Ex Parte Haefner

Board of Patent Appeals and Interferences

Mar 2, 2010

10784478 (B.P.A.I. Mar. 2, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PAUL HAEFNER
____________________

Appeal 2009-005193
Application 10/784,478
Technology Center 3700
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Decided: March 2, 2010
____________________

Before MICHAEL W. O’NEILL, KEN B. BARRETT, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Paul Haefner (Appellant) seeks our review under 35 U.S.C. § 134 of
the final rejection of claims 1-19 and 30-36. We have jurisdiction under
35 U.S.C. § 6(b) (2002).

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SUMMARY OF DECISION
We REVERSE.
THE INVENTION
Appellant’s claimed invention is directed to a cardiac signal detection
arrangement and method used with a subcutaneous cardiac monitoring
and/or stimulation device (Spec. 8: 19-Spec. 9: 2).
Claims 1 and 30, reproduced below, are representative of the subject
matter on appeal.
1. A signal separation method, comprising:
detecting a composite electrical signal at a
subcutaneous non-intrathoracic location, the
composite electrical signal associated with a
plurality of sources;
receiving information associated with a non-
electrophysiological cardiac source;
separating a signal from the composite
electrical signal using source separation; and
verifying that the separated signal is a
cardiac signal using the separated signal and the
non-electrophysiological cardiac source
information.

30. An implantable device, comprising:
means for subcutaneously detecting a
composite electrical signal associated with a
plurality of signal sources;
means for subcutaneously detecting non-
electrical cardiac activity;
means for separating a signal from the
composite electrical signal using source
separation; and
means for determining whether or not the
separated signal is a cardiac electrical signal using
the detected non-electrical cardiac activity.

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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Diack US Re. 30,750 Sep. 29, 1981
Yomtov US 5,388,578 Feb. 14, 1995
Wells US 2003/0032889 A1 Feb. 13, 2003
Joo US 2005/0240234 A1 Oct. 27, 2005

The following rejections by the Examiner are before us for review:
1. Claims 1, 4, 7, 8, 10, 16-19, 30, 31 and 34-36 are rejected under
35 U.S.C. § 102(b) as being anticipated by Diack.
2. Claims 1-13, 16-19 and 30-36 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Yomtov in view of Joo.
3. Claims 1-13, 16-19 and 30-36 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Joo in view of Yomtov.
4. Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diack in view of Wells; Yomtov in view of Joo,
and further in view of Wells; and Joo in view of Yomtov, and further
in view of Wells.

ISSUE
The issue before us is whether the Examiner erred in finding that
Diack alone, or the combined teachings of Yomtov and Joo would have led a
person having ordinary skill in the art to separating a signal from the
composite electrical signal using source separation as called for in
independent claims 1 and 30 (Reply Br. 10. 13, 18; App. Br. 9, 16).

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ANALYSIS
Rejection of claims 1, 4, 7, 8, 10, 16-19, 30, 31 and 34-36 under 35 U.S.C. §
102(b) as being anticipated by Diack; and claims 1-13, 16-19 and 30-36
under 35 U.S.C. § 103(a) as being unpatentable over Yomtov in view of Joo
or Joo in view of Yomtov
Appellant contends that neither Diack, Yomtov or Joo describe
separating a signal from a composite electrical signal using source
separation as called for in independent claims 1 and 30 (Reply Br. 10. 13,
18; App. Br. 9, 16).
Appellant contends that “one having ordinary skill in the art would
recognize that signal source methodologies . . . are characterized by
separating composite signals according to their respective sources.” (App.
Br. 10).
Appellant contends that the Specification describes that “signal source
separation of a composite signal involves separating a signal from the
composite signal according to the source of the signal (See Page 26, Line
27-Page 27, Line 4 of Appellant’s Specification).” (emphasis original)
(App. Br. 10).
Appellant contends that Yomtov’s R-wave detector’s separation of the
R-wave form P, Q, S and T waves is not source separation as the signal
comes from the same source (the heart) (Reply Br. 13, 14).
The Examiner found that
the claim language does not require total
attenuation, but only separation. The Examiner is
of the position that reduction of external
interference is still source separation because the
desired signal is discerned from the undesired
noise. Due to an absence of any “special
definitions” in the specification, the Examiner
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maintains the broadest reasonable interpretation of
“source separation.”
(Ans. 15).
The Examiner found that Diack describes “[s]eparating a signal from
the composite signal using source separation . . . (col. 19, lines 1-3).” (Ans.
3).
The Examiner found that Yomtov describes “separating a signal from
the composite signal . . . (element 96 . . .).” (Ans. 11).
The Examiner found that Yomtov’s “R-wave detector separates the R-
wave source from the other ECG features (such as P, Q, S, and T waves) . . .
[, and] [a]lthough Yomtov does not disclose the phrase ‘source separation,’
the Examiner maintains that this separation of the R-wave from the other
features of the ECG reads on the claim language.” (Ans. 16).
The Examiner found that Joo describes “separating a signal from the
composite signal using source separation (par. 0059, the signal is filtered).”
(Ans. 12, 13).
Claim 1 calls for, inter alia, “the composite electrical signal
associated with a plurality of sources; . . . separating a signal from the
composite electrical signal using source separation.” (emphasis added).
Claim 30 calls for, inter alia, “a composite electrical signal associated
with a plurality of signal sources; . . . means for separating a signal from the
composite electrical signal using source separation.” (emphasis added).
Appellant’s Specification describes that
[(a)] cardiac signals collected from subcutaneously
implanted electrodes may be corrupted by noise …
[(b)] certain noise sources have frequency
characteristics similar to those of the cardiac
signal. . . . [(c) d]ue to the possibility of relatively
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high amplitude of the noise signal and overlapping
frequency content, filtering alone does not lead to
complete suppression of the noise.
(emphasis added) (Spec. 25: 13-21).
Appellant’s Specification further describes that
[t]he main principle of signal separation rests on
the premise that spatially distributed electrodes
collect components of a signal from a common
origin (e.g., the heart) with the result that these
components are strongly correlated to each other in
time. In addition, these components may also be
weakly correlated to components of another origin
(e.g., noise). An ITCS[1] device may be
implemented to separate these components
according to their sources.
(Spec. 26: 27-Spec. 27: 6).
We look to the dictionary to provide us with the ordinary meaning of
the phrase “source separation.” The ordinary meaning of “source” includes
“a point of origin or beginning.”2 The ordinary meaning of “separation”
includes “the act or process of separating: the state of being separated.”3 A
person having ordinary skill in the art would understand the phrase “source
separation,” as called for in independent claims 1 and 30 and in light of
Appellant’s Specification4 and the ordinary meanings of the words used in
the phrase, to refer to separating a composite signal according to its point of
origin, that is, separating a composite signal that includes signals from

1 An implantable transthoracic cardiac sensing and/or stimulation (ITCS)
device is a subcutaneous cardiac monitoring and/or stimulation device
(Spec. 8: 19-Spec. 9: 2).
2 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1999).
3 Id.
4 Spec. 26: 27-Spec. 27: 6.
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different sources (different points of origin, e.g., heart, noise) into signals
from each source (point of origin). This is consistent with Appellant’s
Specification. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004) (When construing claim terminology in the United States
Patent and Trademark Office, claims are to be given their broadest
reasonable interpretation consistent with the specification, reading claim
language in light of the specification as it would be interpreted by one of
ordinary skill in the art.).
The Examiner found that “bandpass filtering is ‘source separation’
because it removes unwanted sources (noise) from the desired source.”
(Ans. 15).
Appellant contends that the Examiner’s interpretation of the claim
term “source separation” as including band pass filtering is in error (App.
Br. 11).
We look to the dictionary to provide us with the ordinary meaning of
the word phrase “band-pass filter.”5 The ordinary meaning of the phrase
“band-pass filter” includes “a filter that transmits only frequencies within a
selected band.”6 A person having ordinary skill in the art would understand
that a band-pass filter, while transmitting only frequencies within a selected
band, the selected band may not be limited to a single (point of origin)
source and could include frequencies from multiple sources.
The Examiner has not found that there is no overlap of frequencies in
the claimed composite signal such that band pass filtering would separate the
composite signal into signals from a single source.

5 Also referred to in this opinion as “bandpass” and “band pass.”
6 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1999).
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Therefore, as the frequencies transmitted by a band pass filter could
be from multiple sources, band-pass filtering does not separate the signal
according to its origin, that is, according to its source. Therefore, band pass
filtering is not “source separation.”
Diack describes monitoring circuitry including a band pass filter 110
(col. 18, l. 40-col. 19, l. 16).
As band pass filtering is not “source separation,” Diack does not
describe “source separation” as called for in claims 1 and 30.
Accordingly, Diack does not anticipate independent claims 1 and 30.
For the same reasons, Diack does not anticipate claims 4, 7, 8, 10, 16-19, 31
and 34-36, which depend from claims 1 and 30, respectively.
Yomtov describes that the beginning of a heart beat is initiated by a P
wave and following the P wave is there is an ECG wave form (col. 7, ll. 27-
37), the ECG wave form includes a QRS complex comprising a Q wave, an
R wave, and an S wave, wherein the S wave is followed by a T wave (col. 7,
l. 38-col. 8, l.4). Yomtov further describes that “[t]he R wave generally has
an amplitude greater than any other waves of the ECG signal.” (emphasis
added) (col. 7, ll. 42-46). Yomtov still further describes using a band pass
(filtering) differentiating function for eliminating the P wave and the T wave
from the ECG (col. 14, ll. 6-49).
All of the P, Q, R, S, and T waves originate from the heart and,
therefore, are from the same source. Since claims 1 and 30 call for the
composite electrical signal to be associated with a plurality of sources, any
separation of the P, Q, R, S, and T waves from each other does not describe
source separation of a signal from a composite signal associated with a
plurality of sources as called for in independent claims 1 and 30.
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Further, as band pass filtering is not “source separation,” Yomtov’s
use of a band pass (filter) differentiating function also does not describe
“source separation” as called for in claims 1 and 30.
Joo describes using a bandpass filter 34, 54 to filter out noise (p. 4,
para. [0052] and p. 5, para. [0059]).
Again, as band pass filtering is not “source separation,” Joo does not
describe “source separation” as called for in claims 1 and 30.
Since neither Yomtov nor Joo describes “source separation” of a
signal from a composite signal associated with a plurality of sources, we
conclude that the combined teachings of Yomtov and Joo do not describe
“source separation” as called for in independent claims 1 and 30.
Therefore, we conclude that the Examiner erred in rejecting
independent claims 1 and 30 over Yomtov in view of Joo or Joo in view of
Yomtov. Likewise, the Examiner erred in rejecting claims 2-13, 16-19 and
31-36, which depend from independent claims 1 and 30, respectively.

Rejection of claims 14 and 15 under 35 U.S.C. § 103(a) as being
unpatentable over Diack or Yomtov in view of Joo, or Joo in view of Yomtov,
and further in view of Wells
The Examiner has not relied on Wells for any teaching that would
remedy the deficiency in Diack or the combined teachings of Yomtov and
Joo (Ans. 14). We thus conclude that the Examiner also erred in rejecting
claims 14 and 15 as being unpatentable over Diack in view of Wells, or over
the combined teachings of Yomtov and Joo in view of Wells.

CONCLUSION
The Examiner has erred in finding that Diack alone or the combined
teachings of Yomtov and Joo would have led a person having ordinary skill
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in the art to separating a signal from the composite electrical signal using
source separation as called for in independent claims 1 and 30.

DECISION
The decision of the Examiner to reject claims 1-19 and 30-36 is
reversed.

REVERSED
Vsh

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