NIHON KOHDEN CORPORATIONDownload PDFPatent Trials and Appeals BoardDec 2, 20212021003535 (P.T.A.B. Dec. 2, 2021) 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. 16/156,422 10/10/2018 Masami TANISHIMA 59898 1894 116 7590 12/02/2021 PEARNE & GORDON LLP 1801 EAST 9TH STREET SUITE 1200 CLEVELAND, OH 44114-3108 EXAMINER VOORHEES, CATHERINE M ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 12/02/2021 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): patdocket@pearne.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MASAMI TANISHIMA, TSUNEO TAKAYANAGI, and TAKASHI KAIAMI Appeal 2021-003535 Application 16/156,422 Technology Center 3700 Before JENNIFER D. BAHR, DANIEL S. SONG, and CHARLES N. GREENHUT, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–17. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Nihon Kohden Corporation. Appeal Br. 2. Appeal 2021-003535 Application 16/156,422 2 CLAIMED SUBJECT MATTER The claims are directed to an apparatus and method for processing physiological information. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A physiological information processing apparatus comprising: a processor; a display device; and a memory storing computer-readable instructions, wherein, when the computer-readable instructions are executed by the processor, the processor causes the physiological information processing apparatus to: obtain physiological information data indicative of physiological information of a subject, obtain RR interval data including a plurality of RR intervals based on the physiological information data, identify an RR interval indicative of arrhythmia in the RR interval data, and display, on the display device, the RR interval data as a plurality of plotted points on a two-dimensional coordinate system, wherein one axis of the two-dimensional coordinate system represents an n-th RR interval, n being a natural number, and another axis of the two-dimensional coordinate system represents an (n+1)-th RR interval, and wherein the RR interval data is displayed on the two- dimensional coordinate system such that a visual mode of a plurality of first plotted points associated with the RR interval indicative of arrhythmia and a visual mode of plotted points of the RR interval data other than the plurality of first plotted points are different from each other. Appeal 2021-003535 Application 16/156,422 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Levitan US 2001/0008954 A1 July 19, 2001 Agutter US 2005/0010117 A1 Jan. 13, 2005 REJECTIONS2 Claims 1–12 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Levitan. Final Act. 7. Claims 13–17 are rejected under 35 U.S.C. § 103 as being unpatentable over Levitan and Agutter. Final Act. 10. OPINION Both Appellant and Levitan extract information from a Poincaré plot of adjacent R-R intervals (i.e., Rn and Rn+1) of an electrocardiogram (ECG). Application Figure 4; Levitan Figs. 5a–c. Appellant is mainly concerned with the points deviating significantly from the Rn+1=Rn (Y=X) line because significant clusters of points exhibiting such deviations (white points in Appellant’s Figure 4 (i.e., those not satisfying the equation Rn+α≤Rn+ l≤Rn- α)) suggest arrhythmia. Spec. paras. 29, 35. Levitan plots the same R- R data but is concerned mainly with the length of the Y=X (R-Ri+1=R-Ri) line, because inadequate lengths indicate insufficient heart rate variability (HRV) which is suggestive of autonomic nervous system (ANS) dysfunction. Levitan paras. 2, 8, 9, 40, 58–59. Despite these differences, the name of the game is the claim and the Examiner concludes independent claims 1, 5, and 8 nevertheless read on Levitan’s system. 2 The Examiner withdrew a rejection under 35 U.S.C. § 101. Ans. 3. Appeal 2021-003535 Application 16/156,422 4 The issues raised by Appellant concerning the Examiner’s determination in this regard are the same for independent claims 1 and 8. Appeal Br. 5–7. Separate issues are raised concerning limitations unique to claim 5. Thus, we group the claims as follows. Appeal Br. 7–8. Claims 1–4 and 8–16 Claims 1 and 8 each recite that there must be a different “visual mode” of displaying points associated with an RR-interval indicative of an arrhythmia as compared to other points. See, e.g., Fig. 4. The Specification does not expressly define, but provides parenthetical examples of, the “visual mode[:]” “the display color, display configuration.” Spec. para. 34. According to the Examiner the “visual mode” is broad enough to include simply the location of Levitan’s dots themselves. Ans. 5. According to Appellant, location of the point is just indicative of the underlying data itself it is not reasonably regarded as a “visual mode” of displaying it that differs among groups of points. Appeal Br. 5–7; Reply Br. 2–4. Claims 1 and 8 require each of the different visual modes to be affiliated with either “a plurality of first plotted points” or “plotted points . . . other than the plurality of first plotted points.” Thus, a skilled artisan would understand the “visual mode” to be something that, at the very least, was an attribute that could be common to multiple points. The Examiner makes no specific identification of the groups of points supposedly having one “visual mode” and the other group of points supposedly having a different “visual mode.” Thus, the Examiner leaves one to speculate as to the precise nature of the Examiner’s position which should not be case in an Appeal before the Board. In re Stepan Co., 660 F.3d 1341, 1345 (Fed. Cir. 2011) (It is the Appeal 2021-003535 Application 16/156,422 5 PTO’s obligation to provide timely notice to the applicant of all matters of fact and law asserted.) In Levitan’s Poincaré plot, there would not seem to be a group of points having the same location as well as a group of points having a different location as would be required under the Examiner’s interpretation. Although it is conceivable two data points could occupy the same location, it would be uncommon and difficult to visualize both points without making some additional visual distinction. Thus, to the extent it is the Examiner’s position we cannot agree that the plotted location of the points would reasonably be regarded as the recited “visual mode.” If the Examiner is taking the position that the more general location of the points represents the “visual mode” it is not clear how the Examiner proposes one skilled in the art would make such a distinction in some reasonable and nonarbitrary way. Claims 1 and 8 require one of the visual modes to be associated with the identified RR interval indicative of arrhythmia risk, and Levitan does not appear to identify any such interval. Although one following the guidance in Appellant’s Specification may be able to potentially identify points or groups of points indicative of arrhythmias on Levitan’s Poincaré plots, as discussed above, Levitan is concerned with HRV as indicative of risk and does not appear to include any device or step for identifying such an interval, much less any step or mechanism for visually segregating groups of points based thereon. On the record presently before us, the Examiner has not established it is reasonable to regard the location of the data points in Levitan as different “visual mode[s]” of how the points are plotted or displayed. In light of the Specification (e.g., para 34), there must be some visually identifiable characteristic of multiple points that differs from some visually identifiable Appeal 2021-003535 Application 16/156,422 6 characteristic of another group of points. Location, be it specific or general, is an aspect of plotting the data, and is not, without more, reasonably regarded as a “visual mode” exhibiting identifiable visual characteristics that can be used to distinguish one group of points from another group of points, particularly with regard to identifying RR intervals indicative of arrhythmia. For the foregoing reasons we do not sustain the Examiner’s rejection of claims 1 and 8 and that of claims 2–4 and 9–12 depending therefrom. Although Agutter is cited by the Examiner as general teachings regarding using shape or color distinctions to quickly convey information while visualizing data, which may include heart rate data, the Examiner does not apply Agutter in such a way as to account for the noted deficiencies in the anticipation rejection. Final Act. 10. Thus, we also reverse the rejection of claims 13–16. Claims 5–7 and 17 Among other things, claim 5 requires computer readable instructions to: identify a plurality of first plotted points among a plurality of plotted points of the RR interval data in accordance with an input operation from a user, and obtain at least one first parameter associated with an autonomic nerve function of the subject based on the RR interval associated with the identified first plotted points. Lines 54a and 55a in Appellant’s Figure 9 represent examples of how a user input can be used to identify a plurality of points associated with an RR interval. Spec. para. 62. According to the Examiner, the recited inputting of claim 5 is met by paragraph 36 of Levitan which discloses “a terminal 14 for inputting R-R Appeal 2021-003535 Application 16/156,422 7 intervals obtained from other sources.” Ans. 7. The Examiner also cites paragraph 59 and Figures 5A–C for “diagnostic and prognostic evaluation” of such data and Levitan’s risk calculation as “obtain[ing] at least one first parameter associated with an autonomic nerve function.” Ans. 7 (citing Levitan paras. 6, 21, 56). Again, the precise subject matter the Examiner relies on to meet the language of claim 5 is not made clear by the Examiner. To the extent the Examiner considers data points input in Levitan to “identify a plurality of first plotted points” according to claim 5, first, it is not clear why the Examiner believes that such input of data not yet plotted identifies plotted points. Arguably, they might be able to do so when they are subsequently plotted and still fall within the language of claim 5. However, and in any case, the Examiner still does not indicate how the manually inputted data points collectively have an “RR interval associated with” them as required by claim 5. Rather, each manually input point in Levitan would be expected to have its own RR interval data. There seems to be no indication or expectation in Levitan that any “plurality of first plotted points,” or any “RR interval associated [there]with,” that could potentially be “identif[ied] . . . in accordance with” Levitan’s manually input data, would have any significance on which to find “obtain[ing] at least one first parameter associated with an autonomic nerve function” as required by claim 5. To the contrary, the portions of Levitan cited by the Examiner indicate Levitan analyzes the manually input data in the same manner as the rest of the data and Levitan does not attribute any clinical significance to points having data input manually as compared to points having data input by other methods. The Examiner seems to attempt to read claim 5 on Levitan in a very piecemeal manner, reading claim elements on certain subject matter in Appeal 2021-003535 Application 16/156,422 8 Levitan without giving due consideration for the interrelatedness of those elements as required by the claim. For the foregoing reasons we do not sustain the Examiner’s rejection of claim 5, or the rejection of claims 6 and 7 depending therefrom. As Agutter is not relied upon by the Examiner to cure this deficiency, we also do not sustain the rejection of dependent claim 17. CONCLUSION The Examiner’s rejections are REVERSED. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–12 102(a)(1) Levitan 1–12 13–17 103 Levitan, Agutter 13–17 Overall Outcome 1–17 REVERSED Copy with citationCopy as parenthetical citation