Ex Parte Porée et alDownload PDFPatent Trial and Appeal BoardJan 24, 201714015770 (P.T.A.B. Jan. 24, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/015,770 08/30/2013 Fabienne Poree 104292-0332 6556 22428 7590 01/26/2017 Foley & Lardner LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 EXAMINER EDWARDS, PHILIP CHARLES ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 01/26/2017 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): ipdocketing @ foley. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FABIENNE POREE, GUY CARRAULT, AMAR KACHENOURA, and ALFREDO HERNANDEZ Appeal 2015-005444 Application 14/015,770 Technology Center 3700 Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and TIMOTHY G. MAJORS, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL1 This is an appeal under 35 U.S.C. § 134 involving claims 1—20 (App. Br. 2). Examiner entered rejections under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE Appellants’ invention “relates to processing the signals representative of cardiac depolarization potentials of the myocardium, such signals being 1 Appellants identify “[t]he real party in interest [as] Sorin CRM S.A.S. (App. Br. 2). Appeal 2015-005444 Application 14/015,770 collected through epicardial or endocardial electrodes for pacing, sensing or defibrillation of the right and left atria or ventricles, of these implantable devices” (Spec. 12). Independent claims 1, 8, and 15 are representative and reproduced in the Claims Appendix of Appellants’ Appeal Brief. Claims 1—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Hedberg2 and Vasquez.3 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? FACTUAL FINDINGS (FF) FF 1. Hedberg suggests that “[sjignals are measured between the [stimulator-]can and electrodes . . ., producing an atrial IEGM A . . . and a ventricular IEGM V” (Hedberg 4:44-46; see also Final Act. 4), and are also used to produce “the synthesized surface ECG” (see Hedberg 10:43—46; see also Final Act. 4). FF 2. Vasquez suggests [a] technique for the cancellation of the ventricular activity for applications such as P-wave or atrial fibrillation detection. The procedure was thoroughly tested and compared with a previously published method, using quantitative measures of performance. The novel approach estimates, by means of a dynamic time delay 2 Hedberg et al., US 5,740,811, issued Apr. 21, 1998. 3 Vasquez et al., Atrial Activity Enhancement by Wiener Filtering Using an Artificial Neural Network, 48 IEEE Transactions on Biomedical Engineering 8:940-944 (2001). 2 Appeal 2015-005444 Application 14/015,770 neural network (TDNN), a time-varying, nonlinear transfer function between two ECG leads. Best results were obtained using an Elman TDNN with nine input samples and 20 neurons, employing a sigmoidal tangen[t]ial activation in the hidden layer and one linear neuron in the output stage. The method does not require a previous stage of QRS detection. The technique was quantitatively evaluated using the MIT-BIH arrhythmia database and compared with an adaptive cancellation scheme proposed in the literature. Results show the advantages of the proposed approach, and its robustness during noisy episodes and QRS morphology variations. (Vasquez Abstract; see also Final Act. 5.) ANALYSIS Each of Appellants’ independent claims 1 and 15 requires, inter alia, “generating, with a time-delay type neural network, a first surface electrocardiogram (ECG) signal from the at least one EGM signal by simultaneously processing (A) the at least one EGM signal and (B) at least one delayed version of the of the at least one EGM signal” (Appellants’ claims 1 and 15). Independent claim 8 similarly requires, inter alia, “the time-delay neural network generates a surface electrocardiogram (ECG) signal by simultaneously processing (A) the at least one EGM signal and (B) at least one delayed version of the at least one EGM signal” (Appellants’ claim 8). Examiner finds that Hedberg suggests obtaining at least one endocardial electrogram (EGM) signal, formed from a plurality of signal samples from at least one endocardial or epicardial derivation (e.g. see figure 1 elements 31 and 32, column 4 lines 36-49); obtaining a transfer function (e.g. see figure 15, column 10 lines 27-42); and generating, with 3 Appeal 2015-005444 Application 14/015,770 a neural network (e.g. see columns 9—10 lines 65—26), a first surface electrocardiogram (ECG) signal from the at least one EGM signal (e.g. see column 10 lines 43^46). (Final Act. 4.) Examiner acknowledges that Hedberg discloses the claimed invention except for simultaneously processing the at least one EGM signal and at least one delayed version of the of the at least one EGM signal, wherein the time-delay neural network is selected from a group comprising a focused time-delay neural network, a distributed time-delay neural network, and a recurrent time-delay neural network. (Id. at 4—5.) Examiner finds that Vasquez “teaches that it is known to use a recurrent time-delay neural network when processing cardiac signals as set forth in the abstract and sections I and II to provide more robust processing during noisy periods and QRS morphology variations” (id. at 5). Therefore, Examiner concludes that, at the time of Appellants’ invention, it would have been obvious to “modify the system/method as taught by Hedberg, with a recurrent time-delay neural network as taught by Vasquez, since such a modification would provide the predictable results of more robust processing during noisy periods and QRS morphology variations” (id.). We are not persuaded. Hedberg suggests that “[signals are measured between the [stimulator-]can and electrodes . . ., producing an atrial IEGM A . . . and a ventricular IEGM V,” and are also used to produce “the synthesized surface ECG” (FF 1). 4 Appeal 2015-005444 Application 14/015,770 Vasquez suggests using “a dynamic time delay neural network (TDNN), a time-varying, nonlinear transfer function between two ECG leads” in which “[rjesults show the advantages of the proposed approach, and its robustness during noisy episodes and QRS morphology variations” (FF 2). We recognize, but are not persuaded by, Examiner’s assertion that the primary reference was modified in a way to arrive at the claimed invention (including using a time-delayed version of the EGM signal). Thus, while either reference may not explicitly teach the limitation “at least one delayed version of the at least one EGM signal”, the combination of Hedberg in view of Vasquez teaches it would be obvious for one to combine the references to arrive at the claimed invention. (Ans. 2.) We agree with Appellants that “[e]ven in combination, the references do not teach simultaneously processing an EGM signal and a delayed version of the EGM signal to generate a surface ECG signal (an output signal of a different type than the input signal)” (App. Br. 6 (emphasis added)),4 and that “[t]he Examiner provides no complete line of reasoning as to why the skilled artisan would have expected the processing of Vasquez to apply to the claimed method or to Hedberg” {id. at 9). We also agree with Appellants that “[t]he mere fact that both devices have processors is not enough to support a combination and modification as 4 We interpret “simultaneous processing” as processing at the same time. However, Examiner asserts that “[a]s far as the ‘simultaneously processing’ limitation, the examiner is not entirely sure what is meant by this, but it seems as if the feedback loop illustrated above would provide some sort of simultaneous processing of the current EGM signal and the delayed, or fed- back signal” (Ans. 5 (emphasis added)). 5 Appeal 2015-005444 Application 14/015,770 proposed by the examiner”5 and that “the relevant question is not whether it could, but whether it would be used to modify the art” because “though the neural network of Vasquez perhaps could be run on the processor of Hedberg, it would not have been selected to, as it would prevent Hedberg from achieving the intended purpose of generating an ECG signal from multiple EGM signals” {id. at 10; see also Reply Br. 3—4). See Belden Inc. v. Berk-TekLLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015) (“[OJbviousness concerns whether a skilled artisan not only could have made but would have been motivated to make the combinations or modifications of prior art to arrive at the claimed invention”) (emphasis in original). “[Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Examiner, however, did not adequately explain how or why the skilled artisan would have predictably, and with a reasonable expectation of success, modified the prior art in the manner suggested. Depuy Spine, Inc v. Medtronic Sofamor Danek, Inc., 567 F.3d 5 Examiner asserts that the recurrent time-delay neural network disclosed by Vasquez [sic] in a program run on a processor. If used on one processor to process cardiac data, how could it not be used on another processor? While the examiner realizes the input data is ECG as opposed to EGM in the Vasquez [sic] reference, it seems as if the program could be readily modified to process different input data types including ECG, EGM, EEG, EMG, etc., as is known in the art. (Ans. 5—6 (emphasis added).) 6 Appeal 2015-005444 Application 14/015,770 1314, 1326 (2009) (citations omitted) (“the ‘predictable result’ discussed in KSR refers not only to the expectation that prior art elements are capable of being physically combined, but also that the combination would have worked for its intended purpose.”) In sum, on this record, Examiner failed to establish an evidentiary basis to support a conclusion that it would have been obvious to combine Hedberg and Vasquez to “generat[e], with a time-delay type neural network, a first surface electrocardiogram (ECG) signal from the at least one EGM signal by simultaneously processing (A) the at least one EGM signal and (B) at least one delayed version of the of the at least one EGM signal” as claimed. CONCLUSION OF LAW The preponderance of the evidence relied upon by Examiner fails to support a conclusion of obviousness. The rejection of claims 1—20 under 35 U.S.C. § 103(a) as unpatentable over Hedberg and Vasquez is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation