Ex Parte Hong et al

Patent Trial and Appeal Board

Sep 12, 2018

14481020 (P.T.A.B. Sep. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/481,020 09/09/2014
119042 7590 09/14/2018
Weaver Austin Villeneuve & Sampson LLP; FITBIT
ATTN: FITBIT, INC
P.O. BOX 70250
Oakland, CA 94612-0250
Jung Ook Hong
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.
FTBTP0l2Dl/FB-0023Dl 7246
EXAMINER
CERIONI, DANIEL LEE
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
09/14/2018 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@wavsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUNG OOK HONG, ANDREW COLE AXLEY, and
SHELTON GEE JAO YUEN 1
Appeal2017-006708
Application 14/481,020
Technology Center 3700
Before FRANCISCO C. PRATS, JOHN E. SCHNEIDER, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
SCHNEIDER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to biometric
monitoring devices, which have been rejected as obvious, as indefinite, and
as directed to ineligible subject matter. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
Biometric sensors are often used to track the activities of the user.
Spec. 1. Miniaturized biometric sensors can be used to collect a variety of
1 Appellants identify the Real Party in Interest as Fitbit, Inc. Appeal Br. 3.
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information for the user including "step counts, ambulatory speed, distance
traveled cadence, heart rate, calorie bum, floors climbed and/ or descended,
location and/or heading, elevation, etc." Spec. 2. Miniature biometric
devices, however, have a limited power supply which limits the usefulness
of the biometric device. Spec. 12. The Specification describes biometric
devices that achieve computation speed and accuracy while maintaining
energy efficiency. Spec. 2.
Claims 20-22, 24--26, 29, 35--42, and 44--49 are on appeal. Claims 20
and 46 are illustrative and read as follows:
20. A biometric monitoring device comprising:
one or more sensors providing sensor output data
comprising information about a user's physiological activity
when the biometric monitoring device is worn by the user;
a display device configured to display values of
physiological metrics generated for the user; and
one or more processors configured to:
(a) operate the one or more sensors to provide the sensor
output data when the biometric monitoring device is worn by
the user;
(b) determine that a first portion of the sensor output data
includes data indicative of the user being engaged in a first
activity, wherein the first activity is walking and/ or running;
( c) update, based at least in part on the determination that
the first portion of the sensor output data includes data
indicative of the user being engaged in the first activity, a heart
rate metric using information obtained from a time domain
analysis of the first portion of the sensor output data;
( d) determine that a second portion of the sensor output
data includes data indicative of the user being engaged in a
second activity, wherein the second activity is selected from the
group consisting of: elliptical machine exercise, stair machine
exercise, cardio exercise machines, weight training, driving,
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swimming, biking, sleeping, driving, stair climbing, rock
climbing, and any combination
thereof;
( e) update, based at least in part on the determination that
the second portion of the sensor output data includes data
indicative of the user being engaged in the second activity, the
heart rate metric using information obtained from a frequency
domain analysis of the second portion of the sensor output data;
( f) repeat (b) through ( e) for additional portions of the
sensor output data; and
(g) control the display device of the biometric monitoring
device to display the heart rate metric.
46. (Previously Presented) A biometric monitoring
device comprising:
one or more heart rate sensors providing heart rate data
comprising information about a user's physiological activity
when the biometric monitoring device is worn by the user;
a display device configured to present display values of
heart rate metrics generated for the user, and
one or more processors configured to:
(a) operate the one or more heart rate sensors to provide
the heart rate data when the biometric monitoring device is
worn by the user;
(b) determine that a signal strength characteristic for a
first portion of the heart rate data is higher than a first threshold
value;
c) update, based at least in part on the determination that
the signal strength characteristic for the first portion of the heart
rate data is higher than the first threshold value, a heart rate
metric using information obtained from a time domain analysis
of the first portion of the heart rate data;
( d) determine that the signal strength characteristic for a
second portion of the heart rate data is less than or equal to a
second threshold value;
( e) update, based at least in part on the determination that
the signal strength characteristic for the second portion of the
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heart rate data is less than or equal to a second threshold value,
the heart rate metric using information obtained from a
frequency domain analysis of the second portion of the heart
rate data;
( f) repeat (b) through ( e) for additional portions of the
heart rate data; and
(g) control the display device of the biometric monitoring
device to display the heart rate metric.
The claims stand rejected as follows:
Claims 20-22, 24--26, 29, 35, 38, 42, and 44--49 have been rejected
under 35 U.S.C. § 112, second paragraph as indefinite.
Claims 20-22, 24, 26, 29--35, 38, and 42--49 have been rejected under
35 U.S.C. § 101 as directed to non-statutory subject matter.
Claims 20-22, 24, 26, 27, 29, 35, 42, and 44--49 have been rejected
under 35 U.S.C. § I03(a) as unpatentable over Drysdale2 in view of Meger. 3
Claim 38 has been rejected under 35 U.S.C. § I03(a) as unpatentable
over Drysdale in view of Meger in further view of F emstrom. 4
Claims 20 and 46 have been rejected under 35 U.S.C. § 1-3(a) as
unpatentable over Stirling5 in view of Meger.
2 Drysdale at al., US 2013/0173171 Al, published July 4, 2013
("Drysdale").
3 Meger et al., US 2011/0112442 Al, published May 12, 2011 ("Meger").
4 Fernstrom et al., US 2009/0012433 Al, published Jan. 8, 2009
("F emstrom").
5 Stirling et al., US 2008/0214360 Al, published Sept. 4, 2008 ("Stirling").
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INDEFINITENESS
1st Section 112 rejection
Claim 20 contains a limitation calling for "one or more sensors
providing sensor output data comprising information about a user's
physiological activity when the biometric monitoring device is worn by the
user." Appeal Br. 40. Claim 46 contains a similar limitation, except that the
sensors are heart rate sensors that provide heart rate data. Id. at 43.
The Examiner contends that both limitations are ambiguous. Final
Act. 3. The Examiner contends that it is unclear what comprises the
information about the physiological activity. Id. The Examiner concludes
that the claims and their dependent claims are indefinite. Id.
Appellants argue that the claims are not indefinite in that a proper
reading of the term would lead one skilled to interpret the term to mean that
the sensor output data comprises information about a user's physiological
activity. Appeal Br. 8-9.
We agree with Appellants that the claims are not indefinite. A proper
reading of the claim shows that it is the sensor output data that comprises
the information about a user's physiological activity. The phrase
"information about a user's physiological activity" further defines the type
of sensor output data provided by the sensors. We do not find the term to be
ambiguous.
2nd Section 112 Rejection
The Examiner has found that the phrase in claim 20 "wherein the first
activity is walking and/or running" to be ambiguous because it is unclear
how one activity can be both running and walking. Final Act. 4. The
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Examiner finds that an activity cannot be both walking and running at the
same time. Ans. 24--25.
Appellants contend that the claim phrase is not indefinite. Appeal Br.
9. Appellants argue that the phrase should be construed as an activity which
comprises both walking and running. Appeal Br. 9, Reply Br. 6
Again we agree with Appellants. "[D]uring examination proceedings,
claims are given their broadest reasonable interpretation consistent with the
specification." In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). Under
this standard, we interpret the term "first activity is walking and/or running"
to mean an activity that includes or comprises walking and/or running. As
the Examiner points out, this can include an activity such as basketball
where a player may alternate between running and walking. Ans. 24--25.
The Examiner has not persuasively shown why the claim limitation should
be interpreted in a nonsensical manner as requiring running and walking to
occur simultaneously.
3rd Section 112 Rejection
The Examiner has rejected claim 22 as indefinite because the term
analyzing the sensor output data in (a) lacks an antecedent basis. Final Act.
4. Appellants do not present any arguments with respect to this rejection.
Therefore, we affirm this rejection.
NON-STATUTORY SUBJECT MATTER
The Examiner has rejected claims 20-22, 24, 26, 29--35, 38, and 42-
49 as being directed to non-statutory subject matter. Final Act. 4. The
Examiner finds that the claims are directed to an abstract idea that involves
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taking signal data and then determining what kind of activity a user is
engaged in based on calculations performed using the signal data. Id. at 5.
The Examiner also finds that the claims do not recite additional elements
that amount to something significantly more than the abstract idea. Id.
Appellants contend that the claims are directed to patent eligible
subject matter. Appeal Br. 10. Appellants argue that the claims are directed
to an improved wearable biometric monitoring device and not an abstract
idea. Id. Appellants also argue that even if the claims were directed to an
abstract idea, the additional claim elements are sufficient to transform the
invention into patent eligible subject matter.
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden ... of presenting
a prima facie case of unpatentability ....
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
Appellants persuade us that a preponderance of the evidence fails to
support the Examiner's conclusion that the rejected claims recite subject
matter ineligible for patenting under 35 U.S.C. § 101.
Section 101 states that "[ w ]hoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."
The Supreme Court has "long held that this provision contains an
important implicit exception: Laws of nature, natural phenomena, and
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abstract ideas are not patentable." Alice Corp. Pty. Ltd. v. CLS Bank Intern.,
134 S.Ct. 2347, 2354 (2014).
The Federal Circuit has summarized the Supreme Court's two-part
test for distinguishing between claims to patent-ineligible exceptions, and
claims to patent-eligible applications of those exceptions, as follows:
Step one asks whether the claim is "directed to one of
[the] patent-ineligible concepts." [Alice, 134 S.Ct. at 2354]. If
the answer is no, the inquiry is over: the claim falls within the
ambit of§ 101. If the answer is yes, the inquiry moves to step
two, which asks whether, considered both individually and as
an ordered combination, "the additional elements 'transform the
nature of the claim' into a patent-eligible application." Id.
( quoting Mayo [ Collaborative Services v. Prometheus Labs,
Inc., 132 S.Ct. 1289, 1297 (2012)]).
Step two is described "as a search for an 'inventive
concept."' Id. (quoting Mayo, 132 S.Ct. at 1294). At step two,
more is required than "well-understood, routine, conventional
activity already engaged in by the scientific community," which
fails to transform the claim into "significantly more than a
patent upon the" ineligible concept itself. Mayo, 132 S.Ct. at
1298, 1294.
Rapid Litigation Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1047 (Fed.
Cir. 2016) (paragraphing added).
In applying step one of the test recited above, it is important to not
only see if there is a patent-ineligible concept within the claim but we must
determine if the patent eligible concept is what the claim is directed to.
Vanda Pharm. Inc. v. West Ward Pharm. Int 'l Ltd., 887 F .3d 1117, 1134. If
we find that the claims are not directed to a patent ineligible concept, we
need not proceed to step two. Id.
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We agree with Appellants that the invention, when viewed as a whole,
is directed to patent eligible subject matter, namely a biometric device. The
claims call for one or more sensors, a display device and one or more
processors configured to form a biometric device. While the device may use
certain abstract concepts in its operation, the device, when viewed as a
whole, is directed to patent eligible subject matter.
Having determined that the claims are directed to patent eligible
subject matter, we need not reach the second step of the patent eligible
subject matter analysis.
OBVIOUSNESS
Drysdale Combined with Meger
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
claims 20-22, 24, 26, 27, 29, 35, 42, and 44--49 would have been obvious
over Drysdale combined with Meger.
The Examiner finds that Drysdale discloses a biometric sensor
comprising one or more sensors that provide sensor output data wherein the
data comprises information about a user's physiological activity; a display
device and one or more processors. Final Act. 11. The Examiner finds that
the processors in the device of Drysdale are configured to: use the sensor
output data to determine that the user is engaged in a first activity, which can
be walking and/ or running; update a heart rate metric based on the output
data; determine when the user is engaged in a second activity; update the
heart rate metric using data about the second activity; and then repeat the
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step. Final Act. 11-12. The Examiner finds that while Drysdale does not
teach using a time domain analysis for the first portion of the output data and
a frequency analysis for the second portion of the output data, this is taught
by Meger. Final Act. 12. The Examiner concludes
It would have been obvious to a skilled artisan to modify
Drysdale to include one or more processors configured to:
update a heart rate metric using information obtained from a
time domain analysis of the first portion of the sensor output
data; update a heart rate metric using information obtained from
a frequency domain analysis of the second portion of the sensor
output data; and control the display device of the biometric
monitoring device to display the heart rate metric, in view of
the teachings of Meger, for the obvious advantage of tailoring
the type of analysis to the level of subject activity so that the
analyses will not erroneously detect a heart rate metric or other
physiological metric (see para [0254], [0328], and [0329] of
Meger).
Final Act. 12-13.
Appellants argue that Drysdale does not teach the use of one or more
processors configured to update a heart metric using either a time domain
analysis or a frequency domain analysis. Appeal Br. 31-32. Appellants
contend that Meger does not remedy the deficiencies of Drysdale. Appeal
Br. 32. Appellants argue that Meger is directed to be used in bed for bed-
bound patients as compared to the wearable device of Drysdale. Id. at 33.
Appellants contend that there is no motivation to combine the system of
Meger with the device of Drysdale.
With respect to claim 46, Appellants contend that, in addition to the
arguments raised above, neither Drysdale nor Meger teach updating the heart
rate metric using either time domain analysis or frequency domain analysis
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based on the signal strength characteristics of the heart rate data. Appeal Br.
33-34.
Finally, with respect to claims 22 and 4 7, Appellants argue that
neither Drysdale nor Meger teach the additional elements recited in these
claims. Appeal Br. 34--35.
Findings of Fact
We adopt the Examiner's findings as our own, including with regard
to the scope and content of, and motivation to modify or combine, the prior
art. The following findings are included for emphasis and reference
purposes.
FF 1. Drysdale teaches a wearable data capture device having one or
more sensors to capture data from different sources. Drysdale ,r 50.
FF2. Drysdale teaches
To illustrate action and event processing of a strapband,
consider the following examples. First, consider a person is
performing an activity of running or jogging, and enters an
active mode at 1702. The logic of the strap band analyzes user
characteristics at 1704, such as sleep patterns, and determines
that the person has been getting less than a normal amount of
sleep for the last few days, and that the person's heart rate
indicates the user is undergoing strenuous exercise as
confirmed by detected motion in 1706.
Id. at ,I 125.
FF3. Drysdale also teaches
As a second example, consider a person is performing an
activity of sleeping and has entered a sleep mode at 1702. The
logic of the strap band analyzes user characteristics at 1704,
such as heart rate, body temperature, and other user
characteristics relevant to the determination whether the person
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is in REM sleep. Further, the person's motion has decreased
sufficiently to match that typical of periods of deep or REM
sleep as confirmed by detected motion ( or lack thereof) at 1706.
Id. at i1 126.
FF4. Meger teaches
In an embodiment of the present invention, system 10
switches between different algorithms for calculating
respiratory rates or heart rates between sleep and wake mode,
and/or between low activity level and high activity level. For
example, for some applications, it is more effective to use a
time domain algorithm for calculating respiratory rate when the
subject is awake and a frequency domain algorithm when the
subject is asleep. Alternatively, the system switches between
the different algorithms according to a level of subject activity
and/or restlessness.
Meger ,r 358.
Principles of Law
[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie
case of unpatentability.
If that burden is met, the burden of coming forward with
evidence or argument shifts to the applicant. After evidence or
argument is submitted by the applicant in response,
patentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to
persuasiveness of argument.
In re Oetiker, 977 F.2d at 1445.
Analysis
We find the Examiner has established that the subject matter of claims
20-22, 24, 26, 27, 29, 35, 42, and 44, and 45 would have been obvious to
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one of ordinary kill in the art at the time the invention was made over
Drysdale combined with Meger. Appellants have not produced evidence
showing, or persuasively argued, that the Examiner's determinations on
obviousness of these claims are incorrect. Only those arguments made by
Appellants in the Briefs have been considered in this Decision. Arguments
not presented in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv)
(2015). We have identified claim 20 as representative. We address
Appellants' arguments below.
Appellants contend that Drysdale does not teach or suggest updating a
heart rate metric using a time domain analysis to determine that the user is
walking and/ or running nor does it teach using a frequency based analysis to
determine if the user is engaged in a second activity, which includes
elliptical machine exercise, stair machine exercise, cardio exercise machines,
weight training, driving, swimming, biking, sleeping, driving, stair climbing,
or rock climbing using a frequency domain analysis. Appeal Br. 31-32. We
are not persuaded.
The Examiner does not rely on Drysdale to teach the use of time
domain analysis or frequency domain analysis. Ans. 34--35. Instead, the
Examiner cites Meger as evidencing this teaching. Id. It is the combined
teaching of the references that renders the claimed subject matter obvious.
"The test for obviousness is what the combined teachings of the references
would have suggested to one of ordinary skill in the art." In re Young, 927
F.2d 588, 591 (Fed. Cir. 1991).
Appellants next contend that Meger does not provide the motivation
to combine its teachings with those of Drysdale. Appeal Br. 33. Appellants
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point to the fact that Meger is directed to a system implemented in a bed for
bed-bound patients whereas Drysdale is a wearable device designed for
ambulatory users. Id. We find Appellants' arguments unpersuasive.
Drysdale teaches a biometric device that uses physiological
parameters, such as a subject's heart rate, to detect and analyze a subject's
sleep patterns, and also detect whether the subject has entered an active
mode ( e.g., jogging). FF 2 and 3. Turning to Meger, it teaches a system that
advantageously switches between different algorithms for calculating a
subject's heart rate or respiratory rate "between sleep and wake mode,
and/or between low activity level and high activity level." FF 4. Further to
this point, Meger specifically teaches that it may be "more effective" to use
a time domain algorithm for purposes of making the calculations when the
subject is awake- and thus in a more active state - and that a frequency
domain algorithm should be used when the subject is asleep. Id. Moreover,
Meger suggests switching between the respective algorithms according to
the subject's activity levels. Id. Accordingly, we agree with the Examiner
that the skilled artisan would have been motivated to apply Meger' s teaching
( e.g., providing improved monitoring of physiological parameters using a
time domain algorithm for purposes of calculations made during higher
activity levels, and using a frequency domain algorithm for calculations
made during sleep) to the device of Drysdale. Ans. 11-12, 35. And notably,
this modification of Drysdale corresponds to the processing and monitoring
encompassed by the device of claim 20 where heart rate calculations are
updated based on a time domain analysis of sensor output data taken during
"walking and/or running" by a subject, and heart rate calculations are
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updated based on a frequency domain analysis of sensor output taken during,
for example, certain lower level activities such as "sleeping." See claim 20.
With respect to claim 22, Appellants argue that neither Drysdale nor
Meger teach the limitation calling for "characterizing the sensor output data
based on a signal norm, a signal energy/power in certain frequency bands, a
wavelet scale parameter, and/or a number of samples exceeding one or more
thresholds." Appeal Br. 34. Appellants' argument is unpersuasive.
Drysdale teaches "Motion capture manager 1561 continues to monitor
and capture motion until, for example, motion capture manager 1561 detects
no significant motion (i.e., below a threshold) or an activity or mode is
ended." Drysdale ,r 121. We agree with the Examiner that this teaches that
motion is monitored and characterized when a number of samples exceeds a
threshold as recited in claim 22.
Appellants argue that even if Drysdale does teach capturing motion
when a number of samples exceeds a threshold, Drysdale does not teach
characterizing the sensor output data. Reply Br. 23. We remain
unpersuaded. As the Examiner points out, Drysdale teaches characterizing
the sensor output data. Final Act. 13; Drysdale ,r,r 119--121.
Turning to claims 46-49, Appellants argue that
Drysdale does not disclose or otherwise suggest updating
a heart rate metric using a time domain analysis based on
determining that a signal strength characteristic of the heart rate
data is higher than a first threshold value. Neither does
Drysdale disclose or otherwise suggest updating the heart rate
metric using a frequency domain analysis based on determining
that the signal strength characteristic of the heart rate data is
less than or equal to a second threshold value.
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Appeal Br. 34. Appellants also argue that Meger does not remedy the
deficiency of Drysdale. Id.
The Examiner contends that Meger teaches switching between time
domain and frequency domain analyses based on signal strength. Ans. 3 7.
We find that Appellants have the better argument. While we agree
with the Examiner that Meger discloses switching between analytical
techniques when a threshold is met, the Examiner has not pointed to any
teaching in either reference that teaches analyzing data when the signal
strength is at or below a second threshold. Therefore the Examiner has not
shown that the combined references teach all of the elements of claim 46 and
the claims that depend on claim 46,
Conclusion of Law
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that claims 20 and 22 would have been obvious over
Drysdale combined with Meger.
Claims 21, 24--26, 29, 35, 42, 44, and 45 have not been argued
separately and therefore fall with claim 20. 37 C.F.R. § 4I.37(c)(l)(iv).
We conclude that a preponderance of the evidence does not support
the Examiner's conclusion that claims 46-49 would have been obvious over
Drysdale combined with Meger.
Drysdale combined with Meger and Fernstrom
Issue
The issue with respect to this rejection is whether a preponderance of
the evidence supports the Examiner's conclusion that the subject matter of
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claim 3 8 would have been obvious over Drysdale combined with Meger and
Fernstrom.
The Examiner reiterates his finding with respect to Drysdale and
Meger. Final Act. 18. The Examiner finds that Fernstrom teaches
performing frequency domain analysis finding spectral peaks that are a
function of an average step rate. Id. at 19. The Examiner concludes "It
would have been obvious to a skilled artisan to modify Drysdale wherein the
frequency domain analysis comprises finding any spectral peak/peaks that
is/are a function of an average step rate, in view of the teachings of
Fernstrom, for the obvious advantage of more accurately determining energy
expenditure and/or pulse rate (see para [0112] of Fernstrom)." Id.
Appellants contend that while Fernstrom discloses a device for
monitoring food intake and physical activity of an individual and does not
teach finding spectral peak/peaks that is/are a function of an average step
rate. Appeal Br. 35.
We find that the preponderance of the evidence supports the
Examiner. As the Examiner points out, Fernstrom specifically teaches
monitoring step counting and distance traveled which equates to average
step rate. Ans. 38; Fernstrom ,r 112. Fernstrom also teaches measuring pace
frequency. ,r 49.
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claim 38 would have been
obvious over Drysdale combined with Meger and Fernstrom.
Stirling combined with Meger
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Claims 20 and 46 have been rejected as unpatentable over Stirling
combined with Meger. The Examiner finds that Stirling teaches each of the
elements of the claims with the exception of one or more processors which
"update a heart rate metric using information obtained from a time domain
analysis of the first portion of the sensor output data; update a heart rate
metric using information obtained from a frequency domain analysis of the
second portion of the sensor output data." Final Act. 20-21. The Examiner
Finds that Meger teaches this limitation. Id. at 21. The Examiner concludes
Id.
It would have been obvious to a skilled artisan to modify
Stirling to include one or more processors configured to: update
a heart rate metric using information obtained from a time
domain analysis of the first portion of the sensor output data;
update a heart rate metric using information obtained from a
frequency domain analysis of the second portion of the sensor
output data, in view of the teachings of Meger, for the obvious
advantage of tailoring the type of analysis to the level of subject
activity so that the analyses will not erroneously detect a heart
rate metric or other physiological metric (see para [0254],
[0328], and [0329] of Meger).
Appellants contend that Stirling does not teach "one or more
processors configured to update the heart rate metric using a time domain
analysis or a frequency domain analysis based on a first activity or a second
activity as recited in claim 20." Appeal Br. 36-37. Appellants contend that
Meger does not remedy the deficiency of Stirling as Meger is directed to
monitoring a patient's bed status and is not a portable device for monitoring
a user's activities. Appeal Br. 37.
With respect to claim 46, Appellants also argue that
Stirling
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does not disclose or otherwise suggest updating a heart rate
metric using a time domain analysis based on determining that
a signal strength characteristic of the heart rate data is higher
than a first threshold value. Neither does Stirling disclose or
otherwise suggest updating the heart rate metric using a
frequency domain analysis based on determining that the signal
strength characteristic of the heart rate data is less than or equal
to a second threshold value.
Appeal Br. 3 8. Appellants argue that Meger does not cure this deficiency of
Stirling. Id.
With respect to claim 20, we find that the Examiner has established
that the subject matter of the claim would have been obvious over Stirling
combined with Meger. Appellants' arguments do not convince us otherwise.
While we agree with Appellants that Stirling does not teach the use of time
domain analysis coupled with frequency domain analysis, this element is
taught by Meger. FF4. "The test for obviousness is what the combined
teachings of the references would have suggested to one of ordinary skill in
the art." In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991).
With respect to Stirling and Meger being directed to different
applications, both references teach monitoring sleep activity. Stirling ,r 105,
Meger ,r 358. Given that both Stirling and Meger teach devices to monitor
sleep activity, we find that that one skilled in the art would have been
motivated to use the data analysis techniques of Meger to analyze the data
measured by the device of Drysdale.
As to claim 46, we reach a different conclusion. As discussed above,
claim 46 refers to two separate thresholds for applying time domain analysis
versus frequency domain analysis. While we agree with the Examiner that
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Meger teaches switching between the two types of analyses and that one
skilled in the art would logically conclude that this occurs when a threshold
is met, Ans. 37, the Examiner has pointed to nothing in either reference that
teaches the use of two separate thresholds as required by claim 46.
We conclude that a preponderance of the evidence supports the
Examiner's conclusion that claims 20 would have been obvious over Stirling
combined with Meger, but does not support the conclusion that claim 46
would have been obvious over Stirling combined with Meger.
SUMMARY
We reverse the rejections under 35 U.S.C. § 112, second paragraph,
except as to claim 22, which we affirm.
We reverse the rejection under 35 U.S.C. § 101.
We affirm the rejection of claims 20-22, 24, 26, 27, 29, 35, 42, 44,
and 45 under 35 U.S.C. § 103(a) as unpatentable over Drysdale combined
with Meger.
We reverse the rejection of claims 46-49 under 35 U.S.C. § 103(a) as
unpatentable over Drysdale combined with Meger.
We affirm the rejection of claim 38 under 35 U.S.C. § 103(a) as
unpatentable over Drysdale combined with Meger and Fernstrom.
We affirm the rejection of claim 20 under 35 U.S.C. § 103(a) as
unpatentable over Stirling combined with Meger.
We reverse the rejection of claim 46 under 35 U.S.C. § 103(a) as
unpatentable over Stirling combined with Meger.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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