Ex Parte Chapman et al

Patent Trial and Appeal Board

Nov 17, 2016

13855487 (P.T.A.B. Nov. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/855,487 04/02/2013
96139 7590 11/21/2016
MARGER JOHNSON
-PHYSIO -CONTROL, INC.
888 SW 5th A venue, Suite 1050
PORTLAND, OR 97204
FIRST NAMED INVENTOR
Fred Chapman
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.
PB 4915
0010120_USN2_7257-033 l
EXAMINER
HELLER, TAMMIE K
ART UNIT PAPER NUMBER
3766
NOTIFICATION DATE DELIVERY MODE
11/21/2016 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):
docketing@techlaw.com
physio_control_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
TJJ\.HTED STi\.TES Pi\. TENT i\.ND TP"-'ADElVLA.RK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRED CHAPMAN, ROBERT G. WALKER, and
RONALD EUGENE STICKNEY
Appeal2014-008096
Application 13/855,487
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL C. ASTORINO, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection, under 35 U.S.C. § 102(b), of claims 1, 2, 4, 5, and 10-18 as
anticipated by Myklebust (US 6,351,671 Bl, iss. Feb. 26, 2002) and
claims 1, 2, and 4--18 as anticipated by Kramer (US 5,405,362, iss. Apr. 11,
1995). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal2014-008096
Application 13/855,487
THE INVENTION
Appellants' invention relates to cardiac defibrillators. Spec. i-f 1.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A defibrillator, comprising:
means for selecting a CPR treatment protocol from a
plurality of stored CPR treatment protocols, the selected CPR
treatment protocol including at least a number of CPR chest
compress10ns;
means for communicating the number of CPR chest
compressions; and
means for performing an ECG analysis, and wherein the
selected CPR treatment protocol includes an initial number of
chest compressions prior to an initial ECG analysis.
OPINION
Prior Related Proceedings
The instant application is a division of U.S. non-provisional
application number 11/095,305 (the "Parent Application"). The Parent
Application came before the Board on appeal and resulted in a decision that
affirmed-in-part the Examiner's rejection of pending claims under the same
Myklebust relied on by the Examiner in the instant appeal. See Ex parte
Chapman, 2012 WL 4842869 (BPAT) (hereinafter the "2012 Decision").
In the 2012 Decision, we reviewed the Myklebust reference and made
the following finding of fact:
[T]here is no disclosure that Myklebust delivers chest
compression instructions that include an initial number of chest
compressions prior to performing an initial ECG analysis.
2012 Decision, 2012 WL at *5. Based on this finding, we reversed the
Examiner's rejection of claim 4 of that application. Id. After the appeal,
claims 2 and 4 of that application were amended and re-written in
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Application 13/855,487
independent form that included limitations directed to an initial number of
chest compressions prior to preforming an initial ECG analysis, and were
allowed to issue. See Parent Application, Amendment Following Board
Decision; see also US 8,433,407.
In the instant case, independent claims 1, 10, and 15, each contain a
limitation directed to a CPR protocol that includes an initial number of chest
compressions prior to an initial CPR analysis. Claims App. The Examiner
rejected these claims as anticipated by Myklebust. Final Action 2-3.
According to the Examiner, a "new reading" of Myklebust subsequent to
the 2012 Decision, reveals that Myklebust discloses the claimed subject
matter, thereby justifying the final rejection. Id. at 6. This appeal follows.
Anticipation by Myklebust
Appellant argues that Myklebust fails to disclose the limitations in
claims 1, 10, and 15 directed to an initial number of chest compressions
prior to an initial ECG analysis. Appeal Br. 11. In response, the Examiner
states that the "new reading" of Myklebust reveals the following disclosure.
The data collected, such as ECG, ventilation data, CPR
information and other measured data regarding the condition of
the patient and the activities carried out on the patient during
treatment may, instead of being transferred to a communication
center or in addition to the transfer, be stored in a memory 19,
from which the data may later be retrieved via e.g. a PC for
further evaluation of the CPR that has been performed.
Myklebust, col. 6, 11. 1-8; Ans. 2. In reply, Appellants argue that the
passage of Myklebust recited by the Examiner is silent regarding when the
ECG is performed. Reply Br. 2. We agree.
We have reviewed the column 6 passage related to the Examiner's
"new reading" of Myklebust. This passage, in our opinion, cannot be
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Application 13/855,487
reasonably inte1vreted as a positive teaching of a CPR protocol where an
initial number of chest compressions are necessarily given before an initial
ECG analysis.
Accordingly, the Examiner's findings of fact are not supported by a
preponderance of the evidence and we do not sustain the anticipation
rejection of claims 1, 10, and 15 over Myklebust, neither do we sustain the
rejection of claims 2, 4, 5, 11-14, and 16-18 that depend therefrom.
Anticipation by Kramer
Claims 1, 2, 4, and 5
The Examiner finds that Kramer discloses all of the elements of
claim 1. Final Action 4. In particular, the Examiner finds that Kramer
discloses means for selecting a CPR treatment protocol that includes a
number of CPR chest compressions and means for communicating the
number of CPR compressions. Id. The Examiner also finds that Kramer
discloses a CPR protocol that provides for an initial number of chest
compressions prior to an initial ECG analysis. Id.
Appellants traverse the Examiner's rejection by arguing that Kramer
does not communicate "the number" of CPR compressions as claimed in
claim 1. Appeal Br. 15. Appellants argue that Kramer merely tells a user to
start or continue CPR, but does not communicate a number of chest
compressions. Id.
In response, the Examiner states that Kramer's portable console 245 is
considered to be the "means for communicating the number of CPR chest
compressions" because the console visually and audibly delivers instructions
to a user according to the prompts illustrated in Figures 18A-I. Ans. 6.
According to the Examiner, these prompts include beginning or continuing
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CPR, such as what is shown in block 440 of Figure 188, which instn.1cts a
user to continue CPR for 45-60 seconds. Id. The Examiner reasons that the
Kramer's portable console 245 communicates that CPR chest compressions
should be started or continued for a set period of time and this disclosure is
sufficient to satisfy the claim limitations directed to "a number" and "the
number" of chest compression. Id.
The dispute between Appellants and the Examiner centers on the
meaning of "a number" and "the number" of chest compressions.
Essentially, Appellants contend that it refers a specific, discrete number
while the Examiner construes it as merely referring to a plurality, i.e., some
indeterminate number greater than one. Ans. 6.
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
the broadest reasonable interpretation 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 disclosure. In re Trans logic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Even under the broadest
reasonable interpretation, the Board's construction "cannot be divorced from
the specification and the record evidence," In re NTP, Inc., 654 F.3d 1279,
1288 (Fed. Cir. 2011).
Words often have different meanings to different people and in
different contexts. See Ferguson Beauregard v. Mega Sys., LLC, 350 F.3d
1327, 1338 (Fed. Cir. 2003). The person of ordinary skill in the art is
deemed to read the claim term in the context of the particular claim in which
the disputed term appears. See Phillips v. AWH Corp., 415 F.3d 1303, 1313
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(Fed. Cir. 2005). Similarly, the person of ordina1y skill in the art is also
deemed to read the claim term in the context of the specification. Id.
Construing individual words of a claim without considering the context in
which those words appear is not reasonable. Trivascular, Inc. v Samuel, 812
F.3d 1056, 1062 (Fed Cir. 2016). Instead, it is the "use of the words in the
context of the written description and customarily by those of skill in the
relevant art that accurately reflects both the 'ordinary' and 'customary'
meaning of the terms in the claims." Ferguson, 350 F.3d at 1338.
Turning first to the context of the surrounding claim language, we
note that the first limitation is directed to a means for selecting a CPR
protocol, where the selected protocol includes "a number" of CPR chest
compressions. Claims App. claim 1. The second limitation is directed to a
means for communicating "the number" of chest compressions. The
surrounding context indicates that "the number" in the second limitation is
the same number as "a number" in the first limitation.
The following passages from Appellants' Specification further inform
our understanding.
A defibrillator is disclosed that specifies treatment protocols in
terms of number of chest compressions instead of time
intervals.
Spec. i-f 7.
The invention described herein is a method and apparatus that
includes an algorithm that makes it possible to specify
treatment protocols in terms of number of chest compressions
instead of time intervals.
Id. i-f 20.
The CPR treatment protocols described herein are specified in
terms of numbers of chest compressions and communicated to
the user in that fashion. With this approach, the defibrillator
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Application 13/855,487
105 instn.1cts the user to deliver a certain number of chest
compressions, rather than provide CPR for a certain time
interval.
Id. i-f 31. In view of the foregoing, we interpret the "a number" and "the
number" terms in claim 1 to refer to a "certain number" and not merely an
indeterminate number greater than one, i.e., a plurality of compressions.
We have reviewed Figure 18B relied on by the Examiner as satisfying
the "number" limitations of claim 1. Kramer, Fig. 18B. We have also
reviewed the associated disclosure in column 12 of Kramer. Kramer,
col. 12, 11. 9-20. Block 440 merely calls for, under certain circumstances,
for a first responder to continue CPR for an interval of time. Id. In the
specific instance of Block 440, the interval can vary from between 45 and 60
seconds. Id. Thus, the precise number of chest compressions that would be
administered under Block 440 could vary depending on whether CPR is
continued for as little as 45 seconds or as much as 60 seconds. The number
of chest compressions could also vary based on the rate at which CPR is
administered, i.e., chest compressions per unit of time.
In view of the foregoing discussions, we determine that the Examiner
errs in finding that Kramer satisfies the "a number" and "the number"
limitations of claim 1 and we do not sustain the rejection of claim 1 as
anticipated by Kramer, nor do we sustain the rejection of claims 2, 4, and 5
that depend therefrom.
Claims 6-9
Claim 6 is an independent claim. Claims App. Like claim 1, claim 6
has a limitation directed to communicating a number of chest compressions.
Claims App. The Examiner finds that Kramer satisfies this limitation. Final
Action 5.
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In traversing the rejection, Appellants rely on the same arguments as
those asserted against the rejection of claim I. Appeal Br. 14--15. The
Examiner responds using the same reasoning and analysis as for claim 1
with respect to the "number" of chest compressions required by the claim.
Although claims 1 and 6 differ in claim language and scope, we,
nevertheless, determine that the "number" limitation in claim 6 requires
communication of a certain, specific number. Thus, for essentially the same
reasons discussed above with respect to the anticipation rejection of claim 1,
claim 6 is patentably distinguishable from Kramer, which merely directs
continuation of CPR treatment for an interval of time.
We do not sustain the anticipation of rejection of claim 6 over
Kramer, nor do we sustain the rejection of claims 7-9.
Claims 10-14
Claim 10 is an independent claim. Claims App. As with claim 1,
claim 10 contains a limitation directed to a CPR treatment protocol including
an initial number of chest compressions prior to an initial ECG analysis. Id.
The Examiner finds this limitation met by Kramer. Final Action 4 (citing
Kramer, Fig. 18A).
Appellants argue that Kramer does not disclose the "initial number"
limitation of claim 10. Appeal Br. 16. In particular, Appellants assert that
blocks 315-345 in Figure 18A are steps that a first responder would take
without the assistance of an expert system. Id.
In response, the Examiner states Kramer's blocks 315-345 are part of
the treatment and diagnostic algorithms encompassed by the expert system
of Kramer. Ans. 8.
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Application 13/855,487
\Ve have reviewed Figure l 8A of Kramer, together with the following
teaching disclosure in Kramer's specification.
The interactive nature of this expert system is illustrated by
block 300, depicting an assessment of a patient's responsiveness
by a first respondence and by block 360 depicting various
instructions or prompts generated by the expert system to the
first responder regarding treatment to be administered to a
patient. The assessments depicted by blocks 315--345 in
FIG. 18A, reflect action that a first responder would be trained
to take without the assistance of an expert system. Block 350
depicts the attachment of measuring devices of the present
invention such that the expert system can perform the analysis
and provide the instructions depicted in block 360. The various
dysrhythmias that may be diagnosed by the expert system are
depicted at blocks 361-367 of FIG. 18A. Each of these
dysrhythmias is shown in greater detail in FIGS. 18B-18I.
Kramer, col. 11, 1. 61- col. 12. 1. 9. In our opinion, the disclosure regarding
Block 350 depicting the attachment of the measuring devices so that the
expert system can perform the analysis and provide instructions indicates
that the steps that precede block 350 are performed prior to attachment of the
measuring devices. Viewed in this light, the Examiner errs in finding that
blocks 315-345 are performed by Kramer's expert system.
Accordingly, we do not sustain the Examiner's anticipation rejection
of claim 10 over Kramer, nor do we sustain the rejection of claim 11-14 that
depend therefrom.
Claims 15-18
Claim 15 is an independent claim. Claims App. As with claims 1 and
10, claim 15 contains a limitation directed to a CPR treatment protocol
including an initial number of chest compressions prior to an initial ECG
analysis. Id.
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Our disposition of the claim 15 rejection follows our analysis and
treatment of the claim 10 rejection over Kramer above. For essentially the
same reasons expressed above, we do not sustain the anticipation rejection
of claim 15 over Kramer, nor do we sustain the rejection of claims 16-18
that depend therefrom.
DECISION
The decision of the Examiner to reject claims 1, 2, 4, 5, and 10-18 as
anticipated by Myklebust is reversed.
The decision of the Examiner to reject claims 1, 2, and 4--18 as
anticipated by Kramer is reversed.
REVERSED
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