Ex Parte Chapman et al

Patent Trial and Appeal Board

Sep 22, 2016

12833724 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/833,724 07/09/2010
96139 7590 09/26/2016
MARGER JOHNSON
-PHYSIO -CONTROL, INC.
888 SW 5th A venue, Suite 1050
PORTLAND, OR 97204
FIRST NAMED INVENTOR
Fred Chapman
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.
7257-0005_P0033745.0l 7101
EXAMINER
ALTER, MITCHELLE
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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@techlaw.com
physio_control_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRED CHAPMAN, JOSEPH L. SULLIVAN,
and MITCHELL A. SMITH1
Appeal2015-000166
Application 12/833,724
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN,
and TIMOTHY G. MAJORS, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a system
and a method for providing status information about resuscitation efforts
which have been rejected as anticipated and obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the Real Party in Interest as Physio-Control, Inc. (Br.
3.)
Appeal2015-000166
Application 12/833,724
STATEMENT OF THE CASE
Appellants' "invention generally relates to Cardio Pulmonary
Resuscitation, and more particularly, to using a phonocardiogram to assess
Cardio Pulmonary Resuscitation effectiveness." (Spec. 1:9-10.)
Claims 1--44 are on appeal. Claim 1 is illustrative:
1. A system for providing status information about
resuscitation efforts of a person receiving chest compressions as
part of Cardiopulmonary Resuscitation (CPR), comprising:
a microphone for sampling sounds within a body of the
person to generate a soundtrack;
a processor structured to determine a cardiovascular effect
of the compressions from gated portions of the soundtrack but
not from other portions, the gated portions and the other portions
of the soundtrack determined by a gating signal that is correlated
with the chest compressions, the processor further structured to
determine the status information from the cardiovascular effect;
and
a status unit coupled to the processor and structured to
output the status information.
(Br. 10 (Claims App'x).)
The claims stand rejected as follows:
I. Claims 1-9, 16, 17, 19-21, 24--33, and 40--42 are rejected under
35 U.S.C. § 102(b) as anticipated by Joo. 2
II. Claims 11-14, 18, 35-37, and 39 are rejected under 35 U.S.C.
§ 103(a) over Joo and Morallee.3
2 Joo et al., US 2003/0060723 Al, published Mar. 27, 2003 ("Joo").
3 Morallee et al., US 2006/0019229 Al, published Jan. 26, 2006
("Morallee").
2
Appeal2015-000166
Application 12/833,724
Ill. Claims 10 and 34 are rejected under 35 U.S.C. § 103(a) over
Joo and Freeman '903.4
IV. Claims 15 and 38 are rejected under 35 U.S.C. § 103(a) over
Joo, Morallee, and Freeman '903.
V. Claims 22, 23, 32, 43, and 44 are rejected under 35 U.S.C.
§ 103(a) over Joo and Freeman '952.5
REJECTION I-ANTICIPATION
Claim 1:
Appellants argue the patentability of the claims together. We select
claim 1 as representative. Appellants' independent claim 1 requires, inter
alia, "a processor structured to determine a cardiovascular effect of the
compressions from gated portions of the soundtrack but not from other
portions, the gated portions and the other portions of the soundtrack
determined by a gating signal that is correlated with the chest
compressions." (Br. 10 (Claims App'x).)
The Examiner finds that
Joo teaches a system for providing status information about
resuscitation efforts of a person receiving chest compressions as
part of Cardiopulmonary Resuscitation (CPR) ... comprising: a
microphone for sampling sounds within a body of the person to
generate a soundtrack ... ; a processor structured to determine a
cardiovascular effect of the compressions from gated portions of
the soundtrack but not from other portions, the gated portions and
the other portions of the soundtrack determined by a gating signal
4 Freeman, US 2009/0149903 Al, published June 11, 2009 ("Freeman
'903").
5 Freeman et al., US 2006/0270952 Al, published Nov. 30, 2006 ("Freeman
'952").
3
Appeal2015-000166
Application 12/833,724
that is correlated with the chest compressions, the processor
further structured to determine the status information from the
cardiovascular effect (see entire document, for example para.
00152, "If the measured impedance fluctuates outside of a
predetermined range, the AED determines that the patient is
moving or being moved and directs the process 350 to proceed
to block 360. When the motion ceases, the process 350 returns to
the analysis in block 354." For purposes of examination of the
instant claim, the Examiner interprets the compression action
synonymous with movement such that the gated window when
the movement occurs is not analyzed, but after the movement
ceases, the process 350 returns to the analysis block 354.).
(Final Act. 2-3 (emphasis omitted).)
The issue with respect to this rejection is: Does the evidence of record
support the Examiner's finding that Joo anticipates claim 1?
Findings of Fact
1. Joo teaches
The presence of a cardiac pulse in a patient is determined
by evaluating physiological signals in the patient. In one
embodiment, a medical device evaluates two or more different
physiological signals, such as phonocardiogram (PCG) signals,
electrocardiogram (ECG) signals, patient impedance signals,
piezoelectric signals, and accelerometer signals for features
indicative of the presence of a cardiac pulse. Using these
features, the medical device determines whether a cardiac pulse
is present in the patient. The medical device may also be
configured to report whether the patient is in a VF, VT, asystole,
or PEA condition, in addition to being in a pulseless condition,
and prompt different therapies, such as chest compressions,
rescue breathing, defibrillation, and PEA-specific
electrotherapy, depending on the analysis of the physiological
signals. Auto-capture of a cardiac pulse using pacing stimuli is
further provided.
(Joo Abstract; see also Final Act. 2-3.)
4
Appeal2015-000166
Application 12/833,724
2. Joo teaches that "[t]he sensing devices ... are configured to
detect a physiological signal in the patient, such as acoustical energy from
heart sounds produced in the patient ... or electrical energy that reflects a
patient characteristic such as transthoracic impedance." (Joo i-f 46; see also
Ans. 5.)
3. Joo teaches
If the patient is moved during the analysis process ... , the data
obtained during the analysis is more likely to be affected by noise
and other signal contaminants. Motion of the patient may be
detected in the impedance signal data collected by the present
invention. . . . If the measured impedance fluctuates outside of a
predetermined range, the AED determines that the patient is
moving or being moved and directs the process ... to proceed to
block .... When the motion ceases, the process . . . returns to
the analysis in block ....
(Joo i-f 152; see also Final Act. 3.)
5
Appeal2015-000166
Application 12/833,724
4. Joo's Figure 17 is reproduced below:
Figure 17 shows that
I.;" I"' ..1c·l0'._ /+ <"!!<'
during the rescue breathing procedure in block 376 or the
monitoring procedure performed in block 378, the AED may
assess whether CPR is being administered to the patient. If the
AED finds that CPR is being performed, the AED may prompt
the operator to cease providing CPR. If, during the CPR period
of block 372, the AED determines that CPR is not being
administered to the patient, the AED may remind the operator to
provide CPR therapy to the patient. One method for determining
whether CPR is being administered is to monitor patient
impedance to observe patterns of impedance fluctuation in the
patient that are indicative of CPR. During CPR, repetitive chest
6
Appeal2015-000166
Application 12/833,724
compression typically causes repetitive fluctuations m the
impedance signal.
(Joo i-f 160; see also Ans. 4.)
5. The Specification teaches
In general, portions of the soundtrack generated by the
microphone . . . are discarded when the gating signal is in a
"discard" state, and portions of the soundtrack generated by the
microphone . . . are used when the gating signal is in a "use"
state. . . . There are several ways or methods to determine how
to generate the gating signal, also described below. Generally,
the discarded portions of the soundtrack relate to times during
which the chest compressions are occurring, which is necessarily
"noisy," and masks the sounds of the cardiovascular effect
sampled by the microphone [].
(Spec. 7:36-8:6; see also Ans. 5---6.)
6. The Specification teaches "a signal can be generated for
analysis in creating the gating signal .... For instance a transthoracic
sensor ... detects chest movement by measuring changes to a carrier signal
during compressions, due to a change m impedance of the carrier signal
during the compressions." (Spec. 8: 17-19; see also Ans. 6.)
7. The Specification teaches that "[i]n a software embodiment,
where the processor is executing instructions running on a special purpose or
general purpose processor, the gating signal ... may be a software value."
(Spec. 9:11-13.)
DISCUSSION
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 2-10; Ans. 3---6; FF 1-6) and
agree that claim 1 is anticipated by Joo. We address Appellants' arguments
below.
7
Appeal2015-000166
Application 12/833,724
Appellants contend
Joo does not teach any type of signal that is correlated with chest
compressions, let alone the recited gating signal; rather, Joo
describes an AED that detects motion of a patient and performs
certain actions responsive thereto. In fact, Joo may actually teach
away from the claimed invention because the AED of Joo
appears to perform actions responsive to virtually any type of
movement by the patient.
(Br. 8.)
This argument is unpersuasive. Joo teaches
The medical device may also be configured to report whether the
patient is in a VF, VT, asystole, or PEA condition, in addition to
being in a pulseless condition, and prompt different therapies,
such as chest compressions, rescue breathing, defibrillation, and
PEA-specific electrotherapy, depending on the analysis of the
physiological signals. Auto-capture of a cardiac pulse using
pacing stimuli is further provided.
(FF 1 (emphasis added).) Joo teaches that "[m]otion of the patient may be
detected in the impedance signal data collected by the present invention.
. . . If the measured impedance fluctuates outside of a predetermined range,
the AED determines that the patient is moving or being moved." (FF 3.)
Joo further teaches that
during the rescue breathing procedure in block 376 or the
monitoring procedure performed in block 378, the AED may
assess whether CPR is being administered to the patient. If the
AED finds that CPR is being performed, the AED may prompt
the operator to cease providing CPR. If, during the CPR period
of block 372, the AED determines that CPR is not being
administered to the patient, the AED may remind the operator to
provide CPR therapy to the patient. One method for determining
whether CPR is being administered is to monitor patient
impedance to observe patterns of impedance fluctuation in the
patient that are indicative of CPR. During CPR, repetitive chest
8
Appeal2015-000166
Application 12/833,724
compression typically causes repetitive fluctuations in the
impedance signal.
(FF 4.) Moreover, we observe that Appellants' Specification teaches
"portions of the soundtrack generated by the microphone ... are discarded
when the gating signal is in a 'discard' state .... Generally, the discarded
portions of the soundtrack relate to times during which the chest
compressions are occurring, which is necessarily 'noisy,"' (FF 5), "a
transthoracic sensor ... detects chest movement by measuring changes to a
carrier signal during compressions" (FF 6), and that "[i]n a software
embodiment, where the processor is executing instructions running on a
special purpose or general purpose processor, the gating signal ... may be a
software value" (FF 7). (See also Ans. 5---6.) Similarly, Joo teaches "[i]f the
patient is moved during the analysis process ... , the data obtained during the
analysis is more likely to be affected by noise and other signal
contaminants" (FF 3), and that "[t]he sensing devices ... are configured to
detect a physiological signal in the patient, such as acoustical energy from
heart sounds produced in the patient ... or electrical energy that reflects a
patient characteristic such as transthoracic impedance" (FF 2 (emphasis
added)).
We thus agree with the Examiner that
Joo teaches that if the measured impedance fluctuates outside of
a predetermined range, the AED determines that the patient is
moving or being moved and directs the process 350 to proceed
to block 360. When the motion ceases, the process 350 returns
to the analysis in block 354. Thus, Joo teaches that at least the
impedance signal is correlated with chest compressions (see
entire document, for example para. 0160 "During CPR, repetitive
9
Appeal2015-000166
Application 12/833,724
chest compression typically causes repetitive fluctuations in the
impedance signal.["]).
(Ans. 4.) The Examiner explains that
Joo also teaches the processor is structured to determine a
cardiovascular effect of the compressions from gated portions of
the soundtrack but not from other portions, the gated portions and
the other portions of the soundtrack determined by a gating signal
that is correlated with the chest compressions, because when the
motion does occur, Joo directs the process 350 to proceed to
block 360 and when the motion ceases, the process 350 returns
to the analysis in block 354.
(Id.) In other words, Joo blocks out noise and measures impedance within a
predetermined range in evaluating physiological signals from chest
compression in the patient. Joo thus teaches "a processor structured to
determine a cardiovascular effect of the compressions from gated portions of
the soundtrack but not from other portions, the gated portions and the other
portions of the soundtrack determined by a gating signal that is correlated
with the chest compressions," as required by claim 1.
Appellants' argument that Joo teaches away from the claimed
invention (Br. 8) is also unpersuasive. Whether a reference teaches away is
inapplicable when, as here, the rejection is based on anticipation. Celeritas
Techs., Ltd. v. Rockwell Int'! Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998)
("Thus, the question whether a reference 'teaches away' from the invention
is inapplicable to an anticipation analysis.").
Therefore, we affirm the rejection of claim 1. Claims 2-9, 16, 17, 19-
21, 24--33, and 40-42 have not been argued separately and thus fall with
claim 1.
10
Appeal2015-000166
Application 12/833,724
REJECTIONS II-V - OBVIOUSNESS
Appellants contend that
each of dependent claims 10-15, 18, 22, and 23 should be
allowed for at least the same reasons that pertain to the parent
claim 1. Appellant also submits that each of dependent claims
34--39 and 43 should be allowed for at least the same reasons that
pertain to the parent claim 24.
(Br. 9.) Having affirmed the rejection of the parent claims for the reasons
given above, we therefore affirm the rejection of claims 10-15, 18, 22, 23,
34--39, 43, and 44.
CONCLUSION OF LAW
We affirm the rejection of claims 1-9, 16, 17, 19-21, 24--33, and 40-
42 under 35 U.S.C. § 102(b) as anticipated by Joo.
We affirm the rejection of claims 11-14, 18, 35-37, and 39 under
35 U.S.C. § 103(a) over Joo and Morallee.
We affirm the rejection of claims 10 and 34 under 35 U.S.C. § 103(a)
over Joo and Freeman '903.
We affirm the rejection of claims 15 and 38 under 35 U.S.C. § 103(a)
over Joo, Morallee, and Freeman '903.
We affirm the rejection of claims 22, 23, 32, 43, and 44 under
35 U.S.C. § 103(a) over Joo and Freeman '952.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
11