Ex Parte Warner et alDownload PDFPatent Trial and Appeal BoardJun 21, 201712980854 (P.T.A.B. Jun. 21, 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. 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). 2 Appeal 2015-007872 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. 3 Appeal 2015-007872 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. 4 Appeal 2015-007872 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. 5 Appeal 2015-007872 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. 6 Appeal 2015-007872 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. 7 Appeal 2015-007872 Application 12/980,854 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. 8 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. 9 Appeal 2015-007872 Application 12/980,854 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. 10 Appeal 2015-007872 Application 12/980,854 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. 11 Appeal 2015-007872 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 12 Copy with citationCopy as parenthetical citation