Ex Parte Meftah et alDownload PDFPatent Trial and Appeal BoardOct 13, 201612747176 (P.T.A.B. Oct. 13, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 121747,176 06/10/2010 Mohammed Meftah 24737 7590 10/17/2016 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2007P01849WOUS 5255 EXAMINER TEJANI, ANKIT D ART UNIT PAPER NUMBER 3766 NOTIFICATION DATE DELIVERY MODE 10/17/2016 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): marianne.fox@philips.com debbie.henn@philips.com patti. demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MOHAMMED MEFTAH and ANDREAS BRAUERS 1 Appeal2015-001435 Application 12/747,176 Technology Center 3700 Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and TIMOTHY G. MAJORS, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to an apparatus and a method for measuring body position which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Party in Interest as Koninklijke Philips Electronics N. V. (App. Br. 2.) Appeal2015-001435 Application 12/747,176 STATEMENT OF THE CASE Appellants' invention relates to a "sleep position detection apparatus." (Spec. 1 :26.) "[B]y measuring the ECG traces with a plurality of sensors arranged in a position not fixed with respect to the body but fixed with respect to a support[,] the sensors can use the variation in the body surface potential caused by the electrical activity of the heart at different positions on the body to measure the body position." (Id. at 1 :28-2:2.) Claims 1-5, 7-10, and 13-192 are on appeal. Claim 1 is illustrative: 1. Apparatus for measuring body position, comprising: at least two biometric sensors arranged in a fixed position with respect to a body support, for measuring at least one electrocardiogram signal from a body, wherein the at least one electrocardiogram signal changes with the body position as a result of variation of electrocardiogram potential over the surface of the body; and a processing means arranged to capture the at least one electrocardiogram signal from the biometric sensors, and to determine the body position from the captured at least one electrocardiogram signal using the variation of electrocardiogram potential over the surface of the body; wherein the processing means is adapted to determine a polarity of a QRS complex of the at least one electrocardiogram signal to determine an orientation of a heart of the body with 2 Claim 19 as listed in Appellants' Claims Appendix, recites "[t ]he medium of claim 20." (App. Br. 16 (Claims App'x).) This appears to be an error as claim 20 does not exist, and because earlier claim sets identified claim 19 as depending from claim 18. (See, e.g., Remarks and Claims dated Jan. 21, 2014.) For this Appeal, we interpret claim 19 as depending from claim 18. 2 Appeal2015-001435 Application 12/747,176 respect to a respective pair of the biometric sensors providing the at least one electrocardiogram signal. (App. Br. 13 (Claims App'x).) The claims stand rejected as follows: I. Claims 1-5, 7, 10, 13, 14, 18, and 19 are rejected under 35 U.S.C. § 103(a) over Sullivan,3 Akselrod,4 and Ferek-Petric.5 II. Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Stewart. 6 III. Claim 15 is rejected under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Brauers.7 IV. Claim 16 is rejected under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, Brauers, and Park. 8 V. Claim 17 is rejected under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, Brauers, and Tran. 9 DISCUSSION REJECTIONS 1-V These rejections rely upon the combination of Sullivan, Akselrod, and Ferek-Petric, and so we focus on the Examiner's findings with respect to these references. 3 Sullivan et al., US 2004/0111045 Al, published June 10, 2004. 4 Akselrod et al., US 2006/0235315 Al, published Oct. 19, 2006. 5 Ferek-Petric, US 2003/0083586 Al, published May 1, 2003. 6 Stewart et al., US 5,476,501, issued Dec. 19, 1995. 7 Brauers et al., US 2008/0208063 Al, published Aug. 28, 2008. 8 Park et al., US 2007/0255152 Al, published Nov. 1, 2007. 9 Tran, US 2007/0276270 Al, published Nov. 29, 2007. 3 Appeal2015-001435 Application 12/747,176 Each of Appellants' independent claims 1 and 18, requires, among other things, determining a "polarity of a QRS complex of the at least one electrocardiogram signal to determine an orientation of a heart of the body." (App. Br. 13, 15-16 (Claims App'x).) Independent claim 10 similarly requires "determining of the body position from the at least one electrocardiogram signal includes: determining a polarity of the QRS complex of the at least one electrocardiogram signal." (Id. at 14--15.) The Examiner finds that "Sullivan discloses an apparatus and method for measuring body position ([0037] - [0038]; figure 1, passive patient monitoring system #100)." (Ans. 2.) The Examiner finds that Sullivan ... does not explicitly disclose wherein the processing means is adapted to determine a polarity of a QRS complex of the at least one electrocardiogram signal to determine an orientation of a heart of a body with respect to a respective pair of the biometric sensors providing the at least one electrocardiogram signal. (Id. at 3--4.) The Examiner finds that "Akselrod describes measuring an electrocardiogram." (Id. at 4.) And the Examiner finds Ferek-Petric "discusses patient monitoring systems and methods, including that the polarity of the QRS complex of the electrocardiogram may be used to determine the orientation of the heart with respect to the sensors providing the electrocardiogram signal ([0010] - [0013], [0018], [0038] - 0040])." (Id.) The Examiner concludes that it would have been obvious to incorporate the [ECG]-based positioning determination as discussed by Ferek-Petric into the apparatus for measuring body position as described by Sullivan in view of Akselrod, as this would have the advantage of allowing a user to monitor a patient's position based on the electrocardiogram, as discussed 4 Appeal2015-001435 Application 12/747,176 (Id.) by Ferek-Petric ([0010]-[0013]), described by Akselrod ([0021] - [0022]), and is a goal of Sullivan ([0009]). We are not persuaded that the Examiner has established by a preponderance of the evidence that claims 1, 10, and 18 would have been obvious. Instead, we agree with Appellants that "[ n ]either Akselrod nor Ferek-Petric discloses that the patient's body position can be determined based on a polarity of the QRS complex of an ECG signal." (App. Br. 7.) We recognize, but are not persuaded by, the Examiner's assertion that when summarizing the results, Akselrod states "the relative angle between an ECG lead and the electric axis of the heart changes with body position, and affects the shape of the QRS recorded in that lead ... in the present study, this angle was exploited to identify body position changes, and to classify different body positions" ([0526]). Even a narrow interpretation of Akselrod's disclosure would yield one skilled in the art to use the angle between an ECG lead and the electric axis of the heart to determine a patient's body position. This angle is directly correlated with the ECG waveform, and in fact is derived from the same raw data of the electrical activity of a patient's heart. (Ans. 12.) Akselrod teaches that "it has been realized that different body positions affect the shape of the QRS complex of the ECG signal, and, more particularly the width of the R-wave of the QRS complex." (Akselrod i-f 341; see also id. at i-f 526, Fig. 7 .) While Akselrod discusses "the relative angle between an ECG lead and the electric axis of the heart" as the Examiner points out (Ans. 12 (referring to Akselrod i-f 526)), the Examiner has not persuasively established that the prior art teaches or suggests determining a "polarity of a QRS complex" as required by the claims. Rather, we find persuasive Appellants' argument that 5 Appeal2015-001435 Application 12/747,176 The R-wave duration is independent of the polarity of the QRS complex. In Akselrod, it is measured as the time difference between the left and right inflection points on either side of the peak of the QRS complex, regardless of whether the peak value is positive or negative. Accordingly, Akselrod's body position determination is completely independent of the polarity of the QRS complex. There is no suggestion in Akselrod to use the polarity of the QRS complex to determine body position, and the use of polarity is contrary to Akselrod's determination based on left and right R-wave durations. (App. Br. 8.) The Examiner asserts that As Ferek-Petric states, "vectorcardiography uses a vector description of the progress of the depolarization wave front through the heart during the P-wave or loop, the QRS wave or loop and the T-wave or loop ... vectorcardiography abandons the one dimensional time coordinate of the ECG in favor of plots or tracings of the orientation and magnitude of the vector of the depolarization wave front" ([0010], emphasis added). Ferek- Petric goes on to state that "the direction and location of the mean QRS vector on the circle determines how the heart is :thnctioning and allows a physician to ascertain typical heart malfunctions" ([0016]). The Examiner respectfully maintains that, as a shift in the electrical axis of the heart correlates with a shift in the position of the heart (assuming an otherwise cardionormal subject), Ferek-Petric suggests using vectorcardiography to determine a patient's body position. (Ans. 14--15.) We are not persuaded. Here again, while Ferek-Petric discusses "the orientation and magnitude of the vector of the depolarization wave front" as the Examiner points out (id. at 14 (referring to Ferek-Petric i-f 10)), the Examiner has not persuasively established that the prior art teaches or suggests determining a "polarity of a QRS complex" as required by the claims. As Appellants explain, "Ferek-Petric teaches a vectorcardiographic 6 Appeal2015-001435 Application 12/747,176 technique that replaces conventional QRS complex based techniques for discriminating tachyarrhythmias." (App. Br. 8; see Ferek-Petric i-f 10.) F erek-Petric also teaches that " [ v] ectorcardiography abandons the one dimension time coordinate of the ECG in favor of plots or tracings of the orientation and magnitude of the vector of the depolarization wave front on each of three planes" (Ferek-Petric i-f 10 (emphasis added); see also id. at Fig. 2, App. Br. 8).) On the present record, we agree with Appellants that Ferek-Petric "does not address determining a body position based on a polarity of the QRS complex of an ECG signal." (App. Br. 9.) The Examiner asserts that "the R-wave necessarily changes with the orientation of the heart within the patient's body" as exemplified by the figures reproduced by the Examiner, which show QRS waves along with the heart axis. (See Ans. 12-13.) Even considering these figures, 10 the Examiner has not provided sufficient "articulated reasoning with some rational underpinning" -based on Sullivan, Akselrod, and Ferek-Petric, or otherwise - why the skilled artisan would make the changes necessary to arrive at an apparatus or method for measuring body position based on a determination of the polarity of the QRS complex. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441F.3d 977, 988 (Fed. Cir. 2006). For the reasons above, the rejection of independent claims 1, 10, and 18 is reversed. So too, we reverse the rejection of claims 2-5, 7-9, 13-17, and 19 because of their dependencies from claims 1, 10, or 18. 10 The source of these figures is also unclear, and they do not appear to have been relied upon or made of record in the February 12, 2014 Final Rejection that is the subject of the present appeal. 7 Appeal2015-001435 Application 12/747,176 CONCLUSION OF LAW We reverse the rejection of claims 1-5, 7, 10, 13, 14, 18, and 19 under 35 U.S.C. § 103(a) over Sullivan, Akselrod, and Ferek-Petric. We reverse the rejection of claims 8 and 9 under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Stewart. We reverse the rejection of claim 15 under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Brauers. We reverse the rejection of claim 16 under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Park. We reverse the rejection of claim 17 under 35 U.S.C. § 103(a) over Sullivan, Akselrod, Ferek-Petric, and Tran. REVERSED 8 Copy with citationCopy as parenthetical citation