Ex Parte Audet et alDownload PDFPatent Trial and Appeal BoardDec 15, 201411684794 (P.T.A.B. Dec. 15, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte SARAH A. AUDET, JAMES K. CARNEY, and WILLIAM J. COMBS1 __________ Appeal 2012-005504 Application 11/684,794 Technology Center 3700 __________ Before ERIC G. GRIMES, JEFFREY N. FREDMAN, and ULRIKE W. JENKS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a heart monitoring apparatus, which have been rejected as obvious.2 We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 According to Appellants, the Real Party in Interest is Medtronic, Incorporated (Appeal Br. 3). 2 The Examiner also provisionally rejected claims 14–16 and 22 for obviousness-type double patenting based on the claims of application 12/181,247 (Ans. 4). Because the ʼ247 application went abandoned on March 7, 2014, we reverse the provisional obviousness-type double patenting rejection. Appeal 2012-005504 Application 11/684,794 2 STATEMENT OF THE CASE Claims 1–9, 11–20, and 22–25 are on appeal. Claim 1 is illustrative and reads as follows (emphasis added): 1. A heart monitoring apparatus adapted to detect myocardial ischemia, the apparatus comprising: at least one first-tier sensor/analyzer adapted to sense a first input related to cardiac function, and to produce a first-tier trigger signal when the first input indicates myocardial ischemia; and at least one second-tier sensor/analyzer adapted to sense a second input related to cardiac function, and to produce a second-tier trigger signal when the second input indicates myocardial ischemia; a control element adapted to adjust at least one threshold for at least one second-tier sensor/analyzer when the first-tier trigger signal is produced; and a triggering element adapted to produce a response-invoking signal in response to the first-tier trigger signal and the second-tier trigger signal. DISCUSSION The Examiner has rejected claims 1–9, 11–20, and 22–25 under 35 U.S.C. § 102(a) as anticipated by Zhang3 (Ans. 4). The Examiner finds that Zhang discloses a device meeting all of the limitations of claim 1, including “a control element adapted to adjust at least one threshold for at least one second-tier sensor/analyzer when the first-tier trigger signal is produced (Paragraph 0043-0044, 0046-0047, threshold is adjustable)” (id. at 5). More specifically, the Examiner reasons that “Zhang et al. discloses using the ECG signal to trigger detecting an S3 heart sound” (id. at 9), which reads on the control element limitation because “the second tier data is only measured against the baseline when the first tier criterion has been satisfied 3 Zhang et al., US 2006/0282000 A1, Dec. 14, 2006. Appeal 2012-005504 Application 11/684,794 3 (Paragraph 0046), thus the device only compares the data to the specified threshold based on preceding data” (id. at 10). “Although the heart sound sensor is ‘active’ and detects the heart sound, the data is not analyzed unless the ST deviation is first detected. . . . Zhang et al. activates the heart sound sensor/analyzer in response to the detected ST deviation.” (Id. at 12.) Appellants argue that “[t]he cited paragraphs of Zhang . . . fail to disclose a control element adapted to adjust at least one threshold for at least one second-tier sensor/analyzer when the first-tier trigger signal is produced” (Appeal Br. 6). Appellants argue that “Zhang does not disclose that the detection thresholds against the baselines are adjustable” (id.) and even if was interpreted to disclose adjustable thresholds, “Zhang does not disclose the control element being adapted to adjust the thresholds when the first-tier trigger signal is produced” (id.). Appellants also argue that, even assuming that Zhang’s paragraph 46 describes only measuring an S3 signal in the heart sound data when an ST deviation has been detected, such an interpretation of paragraph [0046] still fails to disclose the control element being adapted to adjust at least one threshold for at least one second-tier sensor/analyzer when the first-tier trigger signal is produced. Measuring or comparing the second tier data against its respective baseline or threshold when the first tier criterion has been satisfied is not the same as adjusting at least one threshold when the first-tier trigger signal is produced. (Reply Br. 5.) We agree with Appellants that the Examiner has not shown that Zhang discloses the control element limitation of claim 1. “Anticipation requires that all of the claim elements and their limitations are shown in a Appeal 2012-005504 Application 11/684,794 4 single prior art reference.” In re Skvorecz, 580 F.3d 1262, 1266 (Fed. Cir. 2009). “[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “[P]atentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument.” Id. The Examiner finds that Zhang’s paragraph 46 discloses a control element that is “adapted to adjust at least one threshold for at least one second-tier sensor/analyzer when the first-tier trigger signal is produced,” as required by claim 1. That paragraph describes an embodiment in which a signal analyzer circuit detects an ischemic event “using a temporal relationship between the measured change in the heart sound signal and the sensed event indicated by the cardiac [ECG] signal” (Zhang 6, ¶ 46). As an example, Zhang states that the signal analyzer circuit 630 may first measure a decrease in the S1 heart sound signal from the S1 baseline. The signal analyzer circuit 630 subsequently measures a deviation in the ST interval of the cardiac signal from the baseline cardiac signal. Later, an S3 heart sound appears on the measured heart sound signal, where the S3 heart sound is absent in the baseline heart sound signal. When such a sequence occurs, the signal analyzer circuit 630 deems that an ischemic event has occurred. (Id.) As Appellants have pointed out, this passage does not describe adjusting a threshold for a sensor/analyzer—i.e., adjusting either the threshold for deviation in the ST interval or the threshold for detecting an S3 heart sound—in response to a trigger signal from another sensor/analyzer. Even under the Examiner’s interpretation, Zhang discloses only a step of Appeal 2012-005504 Application 11/684,794 5 detecting a signal (S3 heart sound) in response to detecting another signal (deviation in ST interval). The Examiner, therefore, has not provided an evidentiary basis for concluding that Zhang discloses the control element limitation of claim 1. Claim 14 is the only other independent claim on appeal and requires “an initiation control element adapted to activate the heart sound sensor/ analyzer in response to the ECG trigger signal” (claim 14). The Examiner finds that this limitation is met because “[a]lthough the heart sound sensor is ‘active’ and detects the heart sound, the data is not analyzed unless the ST deviation is first detected” (Ans. 12). Zhang, however, does not support this finding. Zhang states that the embodiment described in paragraph 46 includes a heart sound sensor, a cardiac signal sensing circuit, and a memory circuit that stores heart sound measurements and segments of measured cardiac signals (Zhang 5, ¶¶ 40– 41). Zhang states that the “signal analyzer circuit 630 measures the heart sound signal and the cardiac signal” (id. at 5, ¶ 43) and can determine that “that an ischemic event occurred using both a measured change in the cardiac signal from an established baseline cardiac signal and a measured change in the heart sound signal from an established corresponding baseline heart sound signal” (id. at 5, ¶ 44). Zhang’s paragraph 46 states that an ischemic event can be detected based on a series of ECG and heart sound signals that are detected over time, but it does not describe initiating either sensing or analysis of a heart sound signal in response to a detected trigger in an ECG signal, as required by Appeal 2012-005504 Application 11/684,794 6 claim 14. The evidence therefore does not support the Examiner’s finding that Zhang discloses every limitation of claim 14. SUMMARY We reverse the rejection of claims 1–9, 11–20, and 22–25 under 35 U.S.C. § 102(a). We reverse the provisional obviousness-type double patenting rejection of claims 14–16 and 22. REVERSED lp Copy with citationCopy as parenthetical citation