Ex Parte Hopenfeld

Patent Trial and Appeal Board

Nov 7, 2017

11898673 (P.T.A.B. Nov. 7, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/898,673 09/14/2007 Bruce Hopenfeld MR3065-35 4832
4586 7590 11/09/2017
ROSENBERG, KLEIN & LEE
3458 ELLICOTT CENTER DRIVE-SUITE 101
ELLICOTT CITY, MD 21043
EXAMINER
PORTER, JR, GARY A
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
11/09/2017 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):
ptoactions @rklpatlaw.com
ptoactions@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE HOPENFELD
Appeal 2017-000432
Application 11/898,673
Technology Center 3700
Before DEMETRA J. MILLS, ERIC B. GRIMES, and DEBORAH KATZ,
Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134. The Examiner has rejected
all of the pending claims for obviousness. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
Appeal 2017-000432
Application 11/898673
STATEMENT OF CASE
The device of the invention provides for an effective
subcutaneous or surface based system for monitoring ischemia. Spec. 5. In
particular,
the present invention comprises a system that includes ... an
implanted cardiac detection and/or diagnostic device and external
equipment. The battery powered implantable cardiac diagnostic device
contains electronic circuitry that can detect a cardiac event such as an
acute myocardial infarction and warn the patient when the event, or a
clinically relevant precursor, occurs. The cardiac diagnostic device can
store the patient's electrogram for later readout and can send wireless
signals to and receive wireless signals from the external equipment.
Spec. 6.
The following claim is representative.
16. A device for assessing the condition of a mammalian heart,
comprising:
a lead comprising two sensors, a processor coupled to the
lead, the processor configured to:
(i) obtain a signal from the lead, and compute a
waveform corresponding to the signal, the waveform being
characterized by a plurality of QRS complexes;
(ii) compute a plurality of values of a waveform feature
from the waveform representing the values of the waveform
feature over time;
(iii) apply a first filter to the plurality of values of the
waveform feature, thereby deriving a first time series filtered
waveform;
(iv) derive a differenced waveform from the filtered
waveform defining a second time series waveform where the
differenced waveform is an absolute difference of at least one
waveform feature taken in consecutive time intervals within a
time segment;
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(v) compute from the second time series differenced
waveform, a measure of the rate of change in the waveform
feature over said time segment where the measure of the rate of
change of said waveform feature is calculated as a function of
the summation of the absolute difference of said second time
series waveform feature taken in consecutive time intervals
over said time segment, thereby deriving a change metric; and
(vi) apply a test to detect a pathological heart condition,
wherein the test is based on the change metric.
Cited References
Patton US 4,989,610 Feb. 5, 1991
Arand US 5,817,027 Oct. 6, 1998
Starobin US 2002/0165459 A1 Nov. 7, 2002
Grounds of Rejection
Claims 16 and 18—21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Patton in view of Starobin.
Claims 22 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Patton in view of Starobin, and Arand.
FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages
2-13.
PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
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Application 11/898673
“[OJbviousness requires a suggestion of all limitations in a claim.”
CFMT, Inc. v. Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003)
(citing In re Royka, 490 F.2d 981, 985 (CCPA 1974)).
Obviousness Rejection 1
The Examiner finds that
Regarding Claim 16, Patton discloses inserting a tape
holding ECG data from a Holter recording into a device , such
as a microcomputer 60 (col. 5, line 35-col. 6, line 10). The ECG
data from the tape is passed through filters in order to provide
proper samples at 120Hz a channel, thus creating a time series
of data (col. 23, lines 27-45). The filtered data is then used to
calculate a four-point derivative, which is a differenced
waveform representing the difference between the value of the
waveform at the present sample and its values four samples in
the past. The first derivative is stored in buffer 912. A second
derivative is also calculated and stored in a second derivative
buffer 914 (col. 33, lines 45-55). The second derivative
waveform is the difference between two consecutive first
derivative waveforms, each of which contains consecutive four
sample time intervals. These rates of change (i.e. derivatives),
which represent a summed difference of samples over a time
interval. . ., are then utilized to detect and diagnose a
pathological condition of the heart using a string of tests 986,
988, 990, etc. (Fig. 47 A; col. 35, line 25-col. 36, line 62).
Specifically, the analysis of the ECG data results in beats 80
being placed in a plurality of bins, each representative of a
particular diagnosis 88 (col. 6, line 60-col. 7, line 17; Fig. 8).
Ans. 2—3.
The Examiner acknowledges that Patton discloses analyzing the data
with a computer, but discloses that the Holter recorder is a separate system
and is not combined with the computer. Ans. 3. The Examiner relies on
Starobin for the fact that combining or connecting Holter systems with data
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Application 11/898673
processing systems, such as computers, is well known and well established
in the art, as evidenced by Starobin. Ans. 3; Starobin, Fig. 3. The Examiner
concludes that “it would have been obvious to one of ordinary skill in the art
at the time the invention was made to modify the device in the Patton
reference to include directly connecting the Holter recorder to the computer,
as taught and suggested by Starobin, for the purpose of providing real-time
data processing.” Ans. 3^4.
Appellant contends that the
Patton reference does not provide for the computation of
a plurality of values of a waveform feature from the
waveform ... [deriving] a differenced waveform from
the filtered waveform ... [and computing] from the
second time series differenced waveform, a measure of
the rate of change in the waveform feature ... to detect a
pathological heart condition
as is recited in Claim 16.
Br. 18. Appellant further argues that the
Patton reference does not provide for derivation of a
differenced waveform where the differenced waveform is an
absolute difference of a waveform feature taken in consecutive
time intervals within some time segment, nor does the Patton
reference provide for the computation from the second time
series differenced waveform a measure of the rate of the change
of the waveform feature over the time segment in the manner
defined by the now amended Claim 16 (where the measure of
the rate of change is calculated as a function of the summation
of the absolute difference of the second time series waveform
feature taken in consecutive time intervals over the time
segment).
All that Patton is doing is taking a four-point derivative
which is the difference between the value of the waveform in a
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Application 11/898673
present sample and the value of samples in the past which is
neither the concept nor the processor configuration permitting
the subject system concept to be realized.
Br. 20; emphasis added.
ANALYSIS
We do not find that the Examiner has provided evidence to support a
prima facie case of obviousness. We are persuaded by Appellant’s argument
that the Examiner has not pointed to specific disclosure in Patton of
derivation of a differenced waveform where the differenced waveform is an
absolute difference of a waveform feature taken in consecutive time
intervals within some time segment. App. Br. 20. In particular, we do not
find that the Examiner has pointed to specific disclosure in either Patton or
Starobin of the claimed feature of “(v) computing] from the second time
series differenced waveform, a measure of the rate of change in the
waveform feature over said time segment where the measure of the rate of
change of said waveform feature is calculated as a function of the
summation of the absolute difference of said second time series waveform
feature taken in consecutive time intervals over said time segment, thereby
deriving a change metric.”
In support of this claim limitation, the Examiner points to Patton,
column 33, lines 45—55 (Ans. 6), reproduced below. Patton, column 33,
lines 45—55, states
The data is also processed to calculate a four-point
derivative, which is the difference between the value of
the waveform at the present sample and its value four
samples in the past [.] This data is paced [sic, placed] in a four-point
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Application 11/898673
derivative buffer 912. Further, a four-point second derivative is
calculated and stored in a four-point second
derivative buffer 914. The four-point second derivative
is the difference between two consecutive four-point
derivatives. The subroutine GETDAT then increments
the sample count and returns to the subroutine call 903
in the DETECT module 916.
However, this portion of Patton does not indicate that the waveform
feature is calculated as a function of the summation of the absolute
difference of the second time series waveform feature taken in consecutive
time intervals over the time segment. There is no discussion in the
Examiner cited portion, or elsewhere in the Final Action or Answer, of
taking a summation of the absolute difference of the second time series
waveform.
The obviousness rejection over Patton in view of Starobin is reversed.
Obviousness rejection 2 in the grounds of rejection suffers from the same
deficiency as rejection 1, and is also reversed.
CONCLUSION OF LAW
The Examiner has not shown that the cited references support the
Examiner’s obviousness rejections 1 and 2, which are reversed.
REVERSED
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