Ex Parte Lane et al

Patent Trial and Appeal Board

Jul 30, 2018

12848417 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/848,417 08/02/2010 John A. Lane
92558 7590 08/01/2018
Merchant & Gould- Welch Allyn
P.O. Box 2903
Minneapolis, MN 55402
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.
10156.00llUSOl 5898
EXAMINER
BLOCH, MICHAEL RYAN
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
USPT092558@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte JOHN A. LANE, HENRY JOSEPH SMITH III,
DAVIDE. QUINN, and TYSON B. WHITAKER 1
Appeal2017-008107
Application 12/848,417
Technology Center 3700
Before DONALD E. ADAMS, MICHAEL J. FITZPATRICK, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims to a system and method for estimating respirations. Claims 1, 2, 7, 8,
10, 12, and 13 are on appeal as rejected under 35 U.S.C. §§ 101 and 103.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm. 2
1 Appellants identify the Real Party in Interest as "Welch Allyn, Inc."
Appeal Br. 3.
2 We have considered and herein refer to the Specification of Aug. 2, 2010
("Spec."); the Final Office Action of May 6, 2016 ("Final Action"); Appeal
Brief of Nov. 4, 2016 ("Appeal Br."); Examiner's Answer of Feb. 27, 2017
Appeal2017-008107
Application 12/848,417
STATEMENT OF THE CASE
The Specification states:
There is currently no low cost, accurate system to measure
respirations (i.e., breaths per minute). In high acuity situations,
a carbon dioxide monitor, including a nasal and/or mouth
cannula, can be used to estimate respirations by monitoring
airflow into and out of an individual's mouth or nose. However,
such machines are complex, costly, and invasive. Otherwise, in
lower acuity situations, a crude manual estimate of respirations
can be made by a caregiver observing the speed and level of
respirations of the individual. However, such a manual estimate
is prone to inaccuracy and is incomplete, since the measurement
is subjective and conducted only for the duration of time that the
individual is observed by the caregiver.
Spec. ,r 1. The Specification further states, "[ e ]mbodiments of the present
disclosure are directed to systems and methods for estimating respirations
for an individual. In some examples described herein, an accelerometer is
coupled to the individual to estimate respirations of the individual." Id. ,r 2.
The Specification further states:
In one embodiment, the accelerometer is a DC-response
sensor that measures tilt. As the orientation of the accelerometer
changes (i.e., is tilted), the impact of gravity on the accelerometer
changes in a cyclical and repeatable manner, and the
accelerometer can be configured to measure this change. By
processing the tilt patterns measured by the accelerometer, the
individual's respirations are estimated.
Id. ,I 16.
("Answer"); and Supplemental Appeal Brief of Sept. 15, 2017 ("Supp. Br.").
No Reply Brief was submitted.
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Application 12/848,417
Claims 1 and 8 are the independent claims. Claim 1 is representative
and is reproduced below:
1. A system for estimating respirations, the system
compnsmg:
an accelerometer configured to be coupled to an individual's
torso, the accelerometer being configured to measure a tilt of the
accelerometer as the individual breathes; and
a processor connected to the accelerometer, the processor being
programmed to:
process tilt data including more than one input signal from
the accelerometer;
pause the processing of tilt data for about 1 second to about
30 seconds;
after the pause, determine whether the more than one input
signal have stabilized;
if the more than one input signal have stabilized,
determine a best respiration signal candidate from the more than
one input signal by applying a band-pass filter;
determine whether the best respiration signal candidate is
respiration or noise;
determine an activity status of the individual, the activity
status selected from moving and still;
estimate a moving type of the individual, the moving type
selected from ascending, descending and level;
determine a body position of the individual, the body
position selected from lying and upright; and
estimate a respiration rate based on the tilt data, including
estimating a quality of breathing, the quality selected from
shallow and deep.
Appeal Br. 25 (Claims App'x).
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Application 12/848,417
The following rejections are appealed:
Claims 1, 2, 7, 8, 10, 12, and 13 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception (i.e., an abstract idea) without significantly
more. Final Action 2.
Claims 1 and 2 stand rejected under 35 U.S.C. § I03(a) over Klewer, 3
Pinhas, 4 Kovacs, 5 and Timmons. 6 Id. at 4.
Claim 7 stands rejected under 35 U.S.C. § I03(a) over Klewer,
Pinhas, Timmons, and Collins. 7 Id. at 11.
Claims 8, 10, and 12 stand rejected under 35 U.S.C. § I03(a) over
Klewer, Pinhas, Kovacs, Timmons, and Partin. 8 Id. at 12-13.
Claim 13 stands rejected under 35 U.S.C. § I03(a) over Klewer,
Pinhas, Timmons, Partin, and Collins. Id. at 22.
DISCUSSION
Only those arguments made by Appellants in the Appeal Brief and
properly presented in the Supplemental Appeal Brief (no Reply Brief was
submitted) have been considered in this Decision; arguments not so
presented in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2015);
see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(informative) ("Any bases for asserting error, whether factual or legal, that
are not raised in the principal brief are waived.").
3 WO 2009/138896 Al (pub. Nov. 19, 2009) ("Klewer").
4 US 2007/0118054 Al (pub. May 24, 2007) ("Pinhas").
5 US 2007 /0208233 Al (pub. Sept. 6, 2007) ("Kovacs").
6 US 2008/0312553 Al (pub. Dec. 18, 2008) ("Timmons").
7 WO 03/005893 A2 (pub. Jan. 23, 2003) ("Collins").
8 US 2010/0056878 Al (pub. Mar. 4, 2010) ("Partin").
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"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
PATENT ELIGIBILITY
"Phenomena of nature, though just discovered, mental processes, and
abstract intellectual concepts are not patentable, as they are the basic tools of
scientific and technological work." Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 71 (2012) (quoting Gottschalk v.
Benson, 409 U.S. 63, 67 (1972)). Claims directed to nothing more than
abstract ideas ( such as mathematical algorithms), natural phenomena, and
laws of nature are not eligible for patent protection. Diamond v. Diehr, 450
U.S. 175, 185 (1981); accord MPEP § 2106 (II) (discussing Diehr).
In analyzing patent-eligibility questions under the judicial exception
to 35 U.S.C. § 101, the Supreme Court instructs us to "first determine
whether the claims at issue are directed to a patent-ineligible concept." Alice
Corp. Pty. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355 (2014). If the claims are
determined to be directed to an ineligible concept we then move to a second
step and "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." Id.
(quoting Mayo, 566 U.S. at 97).
The Federal Circuit has "recognize[d] that defining the precise
abstract idea of patent claims in many cases is far from a 'straightforward'
exercise." Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1150
(Fed. Cir. 2016) (quoting DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
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1245, 1257 (Fed. Cir. 2014)). However, "we continue to 'treat[] analyzing
information by steps people [ could] go through in their minds, or by
mathematical algorithms, without more, as essentially mental processes
within the abstract-idea category."' Synopsys, 839 F.3d at 1146-47
(emphasis added) (quoting Electric Power Grp., LLC v. Alstom S.A., 830
F.3d 1350, 1354 (Fed. Cir. 2016) (citations omitted)); see also Electric
Power Grp., 830 F.3d at 1353 ("collecting information, analyzing it, and
displaying certain results of the collection and analysis" "fall[ s] into a
familiar class of claims 'directed to' a patent-ineligible concept," that of the
abstract idea). The Federal Circuit has recognized that "a claim for a new
abstract idea is still an abstract idea." Synopsys, 839 F.3d at 1151.
There is an abundance of cases where the Federal Circuit has held
that, for example, manipulating, organizing, analyzing, and displaying data
using generic computer components is not patent-eligible under the common
law application of 35 U.S.C. § 101. The Federal Circuit, in Intellectual
Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332 (Fed. Cir.
2017), where the claims were held to be directed to a computer programmed
to edit XML documents, "conclude[d] [the claims were,] ... at their core,
directed to the abstract idea of collecting, displaying, and manipulating
data." Id. at 1339--40. Even though the patent at issue in Intellectual
Ventures I indicated its invention provided a concrete solution to a particular
problem in computer programming, it "at best, ... limit[ ed] the invention to
a technological environment for which to apply the underlying abstract
concept," which does "not render an otherwise abstract concept any less
abstract." Id. at 1340 (citing Affinity Labs of Tex., LLC v. DIRECTV, LLC,
838 F.3d 1253, 1259 (Fed. Cir. 2016)). Under step two of the Alice analysis,
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the court in Intellectual Ventures I held that claims reciting generic computer
components or elements and their functions, e.g., organizing, mapping,
identifying, defining, detecting, and modifying, "merely describe the
functions of the abstract idea itself' and are not sufficient to supply
significantly more than the abstract idea so as to confer patent-eligibility. Id.
at 1341.
The Federal Circuit has established in several other cases that
collecting, classifying, storing, and organizing data, regardless of whether
such data manipulations are limited to a particular technological
environment, is an abstract idea and, without more (which cannot be
provided by generic components or steps used in their routine and customary
ways), is not patent eligible. See, e.g., Interval Licensing LLC v. AOL, Inc.,
--- F.3d ---, 2018 WL 3485608 (Fed. Cir. July 20, 2018) (claims directed to
manipulating data for selective display using routine and conventional
instructions/programming not patent-eligible); 9 SAP America, Inc. v.
Investpic, LLC, 890 F.3d 1016, 1018 (Fed. Cir. 2018) (claims directed to
"nothing but a series of mathematical calculations based on selected
9 But see Interval Licensing LLC., --- F.3d ---, 2018 WL 3485608 * 9,
J. Plager concurring-in-part and dissenting-in-part, stating:
Given the current state of the law regarding what inventions are
patent eligible, and in light of our governing precedents, I concur
in the carefully reasoned opinion by my colleagues in the
majority, even though the state of the law is such as to give little
confidence that the outcome is necessarily correct. The law, as I
shall explain, renders it near impossible to know with any
certainty whether the invention is or is not patent eligible.
Accordingly, I also respectfully dissent from our court's
continued application of this incoherent body of doctrine.
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information and the presentation of the results of those calculations" is
merely an advancement in an abstract idea and patent-ineligible, even
though physical things like databases and processors are claimed); Electric
Power Grp., 830 F.3d 1350 ("claim[s] [to] systems and methods for
performing real-time performance monitoring of an electric power grid by
collecting data from multiple data sources, analyzing the data, and
displaying the results" was not patent-eligible even though limited to a
particular technological environment); In re TL! Communications LLC
Patent Litigation, 823 F.3d 607 (Fed. Cir. 2016) (collecting and organizing
data in the form of digital images is abstract and patent ineligible, and using
computer systems in their generic ways do not add an inventive concept);
Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat 'l Ass 'n,
776 F.3d 1343 (Fed. Cir. 2014) (extracting data from documents,
recognizing information therefrom, and storing the information is abstract).
The Examiner determined, pursuant to Alice step one, that
Claim(s) 1-2, 7-8, 10, 12-13 is/are directed to judicial exception
of abstract ideas of mathematical equations/relationships,
organizing human activity, and ideas of itself present in the steps
of pausing, determining stabilization, filtering, noise or signal
determination, activity status determination, estimate moving
type, determine body position, and estimating respiration rates
without significantly more than these features.
Final Action 2-3. Pursuant to Alice step two, the Examiner determined, that
The claim( s) does/ do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the processes are completed by a generic
processor ( claim[] 1) or by mental process ( claim 8), and the
sensors for acquiring data are generic/well-known, and routine in
the art, and the steps of acquiring data have been determined by
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the courts to be extra solution data gathering steps that do not add
significantly more than the abstract ideas.
Id.; see also id. at 23-25. The Examiner analogized the claimed subject
matter and patent-ineligibility determination to the facts and holdings in the
following Federal Circuit decisions:
Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057
(Fed. Cir. 2011) (collecting and comparing information was
abstract and patent-ineligible);
Electric Power Grp., 830 F.3d 1350 (cited supra and discussed
infra);
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1372 (Fed. Cir. 2011) (diagnosing an abnormal condition by
performing clinical tests and analyzing the results was abstract
and patent-ineligible);
Digitech Image Tech, LLC v. Elec. For Imaging, Inc., 758 F.3d
1344 (Fed. Cir. 2014) ( claimed methods of generating data,
manipulating the data using mathematical formulas, and
organizing this data was abstract and patent-ineligible);
In re Meyer, 688 F.2d 789, 791-93 (CCPA 1982) (process for
neurologist to follow when testing a patient for nervous system
malfunctions was abstract and patent-ineligible); and
In re Maucorps, 609 F.2d 481,482 (CCPA 1979) (an algorithm
for determining the optimal number of visits by a business
representative to a client was abstract and patent-ineligible);
and distinguished the facts on appeal from those of Enfzsh, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016) (claimed invention improved how
computers function, solving a problem in software arts); McRO, Inc. v.
Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016)
( claimed invention improved 3D animation techniques and was not abstract);
SiRF Tech, Inc. v. Int'! Trade Comm 'n, 601 F.3d 1319, 1332-33 (2010)
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( claimed method required GPS receiver, placing a meaningful limitation on
invention). Answer 5-11. The Examiner concluded, "[ c ]onsidering all
claim limitations individually and as a whole, the claimed invention does not
amount to patent eligible subject matter because the claims are directed to
judicial exception without significantly more than the exception." Final
Action 25. We discern no error in the Examiner's determinations. We
address Appellants' arguments below.
Appellants argue "the rejection fails to articulate any analysis of the
two-step test under Mayo," and "[f]or that reason alone, the rejection should
be reversed." Appeal Br. 17. Appellants further argue that, under Alice's
step one, the rejection "provides nothing more than a cursory recitation of a
few high points of the claims and ignores any meaningful limitations."
Appeal Br. 18 (citing Enfish, 822 F.3d 1327).
These arguments are not persuasive. As set forth above, the
Examiner's determinations with respect to Alice's two-step analysis are
clear. The Examiner was explicit pursuant to Alice's step one that the
invention is directed to the abstract idea of mathematical
equations/relationships embodied in the various steps the processor is
programmed to perform in claim 1 and recited as method steps in claim 8.
As for Alice's step two, the Examiner explained that the additionally-
claimed subject matter, e.g., the accelerometer and processor, did not
provide significantly more than the abstract idea to transition the claims to
patent-eligible subject matter; there is no inventive concept beyond the
abstract idea.
As for Appellants' citation to Enfish, it does not support reversing the
Examiner's determination of patent-ineligibility. The facts here are not
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analogous to those of Enfish. In Enfish, the Federal Circuit relied on the
distinction made in Alice between computer-functionality improvements and
uses of existing computers as mere tools in processes focused on abstract
ideas (e.g., the creation and manipulation of data). See Enfish, 822 F.3d at
1335-36; see Alice, 134 S. Ct. at 2358-59; see also Electric Power Grp.,
830 F.3d at 1354 (distinguishing Enfish). Here, the claims are directed to
programming ( e.g., software) for estimating respiration ( or the steps required
by such programming), and unlike the court in Enfish, we are not presented
with claims directed to an improvement in computer functionality or the
solving of an existing problem in the software arts.
Appellants argue that the recited claim elements are not merely
routine, but, compared to Example 4 in the patent-eligibility Guidelines,
similarly link the abstract idea to a particular technological environment and
so amount to significantly more and confer patent-eligibility. Appeal Br. 19.
Appellants' argument is not persuasive. The Examiner points out that
the Guidelines Example 4 is modeled after the facts of SiRF, 601 F.3d 1319,
where required mathematics could not be performed without a GPS receiver,
which saved the claims from patent-ineligibility. SiRF was decided before
Mayo and Alice (and the plethora of subsequent Federal Circuit cases
directed to the patent-eligibility of algorithmic inventions) and, thus, did not
have the guidance provided by those cases. It is therefore not clear that SiRF
was decided under the current test. See SiRF, 601 F.3d at 1332. In SiRF, a
GPS receiver was considered to place a meaningful limitation on the claim
because "without a GPS receiver it would be impossible to generate
pseudoranges or to determine the position of the GPS receiver whose
position is the precise goal of the claims." Id. The algorithm in SiRF was
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used to determine the position of a GPS receiver. The claims in this case are
distinguishable because the algorithm, or software program steps, while
receiving data from an accelerometer, has no claimed application to the
operation or structure of the accelerometer or computer system. Rather, the
algorithm is used to deduce information about respiration sensed by the
accelerometer; such data is not claimed to be used to affect how the system
is thereafter used, even if it conceivably might be so-used in some way.
Here, we find the claimed subject matter and facts analogous to
Electric Power Group where the claims recited, inter alia, "receiving a
plurality of data streams," "receiving data from other ... sources" ( e.g.,
power plant locations), "receiving data from a plurality of non-grid sources,"
"detecting and analyzing events in real time from the plurality of data
streams," "displaying the event analysis," "displaying concurrent
visualizations of measurements from the data," "accumulating and updating
the measurements," and "deriving a composite indicator of reliability."
Electric Power Grp., 830 F.3d at 1351-52. The Federal Circuit found the
claims directed to collecting information, analyzing it, and displaying certain
results of the collection and analysis and held this to be an abstract idea. Id.
at 1353. The Federal Circuit held that the additional claimed subject matter,
e.g., limiting the claims to a particular technological environment of power-
grid monitoring, did not transform the claims into patent-eligible
applications of the abstract idea. Id. at 1354--55.
Simply put, "[i]nformation as such is an intangible," and collecting it
and analyzing it by mathematical algorithms without more is abstract, and
storing, searching, or presenting that information with routine tools "is
abstract as an ancillary part of such collection and analysis." Id. at 1353-54.
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Here, similar to Electric Power Group, the claims merely require selection
of information collected with an accelerometer used in its conventional way,
and manipulation of that data for analytical purposes using a conventional
computer component programmed to do so; such do not transform the
abstract ideas of the claims into a patent-eligible invention.
Moreover, here, the prior art references cited by the Examiner and of
record in this appeal (see the obviousness rejections in the Final Action,
discussed infra) suggest that the claimed way of using an accelerometer (to
measure respiration) and a processor (to manipulate and analyze data from
an accelerometer sensing respiration) were routine, customary, and well
known before Appellants' application. See Klewer (Abstract, 2-10, Fig. 1);
Pinhas (Abstract, ,r,r 178, 186, Fig. 2); Kovacs (Abstract, ,r,r 10, 35-38, Fig.
2A); Timmons (i-fi-f 33-38); Collins (Abstract, 2-5, 7-8, Figs. 1, 2); Partin
(Abstract, ,r,r 2, 16, 45). While a single disclosure in a prior art reference of
a feature determined in a patent-eligibility analysis to be used routinely and
customarily may be argued not to be sufficient evidence, if challenged, to
support a prima facie case of patent-ineligibility, 10 here, every cited prior art
reference (that is, all 6) discloses that an accelerometer is a sensor for
measuring respiration and discloses that data from such sensors are analyzed
using a processor circuit.
Appellants also argue the claims do not risk preempting all
applications of the abstract idea. Appeal Br. 20.
This argument is not persuasive. "While preemption may signal
patent ineligible subject matter, the absence of complete preemption does
10 See Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018).
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not demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). "Where a patent's claims are
deemed only to disclose patent ineligible subject matter under the Mayo
[Alice] framework, as they are in this case, preemption concerns are fully
addressed and made moot." Id.
By way of a supplemental brief, Appellants argue that the claims
should be determined to be patent-eligible in view of the Federal Circuit
decision in Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir.
2017). In Thales, the Federal Circuit analogized the claims, which it found
not to be directed to an abstract idea, to those found patent-eligible in Diehr.
The Federal Circuit reasoned that the claims in Thales were directed to using
sensors and algorithms (the application of physics to create an improved
technique) "in a non-conventional manner" to improve measuring and
orienting moving objects, as in Diehr where an algorithm and sensor were
used to improve a rubber-making process. Thales, 850 F.3d at 1348--49.
Here, on the other hand, claim 1 is directed to data manipulation and
analysis to create more data and uses an accelerometer and a processor not in
non-conventional ways, but in conventional ways as discussed above. In
Thales, the improvement was in a physical tracking system, which, in SAP
America, 890 F.3d at 1022, the Federal Circuit explained was wholly in the
"physical-realm," as contrasted with the selection and mathematical analysis
of information followed by reporting or display of the results, which the
Federal Circuit held to be "not a physical-realm improvement but an
improvement in wholly abstract ideas." Here, the claims are like those of
SAP America and, more so, those of Electric Power Group, rather than
Thales, because the improvement achieved is in the abstract idea itself.
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For the reasons set forth above, pursuant to the precedent of our
reviewing court, we affirm the § 101 rejection.
OBVIOUSNESS
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007). "[T]he analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." Id. at
418. "[I]f a technique has been used to improve one device [or process], and
a person of ordinary skill in the art would recognize that it would improve
similar devices [ or processes] in the same way, using the technique is
obvious unless its actual application is beyond his or her skill." Id. at 417.
"In determining whether the subject matter of a patent claim is obvious,
neither the particular motivation nor the avowed purpose of the patentee
controls. What matters is the objective reach of the claim. If the claim
extends to what is obvious, it is invalid under§ 103." Id. at 419.
The Examiner determined that claims 1 and 2 would have been
obvious over Klewer, Pinhas, Kovacs, and Timmons, in combination.
Regarding claim 7, the Examiner added Collins to (essentially) the
aforementioned combination. Regarding claims 8, 10, and 12, the Examiner
added Partin to the aforementioned combination. Regarding claim 13, the
Examiner added Partin and Collins to ( essentially) the aforementioned
combination. In supporting these rejections the Examiner cited Klewer in its
entirety, but specifically at 3:28--4:6, 5:1-11:1, Figures 1, 3; cited Pinhas in
its entirety, but specificallyi-fi-f 181, 189, 193, 241-247, 295,302,337, 340-
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341; cited Kovacs in its entirety, but specifically ,r,r 34, 38, 48; cited
Timmons ,r,r 33, 48; cited Collins 2:2-31; and cited Partin ,r,r 20-21. Final
Action 4--23; Answer 11-15. We discern no error in the Examiner's
determinations and adopt the related rationale and findings of fact. We
address Appellants' arguments below.
Regarding claim 1, Appellants argue that "[ e Jach of Klewer, Pinhas
and Kovacs is silent as to pausing," per the claim limitation. Appeal Br. 21.
Appellants argue Timmons, cited by the Examiner for teaching such subject
matter, also fails in this regard because the reference, while disclosing an
accelerometer sensor as a condition indicator, "suggests, at best, repeating
and delaying posture measurements 'until there is consistency and stability."
Id. at 21-22. Appellants also argue Timmons fails to teach the "determine a
best respiration signal candidate" limitation because the reference estimates
a posture, not respiration, and that Timmons teaches away from estimating
respiration by requiring placement of sensors away from areas subject to
oscillation from respiration. Id. at 22.
Regarding claim 7, Appellants argue " [ c] laim 7 depends from claim 1
[and] Collins does not remedy the shortcomings of Klewer, Pinhas, Kovacs,
and Timmons noted above with respect to claim 1. Claim 7 is therefore
patentable for at least the same reasons as those provided for claim 1." Id. at
22. Regarding claims 8, 10, and 12, Appellants argue:
As discussed above with reference to claim 1, the
combination of Klewer, Pinhas, Kovacs and Timmons does not
disclose at least similar limitations. Partin does not remedy this
deficiency. For at least reasons similar to those discussed above,
the combination of Klewer, Pinhas, Kovacs, Timmons, and
Partin does not disclose these limitations. Claims 10 and 12
depend from claim 8 and are patentable for at least these reasons.
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Id. at 23. Regarding claim 13, Appellants argue "[c]laim 13 depends from
claim 8 [and] Collins does not remedy the shortcomings of Klewer, Pinhas,
Kovacs, Timmons, and Partin noted above with respect to claim 8. Claim 13
is therefore patentable for at least the same reasons as those provided for
claim 8." Id.
Therefore, Appellants' non-obviousness arguments come down to
whether Timmons teaches or suggests the claimed pause element/step and
the claimed determining of a best respiration signal, and whether Timmons
teaches away from the claimed invention based on accelerometer placement.
Appellants' arguments are not persuasive.
Timmons teaches and suggests the claimed pause. Timmons is
directed to a system for measuring, e.g., blood pressure, and incorporates
within that system not only a pressure sensor, but also one or more condition
indicators to aid in determining correct absolute pressure measurements.
Timmons ,r 32. One such condition indicator is an accelerometer paired
with a microprocessor that can be used to sense body posture, body motion,
patient activity, and pulmonary function ( e.g., respiration, ventilation rate,
ventilation volumetric rate, minute ventilation). Id. ,r,r 33-38. The signals
from the accelerometer ( and pressure sensors) are controlled to sample data
over time to assess changes in signal values to determine the most desirable
time to take a pressure measurement. Id. ,r,r 4 7--48. This sampling includes
taking measurements every 3-10 seconds, or at other periods as found
usable. Id. ,r 48. Thus, sensing pauses are built into the Timmons system.
Furthermore, Timmons teaches that if the system detects too much change in
measurements, e.g., respiration is not ideal for measuring pressure, a delay is
effected to wait "until there is consistency and stability in the
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Appeal2017-008107
Application 12/848,417
measurements." Id. Thus, Timmons teaches and suggests and makes
obvious the claimed "pause the processing of tilt data for about 1 second to
about 30 seconds; after the pause, determine whether the more than one
input signal have stabilized; if the more than one input signal have
stabilized, determine a best respiration signal candidate," as determined by
the Examiner.
As to the alleged "teach[ing] away from estimating respiration"
because Timmons "require[ es] placement of sensors 'away from tissue that
is subject to pressure oscillations from respiration'," this argument is not
persuasive. First, the Examiner does not rely on Timmons to teach
placement of an accelerometer. Answer 14. Second, Timmons only
suggests positioning an internal reference pressure sensor away from tissue
that is subject to pressure oscillations from respiration; the references does
not suggest so positioning an accelerometer intended to measure respiration,
which, in one embodiment, is disclosed as positioned over the chest cavity.
See Timmons ,r,r 26, 41, Fig. 5.
For the reasons above, we affirm the obviousness rejections.
SUMMARY
The rejection of the claims as directed to patent-ineligible subject
matter is affirmed.
The obviousness rejections are each affirmed.
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)(l)(iv).
AFFIRMED
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