Ex Parte Chen et al

Patent Trial and Appeal Board

May 15, 2018

13870079 (P.T.A.B. May. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/870,079 04/25/2013
109673 7590 05/17/2018
McClure, Qualey & Rodack, LLP
3100 Interstate North Circle
Suite 150
Atlanta, GA 30339
FIRST NAMED INVENTOR
Ming-Yen Chen
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.
250912-3210 7052
EXAMINER
SKIBINSKY, ANNA
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
05/1712018 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):
uspatents@mqrlaw.com
dan.mcclure@mqrlaw.com
gina.silverio@mqrlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MING-YEN CHEN, CHU AN-WEI TING,
and CHING-YAO WANG 1
Appeal2017-007026
Application 13/870,079
Technology Center 1600
Before ERIC B. GRIMES, FRANCISCO C. PRATS, and
JEFFREY N. FREDMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
and device for measuring a pulse rate, which have been rejected as being
directed to patent-ineligible subject matter. We have jurisdiction under 35
U.S.C. § 6(b ).
We affirm.
1 Appellants identify the Real Party in Interest as INDUSTRIAL
TECHNOLOGY RESEARCH INSTITUTE. Appeal Br. 2.
Appeal2017-007026
Application 13/870,079
STATEMENT OF THE CASE
The Specification states that "[t]he number and interval of [a] testee's
heart beats can be detected through the peaks of the pulse waveform." Spec.
i-f 3. However, the peaks of the pulse waveform "do not occur at the time
points at which the work is the maximum, and can be easily influenced by
external factors such as ambient light, motion artifact, posture, and so on."
Id. i-f 3 7. The Specification states that if "the pulse interval time sequence is
obtained according to the maximum change rate points [] of the rising
segments [] of the pulse waveform[], ... the influence of external factors [is]
greatly reduced and analysis precision is greatly increased." Id.
Claims 1-12 are on appeal. Claim 1 is representative and reads as
follows:
1. A computerized method for analyzing a physiological signal,
compnsmg:
emitting a light to a testing portion with blood capillaries by a light
emitter;
receiving a reflective light from the testing portion by a light receiver;
recording, by a sequence recorder, the reflective light to generate a
pulse waveform representing a blood volume of a blood vessel over time;
analyzing a plurality of rising segments of the pulse waveform by a
processor;
analyzing a maximum change rate point at each rising segment by the
processor;
storing the maximum change rate points by a storage unit; and
establishing, by the processor, a pulse interval time sequence
corresponding to a heart pulsation by recording a plurality of intervals
between the maximum change rate points or an occurring time of each of the
maximum change rate points.
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DISCUSSION
The Examiner has rejected claims 1-12 under 35 U.S.C. § 101 on the
basis that they "are directed to the abstract idea of analyzing rising segments
of a pulse waveform and a maximum change rate at each rising segment, and
establishing a pulse interval time sequence." Ans. 3. "As a whole the
method relies on the abstract ideas of data analysis, organizing information
through mathematical correlations, and performing mathematical
calculations which can be performed as mental steps or by using pen and
paper." Id. at 3--4.
The Examiner finds that the additional steps of claim 1----emitting
light, receiving and recording reflected light, and storing the maximum
change rate points-are not significantly more than the judicial exception to
§ 101 because they are routine and conventional, as shown by Karst, 2 which
discloses a pulse oximeter. Id. at 4. The Examiner concludes that the
"additional claim element( s) do not provide meaningful limitation( s) to
transform the abstract idea into a patent eligible application of the abstract
idea such that the claim( s) amounts to significantly more than the abstract
idea itself." Id.
We agree with the Examiner that claim 1 is directed to a patent-
ineligible method. The Supreme Court has
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, we
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, "[ w ]hat
2 Karst et al., US 2010/0312128 Al, Dec. 9, 2010.
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Application 13/870,079
else is there in the claims before us?" To answer that question,
we consider the elements of each claim both individually and
"as an ordered combination" to determine whether the
additional elements "transform the nature of the claim" into a
patent-eligible application.
Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014)
(citations omitted).
Here, claim 1 is directed to the abstract idea of determining a pulse
rate based on points of maximum rise in blood volume. So the next question
is, what else is there in the claims before us?
Karst states that
[o ]ne technique for measuring blood flow-by way of blood
volume in tissue-is plethysmography. Photoplethysmography
is an optical technique that uses an optical sensor to illuminate
tissue and measure changes in light absorption. A pulse
oximeter is an example of one type of optical sensor typically
placed at a finger tip to measure transmissive absorption or
against the forehead to measure reflective absorption. A
conventional pulse oximeter monitors the perfusion of blood to
the dermis and subcutaneous tissue of the skin.
Karst i-f 36. Thus, Karst provides evidence that it was routine and
conventional to emit light to a finger tip or forehead and receive reflective
light in order to measure blood volume.
Karst also states that "[a Jn example of a signal generated by an optical
sensor is shown in FIG. IB as a photoplethysmograph (PPG) comprising
multiple cardiac cycles (n, n+ 1 ). Each cardiac cycle appears as a peak (max)
in the PPG signal. . . . A PPG signal ... is generally processed to determine
heart rate." Id. Thus, claim 1 's steps of (a) recording the reflective light to
generate a pulse waveform over time and (b) establishing a heart rate (or
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Application 13/870,079
pulse interval time sequence) based on the reflective light were also routine
and conventional.
Karst provides evidence, therefore, that the routine and conventional
method of measuring a heart rate using a pulse oximeter generated and
recorded the same data as the method of claim 1 but analyzed it differently:
the conventional method relied on the peak of the PPG signal to mark each
cardiac cycle, whereas the method of claim 1 uses the point of maximum
rise in blood volume.
But a method of analyzing data in a different way is still nothing more
than data analysis. "Information as such is an intangible. Accordingly, ...
collecting information, including when limited to particular content (which
does not change its character as information), [is] within the realm of
abstract ideas." Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (citations omitted). "In a similar vein, ... analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, [are] essentially mental processes within the
abstract-idea category." Id. at 1354. And "merely presenting the results of
abstract processes of collecting and analyzing information, without more
(such as identifying a particular tool for presentation), is abstract as an
ancillary part of such collection and analysis." Id.
Electric Power Group is directly applicable here: "The advance [the
claims] purport to make is a process of gathering and analyzing information
of a specified content, then displaying the results, and not any particular
assertedly inventive technology for performing those functions. They are
therefore directed to an abstract idea." Id.
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Appellants argue that "the claims are not simply directed to
mathematical analysis, but instead are specifically directed to improvements
to an electrical non-invasive bio-information measurement device, to greatly
reduce the influence of external factors and to increase signal analysis
precision of heart rate measurement." Appeal Br. 5. Appellants point to the
Specification's statement that "[t]he peaks of the pulse waveform do not
occur at the time points at which the work is the maximum, and can be
easily influenced by external factors such as ambient light, motion artifact,
posture, and so on," while "[t]he maximum change rate points represent the
time points at which the work is the maximum in the ejection stage," "so that
the influence of external factors are greatly reduced and analysis precision is
greatly increased." Id., citing Spec. i-f 37.
Appellants cite Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016), as holding that "' [ s ]oftware can make non-abstract improvements
to computer technology just as hardware improvements can"' and there is
"'no reason to conclude that all claims directed to improvements in
computer-related technology, including those directed to software, are
abstract."' Appeal Br. 6. Appellants argue that, "[i]n this case, the plain
focus of the claims is on an improvement to the functionality of an electrical
bio-information measurement device, not on economic or other tasks for
which a computer is used in its ordinary capacity." Id. Therefore,
Appellants conclude, "the claims are not directed to an abstract idea within
the meaning of Alice [Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct.
2347 (2014)]. Rather, they are directed to a specific improvement to an
electrical bio-information measurement device." Id.
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We do not find Appellants' argument persuasive. The patents at issue
in Enfzsh were "directed to an innovative logical model for a computer
database." Enfzsh, 822 F.3d at 1330. "Contrary to conventional logical
models, the patented logical model includes all data entities in a single table,
with column definitions provided by rows in that same table. The patents
describe this as the 'self-referential' property of the database." Id.
"The patents teach that multiple benefits flow from this design,"
including "faster searching of data than would be possible with the relational
model" and "more effective storage of data other than structured text, such
as images and unstructured text." Id. at 1333. "Finally, the patents teach
that the self-referential model allows more flexibility in configuring the
database." Id.
The court stated that "the first step in the Alice inquiry in [Enfzsh] asks
whether the focus of the claims is on the specific asserted improvement in
computer capabilities ... or, instead, on a process that qualifies as an
'abstract idea' for which computers are invoked merely as a tool." Id. at
1335-36. The court held that "the plain focus of the claims is on an
improvement to computer functionality itself, not on economic or other tasks
for which a computer is used in its ordinary capacity," and therefore the
claims "are not directed to an abstract idea within the meaning of Alice.
Rather, they are directed to a specific improvement to the way computers
operate, embodied in the self-referential table." Id. at 1336.
The claims of the instant application, by contrast, are not directed to
"an improvement to computer functionality itself." Id. Rather, the method
of claim 1 uses a processor to "analyz[ e] a plurality of rising segments of the
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pulse waveform" and to "analyz[ e] a maximum change rate point at each
rising segment." Claim 1. The maximum change rate points are then stored
by a storage unit and the processor "record[ s] a plurality of intervals
between the maximum change rate points or an occurring time of each of the
maximum change rate points." Id.
The Specification describes these steps as follows: "a plurality of
valleys W21 and a plurality of peaks W22 of the pulse waveform W2 are
analyzed by the processing unit 120" (Spec. i-f 33); "each segment between
valley W21 and its next adjacent peak W22 is recorded by the processing
unit 120 as a rising segment W23 to obtain a plurality of rising segments
W23" (id. i-f 34); "a maximum change rate point W24 at each rising segment
W23 is analyzed by the processing unit 120 .... [T]he maximum first
derivative function point W24' is the maximum change rate point W24" (id.
i-f 35); and "[t]he processing unit 120 further obtains a pulse interval time
sequence according to the maximum change rate points W24" based on
either the intervals between, or the occurring time of, the maximum change
rate points W24 (id. i-f 36).
Thus, in claim 1, the processor simply analyzes the peaks and valleys
of a pulse waveform, determines the first derivative function curve of the
segments between a valley and the next peak, stores the maximum change
rate points, and determines the time intervals between those points or the
time at which each of those points occurred. Claim 1 does not focus "on an
improvement to computer functionality itself." Enfzsh, 822 F.3d at 1336.
Rather, the processor recited in claim 1 carries out "tasks for which a
computer is used in its ordinary capacity," id.; specifically, analyzing data to
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determine maximum and minimum values, calculating a derivative function
curve based on those values, storing the maximum derivative points, and
determining when those maximum points occur over time.
In summary, claim 1 is directed to an abstract idea and adds nothing
more than routine and conventional steps to the abstract idea. The claimed
method is therefore not eligible for patenting. We affirm the rejection of
claim 1under35 U.S.C. § 101. Claims 2-12 fall with claim 1. Appeal Br. 6.
SUMMARY
We affirm the rejection of claims 1-12 under 35 U.S.C. § 101.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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