Ex Parte Mehr

Patent Trial and Appeal Board

Aug 17, 2016

12822374 (P.T.A.B. Aug. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/822,374
60683 7590
Robert Bosch LLC
FILING DATE
06/24/2010
08/17/2016
1800 W. Central Road
Mount Prospect, IL 60056
FIRST NAMED INVENTOR
Saeed Mehr
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.
1576-1240 I 7553.00116 5732
EXAMINER
PORTER, JR, GARY A
ART UNIT PAPER NUMBER
3766
MAILDATE DELIVERY MODE
08/17/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAEED MEHR
Appeal2014-004455
Application 12/822,374
Technology Center 3700
Before JILL D. HILL, BEYERL Y M. BUNTING, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant, Saeed Mehr, 1 appeals under 35 U.S.C. § 134 from the
Examiner's decision rejecting claims 1-8.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellant identifies the real party in interest as Robert Bosch
Healthcare Systems, Inc. Appeal Br. 2.
2 Claims 9-20 are cancelled. Amendment, dated October 21, 2013.
Appeal2014-004455
Application 12/822,374
THE CLAIMED SUBJECT MATTER
The claims are directed to a personalized, patient-controlled
neurostimulation management system. Spec. 1: 6-7. Claim 1, reproduced
below, is the only independent claim and is illustrative of the claimed
subject matter:
1. A method for personalized patient controlled
neurostimulation, comprising the steps of:
(A) obtaining (i) physical data of an individual and (ii) one
or more manual inputs from said individual;
(B) transmitting said physical data via a communication
channel to a processor circuit external to said individual;
(C) generating compare data in said processor circuit by
comparing said physical data with profile data of said individual;
(D) transmitting said compare data from said processor
circuit via said communication channel to a controller;
(E) generating customized data in said controller by
processing said one or more manual inputs and said compared
data using a set of rules, wherein said rules are (i)
reprogrammable and (ii) govern generation of a nerve
stimulation signal having predetermined control characteristics
applicable to said individual; and
(F) controlling said neurostimulation of said individual
with said nerve stimulation signal based on said customized data.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
John
Keimel
Errico
US 2006/0265022 Al
US 2007 /0255334 Al
US 2008/0009913 Al
2
Nov. 23, 2006
Nov. 1, 2007
Jan. 10,2008
Appeal2014-004455
Application 12/822,374
REJECTIONS
The Examiner made the following rejections:
1. Claims 1, 7, and 8 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by John.
2. Claims 1-5, 7, and 8 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Keimel.
3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Keimel and Errico.
Appellant seeks our review of these rejections.
OPINION
Rejection 1
Claim 1
Appellant presents several arguments contending that the Examiner
incorrectly finds that John discloses all of the limitations of independent
claim 1. First, Appellant argues that John does not generate "compare data,"
which the Examiner identifies as the "patient-specific template" in John.
Br. 4--5; see also Reply Br. 2-3. Appellant states that "contrary to the
Examiner's assertion, there is no disclosure in John that the patient-specific
template is generated by comparingphysical data with profile data. For
example, the 'patient-specific template' is mentioned only in paragraphs 75-
3
Appeal2014-004455
Application 12/822,374
77 of John, and the database 322 is not mentioned at all in those
paragraphs."3 Appeal Br. 5 (emphasis added).
However, with respect to the "physical data" limitation, Appellant
does not challenge the Examiner's findings that John discloses that
"implantable device 110 transmits physical data of a patient (i.e. EEG
waveforms, EKG information, seizure information, etc.) over a
communications link 310 to external programmer 312 (par. [0062-0063])."
Final Act. 2-3 (emphasis added); see e.g., John i-f 63 ("various items of
hospital equipment in an inpatient setting (such as an EKG monitor, a near-
infrared spectroscopy (NIRS) monitor, or other equipment) or personal
equipment handled by the patient (such as a Holter monitor or wearable
seizure counter, to give two examples) may also upload measurements 317
to the programmer 312, either in real-time or periodically.").
With respect to the "profile data" limitation, Appellant does not
challenge the Examiner's findings that John discloses that profile data (i.e.,
stored database information 322) is processed in programmer 312, and that
database 322 "can be used to aggregate and store patient sensed data (par.
[0078])." Ans. 8; see John i-fi-177-78, Fig. 3.
Appellant also does not challenge the Examiner's findings that John
discloses that the "patient-specific collection of detection algorithms and
parameters used for neurological activity detection" is also called a "patient-
specific template" and "detection template." Ans. 8; see John i-f 75. By
John's definition, the patient-specific collection of data and algorithms
3 Appellant correctly states that database 322 is not mentioned in
paragraphs 75-77 of John, but fails to state that it is mentioned in the first
sentence of paragraph 78.
4
Appeal2014-004455
Application 12/822,374
disclosed in paragraphs 71-73 is the patient-specific template discussed in
paragraphs 75-77. Ans. 8. Thus, the Examiner explains that paragraphs 71-
73 of John disclose that the patient-specific templates (i.e., patient-specific
collection of data and algorithms) are generated by programmer 312, which
compares
physical data, i.e., the sensor data it obtained from the patient;
and profile data, such as the aggregated data from database 322
or, as previously discussed, the discriminators used by the
programmer to create the patient-template by comparing the
sensor data from the programmer to the data from database 322
and ultimately the discriminators.
Ans. 8.
Appellant's contention that John does not generate "compare data" is
wrongly premised on the fact that John does not use the same terminology as
claim 1. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990) (There is no
ipsissimis verbis test for determining whether a reference discloses a claim
element; i.e.; identity of terminology is not required.). Appellant's argument
does not show error by the Examiner and, thus, is not persuasive.
Second, Appellant argues that John does not disclose a "processor
circuit" that generates the compare data before transmission to the
"controller" as recited in claim 1. 4 Appeal Br. 5. The Examiner finds that
programmer 312 generates the compare data (i.e., patient-specific templates)
recited in claim 1. Ans. 6 (citing to John i-fi-171-77), 8. John discloses, for
example, that "[ fJollowing the development of a patient specific template in
the programmer 312, the patient-specific template would be downloaded
4 The Examiner finds that "programmer 312" and "neurostimulator
11 O" in John corresponds to the "processor circuit" and "controller,"
respectively, recited in claim 1. See, e.g., Final Act. 6; Ans. 6.
5
Appeal2014-004455
Application 12/822,374
through the communications link 310 from the programmer 312 to the
implantable neurostimulator 110." John i-f 76. Appellant challenges this
finding, arguing that claim 1 "requires the comparison [of the physical data
and profile data of the individual] to occur prior to transmission of the
compare data to the controller, which is alleged to be the neurostimulator
110," but John discloses that "the actual use of the patient-specific template,
that is, where the profile in the template is compared to the sensed physical
data, occurs within the neurostimulator 110." Appeal Br. 5. For the reasons
discussed in connection with Appellant's first argument supra, Appellant's
argument does not apprise us of error in the Examiner's findings that
programmer 312 generates the compare data (i.e., patient-specific templates)
recited in claim 1. Ans. 6, 8.
Third, Appellant argues that John does not use "manual inputs" to
generate "customized data." Appeal Br. 6-8. According to Appellant,
the Examiner is alleging that either by storing EEG data or by
turning the device of John off/ on, John discloses customized data
that is generated using the compare data discussed above, along
with manual inputs of a user. Neither of these functions discloses
customized data that is generated in the manner required by claim
1.
Appeal Br. 6. Appellant does not offer any definition of "manual input," or
adequately explain why the Examiner's finding that "the examples of
manual inputs discussed by John in paragraph [0067] do in fact read on the
claim limitations" (Ans. 9) is incorrect. John, for example, discloses that
the implantable neurostimulator 110 is also adapted to receive
communications from an interface device 324, typically
controlled by the patient or a caregiver. Accordingly, patient
input 326 from the interface device 324 is transmitted over a
wireless link to the implantable neurostimulator device 110; such
6
Appeal2014-004455
Application 12/822,374
patient input 326 may be used to cause the implantable
neurostimulator device 110 to switch modes (on to off and vice
versa, for example) or perform an action (e.g., store a record of
EEG data).
John i-f 67. John also discloses that
[i]n various embodiments of the invention, the interface
device 324 may also include additional functions .... The
interface device 324 may also include therapy functions,
including but not limited to transcranial magnetic stimulation
(TMS) capabilities. Such therapy functions may be controlled by
... the interface device 324 itself.
John i-f 68. Thus, Appellant's arguments do not demonstrate persuasively
error in the Examiner's determination that the "manual inputs and generated
templates are processed by the system to obtain the end result of controlling
stimulation using the result of the data processing steps (par. [0071- 0078])."
Ans. 10-11.
Finally, Appellant argues that "John does not disclose any
'processing' of an input received from the patient input 326." Appeal Br. 6.
According to Appellant,
one of ordinary skill in the art would understand that the manual
input [recited in claim 1] is incorporated in some manner in the
resulting customized data, not simply a condition predicate.
Simply turning a device on/off is not an input that is incorporated
in some manner in the resulting customized data. Thus, while
John arguably discloses generation of customization data "based
on" manual input, there is no indication of generation of
customization data by processing manual input as required by
claim 1.
Appeal Br. 7. However, John's disclosure is not as narrow as Appellant
suggests, and discloses more than simply turning the device on/off. In re
Bell, 991 F. 2d 781, 785 (Fed. Cir. 1993) quoting In re Burckel, 592 F.2d
1175, 1179 (CCP A 1979) ("a reference must be considered not only for what
7
Appeal2014-004455
Application 12/822,374
it expressly teaches, but also for what it fairly suggests."). According to
John, the manual input from the patient may order the device to "perform an
action" or perform "additional functions" such as "therapy functions,
including but not limited to transcranial magnetic stimulation (TMS)
capabilities." John i-fi-1 67---68. John discloses, for example,
[t ]he patient-specific template is used by the detection subsystem
522 and the CPU 528 (FIG. 5) of the implantable
neurostimulator 110 to detect neural events in the patient's data.
The patient-specific templates can detect events, such as
epileptiform activity, within the patient's EEG (and other sensed)
signals, and can be programmed by a clinician to result in
responsive stimulation of the patient's brain, as well as the
storage of data recorded before and after the detection,
facilitating later clinician review.
John i177.
Appellant does not present a definition of the term "processing"
recited in claim 1, but the Specification discloses, for example, that
Returning to FIG. 1, the circuit 102 may implement an
implantable controller unit suitable to be placed inside the
patient. The circuit 102 is generally operational to process the
data received in signals generated by the circuits 104 and 110 and
information received through the signal RF to control stimulation
of the stomach 20 and a vagus nerve 22 (e.g., the left vagus
nerve). The circuit 102 may generate customized data by
processing manual input data received from the patient and
compare data using a set of rules .... The rules (i) are generally
reprogrammable via the signal RF and (ii) may govern
generation of the nerve stimulation signals carried by the signals
STOMACHa, STOMACHb and V AGUS. The rules generally
define predetermined control characteristics that may be
applicable and customized to the patient.
Spec. 7:3-17 (emphasis added). The Specification also discloses that the
"functions performed by the diagrams of FIGS. 1-9 may be implanted using
8
Appeal2014-004455
Application 12/822,374
one or more of a conventional general purpose processor, ... central
processing unit (CPU), .... " Spec. 32:19-33:5. In light of the teachings of
the Specification, one skilled in the art would understand that the system
[e.g., CPU 528] in John processes input and data as recited by claim 1.
Thus, Appellant does not show error in the Examiner's determination that
the "manual inputs and generated templates are processed by the system
[e.g., CPU 528] to obtain the end result of controlling stimulation using the
result of the data processing steps (par. [0071-0078])." Ans. 10-11. Thus,
Appellant's argument is not persuasive.
For the reasons discussed above, we sustain the rejection of claim 1.
Claims 7 and 8
Claims 7 and 8 depend from claim 1. Because Appellant does not
allege any other patentable distinctions for these dependent claims apart
from the arguments presented for independent claim 1, we sustain the
Examiner's rejections of these claims under 35 U.S.C. § 102(b). See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (37 C.F.R. § 41.37 requires
"more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art."); see generally Ex parte Belinne, No. 2009-
004693, 2009 WL 2477843, *4 (BPAI 2009) (informative) ("[W]e find that
the Examiner has made extensive specific fact finding ... with respect to
each of the argued claims. Appellants' argument ... repeatedly restates
elements of the claim language and simply argues the elements are missing
from the reference. However, Appellants do not present any arguments to
explain why the Examiner's explicit fact finding is in error.").
9
Appeal2014-004455
Application 12/822,374
Rejections 2-3
Claim 1 requires that the "compare data" be generated by comparing
the "physical data" and "profile data," not the "manual data." In the Final
Action, however, the Examiner states that Keimel discloses the "physical
data and manual input data can ... be compared ... to[] calculate[ an]
average value (e.g. patient profile data) to determine a patient's net energy
[i.e., compare data]." Final Act. 4, 8 (emphasis added). The Examiner does
not explain where ( 1) claim 1 states that the manual input is used to
determine the compare data, or (2) where Keimel discloses that the physical
data and profile data is compared to generate the compare data. Claim 1
also requires that the "customized data" be generated by processing "manual
inputs" and "compare data" in a "controller." According to the Examiner,
"this [net energy] value is then used by stimulator 12 to generate the
'customized data' .... " Id.; see also Ans. 13. The Examiner does not
explain where Keimel discloses that a controller (i.e., stimulator 12)
processes compare data and manual inputs to generate customized data.
Lacking such explanations, we are not persuaded that Keimel discloses all of
the limitations of claim 1, and we agree with Appellant that Keimel does not
anticipate claim 1, or claims 2-5, 7, and 8 which depend from claim 1. See
Appeal Br. 10-11; Reply Br. 3-5. Thus, we reverse (1) the rejection of
claims 1-5, 7, and 8 under 35 U.S.C. § 102(b) as being anticipated by
Keimel, and (2) the rejection of claim 6, which also depends from claim 1,
under 35 U.S.C. § 103(a) as being unpatentable over Keimel and Errico.
10
Appeal2014-004455
Application 12/822,374
DECISION
For the above reasons, the Examiner's rejection of claims 1, 7, and 8
under 35 U.S.C. § 102(b) as being anticipated by John is AFFIRMED.
The Examiner's rejection of claims 2-5 under 35 U.S.C. § 102(b) as
being anticipated by Keimel is REVERSED.
The Examiner's rejection of claim 6 under 35 U.S.C. § 103(a) as
being unpatentable over Keimel and Errico is REVERSED.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED-IN-PART
11