NIHON KOHDEN CORPORATION

Patent Trials and Appeals Board

Dec 2, 2021

2021003535 (P.T.A.B. Dec. 2, 2021)

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.
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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.
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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
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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
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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
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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