Ex Parte Alder et al

Patent Trial and Appeal Board

Feb 12, 2019

13710925 (P.T.A.B. Feb. 12, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/710,925 12/11/2012 Matthew Alder
147311 7590 02/14/2019
Botos Churchill IP Law LLP
430 Mountain A venue
Suite 401
New Providence, NJ 07974
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RESMED 3.3-076 C (814) 1053
EXAMINER
DITMER, KATHRYN ELIZABETH
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
02/14/2019 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):
pto@bciplaw.com
rchurchill@bciplaw.com
rbotos@bciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW ALDER, STEVEN PAUL FARRUGIA,
CHINMA YEE SOMAIY A, and KRISTIAN THOMSEN 1
Appeal2017---004809
Application 13/710,925
Technology Center 3700
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and JILL D. HILL,
Administrative Patent Judges.
Opinion for the Board filed by Hill, Administrative Patent Judge
Opinion Concurring filed by CAPP, Administrative Patent Judge
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Matthew Alder et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 1-5, 7-18, 20, and 21. 2
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Applicant ResMed Limited.
Appeal Br. 1.
2 Claim 6 and 19 have been canceled. Appeal Br. 24--25 (Claims App.).
Appeal2017---004809
Application 13/710,925
BACKGROUND
Sole independent claim 1, reproduced below, illustrates the claimed
invention.
1. A snoring detection device comprising:
a sensor configured to detect sounds during a breathing
cycle; and a processor configured to:
detect a noise level during an inspiration phase of
the breathing cycle with said sensor;
detect a noise level during an expiration phase of
the breathing cycle with said sensor;
determine an occurrence of a snore based on a
difference in the noise levels detected during inspiration
and expiration, the difference comprising a subtraction of
the noise level during expiration from the noise level
during inspiration.
Appeal Br. 23 (Claims Appendix).
REJECTION
I. Claims 1-5, 7-12, 14--18, 20 and 21 stand rejected under 35
U.S.C. § 101 as directed to non-statutory subject matter. Final Act. 7.
II. Claims 7, 18, 20, and 21 stand rejected under 35 U.S.C. § 112,
first paragraph, as failing to comply with the enablement requirement. Final
Act. 9.
III. Claims 7, 8, and 18 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite. Final Act. 11.
IV. Claims 1-5 and 8-17 stand rejected on the ground of non-
statutory double patenting as being unpatentable over claims 1-8 of U.S.
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Patent No. 8,365,729 B2 in view of Sullivan (US 5,245,995, iss. Sept. 21,
1993). Final Act. 13.
V. Claims 1-5 and 9-17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sullivan and Takeuchi (JP 2-13453 U, pub. Jan. 26,
1990)3• Final Act. 15.
VI. Claims 1-5 and 9-17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sullivan, Zilberg (WO 2004/066804 A2, pub. Aug. 12,
2004) and Gavish (US 7,850,619 B2, iss. Dec. 14, 2010). Final Act. 18.
VII. Claims 7, 8, 18, 20, and 21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Sullivan, Takeuchi, and Ariav (WO
2005/120167 A2, pub. Dec. 22, 2005), or in the alternative over Sullivan,
Zilberg, Gavish, and Ariav. Final Act. 22.
ANALYSIS
Rejection I: Non-Statutory Subject Matter
Appellants argue all of the claims together in contesting the rejection
under 35 U.S.C. § 101. Appeal Br. 4--12. Accordingly, we decide the
appeal of this rejection on the basis of claim 1, with claims 2-5, 7-12, 14--
18, 20, and 21 standing or falling with claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
3 We derive our understanding of Takeuchi from the translation contained in
the image file wrapper of this application. All references to Takeuchi are to
portions of the translation.
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35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. Alice Corp. v. CLS Bank Int 'l, 573 U.S.
208,216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), "for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts." Alice Corp., 573 U.S. at 217.
The first step in that analysis is to "determine whether the claims at issue are
directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered "individually and 'as an ordered combination'"
to determine whether there are additional elements that "'transform the
nature of the claim' into a patent-eligible application." Id. (quoting Mayo,
566 U.S. at 79, 78).
The Examiner determined that the claims, considering all elements
both individually and in combination, do not amount to significantly more
than the abstract idea of "detecting noise/snoring." Final Act. 7-8. The
Examiner further determines that any additional elements, or combination(s)
thereof, amount to no more than a "recitation of generic computer structure"
(e.g., a sensor, a processor) performing "generic computer functions that are
well-understood, routine, and conventional activities previously known to
the pertinent industry," and thus fail to "provide meaningful limitation(s) to
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transform the abstract idea into a patent eligible application of the abstract
idea." Id. at 8.
The Examiner notes, however, "that claim 13 is not rejected under 35
U.S.C. 101 because it connects the generic processor performing the abstract
idea of noise/snore detection to a CP AP blower such that the blower motor
can be adjusted as a result of the noise/snore detection to result in a change
in therapy." Id.
Appellants argue that the Examiner fails to "include any valid
rationale to demonstrate that what is claimed is even partially abstract."
Appeal Br. 4 (citing Enfzsh LLC v. Microsoft Corp., 822 F. 3d 132 (Fed. Cir.
2016)). Appellants contend that their claimed "technological improvement
concerns 'a simplified method for identifying a snore in a CP AP device,"
which is "achieved by detecting the noise level from an appropriate sensor in
the device and taking advantage of the fact that the noise from snoring
occurs only during" inspiration. Id. at 5 ( citing Spec. ,r 10). Appellants
explain that by "partitioning noise levels in relation to a user's breathing
cycle with the claimed sensor, claim 1 recites a specific and practical device
that may be used to effectively identify the user's snoring," such that "claim
1 goes far beyond being merely a device for 'general noise detection"' by
applying technology components "to detect certain real world practical and
particular events (the occurrence of a snore)." Id. at 7-8. Thus, Appellants'
argue, the claimed noise detection is not an abstract idea, but rather
"something that is quite technologically real." Id. at 6 (because the claimed
detector "is capable of detecting a real world occurrence - i.e., a sound event
or the noise level from it," noise detection cannot be an abstract idea).
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Appellants further argue that their claims "are of a specific
configuration that improve[ s] the ability of processors in respiratory
detection and treatment devices to detect the occurrence of snoring" by
"partitioning and comparing [] noise levels" so that the processor can "detect
snoring in a less technically complex way," thus improving the functioning
of the processors and rendering them "non-generic by nature of their
particular respiratory related detection abilities and functions." Id. at 10
( emphasis omitted).
The Examiner responds that claim 1 's detection steps are conventional
data gathering steps, with data being generated by a conventional sound
detecting sensor, and the claimed detecting and determining are performed
by a conventional processor performing functions "that are well-understood,
routine, and conventional activities previously known to the pertinent
industry." Ans. 5---6.
The PTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("2019 Guidance Memorandum").
Under that guidance, in conducting step one of the Alice framework, we first
look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
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Step 1, Prong 1
The 2019 Guidance Memorandum identifies three key concepts
identified as abstract ideas: (a) mathematical concepts including
"mathematical relationships, mathematical formulas or equations,
mathematical calculations"; (b) certain methods of organizing human
activity, such as "fundamental economic principles or practices,"
"commercial or legal interactions," and "managing personal behavior or
relationships or interactions between"; and ( c) mental processes including
"observation, evaluation, judgment, [and] opinion."
Here, Appellants' claims are directed to a system including a sensor
for sensing sounds during a breathing cycle, and using an alleged non-
conventional approach (isolating a sensed noise level during an inspiration
phase of a breathing cycle from a sensed noise level during an expiration
phase of the breathing cycle) to detect snoring - the approach being non-
conventional because the sensed parameters (noise level during inspiration
phase and noise level during expiration phase) are the only sensed data
necessary to detect snoring, rather than a modeling of all sources of noise.
Spec. ,r 8-10. According to Appellants, this snore detection approach
requires less complex calibration/calculation, reducing device cost. See id.
Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017)
also analyzed whether a system employing sensed data was directed to
statutory subject matter. In Thales, the Federal Circuit determined that a
system for tracking motion of an object via a first inertial sensor on a
moving object, a second inertial sensor on a moving reference frame, and an
element adapted to receive signals from the inertial sensors and determine an
orientation of the object relative to the moving reference frame, was not
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directed to an abstract idea. See Thales, 850 F.3d at 1348--49. The court in
Thales based its determination on the fact that the claimed system used its
inertial sensors in a non-conventional manner to determine the relative
position and orientation of a moving object on a moving reference frame.
Id. Consideration of Thales informs us that the "non-conventional manner"
referred to by the court speaks to the "unconventional choice of reference
frame" and "unconventional configuration of sensors" ( one sensor located
on the moving object and one sensor located on the reference frame) rather
than to processing of data from the sensors. Id. at 1349.
Unlike Thales, Appellants' claims employ a sensor in a generic and
ordinary way, and for an ordinary purpose, such that Appellants'
improvement is purely in the abstract idea of sensing a snore. Such sound
sensing falls into the abstract idea category of mental processes including
observation, evaluation, judgment, and opinion.
Step 1, Prong 2
We next consider whether the claimed snore detection system
includes additional elements that integrate the judicial exception into a
practical application. The Examiner finds that the claimed sensor and
processor perform "generic computer functions that are well-understood,
routine, and conventional activities previously known to the pertinent
industry," failing "to transform the abstract idea into a patent eligible
application of the abstract idea." Final Act. 8.
The sensor and processor are both recited in a generic manner. We
find no indication in Appellants' Specification, nor do Appellants direct us
to any indication, that the claimed invention is implemented using other than
a generic sound sensor and generic processor to perform generic sound
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detection and generic computer functions, respectively. The operations
( detecting noise levels during inspiration and expiration with the sensor, and
determining an occurrence of a snore based on the result of subtracting the
noise level during expiration from the noise level during inspiration)
performed by the processor are merely generic computer functions of
receiving data and performing a simple mathematical operation (subtraction)
on the received data. Thus, the claimed invention does not improve the
functioning of the computer (processor) or the sensor and does not use a
particular, or special, machine. In other words, the claims "are not tied to
any particular novel machine or apparatus" capable of rescuing them from
the realm of abstraction. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
716 (Fed. Cir. 2014).
Claim 1 does not recite taking any action in response to determining
the occurrence of a snore. Compare Appeal Br. 23 (Claims Appendix,
Claim 1 ), with id. at 24 (Claim 13 (reciting a CP AP device with the snoring
detection device connected to the speed control means of the motor for
adjustment of the motor speed in response to a signal indicative of a snore
value from the determination of the occurrence of a snore). In other words,
claim 1 does not recite a transformation of a particular article to a different
state or thing.
In summary, we do not find anything of record, short of attorney
argument, which attributes any improvement in computer technology and/or
functionality to the claimed invention, or otherwise indicates that the
claimed invention integrates the abstract idea into a "practical application,"
as that phrase is used in the USPTO's "2019 Revised Patent Subject Matter
Eligibility Guidance," 84 Fed. Reg. 50, 55 (January 7, 2019).
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Step 2
Turning to step two of the Mayol Alice framework, we are not
persuaded that the Examiner erred in determining that the elements of claim
1, considering all elements both individually and in combination, do not
amount to significantly more than the abstract idea of "detecting
noise/snoring." See Final Act. 7-8.
Appellants attempt to analogize claim 1 to the claims in Enfzsh, LLC
v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Appeal Br. 4---6. In
Enfish, the court found that "the self-referential table recited in the claims on
appeal is a specific type of data structure designed to improve the way a
computer stores and retrieves data in memory." Id. at 1339. The court
found they were "not faced with a situation where general-purpose computer
components are added post-hoc to a fundamental economic practice or
mathematical equation," but "[ r ]ather, the claims are directed to a specific
implementation of a solution to a problem in the software arts." Id. The
question becomes whether the claims as a whole "focus on a specific means
or method that improves the relevant technology" or are "directed to a result
or effect that itself is the abstract idea and merely invoke[ s] generic
processes and machinery." McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314 (Fed. Cir. 2016). For the reasons discussed above,
Appellants' claim 1 falls into the latter category----claim 1 merely invokes
generic processes and machinery (generic sensor and processor) to achieve
the result ( detecting snoring) that is itself the abstract idea.
Appellants' attempt to analogize claim 1 here to the claims in SiRF
Technology Inc. v. ITC, 601 F.3d 1319, 1333 (Fed. Cir. 2010) is similarly
inapposite. See Appeal Br. 8-9. The court in SiRF stated:
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[i]n order for the addition of a machine to impose a meaningful
limit on the scope of a claim, it must play a significant part in
permitting the claimed method to be performed, rather than
function solely as an obvious mechanism for permitting a
solution to be achieved more quickly, i.e., through the utilization
of a computer for performing calculations.
SiRF, 601 F.3d at 1333.
Here, as the Examiner explains, the claimed "sensor" is used simply
for extra-solution data gathering, and is recited and described as a generic
noise detector, such as a microphone, and the claimed "'processor' could
just as easily be fed any electrical signal( s) corresponding to 'noise
level/sounds during a breathing cycle' and arrive at the same result."
Ans. 6-7. The Examiner contrasts the invention of claim 1 from the claim in
SiRF, which was directed to calculating the absolute position of GPS
receiver, emphasizing that "the position of the GPS receiver is essential to
the method because it affects the outcome thereof (for instance, signals
corresponding [to] the position of a receiver A could not be used by the
method to calculate the position of a receiver B)." Id. at 7; see SiRF, 601
F.3d at 1332.
Claim I merely recites a generic means of gathering data (i.e., sounds)
and a generic processor for analyzing the received data (by subtracting some
of the data from other data) and then outputting a result (determination of
occurrence of a snore). We agree with the Examiner that the recited sensor
and processor behave as expected according to their ordinary use (Final Act.
8), and therefore cannot confer patent eligibility on an otherwise ineligible
claim.
As very succinctly pointed out on pages 2-3 of the concurring
opm10n:
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[S]noring is an auditory phenomenon that is readily detectable
by the human sensory modality of hearing. In that regard, the
invention of claim 1 is little more than an attempt to automate
what a human listener can accomplish when in close proximity
to a sleeper. The Examiner is correct that claim 1 is nothing
more than a generic listening device that subtracts softer sound
amplitudes from louder sound amplitudes and then uses a
generic processor to perform routine calculations and logic
operations. The deduction that a "snore" has occurred is merely
a logical deduction derived from a simple subtraction
calculation in connection with a host of unclaimed assumptions
regarding the environment in which the sound measurements
are taken.
For the above reasons, the recited elements of claim 1, considered
individually and as an ordered combination, do not constitute an "inventive
concept" that transforms independent claim 1 into patent-eligible subject
matter. See Alice, 134 S. Ct. at 2355. On this record, we affirm the
Examiner's§ 101 rejection of claim 1, as well as claims 2-5, 7-12, 14--18,
20, and 21, which fall with claim 1.
Rejection II: Enablement
The Examiner determined that Appellants' Specification "fails to
describe what value/parameter the claimed 'time constant' represents,
particularly in relation to the inspiration/expiration noise levels, or how a
time constant for filtering in the determination of the inspiratory snore value
and ... the expiratory snore value are to be determined or calculated." Final
Act. 9. According to the Examiner, because Appellants' Specification "also
does not disclose how inspiration and expiration periods are
detected/defined," a skilled artisan would not be able to "guess what these
time constants represent, or how the time constants might be
defined/ calculated." Id.
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Insofar as the enablement requirement is concerned, the dispositive
issue is whether an applicant's disclosure, considering the level of ordinary
skill in the art as of the date of the appellant's application, would have
enabled a person of such skill to make and use the appellant's invention
without undue experimentation. See In re Strahilevitz, 668 F.2d 1229, 1232
(CCPA 1982). In calling into question the enablement of an applicant's
disclosure, the examiner has the initial burden of advancing acceptable
reasoning inconsistent with enablement so as to shift the burden to the
appellant to show that one of ordinary skill in the art could have practiced
the claimed invention without undue experimentation. Id. See also In re
Wright, 999 F.2d 1557, 1561-62 (Fed. Cir. 1993) (when rejecting a claim for
lack of enablement, the PTO bears the initial burden of setting forth a
reasonable explanation as to why the scope of the claim is not adequately
enabled by the description provided in the specification).
There are multiple factors to be considered when determining whether
there is sufficient evidence to support a determination that a disclosure does
not satisfy the enablement requirement - the factors include, but are not
limited to: (A) breadth of the claims; (B) nature of the invention; (C) state
of the prior art; (D) level of one of ordinary skill; (E) level of predictability
in the art; (F) amount of direction provided by the inventor; (G) existence of
working examples; and (H) quantity of experimentation needed to make or
use the invention based on the content of the disclosure. See In re Wands,
858 F.2d 731, 737 (Fed. Cir. 1988).
The Examiner finds that Appellants' Specification "provides no
instruction on how to select two different 'time constraints', or how they are
to be/can be 'adjusted such that the treatment pressure does not cause false
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snore detection."' Ans. 8. Appellants contend that such filtering time
constants were well understood by those of ordinary skill in the art, citing
references as evidence thereof, and submit that their Specification
sufficiently describes the distinction between the filtering time constants for
inspiratory and expiratory noise that one of ordinary skill in the art would
understand how to adjust them so as to avoid false snore detection. Appeal
Br. 13-14. The Examiner has not met the initial burden of setting forth a
reasonable explanation as to why a person having ordinary skill in the art
would not have understood the function of time constants in filtering the
detected inspiratory and expiratory signals and how to use and adjust them
to eliminate false snore detection.
Thus, we are not persuaded that the "time constant" limitations lack
enablement, and we therefore do not sustain Rejection II.
Rejection III: Definiteness
Regarding claims 7 and 18, the Examiner determined that "it is
unclear what value/parameter 'time constant' describes in relation to the
inspiration/expiration noise levels." Final Act. 11. Regarding claim 8, the
Examiner determined that it is unclear which parameters from claims 1 and
5 correspond with the claim term "filter[ed] noise levels." Id. at 11-12.
Appellants argue that the test for enablement is whether one skilled in
the art could make or use the invention from the patent disclosure, without
undue experimentation. Appeal Br. 12 (citing United States v. Telectronics,
Inc., 857 F.2d 778, 785 (Fed. Cir. 1988)). Under this standard, Appellants
argue, the disclosure may "omit details to the extent that these could be
gleaned from background knowledge or through experimentation." Id.
According to Appellants, one skilled in the art would be able to "use
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common background knowledge regarding the engineering concepts of
filtering in order to implement claims 7 and 18 without undue
experimentation." Id. Appellants further contend that "the claims make the
determination of the time constant quite simple in that it must at least be a
time constant for filtering in the determination of the inspiratory snore value
during inspiration greater than a time constant for filtering in the
determination of an expiratory snore value during expiration." Id. at 13.
Appellants further argue that they have presented evidence that the
meaning of the term "time constant" is commonly understood in the context
of filtering. Id. ( citing https://en.wikipedia.org/wiki/Low-pass_filter).
A decision regarding whether a claim is indefinite requires a
determination of whether one skilled in the art would understand what is
claimed when the claim is read in light of the specification. See Power-One,
Inc. v. Artesyn Techs., Inc., 599 F.3d 1343, 1350 (Fed. Cir. 2010);
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565 (Fed. Cir.
1986). The Examiner's rejection of claims 7 and 18 does not appear to take
into account the understanding of the skilled artisan, as required for a
determination of indefiniteness, and we therefore do not sustain the rejection
of claims 7 and 18 as indefinite.
With respect to claim 8, Appellants explain:
Claim 1 recites "a difference in the noise levels detected during
inspiration and expiration" and claim 5 recites "the noise level
during the inspiration phase is used to determine an inspiratory
snore value during inspiration by filtering, and the noise level
during the expiration phase is used to determine an expiratory
snore value during expiration by filtering."
Appeal Br. 14. Thus, claims 1 and 5 provide clear antecedent basis
for "filtered noise levels" and for "a difference between filtered noise levels"
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in claim 8. Accordingly, we do not sustain the rejection of claim 8 as
indefinite.
Rejection IV: Double Patenting
Appellants do not address the pending double patenting rejection,
which we therefore summarily sustain.
Rejection V: Obviousness -Sullivan and Takeuchi
Claim 1 recites, inter alia, "a processor configured to ... determine
an occurrence of a snore based on a difference in the noise levels detected
during inspiration and expiration, the difference comprising a subtraction of
the noise level during expiration from the noise level during inspiration."
We understand the claim term "noise level" to refer to an amplitude of the
noise, rather than a frequency of the noise. The Examiner and Appellant
appear to use the term in a manner consistent with our understanding
throughout the record before us.
The Examiner finds that Sullivan discloses, inter alia, a CP AP device
with a snore detector comprising "a pressure sensor that is a microphone" to
detect breathing sounds, and a processor for detecting noise levels during an
inspiration phase and an expiration phase of a breathing cycle "with said
sensor." Final Act. 15 (citing Sullivan 4:46, 9:42--43, 8:65-10:46). The
Examiner finds that Sullivan also discloses "determining and signaling the
occurrence of a snore by subtracting a generic frequency for wind noise (i.e.
intrinsic device noise value/expiratory snore value) from a sound signal
comprising snoring, breathing and intrinsic device noise ... using a lowpass
filter." Id. at 15-16 (citing Sullivan 5:28-29 (referring to a pressure
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transducer "to detect and produce a signal or signals responsive to snoring"),
13 :25-27 ("the high frequency wind noise is eliminated and signals
indicative of snoring and breathing are obtained.")); see Fig 9 (illustrating
high frequency wind noise relative to snore).
The Examiner finds that Sullivan does not disclose the inspiratory
snore value being "determined by filtering the noise level detected
specifically during the inspiration phase" and the intrinsic device noise
value/expiratory snore value being "determined by filtering the noise level
detected specifically during the expiration phase," and therefore Sullivan's
"intrinsic device noise value/expiratory snore value includes not only wind
noise, but also other persistent device and/ or environmental noises as well as
(expiratory) sounds of breathing, such that the subtraction of the intrinsic
device noise value/expiratory snore value removes these additional noise
sources." Id. at 16-17.
The Examiner then finds that Takeuchi discloses that it was "known
in the art of snore detection ... that snoring sounds typically produce a high
noise level, even after band pass filtering, specifically during inspiration."
Id. at 17 (citing Takeuchi p. 2, 11. 11-18; p. 6, 11. 1-7 ("The analogue signal
becomes a rectangular signal by extracting [an] analog signal of a
predetermined level or more .... For standard snoring sounds ... , this
rectangular signal has a HIGH level during inhalation and a LOW level
during exhalation" for given time periods.); p. 3, 11. 5-12 ( distinguishing
snore based on frequency); p. 7 (detecting three snores in 12 seconds causes
blower motor to be driven)).
The Examiner concludes that it would have been obvious to modify
Sullivan's "snore-detecting CP AP device that subtracts wind noise from
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overall noise to isolate snoring noise using a low-pass/band-pass filter" to
include, alternatively or additionally, a band-pass filter that determines
"intrinsic device noise value/expiratory snore value ... from specifically the
expiratory phase to isolate any constant environmental noise, such as
breathing," and to determine "an inspiratory snore value ... by low-pass
filtering noise from specifically the inspiratory phase to isolate any constant
environmental noise, such as breathing," so that the combination of Sullivan
and Takeuchi teaches determining a snore occurrence "by subtracting the
intrinsic device noise value/expiratory snore value (which includes persistent
environmental noise, such as breathing) from the inspiratory snore value
( which includes persistent environmental noise, such as breathing), ... to
provide a CP AP device" that "precisely detects the snoring sound in various
noise environments with fewer malfunctions" by "eliminating not only wind
noise, but any persistent environmental noise, such as breathing, from the
inspiratory noise level." Id. at 17-18 (citing Takeuchi p. 2, 11. 19-22).
Appellants argue, inter alia, that neither Sullivan nor Takeuchi
discloses the claimed processor configured to "determine an occurrence of a
snore based on a difference in the noise levels detected during inspiration
and expiration." Appeal Br. 15-16. Appellants argue that Sullivan does not
teach the claimed difference, instead applying "frequency techniques in a
manner that isolates snoring by applying a series of filters to a pressure
sensor signal to separate pressure waves at the frequencies of interest."
Appeal Br. 16 (citing Sullivan 13:24--27.) Appellants contend that Takeuchi
"actually teaches the same methodology that Sullivan teaches ... a filter to
separate the frequency [ of snoring] from other sounds .... " Id. at 19 (italics
omitted).
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In response, the Examiner clarifies that, although removing a specific
frequency by filtering is subtraction, the rejection does not find "that
removing a specific frequency from a signal is the same as 'determining a
difference of two noise levels ... "'. Ans. 10. The Examiner further clarifies
that the basis of the pending rejection is that "Sullivan teaches the basic
concept of subtracting intrinsic device noise to determine whether a snore
has occurred (which is the same reason for Appellant's claimed
difference/subtraction step ... ), and Takeuchi teaches an alternative method
for accounting for intrinsic de[ v ]ice noise that accounts for additional
environmental noises." Id. at 11. The Examiner also clarifies that the
rejection is "based on Takeuchi's teaching that, after a band pass filter,
excess (i.e. unsubtracted/remaining) noise still present during inspiration as
compared to any excess noise still present during expiration is a means by
which snoring can be assessed." Id. ( citing Final Act. 17 (finding that
Takeuchi discloses that it was known in the art of snore detection "that
snoring sounds typically produce a high noise level, even after band pass
filtering, specifically during inspiration( ... the analogue signal [after being
filtered a band-pass filter and amplified] becomes a rectangular signal by
extraction ... for standard snoring sounds ... this rectangular signal has a
HIGH level during inhalation, page 6, first para), compared to a low noise
level, after band-pass filtering, during expiration (Takeuchi, this rectangular
signal. .. has a LOW level during exhalation, page 6, first para).)).
We disagree with the Examiner's assumption that Sullivan's
subtracted "high frequency wind noise" includes an expiratory snore value.
Nowhere in Sullivan is the "high frequency wind noise" so defined. Indeed,
Sullivan identifies the "high frequency wind noise" as being generated by
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the air blower rather than the patient, and states that "the air flow rate during
inhalation/exhalation and the beginning/end points of the breathing cycle are
derived from the very low frequency pressure wave." Sullivan 13: 11-12,
5:65---68. Thus, the Examiner erred in determining that Sullivan's
subtraction (i.e., elimination) of the high frequency wind noise includes any
subtraction of an expiratory snore value. See Final Act. 16.
Sullivan discloses a CP AP device that analyzes noise/sound patterns,
shown in Fig. 2A, to detect or predict sleep apnea using snore detection via a
microphone. See Sullivan, Abstract; 9: 16-27. To detect snore, certain
frequencies of sound sensed by the microphone 11 are filtered out - for
example the "HIGH FREQUENCY WIND NOISE" illustrated in Figure 9 -
before the patterns are analyzed. Id. at 13:10-32; Fig. 9. Sullivan also
contemplates amplitude filtering "to effectively ignore all sounds below a
particular minimum amplitude" (id. at 9:7-13, 13:25-27), although Sullivan
does not disclose that exhalation noise is included in the "sounds below a
particular minimum amplitude." Rather, Sullivan mentions using an
amplitude filter to diminish, specifically, the "effect of blower motor noise."
Id. at 9:7-10, 13:34--38.
Sullivan determines the onset of sleep apnea by recognizing a
particular pattern of snore, for example as shown in sections D and E of
Figure 2A. Id. at 9:16-32. Sullivan's Figure 2A shows "sound levels
obtained using the monitor of the present invention for a patient suffering
from sleep apnea" (id. at 8:4---6), and Figure 2A is stated to show "sound
amplitudes recorded from the snoring detection device 10" (id. at 9:3--4).
Sullivan appears to take sound amplitude into account in determining both
hypopnea and apnea, discussing "breathing sound intensity" in reference to
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the hypopnea pattern shown in section D of Figure 2A (id. at 9: 19-
27 .13 :46-50), and "loud breathing sounds" when describing sleep apnea in
section E of Figure 2A (id. at 9:28-32, 13:55-59). Subtraction of any kind
of exhalation amplitude, however, is not likewise discussed.
Takeuchi discloses a snoring detection device that filters a sound
signal (filter 37) to remove certain frequencies, amplifies (amplifier 38) the
signal, and detects a filtered, amplified signal of "a predetermined level or
more." See Takeuchi p. 1, 11. 9-13; p. 5, 11. 19-25. Regarding the filtered,
amplified sound signal, Takeuchi "focuse[s] on the cycle of snoring sounds,"
using "two factors of the cycle of snoring sounds and the number of cycles."
Id. at p. 2, 11. 19-22; p. 3, 11. 5-12, p. 5, 11. 25-29. The filtered and amplified
signal "becomes a rectangular signal by extraction of the analogue signal
that is of a predetermined level or more." Id. at p. 6, 11. 1-2 (emphasis
added). This rectangular signal "has a HIGH level during inhalation and a
LOW level during exhalation." Id. at p. 6, 11. 2--4. Takeuchi, however, does
not disclose that the extracted analogue signal includes or represents
exhalation noise.
For the reasons explained above, the Examiner has not established
that Sullivan or Takeuchi discloses "a processor configured to ... determine
an occurrence of a snore based on a difference in the noise levels detected
during inspiration and expiration, the difference comprising a subtraction of
the noise level during expiration from the noise level during inspiration."
We therefore do not sustain the rejection of independent claim 1, or the
rejection of claims 2-5 and 9-17, which depend directly or indirectly from
claim 1.
Rejection VI: Obviousness - Sullivan, Zilberg, and Gavish
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The Examiner makes the same findings regarding Sullivan's
disclosure set forth above in Rejection V, again finding that Sullivan
discloses the inspiratory snore value being "determined by filtering the noise
level detected specifically during the inspiration phase" and the intrinsic
device noise value/expiratory snore value being "determined by filtering the
noise level detected specifically during the expiration phase," and therefore
Sullivan's "intrinsic device noise value/expiratory snore value includes not
only wind noise, but also other persistent device and/or environmental noises
as well as (expiratory) sounds of breathing, such that the subtraction of the
intrinsic device noise value/expiratory snore value removes these additional
noise sources." Final Act. 19-20.
The Examiner then finds that Zilberg discloses that "snores are
detected specifically in the inspiration portion of a breath (page 43, second
full paragraph ... )" and Gavish discloses ( 1) filtering sounds during
inspiration and determining an inspiratory value therefrom, (2) filtering
sounds during expiration and determining an expiratory value therefrom, and
(3) using these values to "separate intrinsic device/background noise: from
inspiration and expiration." Final Act. 20-21 (citing Gavish 4:24--27, 16:1-
25, Figs. 8, 9A, 9B ("in filtering step 310 ... control unit 26 subtracts
inspiration spectrum 350 from expiration spectrum 352 to obtain a net
spectrum, column 22, lines 13-15"). The Examiner proposes modifying
Sullivan's CPAP device such that the "inspiratory snore value is determined
by band-pass filtering noise from specifically the inspiratory phase to isolate
any constant environmental noise, such as breathing, as well as any snoring
as taught by Zilberg and Gavish ( since Zilberg teaches that the snoring of
Sullivan will be in the inspiratory phase)." Id. at 21. The Examiner
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contends that this modification would "provide a CP AP device responsive to
snoring that takes into account local, potentially variable, background noise
when determining whether snoring is occurring (Gavish col. 4, lines 2-10),
by ... eliminating ... wind noise [ and] persistent environmental noise, such
as breathing, from the inspiratory noise level." Id.
Appellants argue, in addition to the arguments set forth above that
Sullivan fails to disclose the claimed processor configured to "determine an
occurrence of a snore based on a difference in the noise levels detected
during inspiration and expiration" (Appeal Br. 15-16), that Gavish similarly
fails to disclose determining a difference in the noise levels detected during
inspiration and expiration (id. at 20). According to Appellants, Gavish
filters a frequency spectrum by subtracting an inspiration frequency
spectrum from an expiration frequency spectrum. Id.
As explained above in Rejection V, we determine that Sullivan does
not teach or suggest determining snore based on a difference in the noise
levels detected during inspiration and expiration. The same is true of
Gavish. Gavish is directed to breathing pattern determination, and certain
embodiments contemplate use of such patterns for detecting sleep apnea.
Gavish, Title, 5:51-55. To detect sleep apnea, Gavish monitors breath-by-
breath airflow during exhalation. Id. at 5:51-56. Gavish's breathing pattern
is identified, in relevant part, by the timing of expiration and inspiration,
with inspiration time contemplated being estimated. Id. at 3:64--4:3, 8: 1-3,
18:50-54, 19:4--8. Gavish filters background noise from respiration airflow
sound signal, and the filtering frequencies f1 and f2 are determined as shown
in Gavish's Figs. 8, 9A, and 9B. Id. at 13:21-31, 16:49-56. Gavish's
Figure 8 is a flow chart illustrating how filtering frequencies f1 and f2 are
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determined, and Figures 9 A and 9B show exemplary spectra used in
determining the frequencies f1 and f2 . Id. at 15:1---6, 21:32-34, 22:8-16.
Although Gavish discloses subtraction, it subtracts an inhalation frequency
spectrum from an exhalation frequency spectrum, rather than an exhalation
amplitude from an inhalation amplitude. Id. at 22:8-30, Figs. 9A, 9B.
Thus, the references - alone or in the proffered combination - do not
disclose a processor configured to "determine an occurrence of a snore based
on a difference in the noise levels detected during inspiration and expiration"
as recited in claim 1. We, therefore, do not sustain the rejection of
independent claim 1, or the rejection of claims 2-5, 6-18, 20, and 21, which
depend directly or indirectly from claim 1.
Rejection VII: Obviousness -Adding Ariav
Claims 7, 8, 18, 20, and 21 depend directly or indirectly from claim 1.
The Examiner does not find that Ariav cures the deficiency of (1) the
combination of Sullivan and Takeuchi, or (2) the combination of Sullivan,
Zilberg, and Gavish. For this reason, we do not sustain the Rejection VII for
the reasons set forth above regarding Rejections V and VI.
DECISION
We AFFIRM the rejection of claims 1-5, 7-12, 14--18, 20 and 21
under 35 U.S.C. § 101 as directed to non-statutory subject matter.
We REVERSE the rejection of claims 7, 18, 20, and 21 under 35
U.S.C. § 112, first paragraph.
We REVERSE the rejection of claims 7, 8, and 18 under 35 U.S.C. §
112, second paragraph.
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Application 13/710,925
We AFFIRM the rejection of claims 1-5 and 8-17 on the ground of
non-statutory double patenting.
We REVERSE the rejection of claims 1-5 and 9-17 under 35 U.S.C.
§ 103(a) as unpatentable over Sullivan and Takeuchi.
We REVERSE the rejection of claims 1-5 and 9-17 under 35 U.S.C.
§ 103(a) as unpatentable over Sullivan, Zilberg, and Gavish.
We REVERSE the rejection of claims 7, 8, 18, 20, and 21 under 35
U.S.C. § 103(a) as unpatentable over Sullivan, Zilberg, Gavish, and Ariav.
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). See 37
C.F.R. § 41.50(±).
AFFIRMED
25
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte MATTHEW ALDER, STEVEN PAUL FARRUGIA,
CHINMA YEE SOMAIY A, and KRISTIAN THOMSEN
Appeal2017---004809
Application 13/710,925
Technology Center 3700
CONCURRING OPINION
CAPP, Administrative Patent Judge
In concur in the result and reasoning set forth by the majority. I write
separately to add my individual observations with respect to the Examiner's
Section 101 rejection of claim 1.
In the Alice case, the Supreme Court took pains to caution against
interpreting Section 101 "in ways that make patent eligibility 'depend
simply on the draftsman's art." Alice, 573 U.S. at 226. In my opinion,
claim 1 is merely an exercise in linguistic finesse that is designed to create
the superficial impression that Appellants have invented something more
than information gathering in the form of recording sound with a
microphone.
Claim 1 attempts to create the impression that a first noise level is
detected "during an inspiration phase" and a second noise level is detected
"during an expiration phase" of a breathing cycle. Claims App. However,
in truth, the entire invention is devoted to simplifying the process of snore
Appeal2017---004809
Application 13/710,925
detection so as to eliminate the need to actually detect either inspiration or
expiration. See Spec. ,r 11 ( explaining that the invention uses a microphone
to detect snore and that pressure or flow sensors, that can actually
differentiate between inhalation and exhalation, are optional). In reality, the
invention uses a microphone to detect noise level and a processor to measure
and subtract higher amplitude sounds from lower amplitude sounds and then
arrives at a logical deduction that, if the higher amplitude sound exceeds the
lower amplitude sound by a predetermined threshold, a "snore" may have
occurred.
Furthermore, claim 1 presumes the existence of a considerable amount
of essential but unclaimed subject matter, not the least of which is the
presence of a human being who is asleep. Claim 1 also presumes an ambient
background noise level that would allow detection of sleep/breathing sound
amplitudes. Claim 1 also presumes the absence of other sources of
intermittent and/or repetitious higher and lower amplitude noises that could
be confused with sleep/breathing sounds. Claim 1 also presumes a physical
location of the microphone proximate to a sleeper's mouth and nose that
would facilitate differentiation between sleep/breathing sounds and other
sources of noise.
It also bears mention that snoring is an auditory phenomenon that is
readily detectable by the human sensory modality of hearing. In that regard,
the invention of claim 1 is little more than an attempt to automate what a
human listener can accomplish when in close proximity to a sleeper. The
Examiner is correct that claim 1 is nothing more than a generic listening
device that subtracts softer sound amplitudes from louder sound amplitudes
and then uses a generic processor to perform routine calculations and logic
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operations. The deduction that a "snore" has occurred is merely a logical
deduction derived from a simple subtraction calculation in connection with a
host of unclaimed assumptions regarding the environment in which the
sound measurements are taken.
The courts treat collecting information, including when limited to
particular content that does not change its character as information, as within
the realm of abstract ideas. Electric Power Group, LLC v. Alstom S.A., 830
F.3d 1350, 1353 (2016). Similarly, the courts treat analyzing information by
steps that people go through in their minds, or by mathematical algorithms,
without more, as essentially mental processes within the abstract idea
category. Id. at 1354. In the instant case, Appellants merely claim a device
that collects and analyzes data. The microphone (sensor) merely converts
sound to a signal that can be processed by a computer. Once the data is
collected and analyzed, claim 1 requires nothing further. The outcome of
the data analysis is not even displayed, much less used in connection with
some practical application, such as providing therapy.
Creating a generic listening device for sound detection, without more,
does not rise above the level of an abstract idea. Here, Appellants merely
superimpose, over the description of an otherwise generic listening device,
certain phraseology that is associated with sleep disorders. This amounts to
no more than application of "the draftsman's art" and is insufficient to create
patentable subject matter. Alice, 573 U.S. at 226.
3