Ex Parte Moore et al

Patent Trial and Appeal Board

Feb 6, 2018

13863840 (P.T.A.B. Feb. 6, 2018)

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.
13/863,840 04/16/2013 Stephen Trey Moore 23956-0027001 9738
26201 7590 02/08/2018
FISH & RICHARDSON P.C. (AU)
P.0 BOX 1022
Minneapolis, MN 55440-1022
EXAMINER
ELBINGER, STEVEN Z
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
02/08/2018 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN TREY MOORE,
THOMAS SCOTT WADE, LLOYD KORY BROWN,
WILLIAM CAMERON POWELL, DANIEL LEE BLAKE,
NEIL R. MCQUEEN, AUGUSTINE VIDAL PEDRAZAIV ,
and ALAN WILLIAMS PORTELA
Appeal 2017-009137
Application 13/863,8401
Technology Center 2600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTAII, Administrative Patent Judges.
GALLIGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—16, which are all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is AirStrip IP Holdings,
LLC. Br. 4.
2 Our Decision refers to Appellants’ Appeal Brief filed December 22, 2016
(“Br.”); Examiner’s Answer mailed April 5, 2017 (“Ans.”); and Final Office
Action mailed September 15, 2016 (“Final Act.”).
Appeal 2017-009137
Application 13/863,840
STATEMENT OF THE CASE
Claims on Appeal
Claims 1, 6, 7, 8, 15, and 16 are independent claims. Claim 1 is
reproduced below:
1. A computer-implemented method executed using one or
more processors, the method comprising:
processing, by the one or more processors, patient data to
generate one or more graphical representations of the patient
data, the patient data reflective of one or more physiological
characteristics of a patient, at least one graphical representation
of the one or more graphical representations comprising a
waveform;
displaying, by a display of a computing device, at least one
waveform segment of the waveform;
displaying, by the display of the computing device, a
plurality of calipers associated with the at least one waveform
segment, each caliper of the plurality of calipers being associated
with an interval of the at least one waveform segment, wherein a
first of the plurality of calipers is dependent on a second of the
plurality of calipers, such that an endpoint of a first interval of
the at least one waveform segment, corresponding to the first of
the plurality of calipers, and a beginning point of a second
interval of the at least one waveform segment that succeeds the
first interval, corresponding to the second of the plurality of
calipers, is aligned with the first interval and displaying the
plurality of calipers comprises, for each caliper:
receiving a measurement value of the interval
associated with the caliper;
determining, relative to the at least one waveform
segment, respective positions of a first handle and a
second handle of the caliper based on the measurement;
and
displaying the first handle and the second handle in
the respective positions relative to the at least one
waveform segment;
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Application 13/863,840
receiving user input, the user input being input to the first
waveform segment displayed on the display of the computing
device and indicating an adjustment of a position of the first of
the plurality of calipers based on user contact with the display of
the computing device; and
in response to receiving the user input, determining, by the
computing device, the first interval and the second interval
associated with the first of the plurality of calipers and the second
of the plurality of calipers, respectively that is dependent on the
first of the plurality of calipers.
Satin
References
US 2006/0264769 A1 Nov. 23, 2006
Beasley US 7,227,549 B2 June 5, 2007
Hoium US 2009/0076402 A1 Mar. 19, 2009
Mirow US 2009/0292180 A1 Nov. 26, 2009
Powell US 2010/0235782 A1 Sept. 16,2010
Ramanathan US 2012/0101398 A1 Apr. 26, 2012
Freeman US 2012/0123223 A1 May 17, 2012
Goossens US 2012/0131495 A1 May 24, 2012
Examiner’s Rejections
Claims 1 and 3—7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Powell, Ramanathan, Satin, and Hoium. Final Act. 3—10.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Powell, Ramanathan, Satin, Hoium, and Freeman. Final
Act. 11-12.
Claims 8 and 10-16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Powell, Beasley, and Mirow. Final Act. 12—18.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Powell, Beasley, Mirow, and Goossens. Final Act. 18—20.
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Application 13/863,840
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellants. Arguments not made are waived. See
MPEP § 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(1).
ANALYSIS
We disagree with Appellants’ contentions and adopt as our own:
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken; and (2) the reasons set forth by the Examiner in
the Answer in response to the Appeal Brief. With respect to the claims
argued by Appellants, we highlight and address specific findings and
arguments for emphasis as follows.
35 U.S.C. § 103(a): Claims 1—7
“user input. . . indicating an adjustment ”
Appellants contend Hoium does not teach “receiving user input, the
user input being input to the first waveform segment displayed on the
display of the computing device and indicating an adjustment of a position
of the first of the plurality of calipers based on user contact with the display
of the computing device,” as recited in claim 1 and similarly recited in
claims 6 and 7.3 Br. 15—16. Specifically, Appellants argue
the timing markers of Hoium correspond to the time domain of
the ECG signal and the operator input of Hoium defining the P-
wave is performed on the power spectrum of the vectorized data,
3 In one sentence, Appellants’ Brief states “the cited portions of Perkins” fail
to teach the disputed limitations. Br. 15—16. However, the preceding and
subsequent portions of the Brief only discuss Hoium and the Examiner’s
rejection does not rely on Perkins. Br. 15—16. We understand Appellants’
contentions and arguments to be directed to Hoium, not Perkins.
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which is different than receiving user input, the user input being
input to the first waveform segment displayed on the display of
the computing device and indicating an adjustment of a position
of the first of the plurality of calipers based on user contact with
the display of the computing device, where each caliper of the
plurality of calipers is associated with an interval of the at least
one waveform segment, as recited in each of claims 1, 6, and 7.
Br. 16.
We are not persuaded. The Examiner finds (Final Act. 6; Ans. 3), and
we agree, Satin teaches “[a] caliper position marks a point on the ECG
waveform, and the distance between a set of two caliper positions on the
waveform corresponds to the distance between the corresponding two points
on the waveform” (Satin 145). The Examiner further finds (Final Act. 6;
Ans. 3), and we agree, Satin teaches a “cardiologist can alter the placement
of the caliper positions on any displayed ECG waveform” (Satin 197).
Appellants do not present substantive arguments that specifically and
persuasively address why the Examiner erred. In particular, Appellants
summarize Hoium and conclude that Hoium “is different” than the recited
claim (Br. 16) without specific explanation as to how the two are different.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”).
Even if we consider Appellants’ summary and underlining of Hoium’s
timing markers, ECG signal, operator input, and power spectrum analysis
(Br. 16) to be an argument, that argument does not address the Examiner’s
finding that Satin teaches “us[ing] calipers to measure waveform intervals”
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and user input that “adjust[s] caliper positions” on waveform intervals.
Ans. 3 (citing Satin || 45, 70); Final Act. 6 (citing Satin 197).
Accordingly, we are not persuaded the Examiner erred in finding
Satin teaches “receiving user input, the user input being input to the first
waveform segment displayed on the display of the computing device and
indicating an adjustment of a position of the first of the plurality of calipers
based on user contact with the display of the computing device,” as recited
in claim 1 and similarly recited in claims 6 and 7.
“determining. . . the first interval and the second interval ”
Appellants contend Hoium does not teach “in response to receiving
the user input, determining, by the computing device, the first interval and
the second interval associated with the first of the plurality of calipers and
the second of the plurality of calipers, respectively that is dependent on the
first of the plurality of calipers,” as recited in claim 1 and similarly recited in
claims 6 and 7. Br. 16—17. Specifically, Appellants state
in response to the operator input of Hoium, the energy of the
altemans component of the PT-wave depicted in the power
spectrum of the vector ECG is computed for each time-phase
matrix, which is different than determining, by the computing
device, the first interval and the second interval associated with
the first of the plurality of calipers and the second of the
plurality of calipers, respectively that is dependent on the first
of the plurality of caliper.
Br. 16-17.
We are not persuaded. As discussed supra, we agree with the
Examiner’s finding that Satin teaches “us[ing] calipers to measure waveform
intervals” and “adjusting] caliper positions” on waveform intervals. Ans. 3
(citing Satin || 45, 70); Final Act. 6 (citing Satin 197). The Examiner
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further finds, and we agree, Hoium teaches “timing markers where a single
timing marker is the defined boundary for two adjacent cardiac cycle
intervals.” Final Act. 8 (citing Hoium H 66, 100, Fig. 2). The Examiner
combines Satin’s and Hoium’s teachings, concluding it “would have been
obvious” to “[c]hang[e] the position of a time position marker that bounds
two intervals resulting in changing the adjacent intervals].” Final Act. 8—9.
As discussed supra, Appellants’ summary of Hoium, followed by a
conclusion that Hoium “is different” than the recited claim language (in this
instance with underlined claim language), is not a substantive argument that
persuasively and specifically addresses why the Examiner erred. See In re
Lovin, 652 F.3d at 1357.
Furthermore, to the extent Appellants assert that Hoium does not
disclose the claimed “first interval” and “second interval” (Br. 16—17), that
argument improperly attacks Hoium individually when the rejection is based
on the combination of Satin and Hoium. In re Keller, 642 F.2d 413, 426
(CCPA 1981). Specifically, Appellants do not address the Examiner’s
combination of Satin, teaching first and second intervals, with Hoium,
teaching dependent intervals, to teach “the first interval and the second
interval associated with the first of the plurality of calipers and the second of
the plurality of calipers, respectively that is dependent on the first of the
plurality of calipers.” Final Act. 8—9. Moreover, even if Hoium computes
“energy” for its intervals, as Appellants argue (Br. 16), the Examiner’s
rejection does not rely on that energy computing feature of Hoium. Rather,
the Examiner relies on Hoium to teach a single shared marker used to adjust
two adjacent intervals. Final Act. 8 (citations omitted); Ans. 3—A (citations
omitted).
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Accordingly, we are not persuaded the Examiner erred in finding the
combination of Satin and Hoium teaches “in response to receiving the user
input, determining, by the computing device, the first interval and the second
interval associated with the first of the plurality of calipers and the second of
the plurality of calipers, respectively that is dependent on the first of the
plurality of calipers,” as recited in claim 1 and similarly recited in claims 6
and 7. Appellants do not argue separate patentability for dependent
claims 2—5, which depend directly or indirectly from claim 1. See Br. 17.
Therefore, we sustain the Examiner’s decision to reject claims 1—7.
35 U.S.C. § 103(a): Claims 8—16
Appellants contend Mirow does not teach
displaying a second waveform segment of the waveform
in a first secondary layer, the second waveform segment being
associated with a second time period such that a first distance
between the primary layer and the first secondary layer is
proportional with a first physiological parameter value; and
displaying a third waveform segment of the waveform in
a second secondary layer, the third waveform segment being
associated with a third time period such that a second distance
between the first secondary layer and the second secondary layer
is proportional with a second physiological parameter value, and
a difference between the first physiological parameter value and
the second physiological parameter value indicates a
physiological irregularity,
as recited in claim 8 and similarly recited in claims 15 and 16. Br. 19—20.
Specifically, Appellants argue “Mirow provides a stacked power graph of
different waveforms” rather than displaying first, second, and third
“waveform segments] of the waveform.” Br. 19. Additionally, Appellants
argue “the differences between two separate stacked power graphs of Mirow
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(FIGS. 30 and 31) indicate changes in frequency distribution with treatment
of apnea” rather than “a difference between the first physiological parameter
value and the second physiological parameter value indicates a physiological
irregularity.” Br. 19-20.
We are not persuaded. The Examiner finds, and we agree, Beasley
teaches “stacked waveform segments of the same waveform.” Ans. 5—6
(citing Beasley 2:61—3:15, Fig. 3); Final Act. 13—14. The Examiner further
finds Mirow teaches “indicating] the physiological irregularity of sleep
apnea” based on the differences between waveforms. Ans. 7 (citing Mirow
1242, Figs. 30-31); Final Act. 14—15 (citing Mirow 1244).
As discussed supra, Appellants’ summary of Mirow, followed by a
conclusion that Mirow “is different” than underlined recited claim language,
is not a substantive argument that persuasively and specifically addresses
why the Examiner erred. See In re Lovin, 652 F.3d at 1357.
Furthermore, to the extent Appellants assert that Mirow teaches
stacking “different waveforms,” rather than stacking segments of the same
waveform (Br. 19), that argument improperly attacks Mirow individually
when the rejection is based on the combination of Beasley and Mirow. In re
Keller, 642 F.2d 426. Appellants do not address the Examiner’s
combination of Beasley, teaching stacked segments of the same waveform,
and Mirow, teaching waveform differences indicate a physiological
irregularity, to teach the “illustration] [of] a physiological irregularity” by
“display[ing]multiple segments of the same waveform” (Ans. 6; Final
Act. 15).
Additionally, even if we were to find Mirow’s graphs indicate
frequency distribution, as asserted by Appellants (Br. 19-20), the claims do
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not preclude such an indication. Moreover, that discussion of frequency
distribution (Br. 19—20) does not address the Examiner’s finding that Mirow
identifies a physiological irregularity by comparing physiological parameter
values, as required by the claims (Ans. 7; Final Act 14—15). In particular,
Mirow teaches a “sleep-time segment was separated from the awake-time
segment” and “VHF oscillations,” i.e., respective physiological parameters,
“have prominent power at night, indicating the apneic condition,” i.e., the
physiological irregularity. Mirow 1242. In addition, as Examiner points
out (Final Act. 15), Mirow teaches distinguishing between regular and
irregular physiological parameters by comparing “normal size” and normal
frequency VHF oscillations (Mirow, Fig. 31,1244) with “prominent power”
VHF oscillations (Mirow, Fig. 30,1242).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Beasley and Mirow teaches
displaying a second waveform segment of the waveform
in a first secondary layer, the second waveform segment being
associated with a second time period such that a first distance
between the primary layer and the first secondary layer is
proportional with a first physiological parameter value; and
displaying a third waveform segment of the waveform in
a second secondary layer, the third waveform segment being
associated with a third time period such that a second distance
between the first secondary layer and the second secondary layer
is proportional with a second physiological parameter value, and
a difference between the first physiological parameter value and
the second physiological parameter value indicates a
physiological irregularity,
as recited in claim 8 and similarly recited in claims 15 and 16. Appellants
do not argue separate patentability for dependent claims 10-14, which
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depend directly or indirectly from claim 8. See Br. 20. Therefore, we
sustain the Examiner’s decision to reject claims 8—16.
DECISION
We affirm the Examiner’s decision rejecting claims 1 and 3—7 under
35 U.S.C. § 103(a) as being unpatentable over Powell, Ramanathan, Satin,
and Hoium.
We affirm the Examiner’s decision rejecting claim 2 under 35 U.S.C.
§ 103(a) as being unpatentable over Powell, Ramanathan, Satin, Hoium, and
Freeman.
We affirm the Examiner’s decision rejecting claims 8 and 10—16
under 35 U.S.C. § 103(a) as being unpatentable over Powell, Beasley, and
Mirow.
We affirm the Examiner’s decision rejecting claim 9 under 35 U.S.C.
§ 103(a) as being unpatentable over Powell, Beasley, Mirow, and Goossens.
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.
§ 41.50(f).
AFFIRMED
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