Ex Parte Teixeira

Patent Trial and Appeal Board

Jan 6, 2017

12640278 (P.T.A.B. Jan. 6, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/640,278 12/17/2009 Rodrigo E. Teixeira P1433US01 8472
15579
Tomas FrienH
7590 01/10/2017 EXAMINER
3100 Fresh Way BORIN, MICHAEL L
SteP
Huntsville, AL 35805 ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
01/10/2017 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):
tomas @ patentgro ve .com
tomfriend7 @me.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RODRIGO E. TEIXEIRA
Appeal 2016-003004
Application 12/640,278
Technology Center 1600
Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims to a “method for monitoring cardiac
output and/or left ventricular stroke volume of a subject using data obtained
from ... a pulse oximeter,” as recited in claim 13. The Examiner rejected
the claims as ineligible subject matter under 35U.S.C. § 101 and as obvious
under 35 U.S.C. § 103. We have jurisdiction under 35 U.S.C. § 134.
We affirm.
Appeal 2016-003004
Application 12/640,278
Appellant appeals from the Examiner’s final rejection (May 14, 2015)
(“Final Rej.”) of claims 13, 15—18, 23, 24, 31, and 40-42. The claims stand
rejected by the Examiner as follows:
1. Claims 13, 15—18, 23, 24, 31, and 40-42 under 35 U.S.C. § 101 as
being drawn to non-patentable subject matter. Final Rej. 2.
2. Claims 13, 15-18, 23, 24, 31, and 40-42 under 35 U.S.C. § 103(a)
as obvious in view of Feldman (US 5,626,140, patented May 6, 1997), Tax
(David M.J. Tax et al., Combining multiple classifiers by averaging or by
multiplying?, Pattern Recognition, 2000, 33, 1475-85 (2000)), Natalini
(Guiseppe Natalini et al., Arterial Versus Plethysmographic Dynamic
Indices to Test Responsiveness for Testing Fluid Administration in
Hypotensive Patients: A Clinical Trial, Anesth. Analg. 103, 1478-84
(2006)) and Awad (Aymen A. Awad et al., Analysis of the Ear Pulse
Oximeter Waveform, J. Clinical Monitoring and Computing, 20, 175-84
(2006)). Final Rej. 6.
Claim 13, the only independent claim on appeal, reads as follows:
13. A method for monitoring cardiac output and/or left
ventricular stroke volume of a subject using data obtained from
said subject by a pulse oximeter, said method comprising:
a) entering, in a data processor, state and model
parameters for a time t into a dynamic state-space model to
produce a first probability distribution function vector
comprising state and model parameters for time t+n;
b) entering timed data for time t+n obtained from said
biomedical monitoring device into said data processor;
c) producing a second probability distribution function
vector using said data processor for state and model parameters
for time t+n in a Bayesian statistical process using the first
probability distribution function vector and the timed data
obtained for time t+n;
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d) calculating probabilistic expectation values for the
state and model parameters for time t+n from the second
probability distribution function using said data processor;
e) determining an estimated value for cardiac output
and/or left ventricular stroke volume for time t+n from
probabilistic expectation values for the state and/or model
parameters for time t+n; using said data processor and
f) reporting the estimated value for cardiac output and/or
left ventricular stroke volume for time t+n
wherein:
the dynamic state-space model mathematically represents
the cardiovascular system of the subject to produce a time
dependent state representing a time dependent physiological
state of the cardiovascular system of the subject;
the state and model parameters for a time t entered into
the dynamic state-space model in step a) are in the form of a
probability distribution function produced from a sampling of
expectation values calculated in step c) for an immediately
preceding time t-n’; and
n and n’ are time intervals that may be the same or
different.
Appeal Br. 19 (Claims App.).
SECTION 101 REJECTION
To determine whether a claim is eligible for patent under 35 U.S.C.
§ 101, a two-step analysis is necessary. As set forth in Alice Corp. Pty. Ltd.
v. CLSBanklnt’l, 134 S.Ct. 2347, 2355 (2014):
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts \e.g., a law of nature,
natural phenomenon, or abstract idea]. If so, we then ask, what
else is there in the claims before us? . . . We have 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. (alterations, citations, and quotation marks omitted).
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Under the first step, it must be determined if the process of claim 13 is
a law of nature, natural phenomenon, or abstract idea. According to the
Examiner, the claimed method is an abstract idea because it “describes the
concept of gathering and combining data by reciting steps of organizing
information through mathematical relationships to manipulate existing
information to generate additional information” in order to “mathematically
represent physiological processes involved in generating physiological
parameters measured by a biomedical sensor.” Final Rej. 2—3.
The Examiner’s findings are supported by the plain steps of the claim.
The claimed method involves obtaining data from a pulse oximeter, and
then, using a data processor, determining the mathematical relationships
between the data and the values for cardiac output and/or stroke volume to
represent the physiological state of the cardiovascular system of the subject.
The method therefore involves determining the relationship between pulse
oximeter data and the cardiovascular system which is an abstract idea, i.e., it
is a non-physical, computer (“data processor”) representation of the
relationship between pulse oximeter data and cardiac output and stroke
volume. A claim that merely describes a relation that is a consequence of
natural processes, namely, physiological data collected from a pulse
oximeter sensor and its relationship to the cardiovascular system, is
ineligible for a patent because it is a natural law. Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 132 S.Ct. 1289 (2012). For these reasons, we
conclude claim 13 is directed to patent ineligible subject matter under the
first part of the Alice test.
The second step of the analysis requires a determination of whether
the claims do significantly more than simply describe the abstract idea or
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natural law. Mayo, 132 S.Ct. at 1297. The claim limitations must be
scrutinized to determine whether the claims contain an “inventive concept”
to “transform” the claimed abstract idea or natural law into patent-eligible
subject matter. Alice, 134 S.Ct. at 2357 (quoting Mayo, 132 S.Ct. at 1294,
1298).
The transformation of an abstract idea into patent-eligible subject
matter “requires more than simply stat[ing] the [abstract idea] while
adding the words ‘apply it.’ ” Id. (quoting Mayo, 132 S.Ct. at 1294)
(alterations in original). “A claim that recites an abstract idea must
include ‘additional feature’ to ensure ‘that the [claim] is more than a
drafting effort designed to monopolize the [abstract idea].’ ” Id.
(quoting Mayo, 132 S.Ct. at 1297) (alterations in original). Those
“additional features” must be more than “well-understood, routine,
conventional activity.” Mayo, 132 S.Ct. at 1298.
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014).
In this case, claim 13 simply instructs the practitioner to implement
the abstract idea using routine, conventional activity. The recited steps
involve entering data into a data processor, calculating probability
distributions, and using that information to determine an estimated value of
cardiac output or left ventricular stroke volume. The claim requires
“reporting” the estimated values, but does not describe how the reporting is
accomplished. The steps of the claims do not appear to add anything
significantly more to the ineligible idea and natural law. Rather, they
constitute “routine, conventional activity” utilized to model physiological
data. Appellant has not provided persuasive evidence to the contrary to
rebut the Examiner’s findings.
Appellant contends that the Examiner erred in determining that the
claim is ineligible for a patent under Section 101 because “the published
application disclose[s] that the claimed method enables the extraction of
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cardiac output and/or left ventricular stroke volume from pulse oximetry
data, which is clearly an improvement in the technical field of noninvasive
measurement of cardiac output.” Reply Br. 5. Appellant argues that “[t]he
fact that the method involves a complex mathematical algorithm including a
dynamic state space model does not, in and of itself, cause the claimed
method to fall under a judicial exception to patentability under 35 U.S.C.
101.” Id.
We do not agree. In Mayo, the Court concluded that “the claims were
necessarily directed to an underlying law of nature or natural phenomenon,
even if implementation of the method involves substantial human labor and
ingenuity.” Genetic Technologies Ltd. v. MenialL.L.C., 818 F.3d 1369,
1375 (Fed. Cir. 2016). Thus, even if Appellant made an improvement in the
measurement of noninvasive cardiac output, such “ingenuity” does not
confer patent eligibility under Section 101 because the first step under Alice
is whether the claim is an abstract idea or natural law, not whether it requires
originality or creativity to derive and discover it. The fact that is may be a
better method also does not confer patentability. CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011).
Appellant argues that “[t]he ‘solution ’ of estimating values for cardiac
output and/or stroke volume is therefore inseparable from the data input
from the pulse oximeter so entering of data from the pulse oximeter cannot
reasonably be considered as an ‘insignificant extra-solution activity.
Reply Br. 5. This argument does not persuade us that the Examiner erred.
The entry of data into a data processor as required by claim 13 is a routine
and conventional step. Mayo explicitly held that the “[tjhose ‘additional
features’ [recited in the claimed method] must be more than ‘well-
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understood, routine, conventional activity.’” Mayo, 132 S.Ct. at 1298.
Appellant has not directed us to a step in the claim which is unconventional
and adds significantly more to the abstract relationship between
physiological data and cardiac output or stroke volume embodied by the
claim.
Appellant cites Ex parte Poisson, No. 2012-011084 (PTAB Feb. 27,
2015), which he contends demands reversal of the Examiner’s rejection.
Appeal Br. 6.
First, we note that Poisson is not a precedential decision and therefore
we are not bound by it.
Second, we have reviewed Poisson and do not consider it to be
pertinent to the issue in this appeal. In Poisson, the Patent Trial and Appeal
Board (“Board”) rejected the Examiner’s conclusion that the claims were
directed to an abstract idea of a new set of rules for playing a card game.
Poisson 5. Instead, the Board found that the claim involved playing a game
of football “using a table and cards.” Id. The Board reversed the
Examiner’s rejection because the Examiner did not provide adequate
findings of fact “on which to base the Alice analysis.” Id. Thus, the Board
concluded that the facts and evidence relied upon by the Examiner did not
support a finding that the claim was an ineligible abstract idea. Id. Here, the
Examiner made adequate findings of fact, as discussed above, that the
claimed method is an abstract idea. Appellant does not identify a defect in
the Examiner’s fact-finding, but rather argues the conclusion is wrong.
With respect to claims 23 and 24, which are directed to a data
processor and pulse oximeter configured to perform the method of claim 13,
the Examiner stated that the additional limitations were generic hardware
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and devices which do not transform the abstract idea into eligible subject
matter. Final Rej. 4. We agree. The additional recitation that the method is
performed with a configured pulse oximeter and configured data processor
adds the conventional devices on which measurements are gathered and
calculations are performed, and does not disguise the claim from being what
it is — an abstract idea and expression of a natural law.
In sum, we affirm the rejection of claims 13, 15—18, 23, 24, 31, and
40-42 under § 101.
OBVIOUSNESS REJECTION
Feldman teaches obtaining data from sensors to get “the best estimate
of heart rate at any point in time.” Feldman, col. 3,11. 36-45. The Examiner
found that Feldman applied a Kalman filter to the sensor data as a
probability density function. Final Rej. 6 (see step a of claim 13 of entering
data “to produce a first probability distribution function vector comprising
state and model parameters for time t+n”). In the next stage of data analysis,
the Examiner found that Feldman taught applying Bayesian statistics to
determine posterior probabilities. Id., 7 (see step c of claim 13 of
“producing a second probability distribution function vector using said data
processor for state and model parameters for time t+n in a Bayesian
statistical process using the first probability distribution function vector”).
See also Ans. 4 (“To this end, Feldman is viewed as teaching the method as
claimed of obtaining first probability distribution using state-space model
(Kalman filter), and then, using Baysesian [sic, Bayesian] statistical process,
obtaining second probability distribution function to determine changes in
the model parameter (e. g., heart rate) over time.”).
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The Examiner found that heart rate was described as an example of a
physiological parameter in Feldman (at col. 11,1. 40), providing a reason to
apply the Feldman model to other physiological parameters of interest.
Final Rej. 7. The Examiner further found that Awad and Natalini described
utilizing pulse oximeter data to predict cardiac output changes, the same
parameter which is claimed. Id., 8. Based on these teachings the Examiner
determined “it would be obvious to one skilled in the art that if changes in
cardiac output (or stroke volume) are of interest as a physiological model
parameter, it can be predicted from plethysmography data provided by pulse
oximeter.” Id.
The Examiner further cited Tax for the advantages of using vectors in
Bayesian analysis. Id. The Examiner states that it would have been obvious
to one of ordinary skill in the art “to present data in mathematical modeling
of sensor data in Feldman in vector form [steps (a) and (c) of the claimed
method refer to probability distribution function vectors], as the vector form
is a common way of data presentation in mathematical analysis as
exemplified by [Tax].” Id., 9.
Appellant contends that the rejection does not address the first
probability function vector comprising state and model parameters for time
t+n. Appeal Br. 10-11. We do not agree.
The Examiner found:
In Feldman, the parameter variability statistical model
characterizes changes in the parameter over time (i.e., using the
language of the instant claims, times t, t+n, t+n+m). See
Feldman, claims 13, 16, 20, 26, 29, 33. From probabilistic
expectation values, and estimated value for the physiological
parameter is then determined. See Abstract, end; claim 1, end.
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Final Rej. 7. Appellant does not identify an error in the Examiner’s
findings.
Appellant also argues:
The Examiner appears to imply that Feldman’s sensor data is
equivalent to state parameters and that Feldman's physiological
parameter is equivalent to a model parameter. This is incorrect
because the terms “state parameter” and “model parameter”
recited in the rejected claims only have meaning in the context
of a DSSM [dynamic state-space model] and the DSSM recited
in the present claims must comprise a mathematical model
representing physiological processes the produce cardiac output
and/or left ventricular stroke volume.
Appeal Br. 11.
This argument does not persuade us that the Examiner erred. The
Specification teaches that “[t]he computational model includes variable state
parameter output data that corresponds to a physiological parameter being
measured to mathematically represent a current physiological state for a
subject.” Spec. 4: 1—3 (emphasis added). The Specification also teaches
that “[t]he estimated value of the physiological parameter being measured
(estimated) may also correspond directly to (i.e. be equal to) the value of the
model parameter.” Id., 4: 7—9. Such disclosure provides adequate evidence
that the Examiner’s findings concerning state and model parameters are
correct.
Appellant does not provide evidence to the contrary, but merely states
that such parameters “only have meaning in the content of a DSSM.”
Appeal Br. 11. This argument fails to identify a difference between the steps
of claim 1 and the steps in the computational model described by Feldman.
Appellant’s generic reference to DSSM in their arguments does not clarify
how the steps of the DSSM model as recited in the claims are
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distinguishable from the steps of Feldman, and Feldman in view of Natalini,
Awad, and Tax. Appellant contends that Feldman does not teach or suggest
DSSM, but fails to specifically identify what step of the claimed method is
missing. Id., 11—12.
Similarly, in the Reply Brief, Appellant attempts to distinguish the
Kalman filter step in Feldman from the DSSM model. Reply Br. 8.
However, the Examiner did not rely solely on the Kalman filter described in
Feldman, but the Examiner also relied on the teaching of Bayesian steps.
See above, pp. 8—9. Appellant repeatedly refers to what the Specification
describes as DSSM (Reply Br. 8—10), but does not identify how this
description adds meaning to the steps in the recited claim, or how the claim
is distinguished from Feldman. The claim is being examined for what
Applicant regards as the invention (“The specification shall conclude with
one or more claims particularly pointing out and distinctly claiming the
subject matter which the applicant regards as his invention.” 35 U.S.C. 112,
second paragraph), not the written description of the Specification.
Appellant states that Awad reinforces a need for methods to measure
cardiac output. Appeal Br. 14. Appellant contends that Awad is deficient.
Appellant argues:
Awad discloses that a correlation between changes in CO
[cardiac output] and ear plethysmographic waveforms was
found by using multi-linear least squares regression (abstract).
Awad, at the left-hand column of page 183 explicitly states that
that the significant correlation “is not adequate to develop a
new method of reliably predicting cardiac output” and that
Awad is “not claiming that we have a non-invasive device to
measure CO.”
Id.
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Awad found that the ear plethysmographic width “had a significant
correlation with the HR [heart rate] and CO.” Awad, Abstract. The
Examiner relied upon this fact to find that it would be predictable to
determine a relationship between ear plethysmographic data and CO. Final
Rej. 8. Appellant does not demonstrate an error in this finding. Instead,
Appellant points out that Awad’s model did not reliably predict cardiac
output and that “that pulse oximetry cannot be used to measure or predict
cardiac output.” Reply Br. 10. However, the Examiner did not rely on
Awad for the model. Final Rej. 6—8. Rather, the Examiner relied upon
Awad for its teaching of a correlation between CO and plethysmographic
data, providing a factual basis to apply Feldman’s model to it with a
reasonable expectation of success.
Appellant states that the rejection of claims 23, 24, and 40 should be
reversed at least for the same reasons as claim 13. Appeal Br. 15—16.
Because we find the arguments for claim 13 unpersuasive, we affirm the
rejection of claims 23, 24, and 40 for the same reasons.
Appellant states that the Examiner did not address the limitations in
claim 31. Id., 16. With regard to claim 31, the Examiner stated that “any
differences between .. . claimed method and that of the prior art, the
differences would be appear minor in nature. The claims contain either
additional features known per se from the prior art or being slight
constructional changes which come within the scope of the customary
practice followed by the persons skilled in the art.” Final Rej. 9. Appellant
does not identity a step in claim 31 which is not a prior art customary
practice.
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For the foregoing reasons, we affirm the obviousness rejection of
claims 13, 23, 24, and 31. Dependent claims 15—18 and 40-42 are not
argued separately and therefore fall with claims 13, 23, 24, and 31.
TIME PERIOD
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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