Ex Parte CHAKRAVARTHY et al

Patent Trial and Appeal BoardFeb 26, 2019

14976667 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/976,667 12/21/2015 125276 7590 02/28/2019 Billion & Armitage - Medtronic 7401 Metro Blvd., Suite 425 Minneapolis, MN 55439 FIRST NAMED INVENTOR Niranjan CHAKRAVARTHY 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. 4056.063US 1 4724 EXAMINER GETZOW, SCOTT M ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 02/28/2019 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): docketing@billionarmitage.com rs.patents.five@medtronic.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NIRANJAN CHAKRA VARTHY, ABHI CHA VAN, and BRION FINLAY Appeal2018-004177 Application 14/976,667 1 Technology Center 3700 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and CYNTHIA L. MURPHY, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. Â§ 134(a), Appellants appeal from the Examiner's rejection of claims 1, 5, 6, 8-10, 14, and 18-21. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 Appellants identify "Medtronic Monitoring, Inc." as the real party in interest. Appeal Br. 3. Appeal2018-004177 Application 14/976,667 According to Appellants, their invention is directed "to monitoring and detecting arrhythmia episodes that may require urgent care." Spec. ,r 1. Claims 1 and 10 are the independent claims on appeal. Below, we reproduce claim 1 as illustrative of the appealed claims. 1. A method of flagging monitored ECG samples for urgent review by a human expert, the method comprising: continuously monitoring, using an adherent device having at least two electrodes and ECG circuitry, an electro-cardiogram (ECG) signal of the patient; monitoring, using the adherent device, one or more physiological signals other than the ECG signal, including one or more of bio-impedance signal, respiration signal, body posture signal, and activity level; detecting, using a local processor module included on the adherent device, a rhythm abnormality in the patient based on the monitored ECG signal; storing, in a local memory located on the adherent device, an ECG sample associated with the detected rhythm abnormality; deriving, using the local processor module, one or more first features from the one or more monitored physiological signals, wherein the one or more first features are associated with the stored ECG sample; determining whether the ECG sample represents a physiological signal based on the one or more first features; discarding ECG samples that do not represent a physiological signal; communicating, using wireless communication circuitry located on the adherent device, ECG samples determined to represent a physiological signal to a remote monitoring center; deriving, at the remote monitoring center, one or more second features associated with the communicated ECG samples; 2 Appeal2018-004177 Application 14/976,667 flagging communicated ECG samples for urgent review based on the one or more second features; and placing flagged ECG samples in a prioritized queue at the remote monitoring center for out-of-order review by a human expert. REJECTION AND PRIOR ART The Examiner rejects claims 1, 5, 6, 8-10, 14, and 18-21 under 35 U.S.C. Â§ I03(a) as unpatentable over Brockway et al. (US 2009/0062671 Al, pub. Mar. 5, 2009) (hereinafter "Brockway") and Finlay et al. (US 2013/0274584 Al, pub. Oct. 17, 2013) (hereinafter "Finlay). ANALYSIS As set forth above, independent claim 1 recites, in relevant part, "placing flagged ECG samples in a prioritized queue at the remote monitoring center for out-of-order review by a human expert." Appeal Br., Claims App. In support of claim 1 's rejection, initially, the Examiner does not find that any reference discloses placing ECG samples in a prioritized queue, as claimed, but instead "consider[ s it] obvious that [a] technician put[s] the [ECG] sample that is flagged into a 'prioritized queue' in order to not mix up the samples that [ do not] need prioritized review from those that do." Final Office Action 3. In response to Appellants' arguments in the Appeal Brief, the Examiner states that the step of "placing flagged ECG samples in a prioritized queue ... " is considered to be inherently done by the technician by the very nature of indicating that some samples are flagged and others are not flagged. It is also considered to be obvious to place the flagged ECG samples in a queue for out of order review 3 Appeal2018-004177 Application 14/976,667 by the physician since the physician specifically provided instructions to the technician that she review the flagged samples because the patient may be in need of immediate change in medication (par[agraph] 43 of Brockway), and by so placing them in a queue the samples would be less likely to be mixed up with other samples that are stored, and she would more readily be able to identify such samples. Answer 4--5. For the following reasons, the Examiner supports neither any finding that Brockway discloses, expressly or inherently, placing flagged ECG samples in a prioritized queue, as claimed, nor that it would have been obvious to place ECG samples in a prioritized queue, as claimed. We note that Brockway's paragraph 66, which is cited throughout the Final Office Action and Answer, describes the following: In some cases, the analysis system may evaluate a nature of a potential or suspected arrhythmia, and may ask the technician or physician to confirm. In some cases, the technician may evaluate a nature of a potential or suspected arrhythmia, and may ask the physician to confirm. In one example, the technician may review all or most of the data. The physician may provide instructions on types of data or features in the data or strips that she is interested in reviewing. In various implementations, either the analysis system or the technician may flag occurrences of the features in the data for physician review. Brockway ,r 66. Paragraph 43 describes, in relevant part, the following: In this fashion, a physician or service technician may view the report 700 and quickly assess patient condition or trends in patient condition with regard to atrial fibrillation or atrial flutter. For instance, a general increasing trend over the first seven days of the month in FIG. 7 may be cause for concern, and may warrant therapy initiation or modification in some instances, such as being prescribed or increasing dosage of an anticoagulant medication. Id. ,I 43. 4 Appeal2018-004177 Application 14/976,667 It is not clear, however, that either portion of Brockway describes placing flagged ECG samples in a prioritized queue at the remote monitoring center for out-of-order review by a human expert, as claimed. For example, it is not clear whether an expert reviews samples in a standard queue, that someone or something places flagged occurrences in a separate queue, or that an expert reviews occurrences in the separate queue out-of-order compared to the standard queue or anything else. For similar reasons, we do not understand that either of these portions of Brockway necessarily requires that an expert reviews occurrences in a separate queue out-of-order, "by the very nature of indicating that some samples are flagged and others are not flagged." Answer 4--5; see In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) ("Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient."). For example, samples may be flagged within a report, and the entire report may be reviewed from beginning to end, even though there is no prioritized queue, and no out-of-order review. Further, the Examiner also does not support adequately that "[i]t is ... considered to be obvious to place the flagged ECG samples in a queue for out of order review by the physician." Answer 4--5. Instead, the Examiner supposes what may be done, as well as reasons why the Examiner believes it may be beneficial to do so, which are insufficient to support the rejection. Thus, based on the foregoing, we do not sustain the Examiner's obviousness rejection of claim 1. For similar reasons, because independent claim 10 includes a similar recitation as that discussed above in claim 1, we do not sustain independent claim 10' s rejection for the same reason we do 5 Appeal2018-004177 Application 14/976,667 not sustain claim 1 's rejection. Further, we do not sustain the rejection of claims 5, 6, 8, 9, 14, and 18-21 that depend from the independent claims. DECISION We REVERSE the Examiner's obviousness rejection of claims 1, 5, 6, 8-10, 14, and 18-21. REVERSED 6