10323606 (B.P.A.I. Sep. 20, 2010)

Ex Parte Stahmann et al

Board of Patent Appeals and InterferencesSep 20, 2010

10323606 (B.P.A.I. Sep. 20, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte JEFFREY E. STAHMANN, JOHN HATLESTAD and QINGSHENG ZHU ____________________ Appeal 2009-003987 Application 10/323,606 Technology Center 3700 ____________________ Before STEVEN D.A. McCARTHY, MICHAEL W. O’NEILL, and FRED A. SILVERBERG, Administrative Patent Judges. SILVERBERG, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-003987 Application 10/323,606 2 STATEMENT OF THE CASE Jeffrey E. Stahmann et al. (Appellants) seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-38. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ claimed invention is directed to reporting multiple parameters related to the health condition of a patient from a variety of sources, e.g., data provided by an implanted medical device (Spec. 2:26- Spec. 3:11). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A programmable device within an advanced patient management system, the device comprising a computer- readable medium with machine executable instructions stored thereon for performing a computer-executable process to report multiple parameters related to a health condition of a patient, the computer-executable process comprising: acquiring one or more trended health-related parameters; acquiring one or more predetermined events corresponding to the one or more trended health-related parameters, wherein each of the one or more predetermined events represents an event condition where a predetermined event definition is satisfied; acquiring one or more alerts associated with the one or more predetermined events, wherein each of the one or more alerts represents an alert condition where a predetermined alert definition is satisfied, and is distinct from each of the one or more events; and communicating the one or more trended health-related parameters, the one or more predetermined events, and the one Appeal 2009-003987 Application 10/323,606 3 or more alerts in a manner suitable for use in determining the health condition of the patient. THE REJECTIONS The following rejections by the Examiner are before us for review: 1. Claims 1, 2, 4, 12-15, 18, 19, 22, 25, 30, 33 and 36 are rejected under 35 U.S.C. § 102(b) as being anticipated by Schradi (US 5,860,918, issued Jan. 19, 1999). 2. Claims 3-6, 10, 11, 16, 20, 21, 26, 27, 31, 32, 35 and 38 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Snell (US 5,431,691, issued Jul. 11, 1995). 3. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Snell, and further in view of Haller2 (US 2002/0052539 A1, published May 2, 2002). 4. Claims 8 and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Snell, and further in view of Weisner (US 5,262,944, issued Nov. 16, 1993). 5. Claim 23 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Weisner. 6. Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Snell, and further in view of Quy (US 2001/0047125 A1, published Nov. 29, 2001). 7. Claims 24, 29, 34 and 37 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Quy. 2 Referred to by the Examiner as “Hailer” (Ans. 13). Appeal 2009-003987 Application 10/323,606 4 8. Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Schradi in view of Ousdigian (US 6,438,407 B1, issued Aug. 20, 2002). ISSUE The issue before us is whether the Examiner erred in finding that Schradi describes an alert associated with a predetermined event, as called for in independent claims 1, 15, 33 and 36 (App. Br. 14-15). ANALYSIS Anticipation Rejection Claims 1, 2, 4, 12-15, 18, 19, 22, 25, 30, 33 and 36 Appellants contend that Schradi does not describe an alert associated with a predetermined event, as called for in independent claims 1, 15, 33 and 36 (App. Br. 14-15). The Examiner found that Schradi describes an alert associated with a predetermined event (Ans. 24). In support of the finding, the Examiner found that “as can be seen in Fig. 5D of Schradi et al., an alarm line 556 is indicated within a related event 508” (emphasis added) (id). Appellants’ Specification describes a predetermined event as follows: In various embodiments, the predetermined events include significant events that are clinically important. Significant events includes [sic] those events that are clinically important in themselves (such as ventricular fibrillation), those events that trigger an important change (such as loss of ventricular pacing) or those events that explain a change (such as increased anxiety). . . . At 1777 [of Figure 17], predetermined events are defined. In various embodiments, predetermined events are significant health-related events, such as events that are clinically important in themselves, events that trigger a change, and/or events that explain a Appeal 2009-003987 Application 10/323,606 5 change. Examples of predetermined events includes [sic] device (e.g. IMD) therapy changes initiated by the device and/or clinician, a drug therapy change initiated by the device and/or clinician, arrhythmic events, changes in trended parameters, and autonomously-identified parameter correlations. (Spec. 36: 5-23). Appellants further contend that in Schradi, (1) 508 as shown in Figure 5D is a time window to record parameters and not an event (Reply Br. 8), and (2) 556, which is associated with 508, is not an alert associated with an event (id). Independent claims 1, 15, 33 and 36 call for, inter alia, an alert associated with a predetermined event, wherein the alert is distinct from the event. Schradi describes that “[a]n event is triggered if this average numeric value exceeds the event threshold or falls below said event threshold for a period of time given by the so-called event trigger time” (col. 11, l. 1-4), and that “[s]ubsequently, a time window is opened” (col. 11, l. 7). Schradi describes the following regarding Figure 5D: In FIG. 5D, a case is shown where the episode window, which has a length of four minutes according to the present embodiment, contains neither the max-exceed value 540 nor the passage of the physiological parameter through the threshold 500, cf. point 550. This can, for example, be the case if the alarms are switched off initially and are then switched on while the average numeric value of parameter 504 is below the threshold 500. In this case, an event trigger 556 is generated as soon as the alarms are switched on. (col. 12, ll. 1-9). Thus, Schradi describes an event as being threshold triggered, that is, an event is triggered when the numeric value goes below the threshold. Appeal 2009-003987 Application 10/323,606 6 In Figure 5D of Schradi, the episode window 508 does not contain the passage of the physiological parameter through the threshold 500 and is, therefore, not threshold triggered. Since episode window 508 in Figure 5D is not threshold triggered, we find that episode window 508 in Figure 5D is not an event window. Thus, we are constrained to reverse the rejection of independent claims 1, 15, 33 and 36, and claims 2, 4, 12-14, 18, 19, 22, 25 and 30, which depend therefrom. Obviousness Rejections Claims 3, 5-11, 16, 17, 20, 21, 23, 24, 26-29, 31, 32, 34, 35, 37 and 38 The Examiner has not relied on Snell, Haller, Weisner, Quy or Ousdigian for any teaching that would remedy the deficiency in Schradi (Ans. 7, 13, 14, 15, 16, 18, 19). Thus, we reverse the rejection of claims 3, 5-11, 16, 17, 20, 21, 23, 24, 26-29, 31, 32, 34, 35, 37 and 38; which depend from independent claims 1, 15, 33 and 36, respectively. CONCLUSION The Examiner has erred in finding that Schradi describes an alert associated with a predetermined event, as called for in independent claims 1, 15, 33 and 36. DECISION The decision of the Examiner to reject claims 1-38 is reversed. REVERSED Appeal 2009-003987 Application 10/323,606 7 mls SCHWEGMAN, LUNDBERG & WOESSNER/BSC-CRM PO BOX 2938 MINNEAPOLIS, MN 55402