Ex Parte Gordon

Board of Patent Appeals and Interferences

May 21, 2012

11181108 (B.P.A.I. May. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/181,108 07/14/2005 Linda Gordon MGIP 71068 7123
7590 05/21/2012
Alan G. Towner
Pietragallo, Bosick & Gordon
One Oxford Centre, 38th Floor
301 Grant Street
Pittsburgh, PA 15219
EXAMINER
NATNITHITHADHA, NAVIN
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
05/21/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LINDA GORDON
____________

Appeal 2011-003558
Application 11/181,108
Technology Center 3700
____________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
LORA M. GREEN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 1-19. We have
jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
The claims are directed to a method of determining vascular reactivity
of a patient. Claim 1 is representative and is reproduced in the “Claims
Appendix” of Appellant‟s Brief.
Claims 1-19 stand rejected under 35 U.S.C. § 101, as directed to non-
statutory subject matter.
Appeal 2011-003558
Application 11/181,108

2
Claims 1-19 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Nomura.
1

The anticipation rejection is affirmed.
Appellant does not address the rejection under 35 U.S.C. § 101,
therefore, it is summarily affirmed and will not be discussed further.
ISSUE
Does the preponderance of evidence on this record support
Examiner‟s finding that Nomura teaches Appellant‟s claimed invention?
FACTUAL FINDINGS (FF)
FF 1. Nomura teaches that “anesthetic depth has been subjectively or
empirically recognized by monitoring a change of[, inter alia,] blood
pressure” (Nomura, col. 1, ll. 14-16; Ans. 6-7).
FF 2. Nomura teaches that anesthetic depth “can be objectively measured
on the basis of the difference” between peripheral and deep body
temperature” (Nomura, col. 1, ll. 44-53).
FF 3. Nomura teaches a method of determining the anesthetic depth of a
patient, which comprises measuring a patient‟s peripheral and deep body
temperature, calculating the difference between the two body temperatures,
and determining an anesthetic depth by comparing the difference in body
temperature measurements to a pre-determined value of anesthetic depth
(Nomura, col. 10, l. 64 – col. 11, l. 2; col. 11, ll. 12-14 and 46-54; and FIG.
15; see generally Ans. 3-4).
FF 4. Examiner finds that Nomura‟s “anesthetic depth determination . . .
[is] a subset . . . [within the] scope of vascular reactivity determination”
(Ans. 6).

1
Nomura et al., US 5,871,450, issued February 16, 1999.
Appeal 2011-003558
Application 11/181,108

3
ANALYSIS
The claims have not been argued separately and therefore stand or fall
together. 37 C.F.R. § 41.37(c)(1)(vii). Claim 1 is representative. Appellant
contends that Nomura “only discloses the determination of the anesthetic
depth of a generally anesthetized patient, and does not teach or suggest the
determination of vascular reactivity of a patient” (App. Br. 4). We are not
persuaded.
As Examiner explains, anesthetic depth and vascular reactivity both
relate to changes in blood pressure (see Ans. 6-7; FF 1; Cf. e.g., Appellant‟s
claim 12 (“vascular reactivity includes systolic and diastolic blood pressure
changes”). Thus, “the scope of the limitation „determining the vascular
reactivity…‟ would encompass the determination of anesthetic depth since
the latter also characterizes changes in blood vessel behavior, i.e. changes in
blood pressure” (Ans. 7 (alteration original)).
CONCLUSION OF LAW
The preponderance of evidence on this record supports Examiner‟s
finding that Nomura teaches Appellant‟s claimed invention. The rejection of
claim 1 under 35 U.S.C. § 102(b) as being anticipated by Nomura is
affirmed. Claims 2-19 fall together with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii).
SUMMARY
The rejection under 35 U.S.C. § 101 is summarily affirmed.
The rejection of claim 1 under 35 U.S.C. § 102(b) as being anticipated
by Nomura is affirmed. Claims 2-19 fall together with claim 1.

Appeal 2011-003558
Application 11/181,108

4
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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