Ex Parte Warner et al

Patent Trial and Appeal Board

Jun 21, 2017

12980854 (P.T.A.B. Jun. 21, 2017)

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.
12/980,854 12/29/2010 Adrian F. Warner 245776-1 (23774US01) 5470
23446 7590 06/23/2017
MCANDREWS HELD & MALLOY, LTD
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661
EXAMINER
GRANT, MICHAEL CHRISTOPHER
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
06/23/2017 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):
mhmpto @ mcandrews-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ADRIAN F. WARNER, DANIEL SCHNEIDEWEND,
LINDA HELVICK, and PAYAM KARBASSI
Appeal 2015-007872
Application 12/980,854
Technology Center 3700
Before STEFAN STAICOVICI, JAMES P. CALVE, and
SEAN P. O’HANLON, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 2—7, 10, 12—14, and 17—26. Appeal Br. 4. Claims 1, 8, 9, 11, 15, and
16 have been cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-007872
Application 12/980,854
CLAIMED SUBJECT MATTER
Claims 10, 18, and 21 are independent. Claim 10 is reproduced
below.
10. A method for developing medical waveforms
comprising using at least one processor to execute a set of
computer instructions that perform the following steps:
a) obtaining a medical waveform with a medical
waveform recording system, the medical waveform comprising
waveform data;
b) processing the waveform data to add at least one
marker to the medical waveform;
c) accessing the processed medical waveform via an
invasive workbench;
d) displaying, via the invasive workbench, a replay of the
processed medical waveform; and
e) executing, via the invasive workbench, a software
application that corresponds to the processed medical
waveform;
wherein functionality of the software application is
triggered when the display of the replay of the processed
medical waveform reaches one or more of the markers added to
the medical waveform.
REJECTIONS
Claims 2—6, 10, 13, 14, and 17—26 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Scharf (US 2004/0204635 Al, pub. Oct. 14,
2004) and Miller (US 2008/0124694 Al, pub. May 29, 2008).
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Scharf, Miller, and Xue (US 6,463,320 Bl, iss. Oct. 8, 2002).
Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Scharf, Miller, and Clifford (US 4,736,322, iss. Apr. 5, 1988).
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Application 12/980,854
ANALYSIS
Claims 2—6, 10, 13, 14, and 17—26
as unpatentable over Scharf and Miller
Claims 2—4, 10, 13, 18, and 21
The Examiner found that Scharf discloses the methods recited in
independent claims 10, 18, and 21, including adding time-stamped audio
event data to a medical waveform as markers that may be selected by a GUI
to play corresponding audio event files (i.e., trigger a software application).
Final Act. 2—3. The Examiner also found that, to the extent Scharf does not
trigger a software application when a replay reaches a marker, Miller teaches
the visual replay of captured waveforms in Figure 6, and triggering software
functionality as text, audio, and video commentary when the replay reaches
a marker (i.e., flag) that can be added contemporaneously or subsequently to
an event. Id. at 3—4. The Examiner determined it would have been obvious
to trigger software applications when markers are reached during replay, as
Miller teaches, in the method of Scharf to make the presentation of medical
data more interesting and engaging. Id. at 4—5.
Appellants argue that Scharf teaches a clock module 115 that adds
timestamps to physiological and observational waveform data rather than a
user adding timestamps to incoming data manually. Appeal Br. 11—12.
Appellants also argue that Scharf discloses visual markers of time-stamped
observational data that are displayed with time-stamped physiological data
so a user may tap the marker to access hyper-linked observational data files;
however, the system superimposes the markers on or near a waveform based
on event timestamps, rather than a user adding the marker to the waveform
data, as claimed. Id. at 12—13.
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Application 12/980,854
Appellants’ arguments are not persuasive in view of the Examiner’s
finding that Scharf discloses markers being added to medical waveform data
in Figures 6a—6e so software applications are triggered to play audio event
files when the marker is selected via a graphical user interface (GUI). Final
Act. 3. Figure 6b illustrates this subject matter and is reproduced below.
Pulse Trend of Patient iD AC2094 for July 10, 2000
Figure ]&b
Figure 6b illustrates recorded audio events 605, 610 that are added to
physiological data graphs of a patient’s pulse rate. Scharf H 24, 56. This
disclosure teaches at least one marker being added to a medical waveform
and waveform data, as recited in claims 10, 18, and 21. Scharf discloses a
user adding markers to the waveform data via audio memo system 335. Id.
50, 56. Users record observations, diagnoses, and any other information
related to a physiological condition. Their voice data is tagged with the date
and time and synchronized with the physiological data. Id. Users thereby
add tags 605, 610 to medical waveforms 615 as shown in Figures 6a—6c, and
the added tags associate audio, visual, and/or textual data with the waveform
data. Id. H 54, 61. The claims require no more.
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Application 12/980,854
Scharf thereby allows users to modify recorded medical waveforms to
create new medical waveforms by adding markers to the waveforms as
shown in Figures 6a—6c. Reply Br. 4—6. Users control when to add tags to
recorded waveform data as discussed above. The system tags the event data
to correspond to the recorded waveform data according to a user’s wishes.
As a result, software applications for audio, video, and text files can
be triggered when a waveform reaches a marker that is added to a waveform
and a user clicks on the marker and a related hyper-link. Scharf || 59-61;
Final Act. 3. Appellants disclose a similar arrangement in which markers
are linked to event triggers that can be activated when accessed by a user.
Spec. 144. Appellants assert that markers with event triggers are within the
scope of the claimed subject matter. Appeal Br. 6—8 n.10 (citing Spec. 18:1—
10), n.14 (same), n.18 (same).
Appellants acknowledge that Scharf discloses visual markers of data
displayed with physiological data, and users may tap the marker to access
hyper-linked observational data files. Appeal Br. 12. Appellants argue that
the system of Scharf superimposes markers in time relation on or near the
waveform based on event timestamps, which differs from a user adding the
at least one marker to the waveform data as recited in claims 18 and 21. Id.
at 12—13. This argument is not persuasive because a reference does not have
to disclose an invention in the same terms. Appellants do not identify any
claimed aspects of adding markers that distinguish over Scharf. Appellants
do not disclose any details of this process either. Spec. H 31, 44. Scharf
allows users to alter waveforms by adding markers to the waveforms and
waveform data such that software applications are triggered when the
display of a replayed waveform reaches a marker, as discussed above.
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Application 12/980,854
We also agree with the Examiner that Miller allows a user to add
markers to waveform data by recording sessions that can be played back in
synchronized fashion with the physiological waveform data as illustrated in
Figure 6. Miller || 49—50; Final Act. 4. Miller discloses that users can add
audio or video commentary with flags to the system for playback with the
captured physiological waveform data. Miller 144. Miller also discloses
that users can add/mix flags/markers for textual, audio, or video files to
captured physiological data, e.g., via flagging unit 40. Id. 20, 23, 50, 56.
The flags trigger playback of the observation files via software applications
when the markers are reached during waveform replay, as claimed. Id.;
Final Act. 4. The Examiner correctly determined that it would have been
obvious to add this feature to Scharf to make the overall presentation of the
waveforms more interesting and engaging. Id. at 4—5.
Appellants’ argument that Miller does not remedy the deficiencies of
Scharf regarding users adding markers to a waveform (Appeal Br. 13—14) is
not persuasive because Scharf teaches this feature, as discussed above. Final
Act. 2-4. Miller teaches software applications that execute during replay of
waveforms. Id. at 4. Appellants do not apprise us of error in the Examiner’s
reason for combining the teachings of Scharf and Miller. Appeal Br. 13—16.
Appellants recognize that Miller discloses the playback of audio and
other files when waveform data is played without any user actions. Appeal
Br. 14—15. Miller’s use of time stamps to facilitate this functionality does
not undermine the motivation to combine because Scharf also teaches that
users add markers to waveforms via time stamps. The Examiner merely
proposes to modify Scharf s system to trigger software functionality when a
display reaches a marker based on time stamps, as Miller teaches.
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Application 12/980,854
Appellants have not persuaded us that the claimed markers are added
to waveforms in a way that distinguishes over Scharf and Miller. Reply Br.
3—9; Appeal Br. 15—16. Scharf processes waveform data to add markers
605, 610 to waveform 615 as discussed above. Miller teaches that flags can
be added to waveform data to trigger software applications that play audio,
video, and textual files related to the waveform data. Thus, we sustain the
rejection of claims 10, 18, and 21. We also sustain the rejection of claims 2—
4 and 13, which Appellants do not argue separately.
Claims 5 and 19
Claims 5 and 19 depend, respectively, from independent claims 21
and 18, and recite that the simulator comprises a media transfer device for
importing and exporting medical waveforms. The Examiner found that
Scharf teaches receivers 113 that import physiological data and a system
capable of exporting data (Fig. 5b). Final Act. 5 (citing Scharf || 29, 54).
Appellants argue that paragraph 29 of Scharf teaches a receiver that
receives physiological data from sensing module 105, and receiver 113 is
not a media transfer device, as claimed. Appeal Br. 17. Appellants argue
that paragraph 54 teaches an oximetry software application that exports data,
and this arrangement is not a media transfer device, as claimed. Id.
Appellants disclose that physiological simulator 120 may store data
on removable media tools like SD card 220, a CD-ROM, or a thumb drive.
Spec. 129. Appellants disclose that medical waveforms may be imported
into physiological simulator 120 via a media or data transfer mechanism like
SD card 320. Id. 134. Appellants disclose that invasive workbench 130
exports data, training sessions, or other information via SD card 321, a CD-
ROM, a thumb drive, the internet, or other transfer mechanism. Id. ]f 35.
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The Examiner’s treatment of Scharf’s receiver 113 or export option
515 as a media transfer device, thus, is consistent with the Specification.
Receivers 113 receive waveform data from physiological sensing module
105 and export the data to analysis module 117. Scharf |29, Fig. 1; Ans.
17. Scharf also exports waveform data 515 to various file formats. Scharf
1 54, Fig. 5b. Scharf even uses internet access {id. 1 63), which Appellants
disclose as a transfer mechanism (Spec. 135). Claims 5 and 19 do not limit
the claimed “media transfer device” to a removable device or mechanism.
Thus, we sustain the rejection of claims 5 and 19.
Claims 6 and 17
Claims 6 and 17 depend, respectively, from claims 21 and 10, and
recite that the waveform data includes patient data. The Examiner found
that Scharf teaches such waveform data. Final Act. 5—6 (citing Scharf 130).
Appellants argue that paragraph 30 of Scharf discloses physiological
sensing modules, but does not disclose that waveform data from one of the
modules includes patient data related to the waveform. Appeal Br. 17—18.
This argument is not persuasive because Scharf discloses waveforms
captured by such sensor modules as including physiological data of a subject
(i.e., a patient) such as Sp02, pulse rate, and plethysmographic waveforms.
Scharf | 56, Figs. 6a—6c. Appellants disclose that the waveforms may be
provided with “other patient data, such as patient age, gender, height, weight
and medical conditions.” Spec. 123. Therefore, waveforms themselves are
disclosed as a form of patient data. Id.', Ans. 18. Moreover, Scharf discloses
that patient data, such as a patient ID, can be recorded into the computing
device for data integrity of waveform data that is sensed. Scharf | 35.
Thus, we sustain the rejection of claims 6 and 17.
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Appeal 2015-007872
Application 12/980,854
Claims 14, 20, 22, and 23
Claims 14, 20, 22, and 23 depend, respectively, from claims 10, 18,
and 21, and recite that the software application executes at least one of an
algorithm development tool, a statistical analysis tool, a search tool, and a
publishing tool. The Examiner found that Scharf teaches this feature as the
playing of audio, video, image displays, web files, and text files. Ans. 19
(citing Scharf | 61).
Appellants argue that paragraph 61 of Scharf merely discloses that
users can observe waveforms and trend graphs and access files and data
from lists. Appeal Br. 18. Appellants argue that Scharf does not disclose
any of the claimed software applications, or triggering applications when a
marker is reached in replayed waveform data. Id.
The Examiner’s findings that Scharf discloses publishing tools and
instructional presentations as software that plays audio and video files,
displays images, web, and/or text files is supported by a preponderance of
evidence. Ans. 19. Appellants disclose an example of a publication tool
740 as Adobe Acrobat that can publish research results obtained through the
workbench in a readable, printable, and transferrable format. Spec. 141,
Fig. 7. Scharf similarly allows users to publish research results in audio,
video, or text formats and other information in readable, printable, and
transferrable formats. Scharf || 61, 62. Waveform data may be exported
into various formats, i.e., published. Id. 1 54. Scharf further discloses the
use of audio files to instruct others as to the significance of waveform data
by explaining that data. Id. 50, 56. Such audio data can be published as
text files and printed. Id. H 61, 62.
Thus, we sustain the rejection of claims 14, 20, 22, and 23.
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Claim 24
Claim 24 depends from claim 21, and recites a software application
that presents at least one clinical test question to the user. The Examiner
found that Scharf s software displays text to a user as a message or meaning,
and the visual appearance of the text is nonfunctional descriptive material
that does not alter how the display function. Final Act. 6—7; Ans. 19—20.
Appellants argue that this limitation has a functional relationship to
the specific markers added to a waveform that is replayed. Appeal Br. 19.
The Examiner’s finding that Scharf teaches a software application that
presents a clinical question to a user is supported by a preponderance of the
evidence because Scharf teaches to display text to a user once a marker is
triggered by the user. Scharf | 61; Ans. 19-20. Scharf discloses that a user
can make clinical observations and record those observations in audio files
that explain the significance of changes in a waveform and pose issues for
another person to consider. Scharf | 56. These observations explain data of
a waveform and essentially present clinical questions to users of the system
that replay a recorded waveform and trigger markers 605, 610. For example,
a clinical question posed by such audio markers 605, 610 may be whether a
sudden lowering and restoration of a respective physiological condition 615
of a subject that is replayed reflects a change in the physiological condition
of the subject or merely a loosening of a sensor. Id. Scharf further discloses
that audio event data may be transcribed into text. Id. 1 62. In either case,
however, event markers 605, 610 present clinical test questions to a user
when a user selects a marker that is hyperlinked to such questions and data.
Thus, we sustain the rejection of claim 24.
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Claims 25 and 26
Claims 25 and 26 depend, respectively, from claim 21, and recite that
the software application provides a research assistance tool with access to a
database and a search engine (claim 25) and a statistical analysis tool (claim
26). The Examiner took Official Notice that search engines, databases, and
statistical analysis tools are accessed via the World Wide Web. Final Act.
7—8. The Examiner determined it would have been obvious to implement
this functionality in Scharf to access a greater breadth of information and
analytics on the internet, e.g., by adding web links to the databases, search
engines, and statistical tools to the list of event data. Id.
Appellants argue that the Examiner failed to provide adequate reasons
for modifying the prior art to teach these limitations. Appeal Br. 19—20.
This argument does not apprise us of error in the reasons that were provided
by the Examiner for this modification, as outlined above, and therefore is not
persuasive. Thus, we sustain the rejection of claims 25 and 26.
Claim 7 as unpatentable
over Scharf, Miller, and Xue
Appellants argue that claim 7 is allowable due to its dependence from
claim 21. Appeal Br. 20-21. Because we sustain the rejection of claim 21,
this argument is not persuasive, and we also sustain the rejection of claim 7.
Claim 12 as unpatentable
over Scharf, Miller, and Clifford
Appellants argue that claim 12 is allowable due to its dependence
from claim 10. Appeal Br. 21. Because we sustain the rejection of claim 10,
this argument is not persuasive, and we sustain the rejection of claim 12.
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Application 12/980,854
DECISION
We affirm the rejections of claims 2—7, 10, 12—14, and 17—26.
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
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