Ex Parte CHAKRAVARTHY et al

Patent Trial and Appeal Board

Feb 26, 2019

14976667 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/976,667 12/21/2015
125276 7590 02/28/2019
Billion & Armitage - Medtronic
7401 Metro Blvd., Suite 425
Minneapolis, MN 55439
FIRST NAMED INVENTOR
Niranjan CHAKRAVARTHY
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4056.063US 1 4724
EXAMINER
GETZOW, SCOTT M
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
02/28/2019 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):
docketing@billionarmitage.com
rs.patents.five@medtronic.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIRANJAN CHAKRA VARTHY,
ABHI CHA VAN, and
BRION FINLAY
Appeal2018-004177
Application 14/976,667 1
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's rejection of claims 1, 5, 6, 8-10, 14, and 18-21. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Appellants identify "Medtronic Monitoring, Inc." as the real party in
interest. Appeal Br. 3.
Appeal2018-004177
Application 14/976,667
According to Appellants, their invention is directed "to monitoring
and detecting arrhythmia episodes that may require urgent care." Spec. ,r 1.
Claims 1 and 10 are the independent claims on appeal. Below, we reproduce
claim 1 as illustrative of the appealed claims.
1. A method of flagging monitored ECG samples for
urgent review by a human expert, the method comprising:
continuously monitoring, using an adherent device having
at least two electrodes and ECG circuitry, an electro-cardiogram
(ECG) signal of the patient;
monitoring, using the adherent device, one or more
physiological signals other than the ECG signal, including one
or more of bio-impedance signal, respiration signal, body posture
signal, and activity level;
detecting, using a local processor module included on the
adherent device, a rhythm abnormality in the patient based on the
monitored ECG signal;
storing, in a local memory located on the adherent device,
an ECG sample associated with the detected rhythm
abnormality;
deriving, using the local processor module, one or more
first features from the one or more monitored physiological
signals, wherein the one or more first features are associated with
the stored ECG sample;
determining whether the ECG sample represents a
physiological signal based on the one or more first features;
discarding ECG samples that do not represent a
physiological signal;
communicating, using wireless communication circuitry
located on the adherent device, ECG samples determined to
represent a physiological signal to a remote monitoring center;
deriving, at the remote monitoring center, one or more
second features associated with the communicated ECG
samples;
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Application 14/976,667
flagging communicated ECG samples for urgent review
based on the one or more second features; and
placing flagged ECG samples in a prioritized queue at the
remote monitoring center for out-of-order review by a human
expert.
REJECTION AND PRIOR ART
The Examiner rejects claims 1, 5, 6, 8-10, 14, and 18-21 under
35 U.S.C. § I03(a) as unpatentable over Brockway et al. (US 2009/0062671
Al, pub. Mar. 5, 2009) (hereinafter "Brockway") and Finlay et al. (US
2013/0274584 Al, pub. Oct. 17, 2013) (hereinafter "Finlay).
ANALYSIS
As set forth above, independent claim 1 recites, in relevant part,
"placing flagged ECG samples in a prioritized queue at the remote
monitoring center for out-of-order review by a human expert." Appeal Br.,
Claims App. In support of claim 1 's rejection, initially, the Examiner does
not find that any reference discloses placing ECG samples in a prioritized
queue, as claimed, but instead "consider[ s it] obvious that [a] technician
put[s] the [ECG] sample that is flagged into a 'prioritized queue' in order to
not mix up the samples that [ do not] need prioritized review from those that
do." Final Office Action 3.
In response to Appellants' arguments in the Appeal Brief, the
Examiner states that
the step of "placing flagged ECG samples in a prioritized
queue ... " is considered to be inherently done by the technician
by the very nature of indicating that some samples are flagged
and others are not flagged. It is also considered to be obvious to
place the flagged ECG samples in a queue for out of order review
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Appeal2018-004177
Application 14/976,667
by the physician since the physician specifically provided
instructions to the technician that she review the flagged samples
because the patient may be in need of immediate change in
medication (par[agraph] 43 of Brockway), and by so placing
them in a queue the samples would be less likely to be mixed up
with other samples that are stored, and she would more readily
be able to identify such samples.
Answer 4--5. For the following reasons, the Examiner supports neither any
finding that Brockway discloses, expressly or inherently, placing flagged
ECG samples in a prioritized queue, as claimed, nor that it would have been
obvious to place ECG samples in a prioritized queue, as claimed.
We note that Brockway's paragraph 66, which is cited throughout the
Final Office Action and Answer, describes the following:
In some cases, the analysis system may evaluate a nature of a
potential or suspected arrhythmia, and may ask the technician or
physician to confirm. In some cases, the technician may evaluate
a nature of a potential or suspected arrhythmia, and may ask the
physician to confirm. In one example, the technician may review
all or most of the data. The physician may provide instructions
on types of data or features in the data or strips that she is
interested in reviewing. In various implementations, either the
analysis system or the technician may flag occurrences of the
features in the data for physician review.
Brockway ,r 66. Paragraph 43 describes, in relevant part, the following:
In this fashion, a physician or service technician may view the
report 700 and quickly assess patient condition or trends in
patient condition with regard to atrial fibrillation or atrial flutter.
For instance, a general increasing trend over the first seven days
of the month in FIG. 7 may be cause for concern, and may
warrant therapy initiation or modification in some instances,
such as being prescribed or increasing dosage of an anticoagulant
medication.
Id. ,I 43.
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Application 14/976,667
It is not clear, however, that either portion of Brockway describes placing
flagged ECG samples in a prioritized queue at the remote monitoring center
for out-of-order review by a human expert, as claimed. For example, it is
not clear whether an expert reviews samples in a standard queue, that
someone or something places flagged occurrences in a separate queue, or
that an expert reviews occurrences in the separate queue out-of-order
compared to the standard queue or anything else. For similar reasons, we do
not understand that either of these portions of Brockway necessarily requires
that an expert reviews occurrences in a separate queue out-of-order, "by the
very nature of indicating that some samples are flagged and others are not
flagged." Answer 4--5; see In re Robertson, 169 F.3d 743, 745 (Fed.
Cir. 1999) ("Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient."). For example, samples may be flagged
within a report, and the entire report may be reviewed from beginning to
end, even though there is no prioritized queue, and no out-of-order review.
Further, the Examiner also does not support adequately that "[i]t is ...
considered to be obvious to place the flagged ECG samples in a queue for
out of order review by the physician." Answer 4--5. Instead, the Examiner
supposes what may be done, as well as reasons why the Examiner believes it
may be beneficial to do so, which are insufficient to support the rejection.
Thus, based on the foregoing, we do not sustain the Examiner's
obviousness rejection of claim 1. For similar reasons, because independent
claim 10 includes a similar recitation as that discussed above in claim 1, we
do not sustain independent claim 10' s rejection for the same reason we do
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Application 14/976,667
not sustain claim 1 's rejection. Further, we do not sustain the rejection of
claims 5, 6, 8, 9, 14, and 18-21 that depend from the independent claims.
DECISION
We REVERSE the Examiner's obviousness rejection of claims 1, 5, 6,
8-10, 14, and 18-21.
REVERSED
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