Ex Parte Patangay et al

Patent Trial and Appeal Board

Jan 22, 2019

13331288 (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/331,288 12/20/2011
45458 7590 01/24/2019
SCHWEGMAN LUNDBERG & WOESSNER/BSC
POBOX2938
MINNEAPOLIS, MN 55402
Abhilash Patangay
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.
279.I98US1 9849
EXAMINER
WESTON, TIFFANYC
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
01/24/2019 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABHILASH P ATANGA Y,
PRAMODSINGH HIRASINGH THAKUR,
and YI ZHANG 1
Appeal2018-000734
Application 13/331,288
Technology Center 3700
Before DANIELS. SONG, JAMES P. CALVE, and ARTHUR M. PESLAK,
Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Cardiac Pacemakers, Inc. is identified as the real party in interest. Appeal
Br. 2.
Appeal2018-000734
Application 13/331,288
CLAIMED SUBJECT MATTER
Claims 1, 14, and 16 are independent. Claim 1 is reproduced below.
1. An apparatus comprising:
a processor circuit configured to:
receive an indication of cardiac filling pressure of
a subject;
receive an indication of thoracic fluid status of the
subject;
receive an indication of cardiac output of the
subject;
classify the indication of cardiac filling pressure
into one of at least first and second cardiac filling pressure
states by comparing the indication of cardiac filling pressure to
at least one pressure threshold;
classify the indication of thoracic fluid status into
one of at least first and second thoracic fluid status states by
comparing the indication of thoracic fluid status to at least one
fluid status threshold;
classify the indication of cardiac output into one of
at least first and second cardiac output states by comparing the
indication of cardiac output to at least one cardiac output
threshold;
generate a multi-dimensional heart failure
decompensation status indication classifying the subject as
having one of a plurality of discrete types of heart failure events
and indicating a need for therapy, the multi-dimensional heart
failure decompensation status indication including, in separate
dimensions, the classified cardiac filling pressure state, the
classified thoracic fluid status state, and the classified cardiac
output state; and
generate a multi-dimensional heart failure
decompensation status alert based on the multi-dimensional
heart failure decompensation status indication, the multi-
dimensional heart failure decompensation status alert displayed
as a representation of a collection of at least two categorical
descriptors among the classified indication of cardiac filling
pressure, the classified indication of thoracic fluid status, and
the classified indication of cardiac output.
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Appeal2018-000734
Application 13/331,288
REJECTIONS
Claims 1, 3-9, and 11-21 are rejected as being directed to patent-
ineligible subject matter under the judicial exception to 35 U.S.C. § 101.
Claims 1-21 are rejected under 35 U.S.C. § 112, first paragraph, for
failing to comply with the written description requirement.
Claim 9 is rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite.
Claims 1-3, 5, 7, 8, 10-17, 19, and 21 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Sachanandani (US 7,629,889 B2, iss. Dec. 8,
2009), Tehrani (US 2005/0085734 Al, pub. Apr. 21, 2005), and Wekell
(US 2006/0200009 Al, pub. Sept. 7, 2006).
Claims 4, 6, 18, and 20 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Sachanandani, Tehrani, W ekell, and Brockway (US 2007 /
0142732 Al, pub. June 21, 2007).
ANALYSIS
Claims 1, 3-9, and 11-21 Under 35 U.S.C. § 1 OJ
The Examiner finds that claims 1, 3-9, and 11-21 are directed to the
abstract idea of generating a multi-dimensional heart failure decompensation
status. Final Act. 5. The Examiner also finds that the claims are directed to
the abstract idea of classifying data, which is similar to organizing human
activities, and to organizing information through mathematical correlations.
Id. at 6. The Examiner further finds that the claims are directed to receiving
data, classifying the received data, and generating multi-dimensional heart
failure decompensation indication/status that are similar to collecting and
analyzing information and displaying the results. Ans. 4 ( citing Electric
Power Group).
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Appeal2018-000734
Application 13/331,288
On January 7, 2019, the United States Patent and Trademark Office
published the 2019 Revised Patent Subject Matter Eligibility Guidance in
the Federal Register in which the Office revised its examination procedure.
84 Fed. Reg. 50 ("Revised Guidance"). To determine if a claim recites an
abstract idea under Prong One of the Revised Guidance, Examiners must
identify specific limitations in the claim (individually or in combination) that
the Examiner believes recite an abstract idea, and determine whether the
identified limitation(s) falls within the subject matter groupings set forth in
Section I of the Revised Guidance. Id. at 54 (III. A. Revised Step 2A). The
subject matter groupings include mathematical concepts, certain methods of
organizing human activity, and mental processes. Id. at 52.
Here, the Examiner does not identify any claim limitations but instead
states generally that "[c]laims 1, 3-9, and 11-21 are directed to generating a
multi-dimensional heart failure decompensation status, which is an abstract
idea." Final Act. 5; see also Ans. 4 ("The claims are directed to receiving
data, classifying the received data, and a generating multi-dimensional heart
failure decompensation indication/status."). These findings do not provide
the requisite specificity required by the Revised Guidance for Prong One. In
addition, the abstract ideas identified by the Examiner are not among the
categories of abstract ideas set forth in Section I of the Revised Guidance.
The Examiner has not shown that the claims are directed to any
mathematical concepts, mathematical relationships, or formulas, equations,
or calculations. See Revised Guidance, 84 Fed. Reg. 50, 52. Nor has the
Examiner shown that the claims are directed to organizing human activity by
fundamental economic principles, commercial or legal interactions, sales,
advertising, or managing personal behavior or relationships. Id.
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Appeal2018-000734
Application 13/331,288
Furthermore, the Examiner has not shown that the claims are directed
to mental processes or concepts performed in the human mind including
observation, evaluation, judgment, and opinion. Id.
Accordingly, we do not sustain the rejection of claims 1, 3-9, and 11-
21 under the judicial exception to 35 U.S.C. § 101. 2
Claims 1-21 For Lack of Written Description
Regarding independent claims 1, 14, and 16, the Examiner finds that
the Specification's disclosure fails to describe generating the status alert
based on the status indication because it appears that the disclosure describes
the status indication and the status alert as interchangeable terms for
meaning the same thing. Final Act. 2-3. The Examiner also finds that the
disclosure in the Specification fails to describe a status alert and status
indication that are linked with each other. Id. at 3; see Ans. 3.
Appellants argue that Figures 4 and 5 disclose how multi-dimensional
status alerts are generated by using separate classified status indications for
cardiac filling pressure, thoracic fluid status, and cardiac output. Appeal Br.
14; Reply Br. 2. Appellants argue that the Specification describes how the
multi-dimensional heart failure decompensation status alert is provided from
a plurality of the separately classified indications. Appeal Br. 14; Reply Br.
2. Appellants cite page 17, lines 12-23, which discloses that a multi-
dimensional alert in block 450 of Figure 4 "can include a separate cardiac
output dimension 413, a cardiac filling pressure dimension 4 23, and a
thoracic fluid status dimension 433." Spec. 17: 18-19; Appeal Br. 14.
2 Challenging an Examiner's refusal to enter an amendment (Appeal Br. 12-
14) is by petition under 37 C.F .R. §§ 1.127 and 1.181, not by appeal to the
Board. Appellant's petition was dismissed by Decision mailed June 5, 2017.
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Appeal2018-000734
Application 13/331,288
Appellant's Figure 4 is reproduced below.
Figure 4 shows how a multi-dimensional heart failure decompensation
status alert is generated from single dimensional classified alerts.
Furthermore, the written description of generate a multi-dimensional
heart failure decompensation status alert (block 550) in Figure 5 indicates
that "a multi-dimensional alert can be created by obtaining any two or more
single dimensional alerts." Spec. 19:22-24. Subjects are classified as
"hemodynamically stable" or "hemodynamically unstable" for cardiac filling
pressure. They are classified as "dry" or "wet" for thoracic fluid status.
They are classified as "warm" or "cold" for cardiac output. Id. at 19:24--29.
These single dimensional alerts, which are based on corresponding
indications, are combined to generate a multi-dimensional alert such as
"hemodynamically stable," "dry," and "warm" or "hemodynamically
stable " "wet " and "warm" or "hemodynamically unstable" "wet " and
' ' '
"warm." Id. at 20:1-10; see Reply Br. 2-3.
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Appeal2018-000734
Application 13/331,288
This disclosure reasonably conveys to those skilled in the art that the
inventors had possession of the claimed subject matter as of the filing date.
Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010)
(en bane). Accordingly, we do not sustain the rejection of claims 1-21 for
lack of written description.
Claim 9 For Indefiniteness
Dependent claim 9 further recites classifying the subject as having
cardiogenic heart failure or non-cardiogenic heart failure. The Examiner
interprets "cardiogenic" to mean originating in the heart or caused by a
cardiac condition. Final Act. 4. The Examiner determines that it is unclear
what is meant by non-cardiogenic heart failure, i.e., heart failure that does
not originate in the heart or is not caused by a cardiac condition. Id. at 4--5.
Appellant argues only that claim 9 was cancelled by amendment after
the Final Office Action, but the amendment was not entered. Appeal Br. 16.
Accordingly, we summarily sustain the rejection of claim 9.
Claims 1-3, 5, 7, 8, 10---17, 19, and 21
Unpatentable over Sachanandani, Tehrani, and Wekell
The Examiner finds that Sachanandani teaches an apparatus, non-
transitory device-readable medium, and method as recited in independent
claims 1, 14, and 16, including receiving and classifying cardiac parameters
to generate multi-dimensional heart failure decompensation status indication
and status alert, as claimed, but does not teach using cardiac filling pressure,
thoracic fluid status, and cardiac output as cardiac parameters to classify a
subject as having discrete types of heart failure events and displaying at least
two categorical descriptors from the classified cardiac parameters. Final
Act. 8-9, 15-16, and 19-20.
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Appeal2018-000734
Application 13/331,288
The Examiner finds that Tehrani teaches to use cardiac parameters of
cardiac filling, fluid levels, and cardiac output to classify a subject as having
one or more discrete types of heart failure events indicating a need for
therapy by using a multiple-dimensional heart failure decompensation status
indication, as claimed. Id. at 9, 16-17, and 20.
The Examiner finds that W ekell teaches generating and representing
the status of various physiological parameters on a display system to allow
healthcare providers to easily view the status of patients. Id. at 10, 17, 21.
The Examiner reasons that because Sachanandani generates an alert
score based on two or more alert status values, the single alert score is multi-
dimensional. Ans. 7.
Appellant argues that the claims require the multi-dimensional alert to
include separate dimensions of cardiac filling pressure, thoracic fluid status,
and cardiac output. Appeal Br. 16. Appellant argues that Sachanandani may
use multiple physiological signals to represent heart failure decompensation
status and to compute an "alert score," but the alert score is one dimensional
rather than multi-dimensional. Id. at 16-17; Reply Br. 3. Appellant argues
that Tehrani, like Sachanandani, receives and classifies multiple cardiac
parameters based on a threshold but then uses those signals to calculate a
single dimensional "average." Appeal Br. 17; Reply Br. 3--4. We agree.
Independent claims 1, 14, and 16 require the multi-dimensional alert
to be displayed "as a representation of a collection of at least two categorical
descriptors among the classified indication of cardiac filling pressure, the
classified indication of thoracic fluid status, and the classified indication of
cardiac output." Thus, the claims require the multi-dimensional alert to
include and to display multiple categories or dimensions of heart failure.
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Appeal2018-000734
Application 13/331,288
Sachanandani teaches comparison of one or more sensed parameters
of a patient's physiological condition to one or more threshold values and
find an alert status if the sensed value is exceeded. Sachanandani, 8: 18-
9 :22. Each individual sensed parameter may correspond to a dimension;
however, these multi-dimensional alert statuses are then communicated to
fusion machine 208 or first fusion module 210, which calculates a single
alert score using the alert status( es) provided from one or more detectors
202. Id. at 9:23---62. Sachanandani may detect and classify multiple
dimensions of a heart failure, but Sachanandani only generates a single
dimension status alert or score. Id. at 9:34--10:23; see also id. at Fig. 2.
Tehrani teaches receiving and classifying different cardiac parameters
based on a threshold, but Tehrani uses those parameters to generate a single
"average" of the classification values for multiple conditions. Tehrani ,r 78,
Fig. 6. This single average is not provided in multiple dimensions.
The Examiner's interpretation of "multi-dimensional ... status alert"
to mean a score that is calculated based on two or more alert status values is
an unreasonably broad interpretation in light of the claim language discussed
above and also is inconsistent with the written description of this feature as
discussed above for the written description rejection. Spec. Fig. 4. Thus, we
do not sustain the rejection of claims 1-3, 5, 7, 8, 10-17, 19, and 21.
Claims 4, 6, 18, and 20
Unpatentable over Sachanandani, Tehrani, Wekell, and Brockway
The Examiner's reliance on Brockway to teach features of claims 4, 6,
18, and 20 does not remedy the deficiencies of Sachanandani, Tehrani, and
W ekell as to claims 1 and 16 from which these claims depend. Thus we do
not sustain the rejection of claims 4, 6, 18, and 20.
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Appeal2018-000734
Application 13/331,288
DECISION
We affirm the rejection of claim 9 as being indefinite and we reverse
the remaining rejections.
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-IN-PART
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