Ex Parte Costa Ribalta et al

Patent Trial and Appeal Board

Mar 22, 2013

11575505 (P.T.A.B. Mar. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ALEJO COSTA RIBALTA, RAINER SCHLUESS,
and BERND WILM
__________

Appeal 2011-007596
Application 11/575,505
Technology Center 3700
__________

Before DONALD E. ADAMS, FRANCISCO C. PRATS, and
STEPHEN WALSH, Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims directed to a method of displaying electrocardiogram lead signals.
The Patent Examiner rejected the claims for failure to comply with the
written description requirement, for indefiniteness, and as anticipated. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
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STATEMENT OF THE CASE
“The present invention relates to a method of medical monitoring, a
medical monitoring system and a computer program to control a medical
monitoring system.” (Spec. 1, [0001].)
1
“The method comprises the step of
displaying data using a number of multiaxis diagrams in which the position
of the axes is related to the position of the sensors in the predefined
arrangement, and on each axis data from its related sensor is displayed.” (Id.
at [0004].)
Claims 1-3 and 10-19 are on appeal. Claim 10 illustrates the subject
matter on appeal and reads as follows:
10. A method of displaying ECG lead signals comprising:
forming a graphical display of angularly positioned axes extending
from a common heart reference point, the angle of each axis corresponding
to the location of a different ECG lead on the body of a patient, with points
on each axis corresponding to magnitude values of the corresponding ECG
lead signal;
acquiring a plurality of different ECG lead values having a common
acquisition time;
identifying points on a plurality of the axes corresponding to the ECG
lead values corresponding to each axis; and
displaying the graphical display with the ECG lead values identified
on the axes.

The Examiner rejected the claims as follows:
I. claims 1-3 and 10-19 under 35 U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement;
II. claims 11, 12, and 16-19 under 35 U.S.C. § 112, second paragraph, as
indefinite; and

1
Citations are to the Application as published Nov. 5, 2009, Pub. No. US
2009/0275846 A1.
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III. claims 1-3 and 10-19 under 35 U.S.C. § 102(e) as anticipated by
Charles W. Olson (US 2004/0111021 A1, filed April 21, 2003).

I
The Issue
The Examiner‟s position is that claim 10 lacks written description
support because “[t]he specification fails to describe „acquiring a plurality of
different ECG lead values having a common acquisition time‟ which are to
be displayed on a graphical display.” (Ans. 3.)
Appellants contend: “the Specification contains numerous explicit
references to acquiring ECG lead values having a common acquisition
time.” (App. Br. 7, citing paragraphs [0010], [0033], and [0034].)
The Examiner acknowledges that paragraphs [0033] and [0034] refer
to data corresponding to a “given point in time” and a “specific point in
time,” respectively, but contends (i) “it is clear that the „point of [sic] time‟
is in fact a time window,” and (ii) paragraph [0034] “is directed to display of
values and not to the acquisition of such values.” (Ans. 8-9.)
Appellants reply: “One of ordinary skill in the art would certainly
understand that the display of ECG lead values corresponding to a specific
point in time would utilize ECG lead values acquired at that specific point in
time,” among other arguments. (Reply Br. 4.)
Findings of Fact
1. The Specification discloses: “The reference pattern 21, 22 can for
example correspond to a snapshot of the values at a specific point in
time.” (Spec. 3, [0034].)
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Analysis
The Specification discloses that the graphical display may correspond
to a snapshot of values at a specific point of time. (FF 1.) We agree with
Appellants that a person of ordinary skill in the art would understand that a
snapshot of values at a specific point of time would show values having a
common acquisition time. The rejection for lack of written description is
reversed.

II
Appellants do not appeal the rejection under 35 U.S.C. § 112, second
paragraph (App. Br. 5), and indicate they will address it at a later time
(Reply Br. 2). We therefore summarily affirm it. See MANUAL OF
PATENT EXAMINING PROCEDURE § 1205.02 (“If a ground of rejection
stated by the examiner is not addressed in the appellant‟s brief, that ground
of rejection will be summarily sustained by the Board.”); Hyatt v. Dudas,
551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a
ground of rejection to the Board, . . . the Board may treat any argument with
respect to that ground of rejection as waived. In the event of such a waiver,
the PTO may affirm the rejection of the group of claims that the examiner
rejected on that ground without considering the merits of those rejections.”);
Ex parte Frye, 2010 WL 889747 *4 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue—or, more broadly,
on a particular rejection—the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection”).

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III
The Issue
Appellants contend:
Olson fails to disclose the Claim 10 invention because
Olson fails to disclose any display of multiple vectors, each of
which corresponds to the same point in time. Instead, all of the
Olson embodiments describe the display of multiple mean
vectors, each of which corresponds to a different time. The
Olson plurality of vectors is thus not a snapshot of different
lead values at one point in time as is described in Claim 10.

(App. Br. 9.)
The issue with respect to this rejection is whether the evidence cited in
the rejection supports finding that Olson‟s display showed a plurality of
different ECG lead values having a common acquisition time identified on
axes corresponding to the locations of different ECG leads.
Findings of Fact
2. Olson‟s Figure 1B is reproduced here:

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“FIG. 1B illustrates how the six Leads, I, II, III, a VR, a VL
and a VF are translated onto the Hexial System of FIG. la to
graphically depict the mean QRS Vector, the Transition Line,
and the positive side of the Transition Zone.” (Olson 4-5,
[0047].)

3. Olson‟s Figure 2A is reproduced here:

“FIG. 2A is a 3-D vector cardiographic display of a normal
heart shown with several accompanying displays on a single
screen.” (Id. at, [0048].)

4. Olson taught:
The present disclosure relates to a vector cardiograph
coordinate system sampled at incremental time intervals which
comprises a point of origin and a three-dimensional coordinate
system comprising an x-axis, a y-axis and a z-axis extending
from the point of origin.

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(Id. at 5, [0081], emphasis added.)
5. Olson taught:
FIGS. 2A and 2B show an example of a 3-D vector
cardiographic display 10 of the QRS interval of a normal heart.
In this particular case, the heart vectors 12 for the QRS interval
are determined at 1 ms intervals. The vectors 12 are color-
coded over 20 ms time intervals so the sequence of the vectors
12 over the entire QRS interval can be easily discerned.

(Id. at 6, [0082], emphasis added.)
Analysis
Upon consideration of the evidence on this record, and each of
Appellants‟ contentions, we find that the preponderance of evidence on this
record supports Appellants‟ position. More specifically, we find:
(i) Olson‟s display of a mean QRS vector is not a graphical display of
angularly positioned axes, with points on each axis corresponding to
magnitude values of a corresponding signal (see FF 2);
(ii) Olson‟s display of plural mean QRS vectors in Fig. 2A is not a
graphical display of angularly positioned axes with points on each axis
corresponding to magnitude values of the corresponding signal (see FF 3);
and
(iii) Olson‟s display of plural mean QRS vectors in Fig. 2A displays
data “sampled at incremental time intervals” (FF 4), for example 1 ms
intervals (FF 5), rather than a display of lead values having a common
acquisition time.
Because Olson did not describe a method comprising every limitation
of Appellants‟ claims, the rejection must be reversed.

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SUMMARY
We reverse the rejection of claims 1-3 and 10-19 under 35 U.S.C.
§ 112, first paragraph.
We affirm the rejection of claims 11, 12, and 16-19 under 35 U.S.C.
§ 112, second paragraph.
We reverse the rejection of claims 1-3 and 10-19 under 35 U.S.C.
§ 102(e) as anticipated by Olson.
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-IN-PART

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