Ex Parte Milne et al

Patent Trials and Appeals BoardFeb 28, 2019

13544462 - (D) (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/544,462 07/09/2012 94654 7590 03/04/2019 Covidien LP / Merchant Gould ATTN: IP Legal 6135 Gunbarrel Avenue BOULDER, CO 80301 FIRST NAMED INVENTOR Gary Milne 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. H-RM-02634US/0191US01 1453 EXAMINER AGAHI,PUYA ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 03/04/2019 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): rs. patents.one@medtronic.com JBorrego@MerchantGould.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GARY MILNE and DAVID HYDE Appeal 2018-003471 Application 13/544,462 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Gary Milne and David Hyde ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-18. See Appeal Br. 1. Claims 19-22 have been withdrawn. See id. at 65---66 (Claims App.). We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We REVERSE. According to Appellants, "[ t ]he real party in interest is ... the assignee of record, which is a subsidiary of Covidien LP." Appeal Br. 2. USPTO records indicate that Covidien LP is the assignee of record, and thus is the real party in interest. Appeal2018-003471 Application 13/544,462 CLAIMED SUBJECT MATTER Appellants' disclosed invention relates generally to ventilator systems, and, more particularly, to "systems and methods for determining and displaying ineffective patient inspiratory or expiratory efforts or missed breaths in a manner easily deciphered by a clinician." Spec., p. 2, 11. 15-17. Claims 1, 8, 13, 17, and 18 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A method implemented by a ventilator for determining missed breaths, the method comprising: ventilating a patient with the ventilator, wherein the ventilator includes a pneumatic system and at least one sensor; monitoring respiratory data of the patient with the at least one sensor; analyzing the respiratory data with a background trigger detection application and an active trigger detection application, wherein the background trigger detection application and the active trigger detection application are different and running at the same time; detecting a first patient inspiratory effort with the active trigger application; detecting a second patient inspiratory effort with the background trigger application; comparing a first timing of the first patient inspiratory effort to a second timing of the second patient inspiratory effort; determining a timing difference between the first patient inspiratory effort and the second inspiratory effort; comparing the timing difference to a time delay threshold; determining that the timing difference does not meet the time delay threshold to form a missed breath determination; 2 Appeal2018-003471 Application 13/544,462 calculating a missed breaths metric based on the missed breath determination; displaying a missed breath indicator based on the missed breaths metric; and delivering inspiratory gas to the patient with the ventilator based on patient inspiratory efforts detected by the active trigger detection application and not based on the patient inspiratory efforts detected by the background trigger detection application. REJECTION The following rejection is before us for review: Claims 1-18 stand rejected under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. Final Act. 2--4. PRINCIPLES OF LAW The Supreme Court has set forth "a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice Corp. v. CLS Bankint'l, 573 U.S. 208,217 (2014) (emphasis added) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72 (2012)). Under that framework, we first "determine whether the claims at issue are directed to one of those patent-ineligible concepts"-i.e., a law of nature, a natural phenomenon, or an abstract idea. Id. ( citing Mayo, 566 U.S. at 77). The Federal Circuit has instructed that "[t]he 'directed to' inquiry ... [does not] simply ask whether the claims involve [or encompass] a patent- ineligible concept, because essentially every routinely patent-eligible claim 3 Appeal2018-003471 Application 13/544,462 involving physical products and actions involves a law of nature and/or natural phenomenon." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). Rather, "the 'directed to' inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether 'their character as a whole is directed to excluded subject matter."' Id. (citing Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It is only after the claims have been determined to be "directed to" a patent-ineligible concept that we secondly "consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 79, 77). The USPTO recently published revised guidance on the application of Â§ 101. See USPTO's January 7, 2019 Memorandum, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (the "2019 Revised Guidance"). Under the 2019 Revised Guidance, we first look to whether the claim recites: (1) any judicial exception, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP Â§ 2106.05(a}-(c), (e}-(h)). See 2019 Revised Guidance. 4 Appeal2018-003471 Application 13/544,462 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: See id. (3) adds a specific limitation beyond the judicial exception that is not "well-understood, routine, conventional activity" in the field (see MPEP Â§ 2106.05(d)); or ( 4) simply appends well-understood, routine, conventional activity previously known to the industry, specified at a high level of generality, to the judicial exception. ANALYSIS The Examiner rejected independent claims 1, 8, 13, 17, and 18 under 35 U.S.C. Â§ 101 as being directed to a judicial exception without significantly more, asserting that the claims "describe the concept of applying mathematical operations, which corresponds to concepts identified as abstract ideas by the courts." Final Act. 3 (underlining omitted). According to the Examiner, the claims recite limitations that pertain to performing mathematical calculations in which the result is "displaying a missed breath indicator based on the missed breaths metric", i.e.[,] the inventive concept. ... [T]he claimed invention recites an abstract idea without significantly more for the same reasons set forth in Electric Power Group[, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016)], which held that collecting information, analyzing it, and displaying certain results of the collection and analysis is an abstract idea without significantly more. Ans. 3 (boldface omitted). 5 Appeal2018-003471 Application 13/544,462 Appellants argue that "[ c ]laim 1 is not an abstract idea and is significantly more than the application of mathematical operations." Appeal Br. 34. In particular, Appellants assert that claim 1 requires that a ventilator with a pneumatic system and at least one sensor monitor respiratory data and based on this data detect patient inspiratory efforts, deliver ventilation, determine that a missed breath occurred, and display the detected missed breath. While some addition or subtraction and a numerical comparison may be utilized to determine if a missed breath occurred, the claim does not prevent others from using these mathematical calculations. In contrast, claim 1 applies these mathematical calculations in a very specific way to solve a unique problem that occurs in mechanical ventilator. As such, claim 1 is not merely directed to a mathematical relationship and is not an abstract idea. Id. at 3 5. Appellants present similar arguments with respect to independent claims 8, 13, 17, and 18. See id. at 39--58. Upon review of the record before us, the independent claims recite monitoring and analyzing patient respiratory data with active and background trigger detection applications to detect first and second patient inspiratory efforts. See Appeal Br. 59, 61---65 (Claims App.). A missed breath determination is made using a calculated timing difference between the first and second patient inspiratory efforts, and a missed breath indicator is displayed. See id. We agree with the Examiner that such limitations pertain to mathematical calculations. See Final Act. 3; Ans. 3. Our reviewing court has identified such mathematical concepts as representing abstract ideas. See SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to a "series of mathematical calculations based on selected information" are directed to abstract ideas); Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1350 6 Appeal2018-003471 Application 13/544,462 (Fed. Cir. 2014) (holding that claims to a "process of organizing information through mathematical correlations" are directed to an abstract idea). We also appreciate that the claims recite limitations that involve data gathering, mathematical analysis, and the display of results, which our reviewing court has identified as an abstract idea. See Ans. 3; Elec. Power Grp., LLC, 830 F.3d at 1353-54 (discussing how "collecting information" and "analyzing information by steps people go through in their minds, or by mathematical algorithms, without more" are abstract ideas). Nevertheless, the present claims also expressly recite ventilating a patient by a ventilator having a pneumatic system and a sensor, and the ventilator delivering inspiratory gas to a patient based on detected inspiratory efforts. See Appeal Br. 59, 61---65 (Claims App.). This is not merely an abstraction; rather, as Appellants explain, the present claims "recite[] a mechanical device (a ventilator for delivering ventilation) that utilizes some mathematical calculations to determine if a missed breath occurred." Id. at 35. In other words, although the claims recite limitations involving abstract concepts of data collection, analysis using mathematical operations, and the display of results, the claims also specifically recite a concrete implementation of these concepts with a ventilator system to deliver inspiratory gas to a patient. In this regard, Appellants persuasively assert that the implementation of the recited concepts provides a specific technical improvement over prior art ventilator systems. See id.; Reply Br. 4--5. As to the initial abstract idea determination here, and critical to our resolution of the issue before us for review, we agree with Appellants' argument that the claims are "not merely directed to a mathematical 7 Appeal2018-003471 Application 13/544,462 relationship and [are] not an abstract idea." Appeal Br. 35. Thus, even though the claims may involve concepts representing abstract ideas, the rejection presented fails the initial threshold step of explaining why the claims, as a whole, are "directed to" nothing more than an abstract idea itself. In other words, looking to the language set forth in the 2019 Revised Guidance, although the claims recite a judicial exception (here, an abstract idea), the claims as a whole recite additional elements that integrate the recited abstract idea into a practical application, such that the claims are not simply "directed to" the recited judicial exception itself. See 2019 Revised Guidance. In light of the above, we do not sustain the Examiner's rejection of independent claims 1, 8, 13, 17, and 18, or their dependent claims 2-7, 9-12, and 14--16, under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. DECISION We REVERSE the Examiner's decision rejecting claims 1-18 under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. REVERSED 8