Ex Parte Meftah et al

Patent Trial and Appeal Board

Oct 13, 2016

12747176 (P.T.A.B. Oct. 13, 2016)

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.
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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.
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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
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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
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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
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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.
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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
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