InfoBionic, Inc.v.Cardionet, Inc.

Patent Trial and Appeal Board

Feb 16, 2016

11739037 (P.T.A.B. Feb. 16, 2016)

Trials@uspto.gov Paper 11
571-272-7822 Entered: February 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

INFOBIONIC, INC.,
Petitioner,

v.

BRAEMER MANUFACTURING, LLC,
Patent Owner.
____________

Case IPR2015-01704
Patent 7,907,996 B2
____________

Before KEN B. BARRETT, TRENTON A. WARD, and
SCOTT C. MOORE, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
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I. INTRODUCTION
InfoBionic, Inc. (“Petitioner”) filed a Petition requesting inter partes
review of U.S. Patent No. 7,907,996 B2 (“the ’996 patent”). Paper 1
(“Pet.”). The Petition challenges the patentability of claims 1, 12, 18, and 23
of the ’996 patent on the grounds of obviousness under 35 U.S.C. § 103.
Braemar Manufacturing, LLC (Patent Owner) filed a Preliminary Response
to the Petition. Paper 9 (“Prelim. Resp.”). We have jurisdiction under 35
U.S.C. § 314(a), which provides that an inter partes review may not be
instituted “unless . . . the information presented in the petition . . . shows that
there is a reasonable likelihood that the petitioner would prevail with respect
to at least 1 of the claims challenged in the petition.”
After considering the information presented in the Petition, we
determine that Petitioner has not established a reasonable likelihood that it
would prevail with respect to any of the claims challenged in the Petition.
Accordingly, we do not authorize an inter partes review to be instituted as to
any challenged claim of the ’996 patent.
A. Related Proceedings
One or both parties identify, as matters involving or related to the
’996 patent, CardioNet, LLC and Braemar Manufacturing, LLC v.
InfoBionic, Inc., Case No. 1:15-cv-11803 (D.Mass), CardioNet, LLC and
Braemar Manufacturing, LLC v. The Scottcare Corp. et al., Case No. 2:12-
cv-2516 (E.D. Pa.), and CardioNet, LLC and Braemar Manufacturing, LLC
v. MedNet Healthcare Tech. Inc. et al., Case No. 2:12-cv-02517 (E.D. Pa.);
and Patent Trial and Appeal Board cases IPR2015-01679 (U.S. Patent
No. 6,225,901), IPR2015-01688 (U.S. Patent No. 6,940,403), and
IPR2015-01705 (U.S. Patent No. 7,212,850). Pet. 1–2; Papers 7, 10.
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Petitioner indicates that U.S. Patent No. 8,945,019 is a continuation of
and claims priority to the ’996 patent and that U.S. Patent Application
No. 14/593,237 also claims priority to the ’996 patent and is pending before
the Patent Office. Paper 10.
B. The’996 Patent
The ’996 patent pertains to “processing and presenting arrhythmia
event information from physiological data, for example, selectively
presenting atrial fibrillation [AF] events to a medical practitioner.”
Ex. 1001, col. 1, ll. 23–26. A processing system analyzes arrhythmia event
data received from both a human-assessment and from a monitoring system
and determines whether to generate a graph or other presentation related to
the arrhythmia events. Id., col. 3, ll. 1–5.
C. Illustrative Claim
Claims 1, 12, 18, and 23 are independent claims. Claim 1, reproduced
below, is illustrative:
1. A machine-implemented method comprising:
identifying atrial fibrillation events in physiological data
obtained for a living being, wherein identifying atrial
fibrillation events comprises examining the physiological data
in multiple time intervals, and identifying intervals in which at
least one atrial fibrillation event has occurred;
obtaining heart rate data for the living being;
receiving a human assessment of a subset of the
identified atrial fibrillation events; and
based on the human assessment of the subset of the
identified atrial fibrillation events, pictographically presenting,
using a common time scale, information regarding the heart rate
data for the multiple time intervals during a defined time period
in alignment with indications of atrial fibrillation activity for
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the identified intervals, according to the identified atrial
fibrillation events, during the defined time period such that
heart rate trend is presented with atrial fibrillation burden,
wherein pictographically presenting information regarding the
heart rate data comprises displaying for each of the multiple
time intervals a range of heart rates and a heart rate average.
Ex. 1001, col. 5, l. 64–col. 6, l. 19.
D. Applied References
Reference Exhibit No.
Bock US 6,490,479 B2 Dec. 3, 2002 Ex. 1005
Walker US 7,490,085 B2 Feb. 10, 2009 Ex. 1006
Reinhold US 4,531,527 July 30, 1985 Ex. 1007
ACC/AHA Guidelines for Ambulatory
Electrocardiography, JOURNAL OF THE AMERICAN
COLLEGE OF CARDIOLOGY, Vol. 34, No. 3, pp. 912–948,
September 1999 (“ACC Guidelines”)
Ex. 1008
Petitioner relies also on the Declaration of Dr. Robert T. Stone, dated
August 6, 2015, (Ex. 1002) in support of Petitioner’s arguments.
E. Asserted Grounds of Unpatentability
Petitioner asserts the following grounds of unpatentability:
References Basis Claims
Bock, Walker, the ACC
Guidelines, and Reinhold
§ 103(a) 1, 12, 18, and 23
Bock, the ACC Guidelines,
Walker, and Reinhold
§ 103(a) 1, 12, 18, and 23
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II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir. 2015), cert. granted
sub nom. Cuozzo Speed Techs. LLC v. Lee, 84 U.S.L.W. 3218 (U.S. Jan. 15,
2016) (No. 15-446). Under the broadest reasonable construction standard,
claim terms are given their ordinary and customary meaning, as would be
understood by one of ordinary skill in the art in the context of the entire
patent disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007).
On this record and for purposes of this Decision, we determine that
only the claim term addressed below requires express construction.
“subset”
Independent claim 1 recites “receiving a human assessment of a
subset of the identified atrial fibrillation events; and based on the human
assessment of the subset of the identified atrial fibrillation events,
pictographically presenting [certain information].” Ex. 1001, col. 6, ll. 5–9
(emphasis added). The other challenged claims, independent claims 12, 18,
and 23, recite the term “subset,” also.
Petitioner argues that “subset” should be construed to mean “some or
all elements of a set.” Pet. 12. Patent Owner, on the other hand, argues that
“subset” means “a set that is less than all the elements of a given set.”
Prelim. Resp. 6 (quoting Ex. 1013, 16 (the District Court’s claim
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construction memorandum opinion)).1 Thus, the issue is whether a subset
may encompass all the elements of a set.
Petitioner relies upon the definition set forth in a general dictionary in
asserting that “[t]he plain and ordinary meaning of ‘subset’ is ‘a set each of
whose elements is an element of an inclusive set.’” Pet. 12 (citing Ex. 1009,
3 (MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1170 (10th ed. 2001)).
Petitioner also relies upon the testimony of Dr. Stone. Id. at 12–13
(citing Ex. 1002 ¶¶ 24, 25). We do not find the testimony of Petitioner’s
expert to be persuasive or helpful as it repeats the Petitioner’s arguments and
offers little or no elaboration as to how one of ordinary skill in the art would
understand the term “subset.” See Ex. 1002 ¶¶ 24, 25. See 37 C.F.R.
§ 42.65(a) (“Expert testimony that does not disclose the underlying facts or
data on which the opinion is based is entitled to little or no weight.”); see
also Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed.
Cir. 1997) (nothing requires a fact finder to credit the inadequately explained
testimony of an expert). We also do not find persuasive Petitioner’s
argument, based on extrinsic evidence, that Patent Owner’s position in
related litigations should influence our determination of the proper
construction in this forum. See Pet. 13–14. We now turn to the intrinsic
evidence.
Both parties argue that their respective proposed construction is
consistent with the use in the Specification of the term “subset.” Pet. 12–13;
Prelim. Resp. 8. Neither party, in articulating its arguments regarding the
construction of “subset,” directs our attention to any pertinent evidence in

1 See also Ex. 1014, 18.
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the prosecution history.
The Specification refers to a “subset” in describing the embodiment of
Figures 5 and 6. See Ex. 1001, col. 4, ll. 26–59. In that embodiment, the
system at step 502 analyzes the physiological data and, at step 503, identifies
and flags AF events and reports those flags (constituting a first group of
data) to the processing system. Id., col. 4, ll. 26–34.
Similarly, at 504, the system identifies and reports
physiological data, such as ECG [electrocardiogram] data, for a
subset of the events identified at 502 and reported at 503.
Notably, the system, in this implementation, need not report
physiological data for each flag assigned at 503, but need only
report data associated with the most significant events
identified at 502, thereby minimizing the data sent to a CVT
[cardiovascular technician].
Id., col. 4, ll. 35–41 (emphasis added). The CVT analyzes this data and
identifies arrhythmia events thereby creating a second group of data. Id.,
col. 4, ll. 42–44. The processing system compares the two groups of data
and, if the system determines that enough of the human-assessed events
match the system-reported events, the system-reported data (at step 302) is
deemed valid and the data associated with each system-flagged event is
pictorially presented. Id., col. 4, ll. 44–54.
Significantly, in this implementation, while this pictographic
representation can contain all such data, the CVT need only
review a subset of this data. In short, the system achieves
increased accuracy in the presentation of information relating to
arrhythmia events while minimizing the data that the CVT
reviews.
Id., col. 4, ll. 54–59 (emphasis added).
Petitioner argues that “[t]he specification contemplates sending all of
the system-identified arrhythmia data to the CVT for assessment and
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provides that the system ‘need only’ send data for the most significant
system-identified events to ‘minimize[e] the data sent to the’ technician.”
Pet. 13 (quoting2 Ex. 1001, col. 4, ll. 54–59). Thus, we understand
Petitioner to assert that the Specification indicates that the system may send
to the technician all of the system-identified data or only data for the most
significant events. Petitioner’s argument is not persuasive as it relies on
certain phrases in isolation rather than the Specification as a whole. The
Specification emphasizes the benefit of the human assessing a group of data
that is less than the entire set of system-generated data. The Specification’s
reference to the “need only” to report the most significant events to
minimize data sent to the technician is describing the benefit that flows from
the use of the “subset” of the previous sentence, not merely offering one
alternative definition of a “subset.” Ex. 1001, col. 4, ll. 54–59 (contrasting
the “subset” and “all such data”); see also id., col. 4, ll. 35–41 (indicating
that the use of a “subset” is the reason why the system “need only report data
associated with the most significant events.”)
Also, Petitioner, in articulating Ground 1, argues that the “receiving a
human assessment of a subset of the identified atrial fibrillation events”
language of claim 1:

2 Patent Owner notes that Petitioner misquotes the cited portion of the
Specification. Prelim. Resp. 8 (characterizing the Specification as
“discussing ‘minimizing the data that the CVT reviews’ and not addressing
how much data is sent to the technician”). Petitioner may be referring to a
prior paragraph of the Specification which mentions “report[ing]” data for
the most significant identified events thereby “minimizing the data sent to a
CVT.” Ex. 1001, col. 4, ll. 39–41.
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does not recite receiving human assessment of only a subset of
the identified atrial fibrillation events. Therefore, under a broad
and reasonable interpretation, the recited limitation will be
satisfied if human assessments of some or all of the identified
atrial fibrillation events are received, because receiving human
assessments of all events necessarily satisfies receiving some
human assessments of some events.
Pet. 28–29. To the extent that Petitioner is arguing that a given set
necessarily includes the members of a subset of that same set, we are not
persuaded for reasons similar to those discussed above. Petitioner offers no
persuasive argument or evidence that one of ordinary skill in the art, reading
the claim language in light of the Specification, would understand the
pertinent language to have the meaning Petitioner suggests. See id.
We determine that Petitioner’s proposed construction, where the
subset could constitute all the members of the set, is unreasonably broad
when the claims are read in light of the Specification.
For purposes of this decision and based on the record before us, the
term “subset” means “a set that is less than all the elements of a given set.”
B. Ground 1: Obviousness over Bock,
Walker, ACC Guidelines, and Reinhold
Petitioner asserts that claims 1, 12, 18, and 23 are obvious over Bock
(Ex. 1005), Walker (Ex. 1006), the ACC Guidelines (Ex. 1008), and
Reinhold (Ex. 1007). Pet. 21–48. Claims 1, 12, 18, and 23 all require a
“human assessment of the subset of the identified atrial fibrillation events.”
Patent Owner opposes, arguing that the cited prior art does not disclose the
“subset” aspect of the challenged claims under the proper construction of
that term. Prelim. Resp. 34–37.

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Bock pertains to a computer-implemented method and apparatus for
detecting atrial fibrillation. Ex. 1005, col. 1, ll. 6–10; col. 3, ll. 65–67.
Patent Owner maintains that it is undisputed that Bock does not disclose the
“human assessment” feature of the challenged claims. Prelim. Resp. 19.
Petitioner argues that it would have been obvious to modify Bock to have a
human assessment based on the knowledge of one of ordinary skill and
Walker. Pet. 24–25. Petitioner asserts that the ACC Guidelines indicates
such knowledge of one of ordinary skill, and relies on that reference’s
teaching that “[i]t is critical that each classification of arrhythmia
morphology and each ischemic episode be reviewed by an experienced
technician or physician to ensure accurate diagnosis.” Pet. 25 (quoting Ex.
1008, 917). As will be discussed further below, Petitioner maintains, for
each challenged claim, that Walker discloses the human assessment of a
subset of data. Id. at 27–28, 31 (claim 1), 38 (claim 12), 41 (claim 18), 46–
48 (claim 23). Petitioner relies on Reinhold for the specific pictographical
presentation of heart rate. Pet. 33–34.
Walker pertains to refining the processing and analysis of medical
diagnostic image data. Ex. 1006, col. 71, ll. 28–37. Figure 26 of Walker is
reproduced below:
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Figure 26 of Walker depicts “a flowchart illustrating a technique for refining
or training a computer-assisted algorithm and a medical professional.” Id.,
col. 5, ll. 15–17. Walker explains that “[t]he process may include separate,
although interdependent modes, such as a professional training mode 396
[the left upper portion of Figure 26] and an algorithm training mode 398 [the
upper right portion].” Id., col. 71, ll. 44–47. Both modes start with the same
set of “data from resources” (element 18).
An expert or medical professional (step 400) performs a feature
detection and classification analysis of the “data from resources”
(element 18), typically as part of a diagnostic image reading process. Id.,
col. 71, ll. 60–66. The expert’s analysis results in the creation of a dataset
D1, which may be an annotated medical diagnostic image. Id., col. 72, ll. 3–
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6. “Any suitable technique can be used for producing the dataset, such as
conventional annotation, dictation, interactive marking, and similar
techniques.” Id., col. 72, ll. 6–8. In parallel, an algorithm performs a similar
analysis of the same set of “data from resources” and generates dataset D2,
“which may be similarly annotated for display.” Id., col. 72, ll. 9–23. The
algorithm-produced dataset D2 optionally may be verified by the expert
(step 412) resulting in dataset D4 (element 414), and the expert produced
dataset D1 optionally may be verified by the algorithm (step 408) resulting
in dataset D3 (element 410). Id., col, 72, ll. 24–28, 51–55. The dataset D4
“may be reconstructed, when the data represents images, and may be
annotated to indicate features identified by the algorithm and the changes
made to such identification or classification by the expert or medical
professional.” Id., col. 72, ll. 63–67. The datasets D3 and D4 are joined in a
union dataset 416 (labeled DS in Figure 26 and referred to as D5 in the text)
“which may again comprise of [sic] one or more images displaying the
origin of particular features detected and classified, along with changes
made by either the algorithm or the expert during verification.” Id., col. 73,
ll. 1–5. A reconciler 418 resolves conflicts between the detection and
classification performed by the algorithm and by the expert and resolves
conflicts that result from the modifications made during the verification
steps 408 and 412. Id., col. 73, ll. 5–14.
Petitioner maintains that Walker’s D4 is a subset of dataset D2 and the
reconciler’s action is a human assessment of that subset. Pet. 27–28.
Petitioner asserts that “[b]ecause of the changes made to dataset D2 by the
expert, dataset D4 includes a subset of dataset D2.” Pet. 27 (citing Ex. 1002
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¶ 39). 3 However, Petitioner does not explain adequately why this is correct,
and the cited expert testimony merely repeats the Petitioner’s conclusory
argument, adding the phrase “[i]n my opinion” (Ex. 1002 ¶ 39).
Specifically, Petitioner does not persuade us that the analysis of dataset D2
results in the deletion of data in the creation of dataset D4 such that dataset
D4 contains less members than the original dataset D2. Walker explains that
the “changes” to a dataset may be by “conventional annotation, dictation,
interactive marking, and similar techniques.” Ex. 1006, col. 72, ll. 6–8.
Furthermore, Walker discloses that dataset D4 “may be annotated to indicate
features identified by the algorithm.” Ex. 1006, col. 72, ll. 63–67 (emphasis
added). This does not suggest that the analysis produces a new dataset that
contains fewer elements than the analyzed dataset. Further, the reconciler
acts upon a union dataset 416 (D5 or DS) of datasets D3 and D4, not simply
dataset D4 alone, suggesting that the human (reconciler) assessment is
performed on a set of data larger than D2. See id., col. 73, ll. 1–19.
For these reasons, we do not find that Walker discloses a human
assessment of a subset of data. Petitioner does not rely on any other
reference in its proposed combination for the claim recitation regarding a
“human assessment of the subset of the identified atrial fibrillation events,”
Claims 1, 12, 18, and 23. Accordingly, we are not persuaded that Petitioner
has shown a reasonable likelihood of prevailing in its challenge that
claims 1, 12, 18, and 23 of the ’996 patent would have been obvious to a
person of ordinary skill in the art at the time of the invention over Bock,

3 Petitioner appears to offer alternative arguments based on “subset” being
construed as either all or less than all of the elements of a set. Pet. 27.
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Walker, the ACC Guidelines, and Reinhold (Ground 1).
C. Ground 2: Obviousness over Bock,
ACC Guidelines, Walker, and Reinhold
Petitioner’s Ground 2 is similar to Ground 1, and is offered by
Petitioner in the event that its proposed construction of “subset” is not
adopted and in the event that the Board does not find that Walker teaches the
“subset” feature. Pet. 48. Petitioner maintains that one of ordinary skill in
the art would have been motivated to modify the combined system of the
cited references “to have the human technician review only a portion of the
events detected by probability engine 40 [of Bock].” Pet. 49. Patent Owner
responds that Petitioner’s arguments and the relied-upon testimony of
Dr. Stone are conclusory and that those positions are inconsistent with the
ACC Guidelines. Prelim. Resp. 37–41. We find Patent Owner’s arguments
persuasive.
Petitioner argues that “[a] person or ordinary skill in the art would
have recognized that reducing the number of events assessed by the human
would (1) increase the efficiency and decrease cost of the system and (2) be
an inevitable result of the system.” Pet. 49 (citing Ex. 1002 ¶ 74
(Dr. Stone’s declaration)). Petitioner further argues that “[a] POSITA would
appreciate that reviewing a portion of the algorithm-identified AF states
identified by [Bock’s] probability module 40 would still ensure accurate
diagnosis and would be an efficient and effective method of evaluating the
algorithm-based AF states identified by probability engine 40.” Pet. 51
(citing Ex. 1002 ¶¶ 74–75). Petitioner’s arguments and Dr. Stone’s
testimony repeating the same (with the addition of the phrase “in my
opinion”) are too conclusory to persuade us that Petitioner has met its
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burden at this stage of the case. See 37 C.F.R. § 42.65(a) (“Expert testimony
that does not disclose the underlying facts or data on which the opinion is
based is entitled to little or no weight.”).
Further, Petitioner relies on teachings of Walker and the ACC
Guidelines, which encourage the use of more, not fewer, human
assessments, and also encourage the assessment of more data. For example,
Petitioner applies Walker in such a way that there are multiple reviews by
humans. Petitioner’s identified “human assessment” is the action by the
reconciler (Pet. 27–28) that reviews a union dataset that is itself a
compilation of two human reviews—the expert’s review (step 412) of the
algorithm-produced dataset D2 and the expert’s review (step 400) of the
entire original dataset (see Ex. 1006, col. 73, ll. 1–5; Fig. 26).
Additionally, Petitioner’s reliance on the ACC Guidelines undermines
Petitioner’s assertion that one of ordinary skill would have recognized that
reviewing a portion, rather than all, of the data would still ensure an accurate
diagnosis. As mentioned above, Petitioner argues that it would have been
obvious to modify Bock to have a human assessment based on the
knowledge of one of ordinary skill in the art and in light of Walker. See
Pet. 24–25. That knowledge is that “[i]t is critical that each classification of
arrhythmia morphology and each ischemic episode be reviewed by an
experienced technician or physician to ensure accurate diagnosis.” Pet. 25
(quoting Ex. 1008, 917). Petitioner does not reconcile the relied-upon
evidence of the criticality of a human review of each event with the assertion
that one would have found it obvious to review only a subset of these events.
Petitioner asserts that the proposed modification “would have
amounted to nothing more than the use of a known technique to improve a
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similar device that yields nothing more than predictable results.” Pet. 50
(citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)). This is not
persuasive at least because Petitioner’s proposed modification is to a system
resulting from the combination of the teachings of four references and
Petitioner has not identified “a similar device” known in the prior art and
ready for improvement. See Pet. 50 (“the combined system of Bock, ACC
Guidelines, Walker, and Reinhold could be modified to receive a human
assessment of less than all . . . .”). Similarly, we are not persuaded by
Petitioner’s conclusory “design choice” rationale based on the apparent
proposition that reviewing a portion of the data is “one of a ‘finite number of
identified, predictable solutions.’” Pet. 51 (quoting KSR, 550 U.S. at 402–
03).
Petitioner has not demonstrated that there is a reasonable likelihood
that it would prevail in showing that the subject matter of the challenged
claims 1, 12, 18, and 23 would have been obvious over Bock, the ACC
Guidelines, Walker, and Reinhold (Ground 2).
III. CONCLUSION
We determine Petitioner has not demonstrated there is a reasonable
likelihood of establishing the unpatentability of claims 1, 12, 18, and 23 of
the ’996 patent.
IV. ORDER
For the foregoing reasons, it is
ORDERED that the Petition is denied as to all challenged claims, and
no trial is instituted.

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For PETITIONER:
Leslie I. Bookoff
Biju I. Chandran
Dinesh N. Melwani
BOOKOFF MCANDREWS, PPLC
lbookoff@bookoffmcandrews.com
bchandran@bookoffmcandrews.com
dmelwani@bookoffmcandrews.com
docketing@bookoffmcandrews.com

For PATENT OWNER:
Ching-Lee Fukuda
Megan F. Raymond
Bradford J. Badke
ROPES & GRAY LLP
Ching-Lee.Fukuda@ropesgray.com
Megan.raymond@ropesgray.com
Jim.Badke@ropesgray.com