Erich Vlach et al.

Patent Trials and Appeals Board

Sep 4, 2019

14547895 - (D) (P.T.A.B. Sep. 4, 2019)

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.
14/547,895 11/19/2014 Erich Vlach 108622-0025-103 7050
156116 7590 09/04/2019
BRAEMAR MANUFACTURING, LLC
1285 Corporate Center Drive
Suite 150
Eagan, MN 55121
EXAMINER
BORROMEO, JUANITO C
ART UNIT PAPER NUMBER
2184
NOTIFICATION DATE DELIVERY MODE
09/04/2019 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):
biotelemetry_docketing@cardinal-ip.com
chang.b.hong@gmail.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERICH VLACH, ANNA McNAMARA, and
CHARLES GROPPER
____________

Appeal 2018-005939
Application 14/547,895
Technology Center 2100
____________

Before DENISE M. POTHIER, JUSTIN BUSCH, and BETH Z. SHAW,
Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1,2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 7, 9–12, 16–27, and 29–32. Claims 1–6, 8, 13–15, and
28 have been canceled. Br. 3. We affirm.
Appellants’ invention relates to “systems and techniques by which

1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed
August 24, 2017, the Appeal Brief (Appeal Br.) filed November 22, 2017,
and the Examiner’s Answer (Ans.) mailed February 8, 2018. No reply brief
was filed.
2 Appellants identify the real party in interest as Braemar Manufacturing,
LLC. Br. 3.
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physiological data for an individual (e.g., a patient or test subject) can be
obtained corresponding to a physiological characteristic[,] such as cardiac
activity[,] and analysis of that physiological activity can be performed by a
remote data processing center.” Spec. ¶ 3. A data collection device (e.g.,
105, 805, 905) “can obtain, for example, ECG data from the subject for a
predefined period of time and can store the ECG data on a storage medium
in the physiological data collection device.” Id., Figs. 1, 8A–9B.
Independent claim 7 reads as follows:
7. An electro-cardiogram (ECG) self-assessment kit
comprising:
an ECG sensor comprising one or more electrode leads;
multiple ECG electrodes configured to connect to the one or
more electrode leads;
a power source having sufficient power to power the
ECG self-assessment kit for 14 days; and
a wearable subject ECG data collection unit comprising:
a USB connector configured to interface with a
USB port on a computer,
non-volatile memory coupled with the USB
connector and storing program code that when run by the
computer supports access to a remote data processing
center for uploading ECG data from the non-volatile
memory to the remote data processing center when the
USB connector is connected to a computer connected to a
network, the non-volatile memory having sufficient
memory to store 14 days of ECG data, and
a processor powered by the power source and
programmed to obtain the ECG data from the electrode
leads and to store the ECG data in the non-volatile
memory; and
wherein the power source is internal to the portable
subject ECG data collection unit.

Br. 10 (Claims App’x) (emphases added).
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THE REJECTION AND CONTENTIONS
Claims 7, 9–12, 16–27, and 29–32 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Young (US Pat. No.
8,082,027 B2, issued Dec. 20, 2011), Dziubinski (US Pub. No.
2009/0171227 A1, published July 2, 2009), and Brucchi (EP 2383859 A1,
published Nov. 2, 2011). Final Act. 2–9. The Examiner finds that Young
teaches many of claim 7’s elements, including a wearable ECG data
collection unit and a power source. Final Act. 2–3 (citing Young 4:7, Fig. 4
and mapping collection unit to element 305 and a power source to the
discussed internal power source). The Examiner relies on Dziubinski to
teach non-volatile memory features in claim 7 and Brucchi to teach the
recited “power source having sufficient power to power the ECG self-
assessment kit for 14 days” in claim 7. Final Act. 3–4 (citing Dziubinski
¶¶ 4, 67, Fig. 2 and Brucchi, Abstract).
Appellants argue claims 7, 9–12, 16–27, and 29–32 as a group. Br. 4
(indicating the claims stand or fall together). We select claim 7 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellants argue (1) Brucchi does not relate to ECG sensors or
electrodes, (2) Brucchi does not teach a storage unit having sufficient energy
to power an ECG kit for fourteen days, (3) Brucchi’s storage unit is not
compatible with Young, (4) the Examiner has not provided a rational basis
for combining Brucchi with Young, and (5) combining Young and Brucchi
would be contrary to accepted wisdom. Br. 5–8.

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ISSUES
(I) Under § 103, has the Examiner erred in rejecting claim 7 by
finding that Young, Dziubinski, and Brucchi collectively would have taught
or suggested:
(A) “a power source having sufficient power to power the ECG
self-assessment kit for 14 days” and
(B) “the power source is internal to the portable3 subject ECG
data collection unit”?
(II) Is the Examiner’s reason to combine Brucchi with Young
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion?

ANALYSIS
Based on the record before us, we find no error in the rejection of
representative claim 7.
I(A)
Appellants argue Brucchi does not teach a storage unit having
sufficient energy to power an ECG kit for fourteen days. Br. 5. Appellants
contend Brucchi is silent regarding the size, energy density, or voltage of the
electric energy storage unit such that the reference does not demonstrate it
has sufficient energy to power the recited ECG device for fourteen days. Br.
5 (citing Brucchi ¶¶ 1, 9–11, Fig. 8). We are not persuaded.
First, other than reciting the “power source is internal to the portable
subject ECG data collection unit,” claim 7 does not recite the size, energy

3 Notably, in a previous limitation, claim 7 recites “a wearable subject ECG
data collection unit.” Br. 10 (Claims App’x) (emphasis added).
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density, or voltage of the power source. Br. 10 (Claims App’x). The
Specification also provides no details related to the power source’s size,
energy density, or voltage sufficient to power the data collection unit for the
recited “14 days.” See Spec. ¶¶ 31, 52, Fig. 7.
Second, as noted by the Examiner (Ans. 3) and Appellants (Br. 5),
Brucchi discusses various electronic applications that use battery systems,
such as tracking systems. Brucchi ¶ 3. Brucchi further states “[f]or purpose
of illustration, this invention will be described with reference to a waste
management application . . ., but it is applicable as power supply to other
systems and electronic equipments [sic], like stations for monitoring and
measurements, data transmitters, data logger et [sic] similia[r].” Id. ¶ 11
(emphasis added). Brucchi thus describes an illustrative “electric energy
storage unit inside a garbage box in a waste management application” (Br. 5
(citing Brucchi ¶ 10, Fig. 8)) but contemplates using its invention with other
electronic equipment, including data loggers and tracking systems. See
Brucchi ¶¶ 4, 11. Given the above and although Brucchi does not discuss
explicitly an ECG sensor, electrode, or kit (see Br. 5), Brucchi at least
suggests using its power supply with other types of equipment, such as
Young’s “ECG self-assessment kit,” which tracks and logs data. See Final
Act. 2–4.
Third, Brucchi states it “seeks to provide a solution for the above
mentioned issue related to battery systems” (Brucchi ¶ 4), including having
“an electric storage unit, which remains electrically charged, to operate as
power source for electric or electronic equipments [sic], for long times: days,
weeks or months” (id., Abstract). See Final Act. 4. Thus, on the given
record, Brucchi when combined with Young further suggests its “power
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source having sufficient power to power the ECG self-assessment kit for 14
days” as claim 7 recites.
Appellants further assert that conventional ECG units were known to
only have power for twenty-four to forty-eight hours. See Br. 7–8 (citing
Peter Zimetbaum & Alena Goldman, Ambulatory Arrhythmia Monitoring,
122 Circulation 1629 (2010), Frank Enseleit & Firat Duru, Long-Term
Continuous External Electrocardiographic Recording: A Review, 8
Europace 255 (2006), and Eric B. Bass et al., The Duration of Holter
Monitoring in Patients with Syncope: Is 24 Hours Enough?, 150 Arch.
Intern. Med. 1073 (1990)4). This argument is unavailing.
Notably, at least two of three above references are published several
years prior to the filing date of the instant application (e.g., 1990 and 2006)
and do not reflect the state of the art at the time of the invention. Regarding
the Zimetbaum article, we note the article indicates a Hoelter monitor can
monitor cardiac activity for one to two weeks (e.g., 14 days) and other event
recorders can monitor cardiac events for up to one month. See Zimetbaum,
Ambulatory Arrhythmia Monitoring, 122 Circulation at 1630 (Table 1)
(describing characteristics of ambulatory cardiac monitoring devices). This
article further states “[n]ewer Holter monitors are now available with up to 2
weeks of recording capability” (id. at 1629), and “[e]vent monitors are
generally used for 14- to 30-day monitoring periods” (id. at 1630).
Accordingly, we disagree with Appellants that Brucchi’s teachings run
counter to accepted wisdom related to an ambulatory heart monitoring
device’s battery storage capacity at the time of the invention. See Br. 7–8.

4 Appellants indicate these references were submitted on May 31, 2017. Br.
8 n.1.
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For the above reasons, we are not persuaded that Young and Brucchi
fail to teach or suggest “a power source having sufficient power to power the
ECG self-assessment kit for 14 days” as claim 7 recites.
I(B)
Appellants also argue Brucchi’s storage unit is not compatible with
Young because Brucchi does not show or suggest that the storage unit could
be sized to be internal to a wearable ECG data collection unit as claim 7
requires. Br. 5–6. Appellants contend Brucchi’s storage unit is intended for
a garbage truck, not an ECG device. See Br. 6. We are not persuaded.
As previously discussed, Brucchi contemplates using its storage unit
for more than a garbage truck and does not exclude smaller electronic
equipment that track and log data. See Brucchi ¶¶ 3, 11. Thus, even if some
storage unit in Brucchi may be too large to be internal to a wearable ECG
data collection unit (Br. 6), other contemplated embodiments are not. See id.
Brucchi also does not discourage an ordinary skilled artisan from using its
teachings on portable electronic equipment. See generally Brucchi.
Additionally, Young teaches that an ECG data collection unit (e.g.,
110, 305) is electronic equipment that tracks and logs ECG data, is portable,
and has an internal power source. See Young 1:9, 2:12–18, 3:11–12, 3:66–
4:9, 6:56, Figs. 2, 4. Although Young does not state explicitly its ECG
device is “wearable,” Young teaches its ECG device is portable, suggesting
to one skilled in the art the device, including its internal components (e.g.,
internal power source), can be worn. See id. We, therefore, disagree with
Appellants that Young’s and Brucchi’s teachings would have suggested an
energy storage unit that is too large to be internal to a wearable or portable
ECG data collection unit. See Br. 6.
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For the above reasons, we are not persuaded that Young and Brucchi
fail to teach or suggest “a wearable subject ECG data collection unit” having
its “power source [] internal to the portable subject ECG data collection
unit” as claim 7 recites.
II.
Lastly, we disagree with Appellants that the Examiner has not
articulated a reason with some rational underpinning to combine Brucchi
with Young to justify an obviousness conclusion. See Br. 6–7. The
Examiner states one would have combined Brucchi with Young so as “to
allow the system to operate for months in order to improve user experience.”
Final Act. 4. Appellants indicate this reasoning is conclusory. Br. 6. Yet,
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) states “if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.” Id. at 417. As explained above, Brucchi suggests improving data
tracking and logging equipment with a longer-life battery source, and thus
provides a rationale for combining its teachings with Young, which teaches
a data tracking and logging device.
Moreover, as previously discussed, Brucchi recognizes that some
electronic equipment needs “to operate as power source . . . for long times:
days, weeks or months.” Brucchi, Abstract, cited in Final Act. 4. For
example, Brucchi explains that there are technical and economic reasons to
have devices monitor or track information (e.g., ECG data as taught by
Young) using battery systems that operate on a monthly basis. See Brucchi
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¶¶ 3–4. Brucchi thus provides reasons to combine its teaching with Young
and to improve Young’s ECG device.
Lastly, as noted previously, we disagree with Appellants that (1) the
modification would impede wearing Young’s ECG data collection unit as
argued (Br. 7) or (2) Brucchi’s teachings run counter to accepted wisdom
such that an ordinary skilled artisan would not have combined Brucchi’s
teachings with Young. See Br. 7–8. Thus, we disagree the Examiner is
using impermissible hindsight when proposing to combine Brucchi with
Young.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 7 and claims 9–12, 16–27, and 29–32,
which are not argued separately.

DECISION
We affirm the Examiner’s rejection of claims 7, 9–12, 16–27, and
29–32 under § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED