Ex Parte Crawford et al

Patent Trial and Appeal Board

Sep 13, 2016

12921795 (P.T.A.B. Sep. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/921,795 02/09/2011 Michael Crawford
24737 7590 09/15/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2008P00436WOUS 6132
EXAMINER
DIETRICH, JOSEPH M
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
09/15/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti. demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL CRAWFORD,
CHUNIKAO,
FRANK WARTENA,
SHANNON FONG,
EARL HERLEIKSON,
SAMUEL KWONG,
RIMA VALLI KONA,
KIRSHNAKANT NAMMI, and
STEPHEN LABRASH
Appeal2014-006647
Application 12/921,795
Technology Center 3700
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
GORDON D. KINDER, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 3-7 and 12. App. Br. 3. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal2014-006647
Application 12/921,795
THE CLAIMED SUBJECT MATTER
The disclosed subject matter "relates to ECG monitoring systems and,
in particular, to the continuous ECG monitoring of patients in an outpatient
setting." Spec. 1:8-10. Claims 3 and 12 are independent. Claim 3 is
illustrative of the claims on appeal and is reproduced below.
3. A wireless cardiac monitoring system comprising:
a battery powered ECG monitor adapted to receive
cardiac signals from an electrode attached to a patient, the ECG
monitor including a transceiver for wirelessly transmitting ECG
signal data, the ECG monitor further including a status notifier,
coupled to the transceiver, for transmitting a status notification
when a status of the ECG monitor changes; and
a cellphone handset including cellphone electronics
operable for communication over a cellular network and a
transceiver for wirelessly receiving ECG signal data or status
notifications from the ECG monitor and a controller operable to
cause the cellphone electronics to send ECG signal data
received from the ECG monitor to a monitoring center over the
cellular network,
\'I/herein the controller is fi.1rther operable to respond to a
status notification from the ECG monitor by a) bringing a status
notification to the attention of the patient with the cellphone
handset, and b) sending the status notification to the monitoring
center over the cellular network, wherein the controller is
further operable to delay sending a given status notification to
the monitoring center to allow time for receipt of a rectifying
status notification.
REFERENCES RELIED ON BY THE EXAMINER
Nappholz US 5,720,770 Feb. 24, 1998
West US 2002/0013517 Al Jan 31, 2002
Fischell US 2007 /0093720 Al Apr. 26, 2007
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Appeal2014-006647
Application 12/921,795
THE REJECTIONS ON APPEAL
Claims 3, 4, 6, 7, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nappholz and Fischell.
Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Nappholz, Fischell, and West.
ANALYSIS
The rejection of claims 3, 4, 6, 7, and 12
as unpatentable over Nappholz and Fischel!
Appellants argue claims 3, 4, 6, 7, and 12 together. 1 App. Br. 6-9.
We select independent claim 3 for review with claims 4, 6, 7, and 12
standing or falling with claim 3. See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 3 is directed to a cardiac monitoring system comprising a
controller "wherein the controller is further operable to delay sending a
given status notification to the monitoring center." The Examiner primarily
relies on the teaching ofNappholz, but acknowledges that Nappholz "fails to
teach that such a notification may be determined to be delayed." Final Act.
3. The Examiner relies on the teachings of Fischell for teaching that "it is
known to delay sending a given status notification to allow time for receipt
of a rectifying status notification." Final Act. 3 (referencing Fischell if 193);
see also Ans. 2 (referencing Fischell if 192). The Examiner concludes that it
would have been obvious "to modify the notification as taught by N appholz
with the delayed notifications as taught by Fischell." Final Act. 3. The
Examiner's reason is that "such a modification would provide the
1 Regarding independent claim 12, Appellants state, "[t]he grounds for final
rejection of Claim 12 are the same as for Claim 3" and that "Appellant
respectfully traverses this grounds for rejection under the same reasoning as
presented in support of Claim 3 above." App. Br. 9.
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Appeal2014-006647
Application 12/921,795
predictable results of allowing a patient to correct a non-critical error before
alerting a physician." Final Act. 3.
Appellants do not dispute the teachings ofNappholz, but instead
contend that Fischell does not "allow the alarm to be delayed."2 App. Br. 7.
Fischell is directed to the detection of different types of cardiac
events. Fischell, Title. Paragraph 192 of Fischell discusses an alarm counter
whose threshold (ALMTH) "is preferably set to 3, which means that 3
consecutively processed/categorized segments" must occur before further
action is taken. "Thus, an ST shift or a high heart rate condition must be
somewhat persistent to trigger an event detection, which helps to avoid false
positive detections." Fischell i-f 192. Paragraph 193 of Fischell states,
"ALMTH is a programmable parameter that could be increased to avoid false
positive detections" and that "a few minutes delay" in some circumstances
"is valuable if it improves the reliability of detection."
Appellants contend, "ALM TH has nothing to do with whether the
resulting alarm, i.e., status notification, is delayed in transmission or not."
App. Br. 8. We disagree with Appellants because the variable selected for
the alarm threshold is the number of "somewhat persistent" or
"consecutively processed/categorized segments" that must be reached before
further processing of that cardiac event can occur. See block 808 in Fischell
Fig. 5 and accompanying description.
2 Appellants also contend, "Fischell et al. do not contemplate any feature
which disconnects the generation of a given alarm with its resulting
transmission to a monitoring center." App. Br. 7 (emphasis added).
However, Fischell was relied on for teaching delaying the signal, not for
disconnecting the signal.
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Application 12/921,795
Accordingly, Appellants are not persuasive that Fischell fails to teach
delaying a signal, or that the Examiner erred in finding that it is known to
delay a signal. Final Act. 3.
Furthermore, regarding a following limitation in claim 3, the
Examiner states, "[t]he phrase 'to allow time for receipt of a rectifying status
notification' is functional language." Ans. 2. The Examiner concludes that
in view of the delayed signal in the combination ofNappholz and Fischell,
"there would be time allowed for receipt of a rectifying status notification."
Ans. 2. Appellants disagree contending, "[t]here is no provision in
[Fischell' s] detector to rectify anything, including any of the ECG segments
that are being characterized." Reply Br. 4. Appellants state, "[t]he word
'rectifying' implies action" and "[t]here is nothing in the Fischell et al.
[reference] that indicates to one of ordinary skill in the art that a mis-
diagnosed ECG segment could be 'rectified."' Reply Br. 4.
As stated in claim 3, the delay is "to allow time for" some other action
(i.e., rectification). Thus, this phrase states the function or purpose of the
recited delay (i.e., to allow time for rectification) and as such, we agree with
the Examiner that this phrase is functional language. We are not persuaded
that the combination ofNappholz and Fischell would fail to allow time for
rectification. Ans. 2.
Accordingly, and based on the record presented, we sustain the
Examiner's rejection of claims 3, 4, 6, 7, and 12 as being obvious over
Nappholz and Fischell.3
3 Regarding claim 12 Appellants address the limitation, "when a change is
status is brought to the attention of the patient," the patient may defer "a
response to the status notification until a later time." Reply Br. 4.
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Appeal2014-006647
Application 12/921,795
The rejection of claim 5
as unpatentable over Nappholz, Fischel!, and West
Appellants do not dispute the Examiner's additional reliance on West
for teaching the additional limitation recited in claim 5, or West's
combination with Nappholz and Fischell. See App. Br. 9-10; Final Act. 3;
Ans. 3. Instead, Appellants contend that West "fail[ s] to teach or suggest
any deferred or delay in sending a status notification message." App. Br. 9.
As indicated supra, the Examiner relied on Fischell for this "delayed"
teaching. Final Act. 3, Ans. 3. Accordingly, we are not persuaded the
Examiner erred in rejecting claim 5 as being obvious over Nappholz,
Fischell, and West.
DECISION
The Examiner's rejections of claims 3-7 and 12 are affirmed.
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 )(iv).
AFFIRMED
Appellants contend that there is no suggestion that Fischall's programmable
parameter "could be adjusted after an ECG abnormality is received." Reply
Br. 5. However, conversely, there is also no indication that Fischall's
programmable parameter could not be adjusted afterwards as well.
Nevertheless, the Examiner finds such language functional and that "[t]he
programmer as taught by Fischell is capable of performing this function
because it allows the user to set the counter threshold as mentioned above."
Ans. 3. Appellants' are not persuasive of Examiner error on this point.
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