InfoBionic, Inc.v.CardioNet, LLC

Patent Trial and Appeal Board

Feb 16, 2016

10760122 (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 IPR2015-01705
Patent 7,212,850 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. 7,212,850 B2 (“the ’850 patent”). Paper 1
(“Pet.”). The Petition challenges the patentability of claims 1–9, 20, 21, 31–
34, 37, and 38 of the ’850 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 ’850 patent.
A. Related Proceedings
One or both parties identify, as matters involving or related to the
’850 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-
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01704 (U.S. Patent No. 7,907,996). Pet. 1–2; Papers 7, 10.
Petitioner indicates that U.S. Patent No. 7,907,996 is a continuation of
and claims priority to the ’850 patent, that U.S. Patent No. 8,945,019 claims
priority to the ’850 patent, and that U.S. Patent Application No. 14/593,237
also claims priority to the ’850 patent and is pending before the Patent
Office. Paper 10.
B. The ’850 Patent
The ’850 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. 18–25. A processing system analyzes arrhythmia event
data received from both a human-assessment and from a monitoring system
and determines, based on a measure of correlation between those two data
groups, whether to generate a graph or other presentation related to the
arrhythmia events. Id., col. 2, l. 64–col. 3, l. 2; col. 3, ll. 32–45.
C. Illustrative Claim
Claims 1, 20, 31, 33, and 37 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;
obtaining heart rate data for the living being; and
pictographically presenting, using a common time scale,
information regarding the heart rate data during a defined time
period and regarding duration of atrial fibrillation activity,
according to the identified atrial fibrillation events, during the
defined time period such that heart rate trend is presented with
atrial fibrillation burden;
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wherein presenting information comprises selectively
presenting the information based on a measure of correlation
between the identified atrial fibrillation events and human-
assessments of at least a portion of the identified atrial
fibrillation events.
Ex. 1001, col. 6, ll. 4–19.
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
Chen US 6,470,210 B1 Oct. 22, 2002 Ex. 1009
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, and the ACC
Guidelines
§ 103(a) 1, 2, 5, 6, 8, 20, 21, 31–
34, 37, and 38
Bock, Walker, the ACC
Guidelines, and Reinhold
§ 103(a) 3, 4, and 7
Bock, Walker, the ACC
Guidelines, and Chen
§ 103(a) 9
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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 no
claim terms require express construction.
B. Obviousness over Bock, Walker, and the ACC Guidelines
Petitioner asserts that claims 1, 2, 5, 6, 8, 20, 21, 31–34, 37, and 38
are obvious over Bock (Ex. 1005), Walker (Ex. 1006), and the ACC
Guidelines (Ex. 1008). Pet. 26–53. Patent Owner opposes. Prelim.
Resp. 5–33.
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. 18.
Figure 2 of Bock is reproduced below:
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Figure 2 depicts a schematic diagram of an embodiment of Bock. Ex. 1005,
col. 3, ll. 38–39. The probability engine 40 and the contextual analysis
module 30 both analyze the heartbeat data. See id., col. 2, ll. 39–41 (“[t]he
information from the interval calculator is provided to a probability engine
and to a contextual analysis module.”); id., col. 6, ll. 45–65; id., Fig. 2
(depicting separate arrows from module 24 to both the probability engine 40
and contextual analysis module 30). “The state evaluation module 50 uses
the outputs of the probability analysis module 40, the contextual analysis
module 30, and the P wave detection module 60 to determine whether an AF
condition exists.” Id., col. 6, ll. 6–9.
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
“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” (element 18) 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 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 the expert and conflict that result from the
modifications made during the verification steps 408 and 412. Id., col. 73,
ll. 5–14. After creation of the dataset DS (element 416), the results maybe
be reported and displayed at step 430. Id., col. 73, ll. 61–63.
Petitioner relies on the ACC Guidelines for the 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. 31 (quoting Ex. 1008, 917).
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1. Independent Claims 1, 20, and 37
Independent claim 1 recites, with emphasis added, “[a] machine-
implemented method . . . wherein presenting information comprises
selectively presenting the information based on a measure of correlation
between the identified atrial fibrillation events and human-assessments of at
least a portion of the identified atrial fibrillation events.” Independent
claims 20 and 37 recite similar language regarding selectively presenting
information based on a measure of correlation.
Petitioner asserts that the claimed “measure of correlation” should be
construed to mean “an amount or degree of relationship between things or
variables.” Pet. 11–12. Patent Owner responds that Petitioner fails to
identify in the prior art the “measure of correlation,” as construed by
Petitioner, between machine-identified AF events and human assessments of
some of the events. Prelim. Resp. 26. Specifically, Patent Owner asserts
“Petitioner fails to clearly articulate whether its proposed combination relies
on Bock or Walker for ‘selectively presenting . . . based on a measure of
correlation’ and leaves it to the Board and Patent Owner to determine how to
combine the two references to render obvious the claimed invention.” Id. at
26–27.
Petitioner asserts that Bock’s presentation of information is “based on
a measure of correlation between the AF state identified by engine 40 and
assessment of these AF states by module 30.” Pet. 30 (citing Ex. 1002 ¶ 43).
We note that, even were we to find Bock discloses a measure of correlation,
any correlation would be between two machine-assessments and Petitioner
does not identify any teaching or suggestion in Bock that such a correlation
would involve a human.
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Petitioner then argues that it would have been obvious to have the AF
states that are identified by Bock’s engine 40 assessed by a human based on
knowledge in the art (as indicated in the ACC Guidelines) and Walker’s
disclosure. Pet. 30–31 (citing Ex. 1002 ¶ 44). Petitioner maintains that
“Walker selectively presents information based on a measure of correlation
between algorithm-identified diagnosis and human-assessments of at least a
portion of the algorithm-identified diagnosis.” Id. at 34 (citing Ex. 1002 at
¶ 47). Petitioner identifies steps 412 and 418 as the human-assessments and
those same steps as “determin[ing] how the information is presented taking
into consideration the degree of relationship between the algorithm and the
human diagnoses [i.e. Petitioner’s definition of a measure of correlation].”
Id. at 33. Petitioner’s proposal fails to explain sufficiently how the
combination teaches both (1) the human assessment and (2) measurement of
a correlation between that human assessment and a machine-identified
dataset. Petitioner does not explain how Petitioner’s proposal results in the
respective features of the claimed invention.
The purported disclosure of the “measure of correlation” feature is
premised on Petitioner’s assertion that “[s]ince parts of the dataset D2 that
the expert does not agree with, or has changed . . ., are not included in
datasets D4 and D5, they are not reported in step 430.” Pet. 33 (citing
Ex. 1006, col. 72, ll. 65–66; col. 73, ll. 4–5). However, Petitioner does not
explain adequately why this is correct. For example, Petitioner does not
persuade us that the analysis of dataset D2 results in the deletion of data in
the creation of datasets D4 and D5. 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. This does not suggest
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that the analysis produces a new dataset that does not include elements of the
analyzed dataset.
Lastly, we find persuasive Patent Owner’s argument that Petitioner
has not articulated clearly Petitioner’s proposed combination. Prelim.
Resp. 26–27. In arriving at the conclusion that Walker discloses the claimed
measure of correlation, Petitioner points to multiple datasets and multiple
review steps, including step 418 and dataset D5 (which is a union dataset
necessarily involving dataset D3 and expert feature detection at step 400 (see
Ex. 1006, col. 73, ll. 1–2, Fig. 26)). Pet. 33. Petitioner, thus, relies upon the
relatively complex, multistep method of Walker but does not articulate
adequately to what extent and how Petitioner proposes that method would be
incorporated into Bock’s system. Cf. Pet. 34 (Petitioner arguing that it
would have been obvious to modify Bock by incorporating the unspecified
“human-assessment feature of Walker”). In other words, Petitioner, at most,
has identified where certain features of the claimed invention are disclosed
in the prior art. Even were we to find that Walker discloses a measure of
correlation, we are left to speculate as to how Petitioner’s combination of the
references’ teachings would render obvious independent claims 1, 20,
and 37 and their respective dependent claims 2, 5, 6, 8, 21, and 38.
Accordingly, we are not persuaded that Petitioner has shown a
reasonable likelihood of prevailing in its challenge to claims 1, 2, 5, 6, 8, 20,
21, 37, and 38 of the ’850 patent on the ground that they would have been
obvious to a person of ordinary skill in the art at the time of the invention
over Bock, Walker, and the ACC Guidelines.
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2. Independent Claim 31
Independent claim 31 calls for “a processing system configured to
receive arrhythmia information from the monitoring system and configured
to receive human-assessed arrhythmia information from the monitoring
station.” Petitioner argues “[a]s discussed with claim 1, it would have been
obvious for a POSITA to have the [algorithm-based] assessment [of Bock’s
contextual analysis module 30] performed by a human in light of the
knowledge of one of ordinary skill in the art and the disclosures of Walker
and the ACC Guidelines to improve the accuracy of Bock’s algorithm-based
diagnosis.” Pet. 42 (citing Pet., “Section IX.A.1.v”; Ex. 1002 at ¶ 66). The
cross-referenced portion of the Petition, Section IX.A.1.v, is the analysis of
the “measure of correlation” feature discussed above. Id. at 28–35.
For reasons the same as those above, we determine that Petitioner has
not articulated clearly Petitioner’s proposed combination. Cf. Prelim.
Resp. 23 (Patent Owner arguing that Petitioner’s expert “does not explain
how Bock which discloses a system that indisputably does not include
human assessment should be modified to include human assessment.”). We
understand Petitioner to propose modifying Bock “by incorporating the
human-assessment feature of Walker.” Pet. 34. However, it is not readily
apparent which of Walker’s components Petitioner contends is encompassed
by “the human-assessment feature” of Walker or how Petitioner proposes
modifying Bock’s module 30. As such, we are left to speculate as to how
Petitioner’s combination of references’ teachings would have rendered
obvious independent claim 31 and its dependent claim 32.
Accordingly, we are not persuaded that Petitioner has shown a
reasonable likelihood of prevailing in its challenge to claims 31 and 32 of
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the ’850 patent on the basis that they would have been obvious to a person of
ordinary skill in the art at the time of the invention over Bock, Walker, and
the ACC Guidelines.
3. Independent Claims 33 and 37
Claim 33 recites a system comprising “monitoring means,” “display
means,” and “processing means.” Claim 37 recites an apparatus comprising
“means for identifying,” “means for obtaining,” “means for pictographically
presenting,” and “means for selectively presenting.”1 Petitioner contends
that all these are means-plus-function terms governed by 35 U.S.C. § 112
¶ 6. Pet. 15–24. Patent Owner does not dispute that contention at this time,
but argues, inter alia, that Petitioner has failed to identify properly for those
terms the corresponding structure for computer-implemented functions—a
disclosed algorithm. See Prelim. Resp. 6. Patent Owner argues that,
because of that failure, Petitioner also has failed to specify where each claim
element is located in the prior art. Id. We find Patent Owner’s arguments
persuasive.
In a petition for inter partes review, Petitioner must identify, for a
term proposed to be construed as a means-plus-function term, “the specific
portions of the specification that describe the structure, material, or acts
corresponding to each claimed function.” 37 C.F.R. § 42.104(b)(3). “[I]n a
means-plus-function claim ‘in which the disclosed structure is a computer,
or microprocessor, programmed to carry out an algorithm, the disclosed

1 In discussing the recitations of claims 33 and 37, we use shorthand
designations and do not reach the issue of the appropriate identity of any
claimed function. Cf., e.g., Prelim. Resp. 7 (arguing that Petitioner failed to
properly identify the entire correct function).
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structure is not the general purpose computer, but rather the special purpose
computer programmed to perform the disclosed algorithm.’” Aristocrat
Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed.
Cir. 2008) (quoting WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339,
1349 Fed. Cir. 1999); id., (quoting Harris Corp. v. Ericsson Inc., 417 F.3d
1241, 1253 (Fed. Cir. 2005) (“the corresponding structure is the
algorithm.”). In addition to identifying the algorithm disclosed in the
Specification, Petitioner “must specify where each element of the claim is
found in the prior art patents or printed publications relied upon.” 37 C.F.R.
§ 42.104(b)(4); see also Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d
1288, 1299 (Fed. Cir. 2009) (“[A] challenger who seeks to demonstrate that
a means-plus-function limitation was present in the prior art must prove that
the corresponding structure—or an equivalent—was present in the prior
art.”).
Petitioner, in setting forth its claim construction arguments, asserts
that “[t]he specification [of the ’850 patent] does not identify particular
structure corresponding to the function of each means-plus-function claim
term . . . [and] Petitioner identifies what Patent Owner may argue is the
corresponding ‘structure.’” Pet. 15. For most of the terms identified by
Petitioner as means-plus-function terms, Petitioner contends that the
corresponding structure is unspecified digital circuitry or a computer with
unspecified “software/hardware” configured to perform the recited
functions. 2 See, e.g., Pet. 19 (identifying the corresponding structure for the

2 For some elements, Petitioner states that Patent Owner may argue that the
corresponding structure disclosed in the Specification is “the commercially
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“processing means” of claim 33 as “digital electronic circuitry; and/or a
computer system with software/hardware configured to perform the recited
functions; or equivalents thereof.”); cf. id. at 46–47 (Petitioner arguing that
module 50 of Bock, as modified by Walker, performs the function of the
“processing means” and can be implemented through software or circuitry.)
Without an adequate identification from Petitioner of the claimed structures,
we cannot compare the disclosures of the prior art references to the claim
limitations as construed by Petitioner.
Petitioner has failed to comply with the requirement to identify with
specificity the corresponding structures in the Specification and where those
structures or equivalents are found in the prior art. See 37 C.F.R.
§ 42.104(b)(3). Accordingly, we are not persuaded that Petitioner has
shown a reasonable likelihood of prevailing in its challenge that claims 33
and 37 of the ’850 patent and the respective dependent claims 34 and 38
would have been obvious to a person of ordinary skill in the art at the time
of the invention over Bock, Walker, and the ACC Guidelines.
C. Obviousness over Bock, Walker, the ACC Guidelines, and Reinhold; and
Obviousness over Bock, Walker, the ACC Guidelines, and Chen
Petitioner’s second and third proposed obviousness combinations
address claims that depend from one of the independent claims discussed
above in the context of Petitioner’s first proposed obviousness combination.
Petitioner does not rely on Reinhold or Chen in any manner that cures the

available CardioNet Mobile Cardiac Outpatient Telemetry (MCOT) device.”
Pet. 16 (citing Ex. 1001, col. 2, ll. 39–44); id. at 17, 20–21, 22. In
articulating the grounds, however, Petitioner does not assert that the prior art
references disclose an MCOT. We acknowledge that Petitioner identifies
also a monitor and an LCD screen for some elements. E.g., Pet. 23.
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deficiencies of the underlying first ground or otherwise articulate reasoning
that overcomes those deficiencies. Pet. 53–60. Accordingly, we are not
persuaded that Petitioner has shown a reasonable likelihood of prevailing in
its challenge to claims 3, 4, and 7 of the ’850 patent on the basis that they
would have been obvious to a person of ordinary skill in the art at the time
of the invention over Bock, Walker, the ACC Guidelines, and Reinhold, or
claim 9 on the basis that it would have been obvious over Bock, Walker, the
ACC Guidelines, and Chen.
III. CONCLUSION
We determine Petitioner has not demonstrated there is a reasonable
likelihood of establishing the unpatentability of claims 1–9, 20, 21, 31–34,
37, and 38 of the ’850 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