Ex Parte Jeanne et al

Patent Trial and Appeal Board

Jan 25, 2018

15029271 (P.T.A.B. Jan. 25, 2018)

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.
15/029,271 04/14/2016 Vincent JEANNE 2013P01016WOUS 9261
24737 7590 01/29/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue TURCHEN, ROCHELLE DEANNA
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT JEANNE and
HENDRIKUS PETRUS MARIA STERKEN
Appeal 2017-011749
Application 15/029,271
Technology Center 3700
Before TAWEN CHANG, JOHN E. SCHNEIDER, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 submit this appeal under 35 U.S.C. § 134(a) involving
claims to a device configured to obtain a vital sign of a subject, and to a
related non-transitory computer readable medium. The Examiner rejected
the claims as failing the written description requirement, as indefinite, as
claiming ineligible subject matter, and as obvious. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the Real Party in Interest as Koninklijke Philips N.V.
App. Br. 1.
Appeal 2017-011749
Application 15/029,271
STATEMENT OF THE CASE
Appellants’ “invention relates to an unobtrusive optical measurement
approach which can be used for detecting vital signs in an observed subject,
such as a person or animal.” Spec. 1:2—5. According to the Specification,
“[i]t is an object of the present invention to provide a device and a method
for reliably and accurately obtaining a vital sign of a subject under varying
lighting conditions ranging, potentially from full sun light to bedroom light
levels at night.” Id. at 3:28—30.
The Specification explains that “[pjhotoplethysmography (PPG) is an
optical measurement technique that evaluates a time-variant change of light
reflectance or transmission of an area of interest.” Id. at 1:16—18. PPG
allows for measuring various vital signs of a subject, such as heart rate,
respiration rate, and blood oxygen saturation, based on information derivable
from a PPG waveform (also referred to as a PPG signal). Id. at 1:13—25.
The Specification discloses:
PPG is based on the principle that blood absorbs more light than
surrounding tissue, so variations in blood volume with every
heart beat affect transmission and reflectance correspondingly.
By evaluating the transmissivity and/or reflectivity at
different wavelengths (typically red and infrared), the blood
oxygen saturation can be determined.
Id. at 1:18—24. According to the Specification, measurements are often
taken with conventional pulse oximeters attached to a subject’s skin. Id. at
1:24—25. The Specification states, however, that “non-contact” or “remote”
PPG devices have been introduced, and that such devices “are considered
unobtrusive and well suited for medical as well as non-medical everyday
applications.” Id. at 1:26—2:2.
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Claims 1, 2, 4—9, 11—14, and 16—23 are on appeal. Claim 1 is
illustrative:
1. A device configured to obtain a vital sign of a subject,
comprising
an interface configured to receive a set of image frames of
a subject, an image frame including a plurality of image pixels
having associated pixel values;
at least one processor programmed to:
extract a photoplethysmographic, PPG, signal of the
subject from said set of image frames;
determine a feature of said PPG signal indicative of the
quality of the information content of the extracted PPG signal
with respect to a desired vital sign of the subject;
determine a binning configuration based on the
determined feature of the extracted PPG signal and based on a
lookup table including a number of binning configurations for
different values of the determined feature of the extracted PPG
signal or a continuous or discrete function thereof, said binning
configuration being provided for controlling binning of image
pixels of an image frame[;]
bin image pixels of an image frame based on the
determined binning configuration to obtain a binned image
frame, wherein the PPG signal is extracted from said binned
image frames; and
determine vital sign information from the extracted PPG
signal.
App. Br. 31 (Claims App.).2
2 After the Examiner’s Final Rejection dated Nov. 22, 2016 (“Final Act.”),
Appellants submitted Remarks on Jan. 20, 2017, including proposed claim
amendments. The Examiner entered the after-final amendment. Advisory
Action 1—2 (dated Feb. 9, 2017) (“Adv. Act.”).
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The claims stand rejected as follows:
I. Claim 13 under 35 U.S.C. § 112(a) for failing to satisfy the
written description requirement.
II. Claims 7, 11, 13, 18, and 23 under 35 U.S.C. § 112(b) for
indefiniteness.
III. Claims 1, 2, 4—9, 11—14, and 16—23 under 35 U.S.C. § 101 as
claiming a patent-ineligible abstract idea.
IV. Claims 1, 2, 4, 5, 7—9, 11—14, and 16—23 under 35 U.S.C. § 103
as obvious over Kirenko3 and Lim.4
V. Claim 6 under 35 U.S.C. § 103 as obvious over Kirenko, Lim,
and McKenna.5
I - WRITTEN DESCRIPTION
The Examiner rejected claim 13 for lacking adequate written
description. According to the Examiner, claim 13 recites the limitation
“binning control module for determining,” yet “the written description does
not provide a corresponding structure or algorithm to transform a general
purpose computer into a specialized computer.” Final Act. 3; Ans. 11.
Appellants do not provide substantive argument related to the merits
of this rejection. Reply Br. 3. Instead, Appellants contend the Examiner
flip-flopped by indicating in an Advisory Action that the after-final claim
amendments overcame the § 112 rejections but later indicating in the
Answer that the rejection of claim 13 under § 112(a) is “not overcome.”
3 Kirenko et al., WO 2011/055288 Al, published May 12, 2011.
4 Lim et al., US 2010/0066849 Al, published Mar. 18, 2010.
5 McKenna, US 2011/0071376 Al, published Mar. 24, 2011.
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Reply Br. 3 (quoting Ans. 11). Appellants also point to their earlier claim
amendments and state that “Appellants are willing [to] similarly amend
claim 13, which would place this claim in condition so that it should not [be]
interpreted under 35 U.S.C. §112(f).” Reply Br. 3.
Although the Examiner seemingly withdrew the § 112 rejections and
then later re-raised at least some of the § 112 bases for rejecting the claims
(see Adv. Act., passim: Ans. 11), the Examiner may raise new grounds in
the Answer. Inasmuch as Appellants suggest the Examiner erred by re­
introducing rejections that were previously withdrawn (i.e., raising new
grounds), Appellants could have petitioned to re-open prosecution. 37
C.F.R. § 41.39(b)(1). They did not, but instead filed their Reply Brief, thus
maintaining the appeal. 37 C.F.R. § 41.39(b)(2). Appellants failed to
substantively argue the merits of the § 112(a) rejection itself. Whether
hypothetical amendments to claim 13 might overcome the rejection is a
matter Appellants should take up with the Examiner if prosecution of that
claim continues. On this record, however, the rejection is affirmed.
II-INDEFINITENESS
The Examiner gives two reasons for rejecting certain of the appealed
claims as indefinite.
First, the Examiner rejected claim 13 as indefinite for the same
reasons explained above related to the written description rejection. In short,
the Examiner determined that the limitation “binning control module for
determining” invokes § 112(f) (i.e., it is a means-plus-fimction limitation),
and the Examiner finds the Specification does not recite a sufficient structure
or algorithm for performing the claimed function. Final Act. 3^4; Ans. 11.
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Other than the contentions raised by Appellants as discussed above in
Section I (which fail here for similar reasons), Appellants do not provide any
substantive argument related to the merits of the rejection of claim 13 as
indefinite. Reply Br. 3. The rejection is, thus, affirmed.
Second, the Examiner finds that the phrase “substantially uniform
pixel values” in claims 7, 11, 18, and 23 invokes relative terminology that
renders the claims indefinite. Final Act. 3; Ans. 11. The Examiner explains
that “the specification does not provide a standard for ascertaining the
requisite degree, and one of ordinary skill in the art would not be reasonably
apprised of the scope of the invention.” Final Act. 3. Also, the Examiner
reasons, “the written description has not provided upper and lower bounds”
of the claim limitation with sufficient precision. Id.
Here, unlike the other rejections under § 112, Appellants do argue the
merits. Appellants contend “substantially” is defined in the Specification,
which states that “a substantially uniform area may particularly be referred
to as an area in which the pixel values (e.g. intensity, color, and/or
brightness values, etc.) are within a certain range, e.g. a percentage or
absolute range, of a central value or the like.” Reply Br. 3 (citing Spec.
7:29-8:16). So, Appellants contend, the claim limitation as defined “does
not require upper and lower bounds.” Id. at 4.
Appellants’ argument is unpersuasive. Terms of degree are neither
forbidden nor necessarily indefinite, but the terms must “serv[e] reasonably
to describe the claimed subject matter to those of skill in the field of the
invention, and to distinguish the claimed subject matter from the prior art.”
Andrew Corp. v. Gabriel Electronics, Inc., 847 F.2d 819, 821 (Fed. Cir.
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1988). Seattle Box Co. Inc. v. Indus. Crating & Packaging, Inc., 731 F.2d
818, 826 (Fed. Cir. 1984) (“When a word of degree is used ... [it is
appropriate to consider] whether the patent’s specification provides some
standard for measuring that degree.”); In re McAward, Appeal No. 2015-
006416 (PTAB Aug. 25, 2017) (precedential) (“[T]he Office establishes a
prima facie case of indefmiteness with a rejection explaining how the metes
and bounds of a pending claim are not clear because the claim contains
words or phrases whose meaning is unclear.”).
We are not persuaded the claims or the Specification provide the
requisite clarity. The portion of the Specification to which Appellants direct
our attention describes the term/phrase by using imprecise and unclear
language (e.g., describing a “substantially uniform” as having pixel values
“within a certain range.”). Spec. 8:14—15 (emphasis added). The
Specification describes “[ejxamples” that “may include the standard
deviation or the variance of the pixel values.” Id. at 8:15—16. But these are
examples only, so the phrase may encompass any range (e.g., multiple
standard deviations, covering nearly all values for a set of pixels). Indeed,
Appellants contend the metes and bounds of the disputed phrase are
unlimited — arguing it “does not require upper and lower bounds.” Reply
Br. 4. But this begs the question: As “substantially uniform” describes and
purports to limit the claimed “pixel values” of neighboring pixels, if
“substantially” and “substantially uniform” are essentially boundless terms
and phrases, how are they limiting?
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We are not persuaded on this record that the ordinary artisan would
reasonably understand the metes and bounds of the rejected claims. The
rejection of claims 7, 11, 18, and 23 as indefinite is, thus, affirmed.
Ill - INELIGIBLE SUBJECT MATTER
In analyzing patent eligibility under 35 U.S.C. § 101, the Supreme
Court has set forth a “framework for distinguishing patents that claim
[patent-ineligible] laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347, 2355 (2014) (citation
omitted). According to that framework, first “we determine whether the
claims at issue are directed to one of those patent-ineligible concepts.” Id.
“If so, we then ask, ‘[w]hat else is there in the claims before us?’” Id.
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct.
1289, 1297 (2012).) To answer this second question,
we consider the elements of each claim both individually and as
an ordered combination to determine whether the additional
elements transform the nature of the claim into a patent-eligible
application. [The Supreme Court has] described step two of this
analysis as a search for an inventive concept — i.e., an element
or combination of elements that is sufficient to ensure that the
patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.
Id. (internal citations and quotation marks omitted).
The Examiner rejected independent claims 1,14, and 19 as a group
under § 101. Final Act. 5. As to the dependent claims, the Examiner states
that “the additional recited limitations fail to establish that the claims are not
directed to an abstract idea, as the additional elements/steps are also routine
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and conventional without any improvements.” Id. at 6. We focus on the
rejection of claim 1 as representative.
The Examiner states that claim 1 is drawn to an abstract idea without
significantly more. Id. According to the Examiner finds, claim 1 is
“directed to data acquisition and extracting data to classify based on saved
parameters.” Id. at 5. The Examiner finds the “additional claim elements
link the abstract idea to a particular environment [i.e., medical/diagnostic —
data analysis and binning] and do not provide meaningful limitations to
transform the abstract idea into a patent eligible application of the abstract
idea.” Id. (brackets in original). Further, the Examiner reasons, claim 1
encompasses “a mental process of comparison and matching that could be
performed in the human mind, or by a human using a pen and paper,” that
has been computerized with generic components and functionality. Id. at 6.
Thus, the Examiner concludes, claim 1 is patent ineligible under § 101. Id.
Under step one of the Alice!Mayo framework, we ask whether claim 1
is directed to a patent ineligible abstract idea. Because all inventions, at
some level, embody or apply laws of nature, abstract ideas, etc., we must
“ensure at step one that we articulate what the claims are directed to with
enough specificity to ensure the step one inquiry is meaningful.” Thales
Visionix Inc. v. United States, 850 F.3d 1343, 1347 (Fed. Cir. 2017); see also
Alice, 134 S.Ct. at 2354 (“[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.”). Although
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applying step one of the Alice!Mayo framework is not always easy,6 we take
care to avoid viewing the claims with reductionist simplicity.
We are not persuaded the Examiner met the burden to demonstrate
that claim 1 is patent ineligible under § 101. As we explain further below,
we disagree that claim 1 is directed merely to an abstract idea. The Federal
Circuit, applying the Supreme Court’s Alice!Mayo framework, cautions that
“describing the claims at such a high level of abstraction and untethered
from the language of the claims all but ensures that the exceptions to § 101
swallow the rule.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337
(Fed. Cir. 2016). That caution was not sufficiently heeded here. Indeed, the
Examiner’s characterization of claim 1 is overgeneralized and does not
account adequately for what the claim actually recites.
Even distilling claim 1 to its “focus” or “character as a whole,” it is
more than just data acquisition and extracting data to classify as the
Examiner asserts. Id. at 1335 (citations and internal quotations omitted).
We find that claim 1 is more aptly characterized as directed to a device
programmed: (i) to extract and determine (from image frames of a subject)
features of a photoplethysmograpic signal (i.e., PPG waveform) specific to a
subject’s vital sign; and (ii) based on those signal features, to determine
6 The Federal Circuit acknowledged the challenge with computer-based
inventions and the difficulty in distinguishing whether the invention relates
to computer-functionality improvements or merely the use of computers as
tools to carry out abstract ideas. Electric Power Group, LLC v. Alstom S.A.,
830 F.3d 1350 (Fed. Cir. 2016) (explaining that the inquiry under step one of
the Alice!Mayo framework “may present line-drawing challenges because of
the programmable nature of ordinary existing computers.”)
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binning configurations (i.e., specific instructions setting how image pixels
will be combined) to be applied to image frames received by the device. See
Spec. 12:32—13:32 (defining “binning” and “binning configuration”).7 As
Appellants note, that claim 1 may be implemented in software and
potentially generic computer components (e.g., processor) does not doom
the invention to abstraction. App. Br. 11. So characterized, claim 1 is
sufficiently concrete and non-abstract.
In addition, even at step one, it is appropriate to consider whether
claim 1 is directed to a technological improvement. Enfish, 822 F.3d at
1335 (holding it is “relevant to ask whether the claims are directed to an
improvement to computer functionality versus being directed to an abstract
idea, even at the first step of the Alice analysis.”). Here, as the Specification
explains and Appellants persuasively argue (App. Br. 12—13; Reply Br. 4—
5), the claimed invention provides a technological improvement to solve a
specific problem related to extracting usable PPG signals from image
frames, and taking accurate vital signs therefrom. The Specification
describes, inter alia, known problems with remote, camera or image-based
vital signs monitoring using a PPG signal. Spec. 2:12—23. According to the
Specification, “[o]ne of the key challenges for this technology is to be able
to provide robust measurements in low light environments or under varying
environment lighting conditions ranging from full sun light to bedroom light
levels at night.” Spec. 2:14—16. Due to weakness and noise in the captured
image signal under such conditions, there is a high probability the signal will
7 “Binning refers to combining a cluster of (physical) pixels into a single
(virtual) pixel.” Spec. 4:19—20.
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be lost during analog-to-digital conversion. Id. at 2:18—23. Also, the known
approaches (e.g., determining a binning configuration based on pixel
brightness) risk too little or too much binning being applied, such that a
meaningful PPG signal and vital sign information cannot be extracted. Id. at
4:29-5:2. Thus, as Appellants contend, “the present application makes use
of a binning configuration based on features of a PPG signal, not only on
lighting conditions which may alter the type of wavelength output from a
PPG device.” Reply Br. 5; Spec. 5:3—4 (“In order to avoid these effects, the
present invention proposes to determine a binning configuration based on a
feature determined from an extracted PPG signal.”); see also id. at 5:4—9,
8:17—26, 15:10-18, and Fig. 8 (describing the use of signal features to
optimize the binning configuration for the PPG signal/vital sign of interest).
Based on the considerations set forth above, we are not persuaded that
claim 1 is abstract. Instead, we find claim 1 is more like the claims held to
be patent eligible in cases like Enfish,8 Thales,9 McRo,10 and Diehr,* 11 than
the ineligible claims in the cases identified by the Examiner. Ans. 6. In
Digitech, which the Examiner cites in support of the rejection, the court held
8 Enfish, 822 F.3d at 1330 (holding the claims were directed to a self-
referential logical model that enabled more effective searching and storage).
9 Thales, 850 F.3d at 1345 (holding the claims were directed to use of
inertial sensors in a way that reduced errors in tracking an object’s position).
10 McRo, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed.
Cir. 2016) (holding the claims were directed to a set of computer rules
allowing more accurate lip synchronization in animated characters).
11 Diamond v. Diehr, 450 U.S. 175, 177 (1981) (holding the claims related to
an improved method of molding cured rubber products, notwithstanding the
claims’ reliance on an abstract mathematical formula).
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that the claims were directed merely to information (a device profile made
up of data sets) in non-tangible form, and thus failed to fall within any
eligible statutory category under § 101. Digitech Image Technologies, LLC
v. Electronics for Imaging, Inc., 758 F.3d 1344, 1349 (Fed. Cir. 2014). As
compared to the claim at issue in Digitech, claim 1 does a fair amount more
in, among other things, reciting a device and processor programmed to
extract and use data (i.e., features of a PPG signal/waveform) in certain ways
(i.e., determining/setting binning configurations). And, as explained above,
this device provides improved technological effect — the image frames
binned according to the binning configurations permit more accurate signal
extraction and vital-sign monitoring. The Examiner also cites SmartGene,
Inc. v. Advanced Biological Laboratories, SA., 555 Fed. Appx. 950 (Fed.
Cir. 2014), in which the court held that claims related to the selection of a
therapeutic treatment were ineligible because “every [claimed] step is a
familiar part of the conscious process that doctors can and do perform in
their heads.” Id. at 955. The claims in SmartGene are not analogous to
claim 1, and we are not persuaded the processor programmed according to
claim 1 and a doctor (or other person) seeking to determine vital signs are
interchangeable.12
12 The Examiner does not persuasively explain how extracting PPG signals
from image frames (and determining the features from those signals), and
the binning of image frames based on binning configurations could be
carried out with pen and paper, or in a person’s mind. Ans. 6; App. Br. 11.
On this record, key claim elements (and claim 1 generally) appears to be
rooted in a technological, as opposed to merely a mental, solution.
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For these reasons, we conclude the preponderance of the evidence on
this record does not support the Examiner’s conclusion that claim 1 is
directed to an abstract idea and patent ineligible under § 101. We reverse
the rejection of claim 1 and, for similar reasons, reverse the rejection of
independent claims 14 and 19, and dependent claims 2, 4—9, 11—13, 16—18,
and 20—23. Moving to step two of the Alice!Mayo framework is not
necessary and, even if we did, the result would be the same. Thales, 850
F.3d at 1349 (“Because we find the claims are not directed to an abstract
idea, we need not proceed to step two.”); see also Electric Power, 830 F.3d
at 1353 (explaining that “the two stages are plainly related” and that “many
of [the Federal Circuit’s] opinions make clear that the two stages involve
overlapping scrutiny of the content of the claims.”).
IV & V- OBVIOUSNESS
The Examiner rejected claim 1, 2, 4, 5, 7—9, 11—14, and 16—23 as
obvious over Kirenko and Lim (Rejection IV), and dependent claim 6 as
obvious over Kirenko, Lim, and McKenna (Rejection V). Final Act. 7—10.
Because both Rejection IV and Rejection V rely on the combination of
Kirenko and Lim, we address the rejections together. We focus on the
rejection of claim 1 as illustrative.
The Examiner finds Kirenko teaches most of the limitations of the
device of claim 1 including, inter alia, an interface that receives image
frames from a subject and a signal extraction unit configured to extract a
PPG signal from the set of image frames. Final Act. 7. The Examiner
further finds that Kirenko teaches “a binning unit configured to bin image
pixels . . . based on the determined binning configuration,” and subsequent
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extraction of a PPG signal from binned image frames. Id. at 8. The
Examiner finds, however, that Kirenko “fail[s] to explicitly disclose the
specifics of the binning configuration or a binning unit.” Id. So, the
Examiner turns to Lim.
According to the Examiner, Lim “disclose[s] a processing unit
configured to determine a binning configuration based on a lookup table
including a number of binning configurations for different values of the
determined feature of the extracted signal.” Id. (citing Lim 123). Further,
the Examiner finds, Lim teaches “the processing unit is configured to
determine the binning configuration based on [] average pixel intensity and
on the determined feature of the extracted signal.” Id. The Examiner
concludes “[i]t would have been obvious ... to modify the determination of
the type of classification of Kirenko et al with determining a specific binning
configuration of Lim et al as it would provide optimization of pixels being
binned to optimally analyze image data.” Id. at 9.
Appellants raise two arguments in response. First, Appellants contend
the Examiner “never particularly points out the specific portions of either
Kirenko or Lim” that teach the limitation of a processor programmed to
“determine a feature of said PPG signal indicative of the quality of the
information content of the extracted PPG signal with respect” to the vital
sign of interest. App. Br. 15. According to Appellants, “neither Kirenko nor
Lim disclose anything related to extracting features indicative of a quality of
a vital sign signal” of interest. Id. Second, Appellants argue, Kirenko and
Lim do not teach a processor programmed to determine a binning
configuration in the manner recited in claim 1 (i.e., based on the determined
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feature of the PPG signal compared to a lookup table with configurations for
different values of the determined feature). Id. at 15. Put differently,
Appellants contend that because the cited art does not disclose extracting
and determining a feature of the PPG signal as claimed, the art does not
teach using the feature to determine binning configurations. According to
Appellants, the Examiner relies on Lim as filling the gaps with Kirenko, yet
Lim “discloses that the binning configuration is based on qualities of the
pixels of the images itself, not based on features indicative of the quality of a
signal extracted from an image, as recited in claim 1.” Id. at 16.
Appellants have the better position on this record. The Examiner does
not make clear specifically what teachings in either Kirenko or Lim satisfy a
processor that extracts and determines a feature of the PPG signal that is
indicative of signal quality as recited in claim 1, much less the use of that
feature for determining binning configurations. The Examiner cites to Tam’s
teaching of binning based on pixel brightness, intensity, and color values,
and variation between those values. Ans. 19. But we are not persuaded that
teaching satisfies the limitation of claim 1 related to how the processor is
programmed to determine and use a feature of the PPG signal/waveform that
is indicative of the signal’s quality relative to a vital sign of interest. Indeed,
the Specification and the claims indicate that the claimed PPG signal
“feature” and the pixel values, such as identified by the Examiner, are
different. Claim 5, for example, depends from claim 1 and requires that the
processor is programmed to “determine the binning configuration based on
said average pixel intensity and on the determined feature of the extracted
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PPG signal.'’'’ App. Br. 32 (emphasis added).13 Accordingly, the record is
more consistent with Appellants’ argument that determining binning
configurations based on qualities of the pixels themselves is different from
the processor programmed as in claim 1.
The Examiner, in the Answer’s “Response to Argument,” cites a
disclosure in Kirenko about attributing weights to pixels of different colors,
and the Examiner states “different colors represent a different physiological
characteristic used to determine the biometric characteristic (vital sign).”
Ans. 19 (citing Kirenko 10:19—31). The Examiner’s position remains,
however, unpersuasive. The Examiner does not explain adequately how
Kirenko’s teaching of overweighting pixel values based on color, alone or
combined with Lim, teaches a processor programmed to determine and use
the PPG signal feature as claimed. As noted above, the Specification and
claims distinguish between setting binning configurations based on a PPG
signal feature indicative of the quality of the signal’s information content
with respect to the desired vital sign, and setting binning configurations
based pixel brightness, color, and intensity values. We acknowledge the
Examiner’s assertion (Ans. 18—19) that the applicants do not specifically
13 See also App. Br. 33 (claim 7 (the processor is programmed to “determine
the binning configuration based on said variation measure [of pixel values]
and on the determined feature of the extracted PPG signal”) (emphasis
added)); Spec. 8:13—16 (describing the use of pixel values and variations in
those values (“pixel values (e.g. intensity, color and/or brightness values
etc.)”) to determine binning configurations, such as recited in claim 7); id. at
4:29-5:4 (explaining as advantageous the invention’s use of the PPG signal
feature for setting binning configurations over known methods that establish
“a binning configuration based on the brightness of the pixels.”).
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define the “vital sign” or all characteristics of the signal “feature,” but the
broadest reasonable interpretation of the PPG signal feature in claim 1
cannot include values and measurements that the Specification and claims,
on balance, indicate are different.
For these reasons, we reverse the rejection of claim 1 as obvious over
Kirenko and Lim. We also reverse the rejection of independent claims 14
and 19, which include similar limitations that we are unpersuaded are taught
in Kirenko and Lim. The dependent claims are nonobvious on this record as
well. In reFritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (“[Djependent
claims are nonobvious if the [] claims from which they depend are
nonobvious.”) With respect to Rejection V, the Examiner has not shown
that McKenna makes up for the deficiencies of Kirenko and Lim.
SUMMARY
We affirm the rejection of claim 13 as failing the written description
requirement, and as indefinite. We also affirm the rejection of claims 7, 11,
18, and 23 as indefinite.
We reverse the rejections of claims 1, 2, 4—9, 11—14, and 16—23 for
claiming ineligible subject matter, and for obviousness.
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).
AFFIRMED-IN-PART
18