Ex Parte Giftakis et al

Patent Trial and Appeal Board

Jan 3, 2017

12751508 (P.T.A.B. Jan. 3, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/751,508 03/31/2010 Jonathon E. Giftakis 1023-926US01/P0034200.00 1761
71996 7590 01/05/2017
SHUMAKER & SIEFFERT , P.A
1625 RADIO DRIVE , SUITE 100
WOODBURY, MN 55125
EXAMINER
WEARE, MEREDITH H
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
01/05/2017 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
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
Appeal 2014-009174
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 REQUEST FOR REHEARING1
Appellants request rehearing of the decision entered September 28,
2016 (“Decision”) affirming-in-part the rejections of claims 1—31 under 35
U.S.C. § 103(a).
We deny the requested relief.
1 Appellants identify “The Real Party in Interest [as] Medtronic, Inc.”
Br. 3.)
(App.
Appeal 2014-009174
Application 12/751,508
ANALYSIS
Appellants do not dispute that the combination of Leyde, Ozaki, and
Moon makes obvious the method of Appellants’ claim 1, which comprises:
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.
(see Decision 2, 12—14, and 26.) For clarity, Ozaki’s Figure 1 is reproduce
below:
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Ozaki’s “FIG. 1 illustrates one embodiment of a display according to a
living body information display apparatus of [Ozaki’s] invention” (Decision
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Appeal 2014-009174
Application 12/751,508
6: FF 9). The combination of Leyde, Ozaki, and Moon, thus, makes obvious
a method that comprises displaying, with a display device, a bioelectrical
brain signal of a patient together with a patient posture indicator that is
temporally correlated with a segment of the bioelectrical brain signal
indicative of a 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 as required by the method of Appellants’ claim 1
(see id. at 2—7, 12—14, and 26; cf. Appellants’ claiml).
Appellants’ request for reconsideration is limited to the rejection of
claims 10 and 19 over the combination of Leyde, Ozaki, Moon, and Lerman
(Req. Reh’g. 2).
The method of Appellants’ claim 10 depends from and further
limits claim 1 to “further compris[e] receiving, with the display
device, user input selecting a type of patient posture indicator,
wherein displaying, with the display device, the bioelectrical
brain signal of a patient [that] comprises displaying the
bioelectrical brain signal that temporally correlates to the
selected type of patient posture indicator.”
(Decision 24 (alteration original)). In this regard, Appellants contend that
the Decision’s “reasoning is silent as to identifying any portion of the cited
art that disclose or suggest displaying a second type of information based on
a selected first type of information” (Req. Reh’g. 3). Specifically,
Appellants argue that
Lerman discloses a user input of a selection of one or more
waveforms in order to display those same waveforms that were
selected, meaning that both the user input (selected waveforms)
and the displayed data (selected waveforms) of Lerman were not
only like-in-kind, but literally identical. Therefore, even if it
would have been obvious from Lerman to display different
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Appeal 2014-009174
Application 12/751,508
posture indicators for selection as suggested by the Board, which
Appellant does not concede, that does not change that Lerman
explicitly and exclusively discusses displaying only those things
that were selected (rather than displaying a second type of
information based on a selected first type of information).
(Id. ) Appellants further argue that “the resulting method [of Leyde, Ozaki,
Moon, and Lerman] would still have failed to have included displaying a
bioelectrical brain signal that temporally correlates to a selected type of
patient posture indicator” (id. (emphasis omitted)). We are not persuaded.
As discussed above, the combination of Leyde, Ozaki, and Moon
makes obvious the display of the bioelectrical brain signal of a patient that is
temporally correlated with a patient posture indicator. Lerman discloses the
display of waveform data from a patient and the selection of specific
waveform data for display in a display window through the use of user input,
specifically by positioning a cursor on a portion of the waveform of interest
and clicking a mouse button to select the waveform of interest in a display
window (see Decision 9-10; id. at 11: FF 25). Thus, when Lerman is taken
in combination with Leyde, Ozaki, and Moon
a person of ordinary skill in this art would have recognized that
any data indicator, obtained in the method and system suggested
by the combination of Leyde, Ozaki, and Moon, including patient
posture, may be selected for display in Lerman’s compare
window together with all patient data that is temporally
correlated with the selected data indicator, i.e., patient posture
(see Final Act. 18—19; see FF 1—13, 17—21, and 25).
(id. at 25 (emphasis added).) As, the Decision explains:
Appellants’ contentions fail to account for the contribution of the
combination Leyde, Ozaki, and Moon to the rejection over the
combination of Leyde, Ozaki, Moon, and Lerman. For the
foregoing reasons, we are not persuaded by Appellants’
contention that even if a person of ordinary skill in this art would
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Appeal 2014-009174
Application 12/751,508
have combined Leyde, Ozaki, Moon, and Lerman, “the resulting
method would still have failed to have included displaying a
bioelectrical brain signal that temporally correlates to a selected
type of patient posture indicator, as recited by claim 10” (see FF
1—13, 17—21, and 25; App. Br. 22; Ans. 12—13).
(Id.) For the foregoing reasons, we are not persuaded by Appellants’
contention that when viewed in isolation, “Lerman does not disclose or even
suggest that ‘selecting [user input] results in the display of another type of
signal that temporally correlates to a selected type of [user input]’” (Req.
Reh’g. 4 (alteration, emphasis original, footnote omitted)).
In summary, Appellants failed to identify an issue of fact or law that
was overlooked or misunderstood on this record. The Request for Rehearing
is denied.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REHEARING DENIED
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