Ex Parte Giftakis et al

Patent Trial and Appeal Board

Sep 26, 2016

12751508 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121751,508 03/31/2010
71996 7590 09/28/2016
SHUMAKER & SIEFFERT, P.A
1625 RADIO DRIVE, SUITE 100
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Jonathon E. Giftakis
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.
1023-926US01/P0034200.00 1761
EXAMINER
WEARE, MEREDITH H
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
09/28/2016 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):
pairdocketing@ssiplaw.com
medtronic _neuro _ docketing@cardinal-ip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHON E. GIFTAKIS and TIMOTHY J. DENISON
Appeal2014-009174
Application 12/751,508
Technology Center 3700
Before DONALD E. ADAMS, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL 1
This Appeal under 35 U.S.C. § 134(a) involves claims 1-31 (App. Br.
3). Examiner entered rejections under 35 U.S.C. § 103(a). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
Appellants' invention "relates to visualization of information and,
more particularly, to a graphical display of patient data" (Spec. i-f 1 ).
Appellants' "therapy system may be used to manage a seizure disorder of a
1 Appellants identify "The Real Party in Interest [as] Medtronic, Inc." (App.
Br. 3).
Appeal2014-009174
Application 12/751,508
patient, e.g., to mitigate the effects of the seizure disorder, shorten the
duration of seizures, prevent the onset of seizures or notify a patient about an
onset or potential onset of a seizure" (id. i-f 25). Independent claims 1, 11,
20, and 23 are representative and are reproduced below:
1. A method comprising:
displaying, with a display device, a bioelectrical brain
signal of a patient; and
generating and displaying, with the display device, a
patient posture indicator that is temporally correlated with a
segment of the bioelectrical brain signal indicative of a seizure
event of the patient, wherein the patient posture indicator
comprises a graphical representation of at least a portion of a
body of the patient during the seizure event, and wherein
displaying the bioelectrical brain signal and displaying the
patient posture indicator comprises displaying a graphical user
interface that includes the bioelectrical brain signal and the
patient posture indicator.
(App. Br. 26.)
11. A system compnsmg:
a user interface; and
a processor configured to generate and display, via the user
interface, a graphical user interface comprising a bioelectrical brain
signal of a patient and a patient posture indicator that is temporally
correlated with a segment of the bioelectrical brain signal indicative
of a seizure event of the patient, wherein the patient posture
indicator comprises a graphical representation of at least a portion
of a body of the patient during the seizure event.
(Id. at 29.)
20. A system comprising:
means for displaying a bioelectrical brain signal of a patient;
and
means for generating a patient posture indicator that is
temporally correlated with a segment of the bioelectrical brain
2
Appeal2014-009174
Application 12/751,508
signal indicative of a seizure event of the patient, wherein the patient
posture indicator comprises a graphical representation of at least a
portion of a body of the patient during the seizure event, wherein the
means for displaying displays a graphical user interface comprising
the patient posture indicator and the bioelectrical brain signal.
(Id. at 31.)
23. A non-transitory computer-readable medium compnsmg
instructions that cause a programmable processor to:
display a bioelectrical brain signal of a patient; and
generate and display a patient posture indicator that is
temporally correlated with a segment of the bioelectrical brain
signal indicative of a seizure event of the patient, wherein the patient
posture indicator comprises a graphical representation of at least a
portion of a body of the patient during the seizure event, and wherein
the instructions cause the programmable processor to display the
bioelectrical brain signal and the patient posture indicator by at least
displaying a graphical user interface that includes the bioelectrical
brain signal and the patient posture indicator.
(Id. at 32.)
The claims stand rejected as follows:
Claims 1, 2, 4--7, 9, 11-13, 15, 17, 18, 20, 22, 23, and25-31 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of
Leyde,2 Ozaki,3 and Moon.4
Claims 3, 8, 10, 14, 16, 19, 21, and 24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Leyde, Ozaki, Moon, and
Lerman. 5
2 Leyde et al., US 2009/0171168 Al, published July 2, 2009.
3 Ozaki et al., US 2005/0107722 Al, published May 19, 2005.
4 Moon et al., US 2011/0066044 Al, published Mar. 17, 2011.
5 Lerman et al., US 5,224,486, issued July 6, 1993.
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Appeal2014-009174
Application 12/751,508
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Leyde discloses "a method of comparing a patient's neurological data
to data that is indicative of the patient's clinical manifestation of a seizure"
and systems to perform Leyde' s method (Leyde i-f 6; see id. at Abstract; see
generally Final Act. 3--4 ).
FF 2. Leyde defines "clinical manifestation data" as
includ[ing] any one or a combination of audio data (e.g.,
recording of an ictal moan), video data of the patient, data from
an accelerometer provided on or in the patient's body ( ... so as
to record jerky rhythmic movements indicative of the patient's
clinical seizure type), data from a heart rate monitor (e.g., to
detect changes in heart rate, tachycardia, bradycardia, etc.), or
data from other physiological or non-physiological sensors that
are indicative of an occurrence of a seizure.
(Leyde il 36; see id. il 33 ("Clinical manifestations of a seizure [] includes []
a rhythmic jerking, stiffening or shaking of one or more limbs (referred to
herein as 'convulsion')"); see also Final Act. 4.)
FF 3. Leyde's method comprising "the step[] of monitoring neurological[,
i.e., EEG], data from a patient indicative of the patient's propensity for
having a seizure" (Leyde i-fi-16-7; Final Act. 3).
FF 4. Leyde's method and system comprises the continuous or
discontinuous display of, for example, a patient's "brain state indication" on
"a liquid crystal display ('LCD') ... or other display for providing system
status outputs to the patient" (Leyde i-f 59; see Final Act. 3--4).
4
Appeal2014-009174
Application 12/751,508
FF 5. Leyde discloses that a
physician (or software) may first determine when the system
determined a neurological event occurred (e.g., a detected
seizure, an increased likelihood of having a seizure, a change in
brain state, etc.), and then looks for clinical manifestation data
that was recorded near in time to the event to determine if there
was any recorded clinical manifestation associated with the
estimated neurological activity.
(Leyde i-f 99; see Final Act. 3.)
FF 6. Examiner finds that Leyde fails to disclose "a patient posture
indicator that is temporally correlated with a segment of the bioelectrical
brain signal indicative of seizure activity, wherein the patient posture
indicator comprises a graphical representation of at least a portion of a body
of the patient" (Final Act. 4 and 6).
FF 7. Ozaki "relates to a living body information display apparatus and the
like," wherein, "an object[ive] of [Ozaki's] invention is to provide a living
body information display apparatus that displays a more accurately captured
sleeping posture at the occurrence of an abnormality" (Ozaki i-fi-12 and 7; see
generally Final Act. 5).
FF 8. Ozaki discloses that
[t]he living body information, such as respiration, body
movement, and sleeping posture/position, is detected and
displayed by using the living body information detection means
and the display control means. The posture and position of the
sleeper is, together with the living body information such as
respiration, displayed with intuitively understandable visuals (in
figures and graphs) across the same period of time, thus leading
to an easy determination of abnormality.
(Ozaki i-f 8; see Final Act. 5; see also Ozaki i-f 86 (living body information
includes detection of "a brain wave").)
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Appeal2014-009174
Application 12/751,508
FF 9. Ozaki's Figure 1 is reproduced below:
FJG, 1
"FIG. 1 illustrates one embodiment of a display according to a living body
information display apparatus of [Ozaki's] invention" (Ozaki i-f 14; see Final
Act. 5).
FF 10. Moon "relates to medical devices for monitoring vital signs" (Moon
,-r 4).
FF 11. Moon's "body-worn monitor features [a graphical user interface
(GUI) and] a series of sensors that attach to the patient to measure time-
dependent PPG [(photoplethysmograph)], ECG, accelerometer-based motion
(ACC), oscillometric (OSC), respiratory rate (RR), and impedance
pneumography (IP) waveforms" (Moon i-f 13; see id. i-fi-17, 8, and 25; see
generally Ans. 3 ("The disclosure of Moon is relied upon as a teaching of a
particular type of graphical representation of patient posture and/or activity
6
Appeal2014-009174
Application 12/751,508
determined based on, for example, an accelerometer/motion signal that can
be used in the display of the temporally correlated signals")).
FF 12. Moon's Figure 13 is reproduced below:
. ----··························i
:
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............. J . ··············\..~\
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105c
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............. \'\
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FIG.13
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"FIG. 13 shows a series of icons used to indicate the patient's posture and
activity level in the GUI" of Moon's device (Moon ii 50; see generally Final
Act. 6; Ans. 7; see also Moon ii 106: Table 1 (defining "icons 105a-h" as
"Standing," "Falling," "Resting; 1 ying on side," "Convulsing," "Walking,"
"Sitting," "Resting; lying on stomach," and "Resting; lying on back,"
respectively).
FF 13. Moon's device can "determine posture [(e.g., sitting, standing,
walking, resting, convulsing, falling)], arm height, activity level, and degree
of motion" (Moon ii 59; Final Act. 6).
7
Appeal2014-009174
Application 12/751,508
FF 14. Appellants' Figure 5 is reproduced below:
FIG. 5
·~
104
BRAIN
SIGNAL
MOTION
SIGNAL
PATIENT
POSTURE
TEMELINE
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