Ex Parte Pittman et al

Patent Trial and Appeal Board

Jun 19, 2017

13263084 (P.T.A.B. Jun. 19, 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.
13/263,084 10/06/2011 Stephen Dalton Pittman 2009P00778WOUS 1051
24737 7590 06/21/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue WEARE, MEREDITH H
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
06/21/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN DALTON PITTMAN, ERIK KURT WITT, and
DOUGLAS MECHLENBURG
Appeal 2015-006947
Application 13/263,084
Technology Center 3700
Before MICHAEL W. KIM, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1, 3—6, 8—11, and 13—15. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, “[t]he real party in interest is KONINKLIJKE
PHILIPS ELECTRONICS N.V.” (Appeal Br. 2.)
Appeal 2015-006947
Application 13/263,084
STATEMENT OF THE CASE
The Appellants’ claimed system/method “relates to the identification
of pulmonary congestion in a subject to facilitate preemptive treatment of
heart failure associated with identified pulmonary congestion.” (Spec. 12.)
Illustrative Claim
1. A system configured to monitor pulmonary congestion in a
subject, the system comprising:
a user interface configured to enable a user to interact with
the system;
one or more physical processors configured to implement
a plurality of computer program modules, the computer program
modules comprising:
a parameter module configured to receive output
signals from one or more sensors configured to monitor gas
breathed by a subject, the output signals conveying information
about the gas breathed by the subject, the parameter module
being further configured to determine parameters of the
breathing of the subject from the received output signals, the
parameters of the breathing of the subject including a lung
compliance parameter and a percentage of Cheyne-Stokes
respiration;
a threshold module configured to adjust a lung
compliance threshold based on the percentage of Cheyne-Stokes
respiration, wherein the adjustment increases a sensitivity of the
system to identify pulmonary congestion;
a congestion monitor module configured to identify
pulmonary congestion in the subject based on the lung
compliance parameter falling below the lung compliance
threshold for at least a predetermined time; and
a notification module configured to control the user
interface to provide a notification to the user of pulmonary
congestion in the subject, responsive to the congestion monitor
module identifying pulmonary congestion in the subject.
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Application 13/263,084
References
Turcott
Stahmann561
Stahmann609
Haro
US 6,409,675 B1 June 25, 2002
June 2, 2005
Dec. 28, 2006
Nov. 27, 2008
US 2005/0115561 A1
US 2006/0293609 A1
US 2008/0294060 A1
Rejection
The Examiner rejects claims 1, 3—6, 8—11, and 13—15 under 35 U.S.C.
§ 103(a) as unpatentable over Stahmann561, Haro, Turcott, and
Stahmann609. (Final Action 3.)
Claims 1, 6, and 11 are the independent claims on appeal, with the rest
of the claims on appeal (i.e., claims 3—5, 8—10, and 13—15) depending
directly or indirectly therefrom. (See Appeal Br., Claims App.)
Independent claims 1 and 11 recite “[a] system configured to monitor
pulmonary congestion in a subject,” and independent claim 6 recites “[a]
method of monitoring pulmonary congestion in a subject.” (Appeal Br.,
Claims App.) The Examiner finds that Stahmann561 teaches a system and a
method for monitoring pulmonary congestion in a subject. (See Final
Action 3.) Stahmann561 teaches that there are “complex interactions
between the cardiovascular, pulmonary, and other systems” and provides
“systems and methods for monitoring” these conditions in a patient.
(Stahmann561 11, 12.)
The independent claims also recite “parameters of the breathing of the
subject” that include “a lung compliance parameter and a percentage of
Cheyne-Stokes respiration.” (Appeal Br., Claims App.) The Examiner finds
ANALYSIS
Independent Claims 1, 6, and 11
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Application 13/263,084
that Stahmann561 teaches such breathing parameters. (See Final Action 4.)
Stahmann561 lists “high lung compliance” as a symptom associated with
“pulmonary diseases.” (Stahmann56111146.) And Stahmann561 discloses
“disordered breathing in the form of Cheyne-Stokes respiration.” (Id.
1357.)
The Appellants argue that the prior art does not mention any particular
percentage of Cheyne-Stokes respiration. (See Appeal Br. 12—14; 35—37;
55—57.) We are not persuaded by this argument because Stahmann561
specifically draws attention to particular characteristics of disordered
breathing, including “origin, duration, and severity.” (Stahmann561 1357.)
Thus, one of ordinary skill in the art would appreciate that characteristics
beyond the mere presence of Cheyne-Stokes respiration should be
considered when evaluating parameters associated with disordered
breathing. At least some of the characteristics listed by Stahmann561 (e.g.,
duration, severity) are akin to “the percentage of time that the subject
experiences Cheyne-Stokes respiration.” (Spec. 143.) We further note that
Turcott teaches “the time tracing of the lung volume and various physiologic
signals during Cheyne-Stokes respiration” (Turcott col. 8,11.30—32); and
Stahmann609 teaches measuring a subject’s respiratory pattern in terms of
“number of breaths/unit time” (Stahmann609 1 66).2
As indicated above, independent claims 1, 6, and 11 recite “a lung
compliance parameter,” and Stahmann561 teaches that this is a symptom
associated with pulmonary diseases. Independent claims 1, 6, and 11
2 Moreover, as pointed out by the Examiner “no particular percentage of
Cheyne-Stokes respiration or particular Cheyne-Stokes threshold is recited
in the claims.” (Answer 3.)
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Application 13/263,084
additionally recite the identification of “the lung compliance parameter
falling below [a] lung compliance threshold for at least a predetermined
time.” (Appeal Br., Claims App.) The Examiner finds that Haro teaches
monitoring a pulmonary function parameter and identifying a trend. (See
Final Action 5—6.) Haro teaches that “[o]ne relevant pulmonary function
parameter is lung compliance” (Haro 128). Haro also discloses that
“pulmonary function parameter trends can be useful in identifying and
monitoring many different conditions and diseases.” (Id. 197.)
The Appellants argue that “detecting a trend” is not “the same thing as
a lung compliance parameter falling below a threshold” for a predetermined
time. (Appeal Br. 12; see also id. at 32, 53 (emphasis omitted).) We are not
persuaded by this argument because Haro establishes a trend by
“periodically calculating the value for a pulmonary function parameter in
real time and comparing it with a reference value, such as the base line
value.” (Haro 193.)3 Haro also teaches that “[a]n adverse trend can include
one or more pulmonary function parameter measurements that deviate from
the baseline value.” (Id.) In other words, Haro does indeed indicate that a
trend can be “a number of consecutive measurements falling below [a]
threshold.” (Appeal Br. 13; see also id. at 33, 54.)
Independent claims 1, 6, and 11 further recite an adjustment of “[the]
lung compliance threshold based on the percentage of Cheyne-Stokes
respiration” and this adjustment “increases a sensitivity of the [system
3 The Appellants contend that “there is no description in paragraph [0093] of
how often the measurements are taken or determining anything at all based
on time.” (Reply Br. 5.) However, Haro discloses “periodically” calculating
values in real time, and one of ordinary skill would have inferred that these
periodic calculations correspond to time periods.
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Application 13/263,084
/method] to identify pulmonary congestion.” (Appeal Br., Claims App.)
The Examiner finds that the prior art collectively teaches such an
adjustment. (See Final Action 7.) As indicated above, Stahmann561 lists
“high lung compliance” as a symptom associated with “pulmonary
diseases.” (Stahmann56111146.) Also, Haro discloses comparing a
measured lung compliance parameter to a threshold to identify pulmonary-
related conditions (see Haro 193); Turcott teaches that “recognition of
Cheyney-Stokes [sic] respiration” allows the detection of “pulmonary
edema” (Turcott, col. 2,11. 15—20); and Stahmann609 teaches that a
threshold may be adjusted to increase sensitivity when a patient’s symptoms
“point toward the presence of pulmonary edema” (Stahmann609127).
The Appellants argue that Stahmann609 “describes adjusting a
thoracic impedance threshold” and “[ajdjusting a thoracic impedance
threshold is not the same as adjusting a lung compliance threshold.”
(Appeal Br. 18; see also id. at 37, 57.) The argument is misplaced because
the Examiner’s rejection does not rely upon the equating of thoracic
impedance in Stahmann609 to lung compliance, instead relying on the above
referenced portions of the prior art collectively. To that end, we agree with
the Examiner that one of ordinary skill in the art would have inferred from
the combined teachings of the above referenced portions of the prior art that
“altemate/additional parameters known to be indicative of, or pointing
towards, pulmonary congestion could be similarly utilized to achieve the
same advantage (i.e., increasing detection sensitivity), such as adjusting a
lung compliance threshold when secondary information [] points towards the
presence of pulmonary congestion.” (Answer 4.)
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Accordingly, the Appellants do not establish that the Examiner errs in
finding that the prior art references collectively teach an adjustment of “a
lung compliance threshold based on the percentage of Cheyne-Stokes
respiration,” and an identification of “pulmonary congestion in the subject
based on the lung compliance parameter falling below the lung compliance
threshold for at least a predetermined time.”4
Thus, we sustain the Examiner’s rejection of independent claims 1, 6,
and 11 under 35 U.S.C. § 103(a) as unpatentable over Stahmann561, Haro,
Turcott, and Stahmann609.
Dependent Claims 2, 3, 8, and 13
The Appellants do not argue dependent claims 2, 3, 8, and 13
separately from independent claims 1, 6, and 11 (see Appeal Br. 19-26;
39-46; 59—66) and so they fall therewith. Thus, we sustain the Examiner’s
rejection of dependent claims 2, 3, 8, and 13 under 35 U.S.C. § 103(a) as
unpatentable over Stahmann561, Haro, Turcott, and Stahmann609.
Dependent Claims 4, 9, and 14
As discussed above, the Appellants do not establish that the Examiner
errs in determining that the prior art teaches the adjustment of the lung
compliance threshold based on the percentage of Cheyne-Stokes respiration.
Thus, for the purposes of this appeal, we treat as admitted fact that the prior
art teaches an evaluation of the percentage of Cheyne-Stokes respiration to
determine whether adjustment of the lung compliance threshold is
4 The Appellants challenge only the Examiner’s findings regarding the
content of the prior art teachings (see Appeal Br. 6—19, 26—39, 46—59; see
also Reply Br. 4—9); and ,thus, the Examiner’s findings, determinations, and
reasoning regarding the combination of the prior art teachings (see Final
Action 6—8) are not addressed in our analysis.
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warranted. In re Fox, 471 F.2d 1405, 1407 (CCPA 1973) (“In this court [or
before the board, because] appellant has not denied the existence of the facts
on which the examiner rested his obviousness rejection nor the added facts
of which the board took judicial notice,” we accept them as accurate.).
Dependent claims 4, 9, and 14 recite this adjustment of the lung
compliance threshold is “responsive to the percentage of Cheyne-Stokes
respiration breaching a Cheyne-Stokes threshold.” (Appeal Br., Claims
App.) In other words, dependent claims 4, 9, and 14 require the above-noted
evaluation of the percentage of Cheyne-Stokes respiration to include a
comparison of this pulmonary function parameter to a baseline (i.e., a
threshold). As noted by the Examiner, Haro teaches that an evaluation of a
pulmonary function parameter (e.g., lung compliance) can involve the
consideration of “deviation from a baseline.” (Answer 5.) As such, one of
ordinary skill in the art would have, therefore, inferred that an evaluation of
the percentage of Cheyne-Stokes respiration would involve a comparison of
this parameter to a baseline or threshold, and that an undesirable deviation
from this baseline would equate to breaching a threshold.
Accordingly, we are not persuaded by the Appellants’ arguments (see
Appeal Br. 19—22; 39-42; 59—62) that the Examiner errs in determining that
one of ordinary skill would have appreciated, from the combined teachings
of the prior art references, that an adjustment of the lung compliance
threshold should be made in response to the percentage of Cheyne-Stokes
respiration “breaching” a threshold (see Answer 5—6).
Thus, we sustain the Examiner’s rejection of dependent claims 4, 9,
and 14 under 35 U.S.C. § 103(a) as unpatentable over Stahmann561, Haro,
Turcott, and Stahmann609.
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Dependent Claims 5, 10, and 15
As discussed above, the Appellants do not establish that the Examiner
errs in determining that the prior art teaches an adjustment of the lung
compliance threshold (responsive to the percentage of Cheyne-Stokes
respiration breaching a threshold) to increase sensitivity of the
method/system to identify pulmonary congestion. Thus, for the purposes of
this appeal, we treat as admitted fact that the prior art teaches changing a
threshold condition so that the system/method will more readily detect that
pulmonary congestion is occurring.
Dependent claims 5, 10, and 15 recite that “the predetermined amount
of time” used “to identify pulmonary congestion” is reduced “responsive to
the percentage of Cheyne-Stokes respiration breaching a Cheyne-Stokes
threshold.” (Appeal Br., Claims App.) In other words, dependent claims 5,
10, and 15 require changing a threshold condition (time duration) so that the
system/method will more readily detect that pulmonary congestion is
occurring. As noted by the Examiner, Haro teaches that detection of a
pulmonary function parameter (e.g., lung compliance) can entail the
consideration of the “duration of the deviation.” (Answer 5.) As such, one
of ordinary skill would have inferred that a reduction in a threshold-duration
condition would result in a system/method more readily detecting pulmonary
congestion is occurring and, hence, increase its sensitivity.
Accordingly, we are not persuaded by the Appellants’ arguments (see
Appeal Br. 22—26; 42-46; 62—66) that the Examiner errs in determining that
one of ordinary skill in the art would have appreciated, from the combined
teachings of the prior art references, that a time-related condition of the lung
compliance threshold would have been reduced to increase system/method
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sensitivity so as to more readily detecting pulmonary congestion is occurring
(see Answer 5—7).
Thus, we sustain the Examiner’s rejection of dependent claims 5, 10,
and 15 under 35 U.S.C. § 103(a) as unpatentable over Stahmann561, Haro,
Turcott, and Stahmann609.
DECISION
We AFFIRM the Examiner’s rejection of claims 1, 3—6, 8—11,
and 13—15.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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