Ex Parte 7,530,955 B2 et al

Patent Trial and Appeal Board

May 21, 2018

95002183 (P.T.A.B. May. 21, 2018)

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.
95/002,183 09/12/2012 7,530,955 B2 11080153 1972
64735 7590 05/21/2018
KNOBBE, MARTENS, OLSON & BEAR, LLP
MASIMO CORPORATION (MASIMO)
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
NASSER, ROBERT L
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
05/21/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

PHILIPS ELECTRONICS NORTH AMERICA CORPORATION
Requester,

v.

MASIMO CORPORATION OF IRVINE, CA,
Patent Owner.
____________

Appeal 2018-000147
Reexamination Control 95/002,183
Patent 7,530,955 B2
Technology Center 3900
____________

Before MARC S. HOFF, STEPHEN C. SIU, and
JENNIFER L. MCKEOWN, Administrative Patent Judges.

SIU, Administrative Patent Judge

DECISION ON APPEAL
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Reexamination Control 95/002,183
Patent 7,530,955 B2

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This proceeding arose from a September 12, 2012 request for an inter
partes reexamination of the claims of U.S. Patent 7,530,955 B2, titled
“Signal Processing Apparatus” and issued to Mohamed K. Diab, Esmaiel
Kiani-Azarbayjany, Ibrahim M. Elfadel, Rex J. McCarthy, Walter M.
Weber, and Robert A. Smith, on May 12, 2002 (“the ’955 patent”).
Masimo Corporation of Irvine (“Patent Owner”) appeals under 35
U.S.C. §§ 134 and 315 the Examiner’s rejections of claims 1–15, 17–73, 85,
91–93, 96–116, and 118–122. App. Br. 11–12.1 We have jurisdiction under
35 U.S.C. §§ 134 and 315.
The ’955 patent describes a methods for signal processing. Spec.
3:10–15.

Claim 1 reads as follows:

1. A method of determining pulse rate comprising:
receiving first and second intensity signals from a light-
sensitive detector which detects light of at least first and second
wavelengths attenuated by body tissue carrying pulsing blood;
electronically determining using one or more signal processing
devices of a patient monitor, at least two values corresponding to
pulse rate based upon at least two different methods of processing the
physiological signals; and
electronically determining using one or more signal processing
devices of a patient monitor, a resulting value for pulse rate from the
at least two values corresponding to pulse rate, wherein one of the
different methods of processing comprises a self optimizing
algorithm.

1 Amended Appeal Brief in Support of Appellants’ Appeal to the Patent
Trial and Appeal Board, filed June 2, 2014 (App. Br.).
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.

The cited references are as follows:

New US 4,653,498 March 31, 1987
Taylor US 4,859,057 Aug. 22, 1989
Corenman US 4,911,167 March 27, 1990
Hall US 4,955,379 Sept. 11, 1990
Eckerle US 5,243,992 Sept. 14, 1993
Diab US 5,632,272 May 27, 1997
Baker US 5,853,364 Dec. 29, 1998
Diab US 6,157,850 Dec. 5, 2000
Diab US 7,215,984 B2 May 8, 2007
Diab US 7,496,393 B2 Feb. 24, 2009
Diab US 8,128,572 B2 March 6, 2012
Vital Signals WO92/15955 Sept. 17, 1992
Baker WO98/43071 Oct. 1, 1998

Patent Owner appeals the Examiner’s rejection of (Notice of Appeal
from the Examiner, dated September 9, 2016 at 2-3):
1) Claims 91-93 and 120-121 as unpatentable on the ground of
obviousness-type double patenting over claim 24 of Diab ’850
and Hall.
2) Claims 106, 107, 109, 111-113, 115, and 116 as unpatentable
on the ground of obviousness-type double patenting over claims
6 and 11 of Diab ’850 and Eckerle.
3) Claim 110 as unpatentable on the ground of obviousness-type
double patenting over claim 11 of Diab ’850, Hall, Eckerle, and
Vital Signals.
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4) Claims 118 and 119 as unpatentable on the ground of
obviousness-type double patenting over claim 24 of Diab ’850
and New.
5) Claim 120 as unpatentable on the ground of obviousness-type
double patenting over claim 24 of Diab ’850, Hall, and Eckerle.
6) Claims 96-98 and 100-105 as unpatentable on the ground of
obviousness-type double patenting over claims 6, 11, and 24 of
Diab ’850, Hall, and New.
7) Claims 85 and 99 as unpatentable on the ground of
obviousness-type double patenting over claim 11 of Diab ’850,
Hall, New and Vital signals.
8) Claims 91, 96, 102, 106, 110, and 119 as unpatentable on the
ground of obviousness-type double patenting over claims 2, 4,
and 11 of Diab ’572.
9) Claims 92, 93, 100, 101, 104, 105, 111, and 120 as
unpatentable on the ground of obviousness-type double
patenting over claims 2, 4, 11, 20, and 22 of Diab ’572 and
Corenman.
10) Claims 97, 98, and 103 as unpatentable on the ground of
obviousness-type double patenting over claims 4, 11, and 22 of
Diab ’572 and New
11) Claims 85 and 99 as unpatentable on the ground of
obviousness-type double patenting over claim 11 of Diab ’572
and Vital signals.
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12) Claims 118 and 121-122 as unpatentable on the ground of
obviousness-type double patenting over claim 4 of Diab ’572
and Hall.
13) Claims 112-115 as unpatentable on the ground of obviousness-
type double patenting over claims 2 and 20 of Diab ’572 and
Eckerle.
14) Claims 107-109 as unpatentable on the ground of obviousness-
type double patenting over claim 11 of Diab ’572 and Eckerle.
15) Claim 116 as unpatentable on the ground of obviousness-type
double patenting over claims 2 and 20 of Diab ’572, Eckerle,
and Corenman.
16) Claims 1, 2, 5, 8, 23, 24, 28, 29, 32-35, 37, 38, and 40-41 as
unpatentable on the ground of obviousness-type double
patenting over claims 2, 4, 11, 12, 20, 22, 42, 43, 69, 71, 105,
and 107 of Diab ’572.
17) Claims 14, 17, 20, 27, 30, 31, 36, and 39 as unpatentable on the
ground of obviousness-type double patenting over claims 34,
37, 54, 58, 59, 63, and 66 of Diab ’572 and Vital Signals.
18) Claims 51-53, 64, and 65 as unpatentable on the ground of
obviousness-type double patenting over claims 63 and 66 of
Diab ’572 and Vital Signals.
19) Claims 3, 4, 6, 7, 9, and 10 as unpatentable on the ground of
obviousness-type double patenting over claims 2, 4, 11, 12, 20,
and 22 of Diab ’572 and Corenman.
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20) Claims 54, 55, 66, and 67 as unpatentable on the ground of
obviousness-type double patenting over claims 63 and 66 of
Diab ’572, Vital Signals, and Corenman.
21) Claims 11-13 as unpatentable on the ground of obviousness-
type double patenting over claims 2, 4, 11, 20, and 22 of Diab
’572 and Polson.
22) Claims 18, 19, 21, 22, 42-44, 56, 57, 60, 61, 68, and 71 as
unpatentable on the ground of obviousness-type double
patenting over claims 2, 4, 11, 20, 22, 105, and 107 of Diab
’572 and Eckerle.
23) Claims 45-50 as unpatentable on the ground of obviousness-
type double patenting over claims 2, 4, 11, 20, and 22 of Diab
’572 and Eckerle.
24) Claims 58, 59, 62, and 63 as unpatentable on the ground of
obviousness-type double patenting over claims 2, 4, 20, and 22
of Diab ’572, Eckerle, and Corenman.
25) Claims 69, 70, 72, and 73 as unpatentable on the ground of
obviousness-type double patenting over claims 105 and 107 of
Diab ’572, Eckerle, and Corenman.
26) Claims 15, 18, 21, 46, 49, and 112-115 as unpatentable on the
ground of obviousness-type double patenting over claims 33-38
of Diab ’572 and Hall.
27) Claims 17, 20, 45, 48, and 106-110 as unpatentable on the
ground of obviousness-type double patenting over claims 36-38
of Diab ’572 and Vital Signals.
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28) Claim 111 as unpatentable on the ground of obviousness-type
double patenting over claims 36-38 of Diab ’572, Vital Signals,
and Corenman.
29) Claim 116 as unpatentable on the ground of obviousness-type
double patenting over claims 36-38 of Diab ’572, Vital Signals,
and Corenman.
30) Claims 25 and 26 as unpatentable on the ground of
obviousness-type double patenting over claims 4 and 22 of
Diab ’572 and Hall.
31) Claims 96-98, 100-107, 111-113, 116, and 122 as unpatentable
under 35 U.S.C. § 103(a) over Hall and New.
32) Claims 109 and 115 as unpatentable under 35 U.S.C. § 103(a)
over Hall, New, and Eckerle.
33) Claims 85, 99 and 110 as unpatentable under 35 U.S.C.
§ 103(a) over Hall, New, and Vital Signals.

The Examiner withdraws the following rejections (Ans. 5-6):2
1) Claims 51, 52, 54, 55, 64, 66, and 67 as unpatentable on the
ground of obviousness-type double patenting over claim 11 of the
’850 patent, Hall, and EP 117.

2 We assume the Examiner also withdraws the rejection of claims 56-63 and
68-73 as unpatentable on the ground of obviousness-type double patenting
over claims 6 and 24 of the ’850 patent, Hall, Eckerle, and EP117.
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2) Claims 53 and 65 as unpatentable on the ground of obviousness-
type double patenting over claim 11 of the ’850 patent, Hall, EP
117 and Vital signals.
3) Claims 56 and 57 as unpatentable on the ground of obviousness-
type double patenting over claims 36-38 of the ’572 patent and EP
117.
4) Claims 58 and 59 as unpatentable on the ground of obviousness-
type double patenting over claims 36-38 of the ’572 patent, EP 117
and Corenman.
5) Claim 68 as unpatentable on the ground of obviousness-type
double patenting over claims 36-38 of the ’572 patent, Hall, and
EP 117.
6) Claims 69 and 70 as unpatentable on the ground of obviousness-
type double patenting over claims 36-38 of the ’572 patent, Hall,
EP 117 and Corenman.
7) Claims 56-59 and 68-70 as unpatentable under 35 U.S.C. § 103(a)
over Hall, Eckerle, and EP117.
8) Claims 53 and 65 as unpatentable under 35 U.S.C. § 103(a) over
Hall, New, EP117 and Vital Signals.
ISSUE

Did the Examiner err in rejecting claims 1, 2, 4, 5, 8, 11-73, 85, 91-93,
96-116, and 118-122?

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ANALYSIS

Petitionable matters

Patent Owner argues that the present matter should be dismissed
because “this inter partes reexam [was] needlessly delay[ed] by over one
year,” which is “far outside the Office’s norm,” and that “the PTO . . .
instituted reexamination on numerous new grounds that were not part of
[Petitioner’s] original request.” App. Br. 12, 14, 15. Patent Owner does not
indicate a filing of a Petition to address these alleged issues. In any event,
the Board does not consider petitionable matters.

Obviousness type double patenting

Claim 91 recites determining values corresponding to pulse rate based
upon at least two alternative methods. Patent Owner argues that claim 1 of
Diab ’850, for example, recites determining at least two values of a
“physiological parameter” but fails to recite or disclose that the
“physiological parameter” is a “pulse rate.” App. Br. 26-27. Patent Owner
also argues that even though Hall discloses determining a pulse rate (a pulse
rate being a “physiological parameter”), Hall fails to disclose “us[ing] two
alternative methods . . . to determine a . . . pulse rate.” App. Br. 27.
We note, however, that Hall discloses “a pulse oximeter apparatus”
that includes a “photodetector” and a “microprocessor, which analyses . . .
signals for amplitude and frequency . . . corresponding to pulse rate.” Hall
1:22, 25, 40-42. Hall also discloses that “[if] artefact is not . . . present, the
bandpass filter is tuned to the pulse rate as determined by the normal
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oximeter algorithms” (i.e., one alternative method) but that “[w]hen artefact
is present, the AGC system is frozen, fixing the gain level, and the bandpass
filter is configured in a feedback loop” (i.e., another alternative method).
Hall 3:15-17, 21-21. In other words, Hall discloses determining at least two
values corresponding to pulse rate (i.e., amplitude and frequency
corresponding to pulse rate) based upon at least two different methods of
processing the signals (e.g., either by normal oximeter algorithms or by
freezing the AGC system, fixing the gain level, and configuring the
bandpass filter in a feedback loop). Patent Owner does not explain a
sufficient difference between Hall and the disputed claim limitations.
In any event, even assuming Patent Owner to be correct that Hall fails
to disclose using “two alternative methods” to determine a physiological
parameter (i.e., a pulse rate), Patent Owner does not assert or demonstrate
persuasively that the claims of Diab ’850 fail to recite using two alternative
methods to determine a physiological parameter, which, according to Hall,
includes a pulse rate.
Claim 1, for example, recites a “self optimizing algorithm.” Patent
Owner argues that the combination of Diab ’850 and Hall fails to disclose or
suggest a “self optimizing algorithm” where a “self optimizing algorithm”
must be “a process that determines a set of variables in order to minimize or
maximize a cost function,” under a broadest reasonable interpretation. App.
Br. 23, 24, 30. Specifically, Patent Owner argues that the inventor of the
present matter is “one of ordinary skill in the art at the relevant timeframe”
and testifies that “a self optimizing algorithm requires processing that
determines a set of variables in order to minimize or maximize a cost
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function” and that a “cost function” must include various other features.
App. Br. 24-25. We are not persuaded by Patent Owner’s argument. Even
assuming Patent Owner to be correct that the inventor of the present matter
testifies that one of skill in the art would have understood that a “self
optimizing algorithm” must require determining a variable to minimize or
maximize a cost function, Patent Owner does not explain sufficiently why
one of skill in the art, under a broadest reasonable interpretation in light of
the Specification, would have understood that the generalized recitation of a
“self optimizing algorithm” would have further required a specific type of
algorithm (i.e., specifically an algorithm to minimize or maximize a cost
function). Rather, based on the term “self optimizing algorithm,” one of
skill in the art would have logically understood the term to include an
“algorithm” that “optimizes” itself.
Patent Owner argues that the Specification discloses an example of an
algorithm “such as an adaptive noise canceler” that “filters out noise” and
an example of an algorithm that “defines two variables . . . by maximizing
the energy in” a signal and that these examples supposedly “permeate the
specification.” App. Br. 25-26. We are not persuaded by Patent Owner’s
argument. The example cited by Patent Owner does not appear to pertain to
minimizing or maximizing a cost function, which Patent Owner argues one
of skill in the art would have understood a “self optimizing algorithm” to
require. Even assuming Patent Owner to be correct that the Specification
discloses examples of a “self optimizing algorithm” for filtering out noise
and for maximizing energy in a signal, and assuming Patent Owner to be
correct that the disclosed examples “permeate” the Specification, Patent
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Owner does not assert or demonstrate persuasively that the Specification
also defines a “self optimizing algorithm” as requiring minimizing or
maximizing a cost function, specifically.
Patent Owner argues that Hall discloses “estimat[ing] the frequency of
the signal output” and “pass[ing the estimated frequency] through a . . filter
[and] tun[ing] the bandpass filter to the signal’s estimated frequency.” App.
Br. 31. In other words, Patent Owner argues that Hall discloses a device that
estimates a value, then “optimizes” its algorithm by “tuning” a filter to the
estimated value. Hence, Hall discloses an algorithm that optimizes itself
(by, for example, tuning a filter to a value estimated by the algorithm).
Patent Owner does not explain sufficient differences between the “self
optimizing algorithm” of Hall and the self optimizing algorithm recited in
the disputed claims.
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined Diab ’850 and Hall because
“circular reasoning is not sufficient.” App. Br. 32 (emphasis omitted).
Claim 1 of Diab ’850 recites analyzing at least two possible indications to
determine an indication that most closely correlates to the physiological
parameter. In other words, claim 1 of Diab ’850 recites an algorithm (i.e.,
analyzing indications) that is optimized (i.e., determines an indication most
closely correlating to a physiological parameter) and does not recite the
optimization algorithm to be performed by a separate component. Hence,
the optimization algorithm of claim 1 of Diab ’850 is a “self” optimizing
algorithm. Hall confirms that those of ordinary skill in the art would have
known and used such self optimizing algorithms. We are not persuaded by
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Patent Owner that the combination of Diab ’850 and Hall is based solely on
“circular reasoning.”
Claim 56, for example, recites determining if a change from a
previous resulting value is greater than a determined physiologically relevant
rate. The Examiner finds that Eckerle discloses this feature. As the
Examiner points out, Eckerle discloses a “program [that] checks to see if the
new weighted average pulse rate falls within a predetermined range of about
0.8P to 1.3P, where P is the previous weight average pulse rate.” Eckerle
11:59-62. In other words, Eckerle discloses determining if a change from a
previous resulting value (i.e., a change between a new weight average pulse
rate and a previous weight average pulse rate), is greater than a determined
physiologically relevant rate (e.g., is greater than 0.8 times the previous
weight average pulse rate). Id.
Patent Owner argues that Eckerle fails to disclose a “change from a
previous resulting value” because “[t]here is no subtraction or difference
calculation between the average values.” App. Br. 35. Claim 56 recites a
change from a previous value. Claim 56 does not also recite a “subtraction
or difference calculation.” Therefore, we need not consider whether or not
Eckerle discloses a subtraction or difference calculation.
Regarding Diab ’572, Patent Owner states that “[t]he doctrine of
obviousness-type double patenting ‘is designed to prevent an inventor from
securing a second, later expiring patent for the same invention’” but that
rejection of claims in the present matter based on the ground of nonstatutory
obviousness-type double patenting with respect to Diab ’572 is improper
because the present matter and Diab ’572 “share priority” and because “the
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difference in patent term here is due entirely to PTO delay.” App. Br. 44-
45, citing AbbVie, Inc. v. Mathilda & Terence Kennedy Inst. of
Rheumatology Trust, 764 F.3d 1366, 1373 (Fed. Cir. 2014).” We note that
the present matter is a “second, later expiring patent” with respect to Diab
’572. Even assuming that the present matter and Diab ’572 “share priority”
and that any alleged delay in prosecution of the respective matters was “due
entirely to PTO delay,” as Patent Owner asserts, Patent Owner does not
demonstrate persuasively that the present matter is not a “second, later
expiring patent” for purposes of obviousness-type double patenting.
Therefore, we disagree with Patent Owner that the doctrine of obviousness-
type double patent is not applicable in this case.
Patent Owner does not provide additional arguments in support of
claims with respect to obviousness type double patenting.

35 U.S.C. 103(a) – Obviousness

Claim 51 recites determining two values corresponding to pulse rate
based on two different methods of processing physiological signals. The
Examiner finds that Hall discloses processing physiological signals (e.g,.
“intensity signals”) when motion is present and when no motion is present
(i.e., two different methods of processing) and determining “pulse rate and
oxygen saturation.” See, e.g., RAN 57. The Examiner also finds that New
confirms that one of ordinary skill in the art would have known to average
values (e.g., pulse rates over time) to determine “a resulting value from the
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two values corresponding to pulse rate” (e.g., an average pulse rate). RAN
58.
Patent Owner argues that New discloses the “same method” and fails
to disclose “two different methods.” App. Br. 50. We are not persuaded by
Patent Owner’s argument. As discussed above, Hall discloses at least two
methods (see discussion above). Hence, even assuming New fails to
disclose “two different methods,” as Patent Owner asserts, Patent Owner
does not demonstrate persuasively that the combination of Hall and New
also fails to disclose or suggest this feature.
As previously discussed, the Examiner finds that it would have been
obvious to combine the at least two methods of Hall of processing
physiological signals to determine pulse rate with the method of New of
processing values (i.e., pulse rates over time) to determine a pulse rate. We
agree with the Examiner at least because the combination of known elements
(e.g., methods of processing data to determine pulse rate of either Hall or
New) to achieve a predictable result of determining a pulse rate from
processing of data pertaining to pulse rate would have been obvious to one
of ordinary skill in the art. “The combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416
(2007).
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of Hall and New
because Hall supposedly discloses detecting “motion artefact” and New
discloses an example in which “noise can be subtracted out.” App. Br. 51.
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Patent Owner argues that if one of skill in the art bodily incorporated
“subtracting out” noise of New into detecting “motion artefact” of Hall,
“New would defeat the entire purpose of Hall” and would be “redundant to
Hall or would impair Hall’s functionality without clearly achieving a greater
benefit in noise reduction.” App. Br. 51. However, Patent Owner does not
demonstrate persuasively that detecting “motion artefact” is, in fact, the
“entire purpose of Hall,” that “subtracting out noise” (of New) would, in
fact, “impair Hall’s functionality” (and in what way), or that there would, in
fact, be no “greater benefit in noise reduction” by “subtracting out noise” (on
the contrary, it would appear that subtracting out noise would achieve noise
reduction). In any event, “[t]he test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference.... Rather, the test is what the combined
teachings of those references would have suggested to those of ordinary skill
in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Patent Owner argues the EP ’117 “is not prior art.” App. Br. 36, 52.
The Examiner withdraws rejections based on EP ’117. Ans. 5-6.
Patent Owner does not provide additional arguments in support of
other claims or with respect to other cited references. The Examiner did not
err in rejecting claims under the doctrine of obviousness type double
patenting and/or as unpatentable under 35 U.S.C. § 103(a) as indicated
above.

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DECISION
We affirm the Examiner’s rejections of claims 1, 2, 4, 5, 8, 11-73, 85,
91-93, 96-116, and 118-122.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED