Ex Parte Hatlestad et al

Patent Trial and Appeal BoardJan 31, 2019

13024823 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/024,823 02/10/2011 45458 7590 02/04/2019 SCHWEGMAN LUNDBERG & WOESSNER/BSC POBOX2938 MINNEAPOLIS, MN 55402 John D. Hatlestad 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. 279.H84US1 1428 EXAMINER CERIONI, DANIEL LEE ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 02/04/2019 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): uspto@slwip.com SLW@blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN D. HATLESTAD and TSZ PING CHAN Appeal2018-003260 Application 13/024,823 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE John D. Hatlestad and Tsz Ping Chan ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-8, 10- 18, and 20-22. 2 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 According to Appellants, the real party in interest is Cardiac Pacemakers, Inc. Appeal Br. 2. 2 Claims 9 and 19 are cancelled. See Amendment (J u1y 31, 201 7). Appeal2018-003260 Application 13/024,823 THE CLAIMED SUBJECT MATTER Claims 1 and 12 are independent. Claim 1, reproduced below with added formatting for clarity, is illustrative of the subject matter on appeal. 1. A medical device deployable by being worn by, or implanted in, a subject, the device comprising: a multi-dimensional posture sensor configured to provide an electrical sensor output representative of alignment of respective first, second, and third axes of the device with the gravitational field of the earth while the device is deployed; and a processor communicatively coupled to the posture sensor and including: a posture calibration circuit configured to: measure a first sensor output for the first device axis and a second sensor output for one of the second or third device axes for a first specified posture of the subject; calculate first transformation components using the first and second sensor outputs; measure additional sensor outputs for the first, second, and third device axes for a second specified posture of the subject; calculate second transformation components using the first transformation components and the additional sensor outputs; and calculate elements of a calibration matrix usmg the first and second transformation components; and a posture circuit configured to determine a subsequent posture of the subject using outputs of the posture sensor and the calibration matrix. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Wang ("Wang '056") US 2007/0118056 Al May 24, 2007 2 Appeal2018-003260 Application 13/024,823 Wang ("Wang '277") US 2007/0115277 Al REJECTION3 May 24, 2007 Claims 1-8, 10-18, and 20-22 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Wang '056 and Wang '277. Final Act. 6-14. OPINION In rejecting independent claim 1, the Examiner finds that Wang '056 teaches, inter alia, a posture calibration circuit configured to calculate first coordinate transformation components using ... first and second sensor outputs (M11, M21, and/or M31) (see Eq. 12); ... calculate second transformation components (M12, M22, and/or M32) using ... additional sensor outputs (aur2, avr2, and/or awr2, or aur3, awr3, and/or awr3); [and] calculate elements of a calibration matrix using the first and second transformation components (para [0053], [0054], [0060], [0062], and [0063]). Final Act. 7. The Examiner acknowledges that Wang '056 "does not expressly disclose that the second transformation components are calculated using the first transformation components." Id. However, the Examiner finds that Wang '277 "teaches calculating a second component ('third acceleration vector') using first components ('first and second acceleration vectors') and additional sensor outputs ('AC accelerometer outputs') (308) (see Fig. 3)." Id. The Examiner determines that, given the teachings of Wang '277, it would have been obvious to modify Wang '056 to include 3 The Examiner withdrew a rejection of claims 1-8, 10-18, and 20-22 under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. Ans. 12. 3 Appeal2018-003260 Application 13/024,823 calculating the second transformation components using the first transformation components "for the obvious advantage of determining the patient's posture relative to the earth's surface (see para [0033] of [Wang '277]) by taking into account both static and non-static events (see para [0032] of [Wang '277]) or steady-state acceleration and unsteady-state acceleration (para [0043] of [Wang '277])." Id. at 8. Appellants argue that the Examiner has not set forth adequate reasoning to explain why a person having ordinary skill in the art would have been led by the teachings of Wang '277 to modify the calibration process of Wang '056 to include calculating the second transformation components using the calculated first transformation components. Appeal Br. 10-11; Reply Br. 2-5. We agree that a sustainable case of obviousness has not been established. Wang '056 teaches a multi-axis posture detector and calibration process to generate transfer matrix M, which is used to translate measured device coordinates to a patient's body coordinates for inferring posture and activities. Wang '056, ,r,r 40, 44. Wang '056 teaches determining the elements of transfer matrix M using accelerometer-measured force components in device coordinates at three different known patient body positions. Id. ,r,r 53-55. The measured force components in each known body position are used to calculate values to populate three columns of transfer matrix M. Id. ,r,r 53-59, Eq. 9. For example, the first column of transfer matrix M includes M11, M21, M31 (i.e., the Examiner's first transformation components), which are calculated using force components measured at a first patient body position (aur1, avr1, awr1). Id. ,r,r 54, 55, Eqs. 9, 12. Wang '056 also teaches calculating the second column of the transfer 4 Appeal2018-003260 Application 13/024,823 matrix (M12, M22, M32) (i.e., the Examiner's second transformation components) using additional sensor data (aur2, avr2, awr2). Id. ,r,r 54, 57, Eqs. 9, 14. However, as the Examiner acknowledges, Wang '056 does not teach that the second transformation components (M12, M22, M32) are calculated using the calculated first transformation components (M12, M22, M32). Final Act. 7. Wang '277 teaches a posture detection system that includes a 2D DC accelerometer 204 that measures acceleration in two axes in device coordinates, and an AC accelerometer 206 that measures acceleration in a third axis in device coordinates. Wang '277, ,r 42. Wang '277 teaches converting steady-state gravitational vector components in device coordinates to body coordinates using a transfer matrix determined by a calibration process, such as that disclosed by Wang '056, which Wang '277 incorporates by reference. Id. ,r 43. Wang '277 also teaches, with reference to Figure 3, determining gravitational vectors from DC accelerometers along device axes V and W (i.e., first and second acceleration vectors). Id. ,r 46. A "third acceleration vector (e.g., the U-component of acceleration) is determined 308 based on the AC accelerometer outputs and the values of the first and second acceleration vectors." Id. ,r 4 7 (boldface omitted). In other words, Wang '277 teaches calculating a third acceleration vector using the first and second acceleration vectors. Once the third acceleration vector is determined in step 308, body coordinates (X,Y,Z) and posture are determined using transfer matrix M. Id. ,r,r 48, 51-52. Appellants persuasively assert that step 308 in Wang '277 "is used in determining posture of the patient (see Wang [']277 at paragraph [0048] and 300 in FIG. 3)[, but not] ... in calculating elements of a calibration matrix 5 Appeal2018-003260 Application 13/024,823 as recited in the claims." Reply Br. 2; see also id. (asserting that, "at this point in the process of Wang [']277 [(i.e., step 308)], the calibration has previously been determined" (citing Wang '277, ,r 43, 11. 10-12)). In other words, although Wang '277 teaches calculating a third acceleration vector using first and second acceleration vectors, these components are not used to calculate the calibration matrix (i.e., transfer matrix M). As pointed out by Appellants, "Wang '277 refers the reader to the transfer matrix of Wang '056." Reply Br. 4 (citing Wang ,r 43). Because Wang '277 relies on the teachings of Wang '056 with respect to the calculation of the calibration matrix, it is unclear how the teachings of Wang '277 would have led one of ordinary skill in the art to modify the calculation of elements of a calibration matrix in Wang '056. The Examiner has not sufficiently articulated a reason with a rational evidentiary underpinning to explain why, given the teachings of Wang '277, an ordinary artisan would have been prompted to modify Wang '056 so that the second transformation components (i.e., M12, M22, M32) would be calculated using the first transformation components (i.e., M11, M21, M31). That is, the Examiner has not adequately explained how Wang '277's teaching of using the V-component and W-component of acceleration to calculate the U-component of acceleration (Wang '277 ,r,r 46-47) would have led one of ordinary skill to use the first column of transfer matrix M (M11, M21, M31), which is calculated using force components measured in the U, V, and W directions in a first patient body position (aur1, avrl, awr1) (Wang '056 ,r 55), in order to calculate the second column of transfer matrix M (M12, M22, M32), which is calculated using force components measured in the U, V, and W directions in a second patient body position (aur2, avr2, awr2) 6 Appeal2018-003260 Application 13/024,823 (Wang '056 ,r 57). See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness") ( cited with approval in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,419 (2007)). In particular, the Examiner does not adequately explain how the proposed modification of Wang '056 would take into account static and non-static events or steady- state and unsteady-state acceleration, nor does the Examiner adequately explain why this would be desirable in Wang '056's calibration process. See Final Act. 8; Ans. 15-16. Rejections based on obviousness must rest on a factual basis. In making such a rejection, the Examiner has the initial burden of supplying the requisite factual basis and may not, because of doubts that the invention is patentable, resort to speculation, unfounded assumptions, or hindsight reconstruction to supply deficiencies in the factual basis. See In re Warner, 379 F .2d 1011, 1017 (CCP A 1967). In this case, absent improper hindsight reconstruction, we do not see a sufficient reasoned explanation based on some rational underpinning as to why one of ordinary skill in the art would have been led to modify Wang '056's calibration process to include calculating transfer matrix elements M12, M22, and M32 (i.e., the Examiner's second transformation components) using transfer matrix elements M11, M21, and M31 (i.e., the Examiner's first transformation components), and an adequate reason for such modification is not otherwise evident from the record. For the foregoing reasons, we are persuaded that the Examiner erred in concluding that the combination of Wang '056 and Wang '277 renders obvious the subject matter of independent claim 1. Accordingly, we do not 7 Appeal2018-003260 Application 13/024,823 sustain the rejection of independent claim 1 and its dependent claims 2-8, 10, 11, and 21 under 35 U.S.C. Â§ 103(a) as unpatentable over Wang '056 and Wang '277. Because the Examiner relies on the same deficient findings and reasoning in rejecting independent claim 12 (Final Act. 10-12), we also do not sustain the rejection of claim 12 and its dependent claims 13-18, 20, and 22 under 35 U.S.C. Â§ 103(a) as unpatentable over Wang '056 and Wang '277. DECISION The Examiner's decision to reject claims 1-8, 10-18, and 20-22 under 35 U.S.C. Â§ 103(a) as unpatentable over Wang '056 and Wang '277 is REVERSED. REVERSED 8