Ex Parte Koyrakh et al

Patent Trial and Appeal Board

Feb 27, 2019

14462128 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/462,128 08/18/2014
55962 7590
Wiley Rein LLP
Patent Administration
1776 K Street, NW
Washington, DC 20006
03/01/2019
FIRST NAMED INVENTOR
Lev A. Koyrakh
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.
OG-050401US/82410-0556 4515
EXAMINER
PORTER, JR, GARY A
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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):
ptodocket@wileyrein.com
ASJM_Patents@abbott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEV A. KOYRAKH, MARK HAGFORS,
SIMON T. PRANAITIS, NATHAN A. MULLINS, and YURIY MALININ
Appeal2018-002699
Application 14/462,128 1
Technology Center 3700
Before LINDA E. HORNER, DAVID M. KOHUT, and
NATHAN A. ENGELS, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 1-15, 25, and 28. Non-Final Office Action
(April 27, 2017, "Non-Final Act."). 2 We have jurisdiction under 35 U.S.C.
§ 6(b).
1 St. Jude Medical, Atrial Fibrillation Division, Inc. ("Appellant") is the
applicant under 37 C.F.R. § 1.46 and is identified as the real party in interest.
Appeal Brief (September 22, 2017, "Appeal Br.") 2.
2 Claims 16-24, 26, and 27 are pending and withdrawn from consideration.
Non-Final Act. 1.
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Application 14/462,128
The Examiner rejected all of the appealed claims as being directed to
patent ineligible subject matter and as being unpatentable over various
combinations of the prior art. The Examiner also rejected one dependent
claim as being indefinite. Appellant contests each ground of rejection. As
to subject matter eligibility, Appellant argues that the claims are not directed
to an abstract idea. As to obviousness, Appellant contests the Examiner's
findings about the prior art. As to indefiniteness, Appellant asserts that the
Examiner has confused breadth with indefiniteness.
For the reasons explained below, we agree with Appellant that the
claims are not directed to an abstract idea and that the dependent claim is not
indefinite. Thus, we do not sustain the rejections under 35 U.S.C. §§ 101
and 112(b). We find, however, that several of the Examiner's findings about
the prior art, which are contested by Appellant, are supported by a
preponderance of the evidence. Thus, we sustain some of the rejections
under 35 U.S.C. § 103. Because we sustain at least one rejection of each
claim on appeal, we AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter on appeal relates to generating an
electrophysiology map, such as may be performed in cardiac diagnostic and
therapeutic procedures, using data collected by a roving electrophysiology
probe. Specification (August 18, 2014, "Spec.") ,r 2. Claims 1 and 25 are
the independent claims. Claim 1 is illustrative of the subject matter on
appeal and is reproduced below with the disputed limitation shown in italics
for emphasis.
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1. A method of generating an electrophysiology map
of a portion of a patient's anatomy, comprising:
defining a location-based electrophysiology data point
inclusion criterion;
defining a rhythm-based electrophysiology data point
inclusion criterion;
collecting an electrophysiology data point with an
electrophysiology probe, wherein the electrophysiology data
point is associated with location-based inclusion data and
rhythm-based inclusion data;
comparing the location-based inclusion data associated
with the electrophysiology data point to the defined location-
based inclusion criterion;
comparing the rhythm-based inclusion data associated
with the electrophysiology data point to the defined
rhythm-based inclusion criterion; and
adding the electrophysiology data point to the
electrophysiology map when both the location-based inclusion
data associated with the electrophysiology data point satisfies
the location-based inclusion criterion and the rhythm-based
inclusion data associated with the electrophysiology data point
satisfies the rhythm-based inclusion criterion,
wherein the rhythm-based inclusion criterion comprises
an EKG matching criterion, the EKG matching criterion
comprising a matching score for an EKG signal at a time the
electrophysiology data point is collected calculated using a
template area.
Appeal Br. 20 (Claims Appendix).
Throne
Gillberg
Lian
Harlev '863
Harlev '858
EVIDENCE
us 5,000,189
US 6,393,316 Bl
US 2008/0294217 Al
US 2012/0184863 Al
US 2012/0184858 Al
3
Mar. 19, 1991
May 21, 2002
Nov. 27, 2008
July 19, 2012
July 19, 2012
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Application 14/462,128
REJECTIONS
The Non-Final Office Action includes the following rejections:
1. Claims 1-15, 25, and 28 are rejected under 35 U.S.C. § 101 as
being directed to patent ineligible subject matter.
2. Claim 28 is rejected under 35 U.S.C. § 112(b) as being indefinite.
3. Claims 1-15 and 25 are rejected under 35 U.S.C. § 103 as
unpatentable over Harlev '863 and Harlev '858.
4. Claims 1-15 and 25 are rejected under 35 U.S.C. § 103 as
unpatentable over Harlev '863, Harlev '858, and Throne.
5. Claims 1-15 and 25 are rejected under 35 U.S.C. § 103 as
unpatentable over Harlev '863, Harlev '858, and Lian.
6. Claims 1-15, 25, and 28 are rejected under 35 U.S.C. § 103 as
unpatentable over Harlev '863, Harlev '858, and Gillberg.
ANALYSIS
I. Rejection under 35 U.S.C. § 101
A. Legal Principles
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
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we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
(1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 192 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
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attempting to limit the use of the formula to a particular technological
environment." Id. (citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. ( quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
B. USPTO § 101 Guidance
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) ("Guidance"). 3 Under that guidance, we first look to
whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
3 Although the Examiner issued the rejection before the Guidance was
published, because the document provides the PTO's guidance for
evaluating subject matter eligibility under existing law, the methodology set
forth in the Guidance applies to examinations of all pending claims,
including those at issue in this Appeal.
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human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
( 4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance.
C. Whether the claims fall within the specific categories of
patentable subject matter
We begin our analysis by looking at the claims to determine if they
recite a process, machine, manufacture, or a composition of matter. Claims
1-15 and 28 recite a method and claim 25 recites a system that is a machine
or combination of machines. Thus, the claims fall within the specific
categories of patentable subject matter.
We now tum to the next part of the Alice/Mayo analysis and examine
whether the claims are directed to a judicial exception.
D. Whether the claims are directed to any judicial exceptions
In accordance with the Guidance, we address the judicial exceptions
relied on by the Examiner. The Examiner determined that the claims are
directed to the abstract ideas of "obtaining and comparing intangible data;
organizing information through mathematical correlations; and, in some
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cases, an algorithm for calculating parameters indicating an abnormal
condition." Non-Final Act. 4. The Examiner has not, however, identified
clearly the specific limitations that recite mathematical concepts or that
otherwise form the Examiner's position that the claims are directed to
abstract ideas. For example, it is unclear which limitations of the claims are
referred to as "organizing information."
We examine independent claims 1 and 25 each as a whole to see if
either recites a mathematical concept. The Guidance explains that judicially
excepted mathematical concepts are "mathematical relationships,
mathematical formulas or equations, [and/or] mathematical calculations."
80 Fed. Reg. at 52. Claim 1 recites defining criteria and comparing
collected data to the defined criteria. Claim 25 recites a processor
configured to analyze actual data with defined criteria. Although the
comparing/analyzing limitations may be based on mathematical concepts,
the mathematical concepts are not recited in the claims. The claims do not
recite any mathematical relationships, formulas, or calculations. The
Examiner fails to identify where the claims recite a limitation directed to
particular "mathematical relationships, mathematical formulas or equations,
[and/or] mathematical calculations." Thus, we do not agree with the
Examiner's analysis that the claims recite patent ineligible subject matter
based on the recitation of mathematical concepts. 4 This determination does
4 Even if one were to determine that these claimed steps recite mathematical
concepts, for the reasons discussed below, we find that claims 1 and 25 are
directed to practical applications because the claims include additional
elements that limit the method and system to physical elements applied in a
practical application.
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not end our inquiry because the Examiner also found that claim 1 recites an
additional judicial exception.
The Examiner further explained that claim 1 recites the judicial
exception of mental processes. Non-Final Act. 4--5 ( finding that claim 1
recites "a method disembodied from any structure thus allowing the claim to
be a series of mental steps combined with hand calculations/drawings of
maps"). The Guidance explains that judicially excepted mental processes
are "concepts performed in the human mind (including an observation,
evaluation, judgment, [and/or] opinion)." 84 Fed. Reg. at 52. Appellant
argues that the claims are not directed to an abstract idea because they are
directed to "the creation of electrophysiology maps using specific hardware
(e.g., a localization system; an electrophysiology catheter)." Appeal Br. 10.
Appellant argues that the Examiner erred in finding that the claims are
"disembodied from any structure." Id. at 11.
To the extent the steps of defining criteria and comparing collected
data to the defined criteria could be performed in the human mind, the claim,
nonetheless, recites additional elements that integrate the judicial exception
into a practical application. Specifically, claim 1 recites additional steps that
require a specific apparatus, i.e., an electrophysiology probe, for collecting
the data, and an apparatus for creating a map. See Research Corp. Techs. v.
Microsoft Corp., 627 F.3d 859, 868 (Fed. Cir. 2010) (holding that claims for
rendering a halftone image of a digital image by comparing, pixel by pixel,
the digital image against a blue noise mask present "functional and palpable
applications in the field of computer technology" and are patent eligible).
The court in Research Corp. stated, "Inventions with specific applications or
improvements to technologies in the marketplace are not likely to be so
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abstract that they override the statutory language and framework of the
Patent Act." Id. at 869. The court also stated, "The fact that some claims in
the [patents] require a 'high contrast film,' 'a film printer,' 'a memory,' and
'printer and display devices' also confirm this court's holding that the
invention is not abstract." Id. The additional elements in the claims before
us, like the claims before the court in Research Corp., "present[] functional
and palpable applications" within the field of the invention. Id. at 868.
Claim 1 recites a combination of steps designed to provide improved data
points for mapping a portion of a patient's anatomy.
Thus, we do not sustain the rejection of claims 1-15, 25, and 28 under
35 U.S.C. § 101.
II. Rejection under 35 U.S.C. § l l 2(b)
Claim 28 depends from claim 1 and further recites specific steps by
which the matching score for the EKG signal is calculated. Appeal Br. 22-
23 (Claims Appendix). One of the steps in claim 28 includes, "computing a
distance between the template electrophysiological signal and an
electrophysiological signal associated with the electrophysiology data
point." Id. The Examiner determined that this recited step is indefinite
because, according to the Examiner, it is unclear which points are being used
in each respective signal to calculate the claimed distance. Non-Final Act. 6.
Appellant argues that the Examiner mistakes breadth for
indefiniteness. Appeal Br. 14; Reply Brief (January 16, 2018, "Reply Br.")
4 (arguing that the Examiner's rejection is "an objection to the fact that ...
[ the claim] recites a distance between signals instead of a distance between
points"). Appellant asserts that one of ordinary skill in the art would
appreciate the meaning of "a distance" between two signals and, for
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instance, "would be familiar with the Euclidean distance between signals."
Appeal Br. 14.
Appellant's Specification describes techniques for determining a
distance between two signals. For instance, the Specification describes that
"a distance function ... generates a distance between two waveforms
containing a peak, such as the current beat waveform and the template beat
waveform." Spec. ,r 78. The Specification provides one example that uses
dynamic time warping to determine a distance between the two waves. Id.
,r 79. The Specification provides another example of a Euclidean distance
between the waveforms, in which the waves are shifted with respect to each
other, and then the distance function is set to the minimum distance between
the waveforms after the shifting process. Id. ,r 80.
Claim 28 broadly recites computing a distance between the signals,
but does not limit the computation to any particular technique. As noted by
Appellant, however, "breadth is not indefiniteness." SmithKline Beecham
Corp. v. Apotex Corp., 403 F.3d 1331, 1341 (Fed. Cir. 2005) (quoting In re
Gardner, 427 F.2d 786, 788 (CCPA 1970)). That the broad recitation of
computing a distance between two signals encompasses a variety of distance
functions, including the two distance functions described in the
Specification, does not render the claim unclear. We find that the claimed
step of computing a distance between two signals, when read in light of the
Specification, would be clear to a person of ordinary skill in the art. For this
reason, we do not sustain the rejection of claim 28 under 35 U.S.C. § 112(b ).
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III. Rejections under 35 U.S.C. § 103
A. Unpatentability of claims 1-15 and 25 over Harlev '863 and
Harlev '858
The Examiner found that Harlev '863 discloses obtaining
location-based data points and rhythm-based data points, comparing each
type of data points to inclusion thresholds, and adding electrophysiological
data to an electrophysiological map when both the location-based inclusion
criteria and rhythm-based inclusion criteria are met. Non-Final Act. 7-8.
The Examiner found that Harlev '863 is silent regarding using template
matching as an inclusion criterion. Id. at 8. The Examiner relied on
Harlev '858 to teach using EKG template matching as an inclusion criterion
for an electrophysiological map. Id. (citing Harlev '858 ,r,r 111-114, 132-
13 6). The Examiner determined it would have been obvious to modify
Harlev '863 to use template matching inclusion criteria to increase the
accuracy and consistency of the generated map. Id.
The Examiner acknowledged that "Harlev '858 does not explicitly use
the term 'template area."' Id. But the Examiner found that the matching of
templates described in Harlev '858 involves "indirectly considering the areas
of the template." Id. ("[B]y correlating a beat to a template, one is
determining how closely the beat in question and the template match in
shape (i.e. amplitude and duration)" so that "any correlation determination
between a beat and a template implicitly includes a correlation of the
template areas to one another.").
Appellant contests the Examiner's finding that matching templates
implicitly uses a template area. Appeal Br. 15. We agree with Appellant
that "not every matching score necessarily uses template areas." Id. at 16
(emphasis omitted). For instance, Lian discloses matching a signal
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waveform to a template waveform using either morphological metrics of the
waveforms or using a correlation analysis technique, such as the Pearson's
Correlation Coefficient. Lian ,r 22. Likewise, Appellant's Specification
describes that the Pearson Correlation Coefficient can be used as an
alternative to a distance function in order to compute a matching score.
Spec. ,r 90. The Examiner's finding that Harlev '858 implicitly discloses
matching using a template area is not supported by a preponderance of the
evidence. Thus, we do not sustain the rejection of claims 1-15 and 25 as
unpatentable over Harlev '863 and Harlev '858.
The Examiner provided alternate rejections of the claims based on
further modification5 of the Harlev '863/Harlev '858 combination with the
explicit teachings of waveform matching using template area, as described in
one or more of Throne, Lian, or Gillberg. Non-Final Act. 10-18. We
examine each additional reference for its teachings.
B. Unpatentability of claims 1-15 and 25 over Harlev '863,
Harlev '858, and Throne
The Examiner found that "Throne discloses that templates can be
matched to corresponding ECG signals by comparing template areas,
particularly [areas under] the curve." Non-Final Act. 11 (citing Throne,
Abstract). Appellant argues the Examiner erred in this rejection because
Throne discloses using "the area beneath the derivative," which is not the
same as the claimed "template area." Appeal Br. 16 ( citing Throne,
5 Appellant does not contest the Examiner's proffered reasoning for further
modifying the system and method of Harlev '863, as modified by
Harlev '858, with the teachings of either Throne, Lian, or Gillberg. Appeal
Br. 16-17 ( arguing only that Throne, Lian, and Gill berg do not cure the
shortcoming of Harlev '863 and Harlev '858).
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Abstract; Spec. ,r 83). The Examiner responds that "Throne discloses
generically that two signals can be matched by comparing their respective
areas at specific time points." Ans. 25.
Appellant's Specification defines "template area" as the distance
"between the template and a zero signal" calculated for a template beat.
Spec. ,r 83. We agree with Appellant that Throne discloses comparing area
beneath the derivative. Throne, Abstract. Specifically, Throne provides a
method to determine the similarity between a template and a waveform in an
implantable antitachycardia device that produces results similar to
correlation waveform analysis but which is computationally simpler and less
demanding of power. Throne, col. 3, 11. 8-11. Thus, one having ordinary
skill in the art, in order to obtain the computational benefits disclosed in
Throne, would have employed Throne's method of comparing areas beneath
the derivative of the waveform and template. The area beneath the
derivative is different from the claimed "template area," which is the area
beneath the template waveform. Compare Throne, Fig. 3 ( showing the
reference template), with Fig. 5 (showing a derivative of the waveform).
The Examiner does not explain adequately why one having ordinary skill in
the art would have been led (in light of Throne) to modify Harlev '863 to
compare a template area to an area below a collected signal.
The Examiner further offers that even if one were to modify
Harlev '863 to use the template derivative, as disclosed by Throne, the claim
limitations still would be met because "the derivative of a template signal is
still a template signal" and, thus, "matching calculations using the derivative
of the template can be considered the claimed "using a template area."
Ans. 25 (finding that the claim does not recite "any particular use of 'a
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template area'"). The Examiner does not explain adequately why use of an
area of a derivative of a template falls within the scope of "using a template
area" recited in claim 1. The Examiner proffers no interpretation of "using a
template area," as that phrase would be understood by one having ordinary
skill in the art in light of Appellant's Specification, to encompass using a
derivative of the template. For these reasons, we agree with Appellant that
Throne does not disclose matching using a template area as recited in
independent claims 1 and 25. Thus, we do not sustain the rejection of claims
1-15 and 25 as unpatentable over Harlev '863, Harlev '858, and Throne.
C. Unpatentability of claims 1-15 and 25 over Harlev '863,
Harlev '858, and Lian
The Examiner found that "Lian discloses that template matching can
be based off of simple morphological metrics such as wave width, height,
zero-crossing, area, etc." Non-Final Act. 13 (citing Lian ,r 22). Appellant
argues that Lian discusses generally using area for template matching "but
does not disclose a 'template area' as claimed (i.e., the distance between a
template beat and a zero signal)." 6 Appeal Br. 17.
Lian describes prior art methods used to analyze a pace waveform:
The template waveform corresponding to captured beats is
created. Capture is declared if a paced signal waveform
matches the template, otherwise, non-capture is declared.
Whether or not a waveform matches the template can be
evaluated based on simple morphological metrics such as wave
width, height, zero-crossing, area, etc., or based on
6 Appellant argues claims 1-15 and 25, subject to this ground of rejection, as
a group. Appeal Br. 17. We select claim 1 as representative, and claims 2-
15 and 25 stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
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conventional correlation analysis techniques, such as the
Pearson's correlation coefficient.
Lian ,r 22 ( emphasis added).
We agree with the Examiner's reading of "simple morphological
metrics such as ... area" to refer to the claimed "template area." In the
context of "capture classification" and determining whether a waveform
matches a template as described in Lian, the morphology of the waveform
refers to its form, and an area of a waveform refers to a surface included
within a set of lines. See id. Consistent with "template area" as defined in
Appellant's Specification, a morphological metric of a waveform that looks
at the area of the waveform refers to the area below the curve, i.e., an
integration of the signal over time, which is based on the distance between
the curve and a zero signal. Thus, Appellant has not identified error in the
Examiner's rejection. For this reason, we sustain the rejection of claims 1-
15 and 25 as unpatentable over Harlev '863, Harlev '858, and Lian.
D. Unpatentability of claims 1-15, 25, and 28 over Harlev '863,
Harlev '858, and Gillberg
The Examiner found that "Gillberg discloses that templates can be
matched to corresponding ECG signals by using area of distance
calculations for the purpose of providing a matching and classification
system that is computationally simple." Non-Final Act. 16 (citing Gillberg,
col. 1, 11. 45-55). Appellant argues that "Gillberg references in passing the
'so-called Area of Difference Analysis (AD)[,]' but offers nothing to support
the conclusion that AD includes a 'template area' as claimed."7 Appeal
7 Appellant argues claims 1-15 and 25, subject to this ground of rejection, as
a group. Appeal Br. 17. We select claim 1 as representative, and claims 2-
15 and 25 stand or fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). Appellant
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Br. 17. The Examiner responds that Gill berg discloses comparing an
electrophysiological signal to a template (i.e., a sample waveform) where
each signal has a baseline for establishing the relative values of the peaks
and troughs of the signal. Ans. 25-26 (citing Gillberg, col. 1, 11. 33-36,
Fig. 4). The Examiner explains that Gillberg discloses an Area of
Difference Analysis can be used to match the waveforms using the sum of
absolute differences between the signal and the template, thereby comparing
the differences in area of one signal to the other. Id. at 26 ( citing Gillberg,
col. 1, 11. 47-55). Appellant replies that Gillberg does not "offer[] any
details that would lead a person of ordinary skill in the art to recognize a
connection to a 'template area' as claimed." Reply Br. 5.
We disagree with Appellant's proposition that Gill berg does not
provide details about the Area of Difference Analysis. In fact, the Area of
Difference Analysis described in Gillberg is the same as the template area
matching described in paragraphs 83 and 84 of Appellant's Specification.
Gill berg describes second and third embodiments of its invention in
which template and unknown waveforms are compared using this AD
metric. Gillberg, col. 20, 11. 42-48. Gillberg describes that in this method,
"the distance is computed between the wavelet image of the unknown
waveform[] and wavelet images of the template waveform." Id. at col. 21,
11. 34-37 (describing computing a distance between electrophysiological
signal of a data point and the template electrophysiological signal). Gillberg
describes that "[i]n order to make [a] ... decision about how small the
distance is, the microprocessor divides the calculated distance by the
presents additional arguments for the patentability of dependent claim 28
(Appeal Br. 17-18), which we address below.
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corresponding norm of the template wave to provide distance normalization.
If the resulting number is significantly smaller than 1, the waves are
considered to be similar." Id. at col. 21, 11. 41-45 ( describing dividing the
computed distance by the computed template area). Gillberg defines the
norm of the template wave as "the calculated distance between tie [ sic, the]
template wave and the zero signal (signal consisting of zero values)." Id. at
col. 21, 11. 46-48 ( describing computing the template area as a distance
between a template electrophysiological signal and a zero signal). Gillberg's
"norm of the template wave" is equivalent to the claimed "template area."
Spec. ,r,r 83 ("[T]he matching score for a particular beat is calculated as
follows. First, for each template ... a distance is computed between the
template and a zero signal (that is, the model signal, for which all samples
are set to zero. This distance is referred herein to as the 'template area."'), 84
("Then, for each waveform (e.g., for the current beat from each selected
EKG lead), a distance is computed between the waveform and the template
beat.") The above-referenced details provided in Gillberg about the AD
metric support the Examiner's finding that Gillberg matches an unknown
waveform with a template waveform to assign a matching score using the
template area. Appellant has not demonstrated that the Examiner erred in
this finding about Gill berg. Thus, we sustain the rejection of claims 1-15
and 25 as unpatentable over Harlev '863, Harlev '858, and Gillberg.
Turning to dependent claim 28, Appellant also argues that the
Examiner failed to map the specific steps recited in dependent claim 28 to
Gillberg. Appeal Br. 18. The Examiner explains, in response, that Gillberg
"discloses taking a difference (i.e. distance) between the two signals at a
plurality of points, summing the difference and minimizing the sum in order
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Appeal2018-002699
Application 14/462,128
to match the signal to the template" and that "[ o ]ne of ordinary skill in the
art would readily understand that the Area of Difference calculation as
discussed in Gilliberg [sic] would provide a measure of correlation between
the two signals and that normalizing the calculated difference to a template
area is a simple and routine manipulation of data in attempting to quantify a
minimization value between the two signals." Ans. 27-28. We agree with
the Examiner's findings.
As described above, Gillberg describes matching a template and an
unknown waveform by computing a template area (i.e., norm of the template
wave) as a distance between the template signal and a zero signal. Id. at
col. 21, 11. 46-48. Gillberg then computes a distance between the template
signal and the unknown waveform. Id. at col. 21, 11. 34-37. Gillberg then
divides this computed distance by the computed template area (norm of the
waveform) to provide distance normalization. Id. at col. 21, 11. 41-45. The
Examiner's determination of obviousness of the subject matter of claim 28 is
supported by Gillberg. Thus, we sustain the rejection of claim 28 as
unpatentable over Harlev '863, Harlev '858, and Gillberg.
DECISION
We do not sustain the rejection of claims 1-15, 25, and 28 under
35 U.S.C. § 101 and of claim 28 under 35 U.S.C. § 112(b ). We also do not
sustain the rejections of claims 1-15 and 25 under 35 U.S.C. § 103 as
unpatentable over the combination of Harlev '863 and Harlev '858, either
alone or in further combination with Throne.
We sustain, however, the rejection of claims 1-15 and 25 under
35 U.S.C. § 103 as unpatentable over Harlev '863, Harlev '858, and Lian
and the rejection of claims 1-15, 25, and 28 under 35 U.S.C. § 103 as
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Appeal2018-002699
Application 14/462,128
unpatentable over Harlev '863, Harlev '858, and Gillberg. Because we
sustain at least one ground of rejection of each of the claims on appeal, the
decision of unpatentability of claims 1-15, 25, and 28 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)(l )(iv).
AFFIRMED
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