Oura Health Oy

Patent Trials and Appeals Board

Sep 20, 2021

2020003860 (P.T.A.B. Sep. 20, 2021)

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.
14/606,341 01/27/2015 Harri Matti-Heikki Laakkonen P002 (112434.0009) 9069
179918 7590 09/20/2021
Holland & Hart LLP/Oura Health Oy
P.O. Box 11583
Salt Lake City, UT 84147
EXAMINER
PARK, PATRICIA JOO YOUNG
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
09/20/2021 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):
oura.pair.acct.1@maxval.com
patentdocket@hollandhart.com
patentdocketing@ouraring.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HARRI MATTI-HEIKKI LAAKKONEN,
HANNU OLAVI KINNUNEN, and
MARKKU OLAVI KOSKELA
____________

Appeal 2020-003860
Application 14/606,341
Technology Center 3700
____________

Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3, and 6, which are all of the pending claims.
Claims 2, 4, and 8 were cancelled, and claims 5, 7, and 9–13 were
withdrawn from consideration. Appeal Br. 19–20 (Claims Appendix). We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies “JOUZEN OY” as the real party in interest.
Appeal Br. 2.
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CLAIMED INVENTON
Appellant’s invention relates generally to improved
photoplethysmogram (PPG) technology for measuring health-related
information, such as respiration, pulse, and oxygen saturation. See Spec.
¶¶ 1–4, 19, 30. Typically, a pulse oximeter (a wearable device) is used to
obtain a PPG. Id. ¶ 2. A pulse oximeter measures changes in light
absorption using at least one photon emitting diode (LED), to illuminate the
skin and a photodiode to receive the reflected LED light. Id. ¶¶ 3, 19.
Current oximeters, however, suffer some drawbacks. For example,
operating the LED and photodiode requires substantial electrical power from
a battery, and applying a DC offset to correct for artifacts caused by ambient
light can introduce signal distortion. Id. ¶ 3. Appellant’s claimed invention
seeks to overcome these drawbacks. Id. ¶ 4.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter:
1. An apparatus for measuring a photoplethysmogram,
comprising:
a ring structure with at least one photon source and at least
one photon detector positioned on an inner surface of the ring
structure;
a first amplifier with an output comprising amplified signals
from the at least one photon detector;
an analog to digital converter;
a second amplifier with an input coupled to the output of the
first amplifier, and an output coupled to the analog to digital
converter; and
a controller configured to:
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measure a preliminary photoplethysmogram during a first
time period by taking a first number of samples from the
analog to digital converter;
determine an inter beat interval by measuring a time
interval between peaks of a pulse waveform of said
preliminary photoplethysmogram;
use the inter beat interval to determine a periodic
probability function having a higher value around likely
peaks of the pulse waveform, the probability function
determining a distribution of a second number of samples to
be taken during a second period of measurement of the
photoplethysmogram; and
dynamically apply a direct current bias offset adjustment
to the first amplifier based on the periodic probability
function, and apply the direct current bias offset adjustment
to the first amplifier during an off-peak time period of the
photoplethysmogram.
Appeal Br. 19 (Claims Appendix).

REJECTIONS
Claims 1 and 3 are rejected under 35 U.S.C. § 103 as unpatentable
over Lisogurski (US 2013/0324855 A1, pub. Dec. 5, 2013), Mestha
(US 2015/0018654 A1, pub. Jan. 15, 2015), He (US 2012/0203077 A1, pub.
Aug. 9, 2012), and Hong (US 2014/0275852 A1, pub. Sept. 18, 2014).
Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Lisogurski, Mestha, He, Hong, and Schipper (WO 2013/190423 A1, pub.
Dec. 27, 2013).
ANALYSIS
In rejecting claim 1 under 35 U.S.C. § 103, the Examiner relies
primarily on Lisogurski as teaching the claimed controller functionality. See
Final Act. 6–11. For example, the Examiner finds that Lisogurski at
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paragraph 40 and step 404 of Figure 4 teaches a controller configured to
measure a preliminary photoplethysmogram during a first time period by
taking a first number of samples (hereinafter, “the first finding”). Final
Act. 7. The Examiner further finds that paragraph 103 of Lisogurski teaches
that the controller is configured to determine an inter beat interval by
measuring a time interval between peaks of a pulse waveform of the
preliminary photoplethysmogram (hereinafter, “the second finding”). Id.
The Examiner also finds that paragraph 152 and Figure 16 of Lisogurski
teaches that the controller is configured to use the inter beat interval to
determine a periodic probability function having a higher value around
likely peaks of the pulse waveform, the probability function determining a
distribution of a second number of samples to be taken during a second
period of measurement of the photoplethysmogram (hereinafter, “the third
finding”). Id.
For the reasons set forth below, we are persuaded by Appellant’s
argument that the Examiner erred in rejecting claim 1 under 35 U.S.C.
§ 103, because Lisogurski does not teach or suggest at least “determin[ing]
an inter beat interval by measuring a time interval between peaks of a pulse
waveform of said preliminary photoplethysmogram” and “us[ing] the inter
beat interval to determine a periodic probability function having a higher
value around likely peaks of the pulse waveform, the probability function
determining a distribution of a second number of samples to be taken during
a second period of measurement of the photoplethysmogram,” as recited in
claim 1. See Appeal Br. 6–10, 14–15; see also Reply Br. 2–7. Specifically,
the Examiner does not support at least the second and third findings with
adequate evidentiary support or technical reasoning.
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Turning to the Examiner’s first finding, Appellant’s Specification
describes that the step of measuring a preliminary photoplethysmogram
involves collecting reflected light from blood vessels by at least one photon
detector, and then sending it to a first amplifier, a second amplifier, an
analogue to digital (AD) converter, and a microprocessor to generate the
PPG. See Spec. ¶¶ 24, 27–30, 54–56, 58, Fig. 2. The preliminary
photoplethysmogram is measured for a first time period ranging “from few
seconds to tens of seconds.” Id. ¶ 32. Specifically, the first time period
captures a sufficient number of samples to measure a preliminary PPG
having a well-defined and consistent form. Id. ¶ 33. For example, during a
first time period of 10 seconds, 2000 samples are taken to generate a
preliminary PPG having a well-defined and consistent form. See id. ¶¶ 34,
60, Fig. 3.
In contrast, Lisogurski at paragraph 40 generally explains what an
oximeter is, and that it may be used to obtain a PPG, which is a signal
representing light intensity over time or a mathematical manipulation
thereof. Figure 4 of Lisogurski pertains to emitting a photonic signal from a
first light source, receiving an attenuated photonic signal, and using the
information from the attenuated signal to generate a light drive signal for a
second light source. See Lisogurski ¶ 100, Fig. 4. Step 404 of Figure 4,
which the Examiner relies upon for teaching the claimed measuring step,
depicts a step of receiving a light signal corresponding to a first photonic
signal generated by a first light drive signal. See Lisogurski ¶ 102, Fig. 4.
As best we understand the rejection, the Examiner finds that Lisogurski at
step 404 of Figure 4 suggests receiving a “preliminary”
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photoplethysmogram during a “first” time period by taking a “first number
of samples from the analog to digital converter.”2
Claim 1 requires determining an inter beat interval from the
preliminary photoplethysmogram by measuring a time interval between
peaks of a pulse waveform of the preliminary photoplethysmogram, and
using the inter beat interval to determine a periodic probability function
having a higher value around likely peaks of the pulse waveform, the
probability function determining a distribution of a second number of
samples to be taken during a second period of measurement of the
photoplethysmogram. Because the Examiner characterizes the claimed
received light signal obtained at step 404 of Figure 4 of Lisogurski as the
claimed preliminary photoplethysmogram, the Examiner should show, with
adequate evidentiary support and technical reasoning, that Lisogurski
discloses: (1) measuring a time interval between peaks of a pulse waveform
of the received light to determine an inter beat interval, and (2) using that
inter beat interval to determine the claimed periodic probability function. As
described in more detail with reference to Figure 4 of Lisogurski we are not
persuaded that Lisogurski teaches or suggests these aspects of the claim
language.
Lisogurski teaches that the received signal obtained at step 404 is
analyzed at step 406 to determine when to activate a second light source.
Lisogurski ¶ 103, Fig. 4; see also id. ¶ 100 (disclosing that Figure 4 shows
steps for determining a physiological parameter by emitting a photonic

2 We note that Lisogurski does not disclose any particular time period for
measuring a PPG.

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signal from a first light source and using information from the related
attenuated signal to generate a light drive signal for a second light source).
For example, the system at step 406 of Figure 4, Lisogurski’s system may
identify peaks, valleys, inflection points, slope changes, and any other
suitable features in the received light signal for the first light source. Id.
¶ 103. The system also may use other information, such as “historical
analysis of prior cardiac cycles and information from external systems.” Id.
“For example, the system may determine an average pulse period from a
number of prior pulse cycles” and may calculate a standard deviation to
determine a confidence parameter for the historical information. Id. The
system may turn on the second light source a certain number of milliseconds
prior to the expected peak of the pulse signal or wait a certain number of
seconds following a peak in an ECG signal. Id.
As described above with reference to the Examiner’s second finding,
the Examiner finds that step 406 of Figure 4 teaches the claimed step of
determining an inter beat interval. Final Act. 7 (citing Lisogurski ¶ 103).
The Examiner explains in the Remarks section of the Final Office Action
that paragraph 103 of Lisogurski discloses that “one can identify peaks in
signals and determine average pulse period from a [sic] prior pulse cycles.”
Final Act. 2; see also id. (finding Figure 14 and paragraphs 141–143 of
Lisogurski teach “a time interval between two peaks,” “time periods
including pulse cycle[s] . . . [being] measured,” and “using an intra-cardiac
cycle period[,] such as systole, diastole and peak periods[,] for further
analysis”), Ans. 4–5 (citing Lisogurski ¶ 103, 141–143). Yet, identifying
features in the received light signal from the first light source, such as peaks
and valleys, does not teach or suggest “measuring a time interval between
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peaks of a pulse waveform of said preliminary photoplethysmogram” that
was measured “during a first time period by taking a first number of samples
from the analog to digital converter,” as required by the claim. Likewise,
determining an average pulse period from a historical analysis of prior
cardiac cycles does not teach or suggest measuring a time interval between
peaks of a pulse waveform of the received light signal. See Appeal Br. 7
(arguing that determining an average pulse period could be performed with a
number of different techniques).
Further, even if Lisogurski’s reference to an average pulse period
from a historical analysis could properly be construed as the claimed inter
beat interval, Lisogurski does not teach that this inter beat interval is used to
determine a periodic probability function that determines a distribution of a
second number of samples to be taken during a second period of
measurement of the photoplethysmogram, as recited in claim 1. Instead, it is
used to drive a different light source. See Lisogurski ¶¶ 100, 104, Fig. 4.
The Examiner’s additional citations to Figure 14 and its associated
paragraphs 141–143 in the Response to Arguments section of the Final
Office Action do not cure the deficiencies described with respect to the
Examiner’s second finding. Figure 14 shows a timing diagram for a
physiological monitoring system that skips cardiac cycles. Lisogurski ¶ 141,
Fig. 14. Specifically, Figure 14 shows PPG signal 1402, having a plurality
of pulse cycles 1406, 1408, 1410, 1412, 1414, 1416, and 1418. Light drive
signal 1404 is “on” for cycles 1406, 1412, and 1418, and “off” for cycles
1408, 1410, 1414, 1416. See id. ¶¶ 141, 142, Fig. 14. In some
embodiments, the system emits light from a first light source during the
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“off” cardiac cycles and emits light from a second light source during an
“on” cycle. Id. ¶ 143.
The Examiner finds that the pulse cycles 1406, 1408, 1410, 1412,
1414, 1416, and 1418 are time periods between two peaks of a
photoplethysmogram based on historical information from previous cardiac
cycles, which corresponds to the claimed interval. See Ans. 5. Yet,
Lisogurski does not teach that PPG signal 1402 is measured “during a first
time period by taking a first number of samples,” nor does Lisogurski
describe determining an inter beat interval by measuring a time interval
between peaks of a pulse waveform of a photoplethysmogram measured in
this manner. Instead, Figure 14 shows a timing diagram of a light drive
signal in relation to cardiac signals of a PPG. Further, we note that even if
the pulse cycles depicted in Figure 14 were construed as the claimed inter
beat interval, these pulse cycles are not used to determine a periodic
probability function having a higher value around likely peaks of the pulse
waveform, the probability function determining a distribution of a second
number of samples to be taken during a second period of measurement of the
photoplethysmogram, as further required by claim 1.
Seemingly acknowledging that neither the embodiment described with
reference to Figure 4 nor the embodiment described with reference to
Figure 14 teaches using the claimed inter beat interval to determine a
periodic probability function, the Examiner relies on paragraph 152 of
Lisogurski for teaching this limitation (i.e., the third finding). See Final
Act. 7. Paragraph 152 of Lisogurski refers to an embodiment described with
reference to Figure 17.
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This embodiment relates to decimating and interpolating a signal at
different rates throughout a cardiac signal. See Lisogurski ¶¶ 26, 152,
Fig. 17. In one example, the system may increase the sampling frequency
around a feature, such as a peak or notch, in a cardiac pulse cycle, and
decrease the sampling frequency at less critical parts of the cycle. Id. ¶ 152,
Fig. 17. At step 1702 of Figure 17, the system receives a signal and samples
it at a first rate. Id. ¶ 153, Fig. 17. At step 1704 the system receives a signal
and samples it at a second sampling rate. Id. ¶ 154, Fig. 17.
The Examiner takes the position that Lisogurski’s teaching of
increasing the sampling around a feature teaches determining a periodic
probability function having a higher value around likely peaks of the
waveform, the probability function determining a distribution of a second
number of samples to be taken during a second period of measurement of the
photoplethysmogram. See Final Act. 3; Ans. 7. Lisogurski at Figure 17 and
its associated paragraphs teaches sampling a signal at a first sampling
frequency and at a second sampling frequency, and that a sampling
frequency can be varied around a cardiac pulse feature or notch. However,
these portions of Lisogurski do not teach or suggest the claimed “inter beat
interval” or a “periodic probability function,” much less using the claimed
inter beat interval to “determine a periodic probability function having a
higher value around likely peaks of the pulse waveform, the probability
function determining a distribution of a second number of samples to be
taken during a second period of measurement of the photoplethysmogram,”
as recited in claim 1. Indeed, it is unclear what the Examiner construes as
the claimed “inter beat interval” or “periodic probability function” in the
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context of the embodiment of Lisogurski described with reference to
Figure 17.
The Examiner additionally finds that Figure 16 of Lisogurski, which
pertains to yet another embodiment, shows light drive signal 1612 having a
higher value around likely peaks of a pulse waveform and substantially
aligned with a cardiac cycle feature, and concludes that light drive signal
1612 teaches a probability function determining a distribution of a second
number of samples to be taken during a second period of measurement of the
photoplethysmogram. Ans. 7 (citing Lisogurski Fig. 16, ¶¶ 149–152); see
also Final Act. 3. Figure 16 of Lisogurski shows exemplary timing diagram
1600, which includes light drive signal 1612 varying continuously according
to a periodic waveform, and PPG signal 1610. See Lisogurski ¶ 149,
Fig. 16. Waveform maxima of light drive signal 1612 are substantially
aligned with peak 1616 of PPG signal 1610. Id. ¶ 150, Fig. 16. The system
determines timing of the cardiac cycle using “historical information from
previous cardiac cycles” or “from an external sensor, from user input, from
measurements made with a different cardiac cycle modulation” or “by any
other suitable technique.” Id. ¶ 151. Figure 16 of Lisogurski, thus, shows a
light drive signal having a sinusoidal waveform. However, Lisogurski does
not teach that the light drive signal is a periodic probability function that
determines a distribution of a second number of samples to be taken during a
second period of measurement of the photoplethysmogram, as required by
claim 1.
For at least the foregoing reasons, we do not sustain the rejection of
claim 1 and dependent claim 3 under 35 U.S.C. § 103 as unpatentable over
Lisogurski, Mestha, He, and Hong. The Examiner’s rejection of dependent
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claim 6 does not cure the rejection of independent claim 1. Therefore, we do
not sustain the Examiner’s rejection of claim 6 under 35 U.S.C. § 103 as
unpatentable over Lisogurski, Mestha, He, Hong, and Schipper for the same
reasons described with respect to the rejection of claim 1.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§  Basis/References Affirmed Reversed
1, 3 103 Lisogurski, Mestha, He, Hong 1, 3
6 103
Lisogurski,
Mestha, He, Hong,
Schipper
6
Overall
Outcome 1, 3, 6

REVERSED