KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jun 25, 2020

2020000340 (P.T.A.B. Jun. 25, 2020)

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. 15/300,318 09/29/2016 Abigail Acton Flower 2013P02161WOUS 9483 24737 7590 06/25/2020 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER WEARE, MEREDITH H ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 06/25/2020 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): katelyn.mulroy@philips.com marianne.fox@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 ABIGAIL ACTON FLOWER ____________________ Appeal 2020-000340 Application 15/300,318 Technology Center 3700 ____________________ Before ANTON W. FETTING, NINA L. MEDLOCK, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. According to Appellant, the disclosure relates to “monitoring a perfusion2 of a patient.” Spec., Abstract. Claims 1, 11, and 20 are the 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. In the Appeal Brief, Appellant does not identify a real party in interest. The Application Data Sheet filed with the application identifies the applicant as KONINKLIJKE PHILIPS N.V. 2 Perfusion is pumping a liquid into an organ or tissue. Appeal 2020-000340 Application 15/300,318 2 independent claims on appeal. Below, we reproduce independent claim 1 as illustrative of the appealed claims. 1. A method for monitoring a perfusion of a patient, comprising: receiving, with a processor, an indication of a voltage applied across a chest of the patient via a first electrode; receiving, with the processor, a measurement of a current across the chest of the patient resulting from the applied voltage via a second electrode; generating, with the processor, an impedance-based respiratory rate waveform based on the applied voltage and the measured current; generating, with the processor, a Fourier Transform in a heartbeat-based time domain of the impedance-based respiratory rate waveform by using a heartbeat of the patient as a clock; isolating, with the processor, cardiac artifacts in the Fourier Transform; and generating, with the processor, a perfusion waveform indicating a perfusion of a chest cavity of the patient based on the isolated cardiac artifacts. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. Claims 1, 6-9, 11, 15-18, and 20 under 35 U.S.C. § 103 as unpatentable over Ackmann3 and Delos4; II. Claims 2-5 and 12-14 under 35 U.S.C. § 103 as unpatentable over Ackmann, Delos, and Skrabal5; and 3 Ackmann et al., US 5,178,154, issued Jan. 12, 1993 (“Ackmann”). 4 Delos et al., US 2012/0172730 A1, published July 5, 2012 (“Delos”). 5 Skrabal, US 2009/0216140 A1, published Aug. 27, 2009. Appeal 2020-000340 Application 15/300,318 3 III. Claims 10 and 19 under 35 U.S.C. § 103 as unpatentable over Ackmann, Delos, and Harris.6 ANALYSIS Rejection I-Obviousness rejection of claims 1, 6-9, 11, 15-18, and 20 Based on our review of the record, the Examiner does not support adequately that claim 1 would have been obvious based on Ackmann and Delos. As set forth above, independent claim 1 recites a method for monitoring a perfusion of a patient comprising, in relevant part, generating, with the processor, an impedance-based respiratory rate waveform based on the applied voltage and the measured current; generating, with the processor, a Fourier Transform in a heartbeat-based time domain of the impedance-based respiratory rate waveform by using a heartbeat of the patient as a clock; isolating, with the processor, cardiac artifacts in the Fourier Transform; and generating, with the processor, a perfusion waveform indicating a perfusion of a chest cavity of the patient based on the isolated cardiac artifacts. Appeal Br., Claims App. To summarize, the claimed method isolates cardiac artifacts from a respiratory waveform, and generates a perfusion waveform indicating a patient’s chest cavity’s perfusion based on those isolated cardiac artifacts. The Examiner does not rely on Ackmann to disclose isolating cardiac artifacts from a respiratory waveform, and does not rely on Ackmann to 6 Harris et al., US 3,909,792, issued Sept. 30, 1975 (“Harris”). Appeal 2020-000340 Application 15/300,318 4 generate a perfusion waveform indicating a patient’s chest cavity’s perfusion based on those isolated cardiac artifacts. See, e.g., Final Action 3-4. Instead, the Examiner relies on Delos to disclose isolating cardiac artifacts from a respiratory waveform, and determines that after isolating these artifacts, it would have been obvious to modify Ackmann to use the isolated cardiac artifacts to generate a perfusion waveform indicating a patient’s chest cavity’s perfusion based on those isolated cardiac artifacts. See, e.g., id. at 4-5. As Appellant points out, however, “Delos filters out cardiac components instead of passing them.” Appeal Br. 7; see also id. at 8. “Delos . . . disclos[es] ‘filter[ing] out electrical functions resulting from the heartbeat such that chest impedance measurements more accurately track the respiratory rate.’” Reply Br. 2 (emphases omitted) (citation to Delos omitted). That is, to the extent that Delos isolates cardiac artifacts, Delos discloses discarding those artifacts but not using those artifacts to determine perfusion. Without providing further explanation or evidence, the Examiner does not support adequately that it would have been obvious to modify Ackmann to use isolated cardiac artifacts from a respiratory waveform to generate a perfusion waveform indicating a patient’s chest cavity’s perfusion, as claimed. Accordingly, we do not sustain the Examiner’s obviousness rejection of independent claim 1. We also do not sustain the Examiner’s obviousness rejection of independent claims 11 and 20 that include a similar recitation as, and the Examiner rejects with, claim 1. Further, we do not sustain the obviousness rejection of claims 6-9 and 15-18 that depend from claims 1 and 11. Appeal 2020-000340 Application 15/300,318 5 Rejections II and III-Obviousness rejections of claims 2-5, 10, 12- 14, and 19 Claims 2-5, 10, 12-14, and 19 depend from independent claims 1 and 11. As discussed above, we do not sustain the independent claims’ rejection. The Examiner does not rely on Skrabal or Harris to disclose anything that would remedy the above-discussed deficiency in the independent claim’s rejection. Thus, we also do not sustain the Examiner’s obviousness rejections of dependent claims 2-5, 10, 12-14, and 19. CONCLUSION We REVERSE the Examiner’s § 103 rejections of claims 1-20. In summary: Claims Rejected 35 U.S.C. § Basis/Reference(s) Affirmed Reversed 1, 6-9, 11, 15-18, 20 103 Ackmann, Delos 1, 6-9, 11, 15-18, 20 2-5, 12-14 103 Ackmann, Delos, Skrabal 2-5, 12-14 10, 19 103 Ackmann, Delos, Harris 10, 19 Overall Outcome 1-20 REVERSED