Ex Parte Dalal et al

Patent Trial and Appeal Board

Oct 31, 2017

11736058 (P.T.A.B. Oct. 31, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/736,058 04/17/2007 Yousufali Dalai 279.D75US1 3119
21186 7590 11/02/2017
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
TRAN, THO Q
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
11/02/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YOUSUF ALI DALAL, JOHN D. HATLESTAD,
YI ZHANG, AARON LEWICKE,
and JEFFREY E. STAHMANN
Appeal 2015-001041
Application 11/736,058
Technology Center 3700
Before JOHN C. KERINS, GEORGE R. HOSKINS, and
LEE L. STEPINA, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Yousufali Dalai et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 1—15 and 28—32. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2015-001041
Application 11/736,058
THE INVENTION
Appellants’ claimed invention is directed to a system including an
implantable medical device and a processor circuit. Claim 1, the only
independent claim on appeal, is reproduced below with one passage
italicized, and is illustrative:
1. A system comprising:
an implantable medical device including,
a respiration sensor circuit configured for producing a
respiration signal indicative of a respiration or a
respiration related parameter of a subject; and
a physiological sensor circuit that includes at least one of
a physical activity sensor circuit configured for
producing a physical activity signal indicative of a
physical activity level of the subject or a posture sensor
circuit configured for producing a posture signal
indicative of a posture of the subject; and
an implantable or external processor circuit including an input
to receive information about the respiration signal and at least
one of the physical activity signal or the posture signal, the
processor circuit configured for detecting a paroxysmal
nocturnal dyspnea (PND) event by detecting a respiration
disturbance using the respiration signal and detecting an
associated subsequent arousal from stable state occurrence
caused by the respiration disturbance, from at least one of the
physical activity signal or the posture signal, the processor
circuit further configured for evaluating over time, at least in
part, the respiration disturbances and the associated subsequent
arousal from stable state occurrences caused by the respiration
disturbance by comparing a trend or count of the respiration
disturbances and the associated arousal from stable state
occurrences to a specified threshold, providing an indication of
present or impending worsening heart failure.
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Appeal 2015-001041
Application 11/736,058
THE REJECTIONS
The Examiner has rejected:
(i) claims 1—15 and 32 under 35 U.S.C. § 103(a) as being unpatentable
over Girouard (US 2003/0055461 Al, published Mar. 20, 2003) in view of
Andrew L. Banyai, Paroxysmal Nocturnal Dyspnea, 61:3 CHEST (1972)
(hereinafter “Banyai”); and
(ii) claims 28—31 under 35 U.S.C. § 103(a) as being unpatentable over
Girouard in view of Banyai and Stahmann (US 2005/0085738 Al, published
Apr. 21,2005).
ANALYSIS
Claims 115 and 32— Unpatentability— Girouard/Banyai
The Examiner finds that Girouard discloses most of the elements set
forth in claim 1, and points to Banyai as evidencing that it was known in the
art at the time of Appellants’ invention that persons suffering from
paroxysmal nocturnal dyspnea (PND) typically experience a shortness of
breath while sleeping, followed by the person awaking and sitting up from
the sleeping position, i.e., that there is a temporal order of these events
occurring. Final Act. 7. The Examiner concludes that it would have been
obvious to configure the Girouard system to detect PND specifically by
searching for this sequence of events, due to their being typical indicators of
PND, in that this would provide “additional detection capabilities” to the
Girouard system. Id.
The Examiner’s findings relative to the claim limitations said to be
present in Girouard include that Girouard discloses that its processor circuit
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Appeal 2015-001041
Application 11/736,058
is configured to evaluate over time respiration disturbances and associated
subsequent arousal from stable state occurrences caused by the respiration
disturbance by comparing a trend or count of the disturbances and
occurrences to a specified threshold, with the comparison providing an
indication of present or impending worsening heart failure, as claimed.
Final Act. 6. As support for this, the Examiner points to the disclosure in
paragraph 26 of Girouard that “an increase” in PND correlates to worsening
of heart failure status, and states that this is being interpreted as an “increase
in the number of occurrences,” which thus infers that a “count” is being
taken. Id.
Seemingly, in the alternative, and in response to certain arguments
advanced by Appellants, the Examiner cites to Figure 2 of Girouard as
disclosing a summation function, and avers that such summation indicates a
counting procedure. Ans. 2. The Examiner takes the position that the
summation taking place in Girouard can, accordingly, be interpreted as
teaching the “claimed counting or trending.” Id. Further, the Examiner
maintains, also as an alternative to the initial finding correlating “increase”
to “count,” that the disclosure in Girouard that an increase in PND correlates
to a future worsening of a person’s congestive heart failure status, is
indicative that “trending of a parameter is performed by the system.” Id.
The Examiner’s position that Girouard’s reference to an “increase” in
PND infers that the system is performing a count of the number of
occurrences detected is not supported by a preponderance of the evidence.
Paragraph 26 of Girouard, on which the Examiner relies, discusses the use of
a respiration sensor “to detect the shortness of breath,” in conjunction with a
sleep detector. An alternative discussed in that paragraph is that a person,
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Appeal 2015-001041
Application 11/736,058
such as the subject or a caregiver, would enter an indication of the “degree”
of PND. Girouard, para. 26. The “increase” that would be indicative of a
worsening of congestive heart failure status would thus appear to relate to
whether the patient’s shortness of breath is worsening, rather than how many
times a shortness of breath occurs.
The Examiner’s position relative to the “summation” activity in
Girouard as involving counting, thus meeting the claim limitation requiring
either a trend or a count of respiration disturbances and associated arousal, is
also not supported by a preponderance of the evidence. Figure 2 of Girouard
and the accompanying explanation thereof, evidences that the summation
being performed is of the products of each parameter being tracked and its
assigned weighting factor. Girouard, Fig. 2, para. 23. The Examiner has not
adequately shown, and we do not see, how this would imply that this
involves determining a trend or taking a count of respiration disturbances
and associated arousals, in order to compare the same to a specified
threshold, as claimed.
The position advanced in the Examiner’s Answer, to the effect that the
disclosure in Girouard that an increase in PND correlates to a future
worsening of a person’s congestive heart failure status, is indicative that
“trending of a parameter is performed by the system,” is not completely
without merit. Ans. 2 (underlining omitted). However, it is not entirely
clear from Girouard how, what, or who is determining whether such an
increase is occurring, and it is, therefore, not necessarily inherent that the
system itself is generating trending information. Further, the Examiner does
not adequately explain how, if such trend information is developed by the
system, the trend information alone, and not weighted and summed with
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Application 11/736,058
other weighted parameters, is compared to a specified threshold in Girouard,
as required by claim 1.
Accordingly, we do not sustain the rejection of claim 1 as being
unpatentable over Girouard and Banyai. We, similarly, do not sustain the
rejection of claims 2—15 and 32, which depend from claim 1.
Claims 28—31—Unpatentability— Girouard/Banyai/Stahmann
The Examiner does not rely on Stahmann in any manner that cures the
deficiencies in the rejection of claim 1 over Girouard and Banyai.
Accordingly, the rejection of claims 28—31 over these three references is not
sustained.
DECISION
The Examiner’s rejections of claims 1—15 and 28—32 are
REVERSED.
REVERSED
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