Ex Parte Ochs

Patent Trial and Appeal Board

Sep 25, 2013

12605739 (P.T.A.B. Sep. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JAMES OCHS
____________________

Appeal 2013-007478
Application 12/605,739
Technology Center 2800
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Before RICHARD E. SCHAFER, DEBORAH KATZ, and HUNG H. BUI,
Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.2

1 The real party of interest is Nellcor Puritan Bennett Ireland, LLC.
2 Our decision refers to Appellant’s Appeal Brief filed January 21, 2013
(“App. Br.”); Reply Brief filed May 20, 2013 (“Reply Br.”); Examiner’s
Answer mailed March 19, 2013 (“Ans.”); Final Office Action mailed
July 19, 2012 (“Final Rej.”); and the original Specification filed October 26,
2009 (“Spec.”).
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention relates to systems and methods for processing
oximetry signals from a patient to determine physiological information using
a least median squares (LMS) technique. See Spec., ¶ [0001] and Abstract.
Claims on Appeal
Claims 1, 9, and 17 are the independent claims on appeal. Claim 1 is
illustrative of Appellant’s invention and is reproduced below with disputed
limitations emphasized:
1. A method for determining information from a
signal, comprising:
receiving, from a first sensor, a first electronic signal;
receiving, from a second sensor, a second electronic
signal;
using processor equipment for:
generating a Lissajous figure based at least
in part on the first and second electronic signals,
determining information from at least the
Lissajous figure based at least in part on a least median
squares [LS] technique; and
outputting the information to an output
device.

Evidence Considered
Mortz US 6,385,471 B1 May 07, 2002
Chin US 2007/0299328 A1 Dec. 27, 2007

Humberto Barreto, “An Introduction to Least Media of
Squares,” in Economics via Monte Carlo Simulations (2001)
(Hereinafter “Barreto”).

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Examiner’s Rejections
(1) Claims 1-7, 9-15, and 17-20 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Chin and Barreto. Final Rej. 2-6.
(2) Claims 8 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Chin, Barreto and Mortz. Final Rej. 6-7.

Issues on Appeal
Based on Appellant’s arguments, the dispositive issue on appeal is
whether the Examiner erred in rejecting claims 1-7, 9-15, and 17-20 under
35 U.S.C. § 103(a) as being unpatentable over Chin and Barreto. In
particular, the issue turns on:
(1) Whether the Examiner has provided an objective reason to
replace a conventional least squares (LS) technique of Chin with a least
median squares (LMS) technique of Barreto to arrive at Appellant’s
invention. App. Br. 10-12.
(2) Whether Barreto teaches away from replacing a conventional
least squares (LS) technique of Chin with a least median squares (LMS)
technique of Barreto. App. Br. 13.

ANALYSIS
§103 Rejection of Claims 1-7, 9-15, and 17-20 over Chin and Barreto
The Examiner finds Chin discloses all elements of Appellant’s
independent claims 1, 9, and 17, using a conventional least squares (LS)
technique instead of a least median squares (LMS) technique. Final Rej. 2-
3. The Examiner also finds Barreto discloses: (1) the differences between
the least squares (LS) technique and the least median squares (LMS)
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technique as regression algorithms, i.e., the LS technique is more accurate
when analyzing clean data, whereas LMS technique is more robust when
outliers are present, and (2) the LMS technique can be used in lieu of the LS
technique to improve the robustness of the regression analysis, i.e., less
sensitive to outliers. Id. at 3 (citing Barreto, page 2, last paragraph and page
5, 1st paragraph). Based on such factual findings, the Examiner concludes
that it would have been obvious to replace the LS technique of Chin with the
LMS technique of Barreto to further reduce the effect of outliers of Chin’s
data as both the LS and LMS techniques are well-known, interrelated
regression techniques with different advantages and disadvantages. Id., also
see Advisory Action mailed November 7, 2012, page 3.
Appellant contends that there is no objective reason to replace a
conventional LS technique of Chin with an LMS technique of Barreto to
arrive at Appellant’s invention. App. Br. 10-12. In particular, Appellant
argues that while the Lissajous figure from Chin’s FIG. 11B shows some
noise or error, Chin’s signals do not include outliers. Id., at 11 (emphasis in
original). Because Chin’s signals do not include outliers, there is no reason
or motivation to replace Chin’s LS technique with Barreto’s LMS technique.
Id.
We are not persuaded by Appellant’s arguments. As an initial matter,
we note that an outlier is nothing more than a single, aberrant data point that
typically occurs away from a fitted line during a linear regression analysis.
See Barreto, page 2, ll. 15-17. Outliers are not shown in Chin because FIG.
11A and FIG. 11B are intended to provide a comparison of an output
waveform and a Lissajous plot of a standard sensor and Chin’s sensor, and
not measurement signals that are subject to noise and/or outliers. See Chin,
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¶¶ [0035] and [0060]. As correctly noted by the Examiner, a single
Lissajous figure from Chin does not provide evidence that the invention of
Chin is not vulnerable to the occurrence or effect of outliers. Ans. 5.
Rather, Chin discloses non-invasive optical blood sensor arranged to reduce
the likelihood of out-of-phase motion signals that may cause outliers. Ans.
4-5 (citing Chin, ¶¶ [0017], [0020] and [0050]). As acknowledged by
Appellant’s own Specification, many measurement signals, including
physiological signals as disclosed by Chin, are routinely subject to noise and
outliers. See Spec., ¶ [0003]. Likewise, Barreto makes reference to outliers
as the basis upon which the differences between the least squares (LS)
technique and the least median squares (LMS) technique are described, i.e.,
the LS technique is more accurate when analyzing clean data, whereas LMS
technique is more robust when outliers are present. See Barreto, page 15.
In view of such disclosures, we find that the combination of Chin and
Barreto involves nothing more than a simple substitution of well known,
interrelated regression LS and LMS techniques to yield predictable results.
See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). We
agree with the Examiner that these teachings, all in the context of
Appellant’s invention, are properly combinable. Ans. 7.
Separately, Appellant also contends that Barreto teaches away from
replacing a conventional LS technique of Chin with a LMS technique of
Barreto when outliers are not present. App. Br. 13. In particular, Appellant
argues that because Chin’s signals do not have outliers and are less noisy
than Barreto’s clean data, Barreto teaches away from replacing Chin’s LS
technique with a LMS technique. Id.
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We are not persuaded. As discussed, outliers are associated with
Chin’s signals. Ans. 7-9; also see Chin, ¶ [0050]. Moreover, our reviewing
court has said:
A reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was
taken by the applicant. The degree of teaching away will of
course depend on the particular facts; in general, a reference
will teach away if it suggests that the line of development
flowing from the reference’s disclosure is unlikely to be
productive of the result sought by the applicant.

In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) (citing United States v.
Adams, 383 U.S. 39, 52 (1966)).
A reference does not teach away, however, if it merely expresses a
general preference for an alternative invention but does not “criticize,
discredit, or otherwise discourage” investigation into the invention claimed.
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
In this instant appeal, Barreto simply describes the differences
between the least squares (LS) technique and the least median squares
(LMS) technique, i.e., the LS technique is more accurate when analyzing
clean data, whereas LMS technique is more robust when outliers are present,
as correctly found by the Examiner. Final Rej., at 3 (citing Barreto, page 2,
last paragraph and page 5, 1st paragraph). Appellant has not presented any
evidence or arguments to persuade us that Barreto would disparage or
otherwise discourage one of ordinary skill in the art from the path described
in the claims of the application, i.e., the subject matter of Appellant’s
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claimed invention. Thus, we do not find that Barreto teaches away from the
claimed invention.
For the reasons set forth above, we find no reversible error in the
Examiner’s position and, as such, sustain the Examiner’s obviousness
rejection of claims 1-7, 9-15, and 17-20 over Chin and Barreto.
With respect to dependent claims 8 and 16, Appellant presents no
separate patentability arguments. For the same reasons discussed, we also
sustain the Examiner’s obviousness rejection of claims 8 and 16.

CONCLUSION
On the record before us, we conclude that the Examiner has not erred
in rejecting: (1) claims 1-7, 9-15, and 17-20 under 35 U.S.C. § 103(a) as
being unpatentable over Chin and Barreto and (2) claims 8 and 16 under
35 U.S.C. § 103(a) as being unpatentable over Chin, Barreto and Mortz.

DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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