2:20-22; see also id. at 2:17-19 (describing movement due to
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Application 11/962,944
external activity of the wearer as typically, but not exclusively, low
frequency). Such known signal filterings provide unreliable results, because
physical activity "often comprises a part of the energy in the same
frequencies as the physiological activity, especially in transient postural
states or when great efforts are exerted." Id. at 2:23-26. Appellants'
invention seeks to reduce or eliminate the influence of unfiltered physical
activity in the frequency band where physiological activity is present, and
avoid incorrect detection leading to a false alert. Id. at 2:28-32.
Claims 7-22 recite limitations encompassing these features. For
example, independent claim 7 recites a "process for detecting an external
activity signal and a separated physiological activity signal of a person,"
comprising the following steps: obtaining a signal from a sensor measuring
movements of a person; repeatedly computing a value of a criterion; filtering
the signal to derive a filtered signal representative of the person's activity,
the filtering comprising a partition of the signal from the sensor into a low
frequency component and a high frequency component, the filtered signal
comprising the low frequency component and a portion of the high
frequency component, the portion being variable and dependent, in each
time portion, on the value of the criterion; and subtracting the filtered signal
from the signal obtained from the sensor. In this way, claim 7 enables a
detector to more accurately distinguish between a signal component due to
an external activity of the wearer and a signal component due to a
physiological activity. See id. at 1: 1--4. Independent claim 15 recites similar
language.
Considering the claim language in light of the Specification, we are
persuaded by Appellants' argument that the claims are "not directed to a
mathematical relationship or formula" (App. Br. 7), but instead focus on
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providing a new and useful technique for measuring the movements of a
person wearing a portable detector (see id. at 5---6). Much like the situation
in Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir.
2017), which involved claims "directed to a new and useful technique for
using sensors to more efficiently track an object on a moving platform," the
claims here use sensors to more accurately detect an external activity signal
and a separated physiological activity signal of a person. On the record
before us, the Examiner has not sufficiently established that the claims are
directed to an abstract idea under Alice step one. Because we are not
persuaded that the claims are directed to an abstract idea, we need not
proceed to step two.
Therefore, on the record before us, we do not sustain the Examiner's
rejection under 35 U.S.C. § 101 of claims 7-22.
Obviousness
Independent Claims 7 and 15, and Dependent Claims 8-11, 14, 16--19, and
22
We are persuaded by Appellants' argument that the Examiner erred in
rejecting independent claims 7 and 15 under 35 U.S.C. § 103(a) because the
combination of Kadhiresan, Nakajima, and Freeman fails to teach or
suggest:
the filtered signal comprising the low frequency component of
the signal of the sensor and a portion of the high frequency
component, the portion being variable in the signal obtained from
the sensor and depending, in each time portion of the filtered
signal, on the value of the criterion, the position of the high
frequency component being greater when either the minimal
level or the minimal instability of the signal of the sensor is
reached,
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Application 11/962,944
as recited in claim 7, and similarly recited in claim 15. App. Br. 7-11; see
also Reply Br. 3--4. The Examiner relies on Kadhiresan at column 3, lines
23-59 and Figure 2, and Freeman at paragraphs 8 and 48 as disclosing the
argued limitation. Final Act. 4--5. We have reviewed the cited portions of
Kadhiresan and Freeman. Yet, we find nothing, alone or in combination,
that discloses or suggests the argued limitation.
The Examiner finds that Kadhiresan teaches filtering the signal of the
sensor into a low frequency component. Id. at 4 ( citing Kadhiresan at 3 :23-
59, Fig. 2). However, Kadhiresan instead describes using a plurality of
bandpass filters with upper and lower cut-off frequencies (not a lowpass
filter that passes signals with a frequency lower than a single cutoff
frequency). See Kadhiresan 3:29-37. For example, a pass band set between
1 and 10 Hz provides an output signal related to a patient's state of activity,
a pass band set between 0.05 Hz and 1.0 Hz provides an output signal
related to inspiration and expiration, and a pass band between 1 Hz and 140
Hz provides an output signal related to heart beat activity and the flow of
blood through the heart. Id. at 3:38-52. The Examiner acknowledges that
Kadhiresan' s filtered signal does not comprise a portion of the high
frequency component that is variable. Id. at 5. We agree with the Examiner
that Kadhiresan does not teach a filtered signal comprising, in part, a portion
of the high frequency component that is variable, as called for in claims 7
and 15.
The Examiner relies on Freeman as "teach[ing] that it is well known
... to adjust the frequency of a filter such that the outcome of the filter, and
thus the portion of a frequency component, varies based upon the minimal
level to better enhance the stability of the filtering (0008, 0048)." Final Act.
5; see also Ans. 4--5 (finding that Freeman teaches that "a certain frequency
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component of the filter is variable depending on the signal being filtered and
the value of the spectral analysis").
Freeman at paragraph 48 describes that a variable cutoff low pass
filter can be added to eliminate frequency components in an ECG that are
unrelated to chest compression, thereby improving stability and accuracy.
Yet, modifying the cutoff frequency of a lowpass filter does not teach or
suggest filtering a signal to have a portion of the high frequency component,
that is variable, as required in the independent claims.
Freeman at paragraph 8 describes performing spectral analysis on a
difference signal, and adjusting the filter based on the outcome of the
spectral analysis. In particular, Freeman's adaptive filter may be reset when
the difference signal is beyond a threshold. Freeman ,r 8. Yet, the use of an
adaptive filter that seeks to minimize a difference signal fails to teach or
suggest a filtered signal comprising a portion of the high frequency
component that is variable, much less a signal comprising a low frequency
component and a portion of the high frequency component, as called for in
claims 7 and 15.
In view of the foregoing, we do not sustain the Examiner's rejection
of independent claims 7 and 15, and dependent claims 8-11, 14, 16-19, and
22 under 35 U.S.C. § 103(a).
Dependent Claims 12, 13, 20, and 21
Claims 12, 13, 20, and 21 each depend from independent claims 7 and
15. The rejection of these dependent claims does not cure the deficiency in
the Examiner's rejection of the independent claims. Therefore, we do not
sustain the Examiner's rejections of claims 12, 13, 20, and 21 under
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35 U.S.C. § 103(a) for the same reasons set forth above with respect to
independent claims 7 and 15.
DECISION
The Examiner's rejection of claims 7-22 under 35 U.S.C. § 101 is
reversed.
The Examiner's rejections of claims 7-22 under 35 U.S.C. § 103(a)
are reversed.
REVERSED
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