Ex Parte Donnett et al

Patent Trial and Appeal Board

Sep 29, 2016

11694855 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111694,855 03/30/2007
21186 7590 10/03/2016
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
James G. Donnett
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.
2512.003US1 1627
EXAMINER
BLOCH, MICHAEL RYAN
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES G. DONNETT and ANDRE FENTON
Appeal2013-005158
Application 11/694,855
Technology Center 3700
Before GEORGE R. HOSKINS, BRANDON J. WARNER, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James G. Donnett and Andre Fenton ("Appellants")1 appeal under
35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-29. See
Appeal Br., Cover Page; id. at 28. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b ).
We REVERSE.
According to Appellants, the real party in interest is Bio-Signal Group
Corp. Appeal Br. 2.
Appeal2013-005158
Application 11/694,855
CLAIMED SUBJECT MATTER
Appellants' disclosed invention relates "generally to brain signal
acquisition and telemetry, and more particularly ... to systems and methods
for acquiring and telemetering one or more brain signals and performing
seizure prediction." Spec., p. 1, 11. 11-14. Claims 1, 16, and 19 are
independent. Claim 1, reproduced below with emphasis added, is illustrative
of the subject matter on appeal.
1. A method comprising:
receiving a Normal template providing an indication of a
set of correlations of intrinsic brain potentials between all N
user-specified electrodes contributing to a monitored data
stream, during at least one neurologically non-abnormal time
period of a subject, wherein the neurologically non-abnormal
time period excludes a neurologically abnormal time period of a
neurologically abnormal episode, and wherein the
neurologically non-abnormal time period excludes at least a
first specified time period preceding the neurologically
abnormal episode;
receiving a Non-Normal template providing an indication
of a set of correlations of the brain potentials between all N
user-specified electrodes contributing to the monitored data
stream, during at least one neurologically pre-abnormal time
period or neurologically abnormal time period of the subject,
wherein the neurologically pre-abnormal time period is less
than or equal to a second specified time period before the
abnormal time period, and wherein the neurologically abnormal
episode occurs during the neurologically abnormal time period;
monitoring intrinsic brain potentials using at least two
different locations of a brain of the subject and forming an
indication of a set of correlations of the brain potentials
between all N user-specified electrodes contributing to a
monitored data stream including at least two different locations
during a sampling time period; and
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Appeal2013-005158
Application 11/694,855
using a processor circuit, predicting an upcoming
neurologically abnormal episode at least in part by comparing
the indication of the set of correlations of the brain potentials
obtained during the sampling time period to each of the Normal
and Non-Normal templates.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Farwell
Echauz
Flaherty
US 2002/0188217 Al
US 2003/0073917 Al
US 2006/0206167 Al
REJECTIONS
The following rejections are before us for review:
Dec. 12, 2002
Apr. 17, 2003
Sept. 14, 2006
I. Claims 1-3, 9-12, 14--21, 28, and 29 stand rejected under
35 U.S.C. § 102(b) as anticipated by Echauz. Final 1A..ct. 3-15.
II. Claims 4--8 and 22-26 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Echauz and Flaherty. Id. at 16-21.
III. Claims 13 and 27 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Echauz and Farwell. Id. at 21-22.
ANALYSIS
Independent claim 1 recites, in relevant part, a method that includes
receiving a Normal template, receiving a Non-Normal template, "monitoring
intrinsic brain potentials using at least two different locations of a brain of
the subject and forming an indication of a set of correlations of the brain
potentials between all N user-specified electrodes contributing to a
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Appeal2013-005158
Application 11/694,855
monitored data stream including at least two different locations during a
sampling time period," and using a processor circuit to predict an upcoming
neurologically abnormal episode. Appeal Br., Claims App. (emphasis
added). Independent claims 16 and 19 include similar limitations; these
apparatus claims recite "means for monitoring intrinsic brain potentials" and
"a monitoring circuit," respectively, that perform the same functional step
italicized above. See id. Appellants argue that Echauz does not disclose
such a step that "includ[ es] at least two different locations during a sampling
time period," as claimed. See Appeal Br. 15-19; Reply Br. 3--4. We agree.
With regard to this claimed step, the Examiner states that Echauz
discloses such a feature. Final Act. 3--4, 8-9, 10-12 (citing Echauz, Fig. 1,
i-f 96); Ans. 3--4 (citing Echauz, Fig. 13). Although the Examiner is correct
that Echauz generally describes parameter selection for neurological event
detection, Appellants persuasively assert that the citations to Echauz relied
on in the rejection do not describe "forming an indication of a set of
correlations of the brain potentials between all N user-specified electrodes
contributing to a monitored data stream including at least two different
locations during a sampling time period," as claimed.
In particular, regardless of whether Echauz discloses "correlations of
the brain potentials" (see Appeal Br. 15-19; Ans. 2--4; Reply Br. 2-3), we
agree with Appellants that the "feature overlay" depicted in Figure 13 of
Echauz, as relied on the by the Examiner, does not disclose correlations
between different electrodes, and therefore different locations, as required by
the claims (see Reply Br. 3--4). Although Figure 13 of Echauz may disclose
traces from different times at the same electrode (location), we agree with
Appellants that the Examiner does not identify, nor do we discern, a
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Application 11/694,855
description of Figure 13 that would include traces from different locations.
See Reply Br. 3--4; see also Echauz i-fi-1231-34 (describing Figure 13). Thus,
the Examiner has not established by a preponderance of the evidence that
Echauz discloses, either expressly or inherently, the step of "forming an
indication of a set of correlations of the brain potentials between all N user-
specified electrodes contributing to a monitored data stream including at
least two different locations during a sampling time period," as claimed.
Accordingly, based on the record before us-because an anticipation
rejection requires a finding in a single reference of each and every limitation
as set forth in the claims-we cannot sustain the rejection of independent
claims 1, 16, and 19, and their associated dependent claims 2, 3, 9-12, 14,
15, 17, 18, 20, 21, 28, and 29, as anticipated by Echauz. Regarding
Rejections II and III, we note that these rejections are premised on the same
purported disclosure from Echauz, and that Flaherty and Farwell are relied
on for teaching additional features, but not to cure the deficiency of Echauz
identified above. Consequently, we also do not sustain the rejections of
dependent claims 4--8 and 22-26 as being unpatentable over Echauz and
Flaherty, or of claims 13 and 27 as being unpatentable over Echauz and
Farwell.
DECISION
We REVERSE the Examiner's rejections of claims 1-29.
REVERSED
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