Ex Parte Porée et al

Patent Trial and Appeal Board

Jan 24, 2017

14015770 (P.T.A.B. Jan. 24, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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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
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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
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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
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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).
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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)).
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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).)
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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
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