Ex Parte McNamara et al

Patent Trial and Appeal Board

Aug 3, 2018

12425361 (P.T.A.B. Aug. 3, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/425,361 04/16/2009
156116 7590 08/07/2018
BRAEMAR MANUFACTURING, LLC
1285 Corporate Center Drive
Suite 150
Eagan, MN 55121
FIRST NAMED INVENTOR
Anna McNamara
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.
108622-0022-101 2385
EXAMINER
WEHRHEIM, LINDSEY GAIL
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
08/07/2018 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):
biotelemetry _docketing@cardinal-ip.com
ayazifar@berkeley.edu
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANNA McNAMARA, JONATHAN NEWBROUGH,
CHARLES GROPPER, AARON GOLDMUNTZ,
andYACHUANPU 1
Appeal2017-007964
Application 12/425,361
Technology Center 3700
Before FRANCISCO C. PRATS, MICHAEL J. FITZPATRICK, and
JOHN G. NEW, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants state that the real party-in-interest is BRAEMAR
MANUFACTURING, LLC. App. Br. 2.
Appeal2017-007964
Application 12/425,361
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-3, 5, 6, 8-16, 21-27, 29, 30, 36-42,
and 45-51 as unpatentable under 35 U.S.C. § 103(a) as being obvious over
the combination of Prystowsky et al. (US 7,212,850 B2, May 1, 2007)
("Prystowsky"), Valikai et al. (US 5,948,005, September 7, 1999)
("Valikai"), and Jamar et al. (US 6,583,796 B2, June 24, 2003) ("Jamar").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is directed to a processing system configured to
obtain annotation data via a communication channel from a monitoring
device and to generate for display based on the annotation data a daily
patient report that includes, a chart showing summary statistical data for a
proportion of a total monitored time period spent in cardiac arrhythmia.
Abstr. 1.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A machine-implemented method comprising:
obtaining ECG data associated with cardiac arrhythmia
events and heart rate in a monitored living being;
determining, from the obtained data, a total time period of
monitoring and a total time period that the monitored living being
spent in cardiac arrhythmia for a first day;
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Application 12/425,361
calculating from the total time period of monitoring and
the total time period that the monitored living being spent in
cardiac arrhythmia for the first day, a percentage of the total time
period of monitoring for the first day that the monitored living
being spent in cardiac arrhythmia;
generating, by a computer, for display a patient report,
including adding to the patient report information indicating:
the total time period of monitoring for the first day; and
the percentage of the total time period of monitoring for
the first day that the monitored living being spent in cardiac
arrhythmia;
selecting a portion of the ECG data corresponding to one
of the cardiac arrhythmia events; and
adding to the patient report a graph of the selected portion
of the ECG data.
App. Br. 9.
ISSUES AND ANALYSES
We are persuaded by, and expressly adopt, the Examiner's findings,
reasoning, and conclusions establishing that Appellants' claims are prima
facie anticipated by, or obvious over, the combined cited prior art. We
address the arguments raised by Appellants below.
A. Claims 1, 2, 5, 6, 8-15, 21-27, 29, 30, 36-42, 45, 46, and 48-51
Issue
Appellants argue these claims together, selecting claim 1 as
representative. App. Br. 4. Appellants contend that the Examiner erred
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Application 12/425,361
because the opportunity for improving the method of Prystowsky for
presenting AF burden was not recognized at the time of the invention.
Analysis
Appellants argue that Prystowsky teaches a graph for pictographically
presenting atrial fibrillation burden. App. Br. 5 ( citing Prystowsky col. 4 11.
4--5; Fig. 2). Appellants assert that, although Prystowsky pictographically
presents the atrial fibrillation burden on a graph, claim 1 improves on
Prystowsky by presenting atrial fibrillation ("AF") burden in the form of a
percentage. Id. According to Appellants, this may assist a physician in
assessing the actual AF burden experienced by a patient. Id. ( citing Spec. ,r,r
40, 41 ). Appellants contend that they have discovered that, when compared
to merely displaying atrial fibrillation events as discrete blocks on a heart
rate chart, displaying atrial fibrillation burden as a percentage can more
accurately show the actual atrial fibrillation burden. Id. Appellants argue
that no evidence has been adduced by the Examiner that a person of ordinary
skill would have been aware of this technical advantage which prompted the
claimed modification. Id.
We are not persuaded by Appellants' argument. Figure 4 of
Prystowsky is reproduced, in relevant part, below:
405-~
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Application 12/425,361
Graph 405 of Figure 4 of Prystowsky depicts a graph presenting
an example of atrial fibrillation burden
With respect to the depicted portion of Figure 4, Prystowsky teaches:
"Specifically, graph[ ] 405 ... contain[ s] information relating to, for
example, daily AF incidence and time of occurrence 401, [and] AF duration
402 .. .. " Prystowsky col. 4, 11. 22-25 (emphasis added). Prystowsky thus
teaches the duration of each AF as a portion of the entire duration of the
sampling epoch. We agree with the Examiner that a person of ordinary skill
in the art would have found it obvious, as a very elementary matter of
mathematical calculation, to convert the combined durations of the AF
episodes over the sampling period to a percentage. We consequently affirm
the Examiner's rejection of claims 1, 2, 5, 6, 8-15, 21-27, 29, 30, 36-42, 45,
46, and 48-51.
B. Claims 3 and 16
Issue
Appellants argue these claims separately together. App. Br. 5. Claim
3 depends upon claim 1 and recites:
The machine-implemented method of claim 1, further
compnsmg:
calculating, from the total time period of monitoring and
the total time period that the monitored living being spent in
cardiac arrhythmia for the first day, a percentage of the total
time period of monitoring for the first day that the monitored
living being did not spend in cardiac arrhythmia; and
wherein adding to the patient report information includes
adding to the patient report information indicating the percentage
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Application 12/425,361
of the total time period of monitoring for the first day that the
monitored living being did not spend in cardiac arrhythmia.
Id. at 10. Appellants argue the Examiner erred because the combined cited
prior art references fail to teach or suggest the limitation of claim 3 in italics
supra. Id. at 6.
Analysis
Appellants repeat their arguments presented supra. Additionally,
Appellants argue that, although Valikai discusses a bar-graph display 166
that shows the percent of total time during which there occurred PV (P-wave
followed by a V-pulse), PR events (a P-wave followed by an R-wave), AV
events (an A-pulse followed by a V-pulse), AR events (an A-pulse followed
by an R-wave), or PVE events (a premature ventricular event), the
percentages shown in bar-graph display 166 are for events only. App. Br. 6
(citing Valikai col. 11, 11. 61---63; see also col. 10, 11. 46-52). According to
Appellants, calculating percentages for non-events ( e.g., normal heart
rhythm) is neither taught nor suggested by Valikai. Id. Therefore, argue
Appellants, even though Prystowsky may pictographically present time not
spent in cardiac arrhythmia, a person of ordinary skill in the art would not be
motivated from the teachings of Valikai to calculate a percentage of this
time not spent in cardiac arrhythmia.
We are not persuaded by Appellants' argument. As we have
explained supra, Prystowsky teaches the duration of AF events over the
course of a sampling epoch (e.g., 24 hours in Figures 2 and 4), and it would
have been obvious to a person of ordinary skill in the art to express the
combined durations of the AF events over the sampling epoch as a
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Application 12/425,361
percentage. We similarly find that it would have been equally obvious, by
simple subtraction, to determine the percentage of time over the sampling
epoch in which an AF event did not occur. We consequently affirm the
Examiner's rejection of claims 3 and 16.
B. Claim 4 7
Issue
Appellants argue claim 47 separately. App. Br. 6. Claim 47 depends
ultimately from claim 1 and recites: "wherein the selected portion of the
ECG data is automatically selected." Id. at 21. Appellants contend that the
Examiner erred because the combined cited prior art fails to teach or suggest
the single limitation of claim 4 7. Id. at 7.
Analysis
Appellants argue that Jamar, upon which the Examiner relies,
discusses that a physician/clinician may select an event from a list and a
graphical representation of data recorded during the event is presented in a
second window. App. Br. 7 (citing Jamar col. 8, 11. 54--59). Therefore,
Appellants assert, the event is not automatically selected, but is rather
selected by a physician/clinician, whereas claim 47 requires that the selected
portion of ECG data be automatically selected. Id.
The Examiner responds that Jamar teaches automatic filtering of data
in response to a user action. Ans. 7. The Examiner finds Jamar teaches a
method by which, based on a user selection, software filters or searches, and
then selects, only those which correspond to the user selection. Id. ( citing
Jamar col 9, 11. 15-37). The Examiner finds that Jamar teaches that the
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Application 12/425,361
selection element includes check boxes, which causes the software to
automatically select data that corresponds to the selected checkbox. Id.
( citing Jamar co 1. 9, 11. 24--31). The Examiner concludes that Jamar thus
teaches that the data is automatically selected.
We agree with the Examiner. Jamar teaches:
While many events of varying type may be stored within
the memory of the programming unit 20 (as discussed above),
the physician/ clinician may desire to see only certain types of
events or episodes that are useful in diagnosing a particular
condition of the patient, or of the pacemaker 10. The GUI may
include radio buttons, check boxes, or the like for selecting
events such as VT /VF, AT/ AF, SVT, and the like. Once the
selections are made, software contained in the programming unit
20 will filter or otherwise search through a database of events
and select only those identified in the area 514 of the GUI.:_
Jamar col. 9, 11. 15-31. Jamar thus teaches that data can be automatically
selected by the device in response to the selected preferences of the user.
Claim 1, from which claim 4 7 ultimately depends, recites: "[a]
machine-implemented method comprising .. .. " Use of the transitional term
"comprising" "creates a presumption ... that the claim does not exclude
additional, unrecited elements." Crystal Semiconductor Corp. v. TriTech
Microelectronics Int'!, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001).
Therefore, although the claims do not expressly recite selection of the
various types of data to be displayed by the user, as taught by Jamar, such
steps are not excluded by the claims.
Consequently, we affirm the Examiner's rejection of claim 47.
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DECISION
The Examiner's rejection of claims 1-3, 5, 6, 8-16, 21-27, 29, 30,
36-42, and 45-51 under 35 U.S.C. § 103(a) is affirmed.
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).
AFFIRMED
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