Ex Parte Moon et al

Patent Trial and Appeal Board

Oct 21, 2016

12762751 (P.T.A.B. Oct. 21, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121762,751 04/19/2010 Jim MOON
35938 7590 10/25/2016
Acuity Law Group, P,C,
12707 High Bluff Drive
Suite 200
San Diego, CA 92130-2037
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.
TWI-40300-UT 4190
EXAMINER
FLORY, CHRISTOPHER A
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
10/25/2016 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
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PTOL-90A (Rev. 04/07)
lJNITEu STATES PATENT ANu TRAuEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JIM MOON, GUNNAR TROMMER, and
CAROLINE DIBATTISTA
Appeal2014-007303 1
Application 12/762,751 2
Technology Center 37003
Before KEVIN W. CHERRY, BRADLEY B. BAY AT, and
AMEE A. SHAH, Administrative Patent Judges.
CHERRY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jim Moon et al. (Appellants) seek review under 35 U.S.C. § 134 of a
final rejection of claims 1, 5, 6, and 8-21, the only claims pending in the
1 Our decision references the Appellants' Appeal Brief ("Appeal Br."), filed
April 18, 2014, Appellants' Reply Brief ("Reply Br."), filed June 17, 2014,
the Final Action ("Final Act."), mailed March 29, 2013, and the Examiner's
Answer ("Ans."), mailed June 10, 2014.
2 Appellants' Appeal Brief identifies Sotera Wireless, Inc., as the real party
in interest for this appeal (Appeal Br. 4).
3 The record includes a transcript of the oral hearing held
September 20, 2016 ("Tr.").
Appeal2014-007303
Application 12/7 62, 7 51
application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b). Appellants appeared for oral hearing on September 20,
2016.
We AFFIRM.
Appellants' claimed invention "relates to medical devices for
monitoring vital signs, e.g., arterial blood pressure" (Spec. i-f 3).
Claim 1 is the sole independent claim and is illustrative of the subject
matter on appeal and is reproduced below.
1. A system for measuring vital signs from a patient,
compnsmg:
a first sensor configured to attach to a first portion of the
patient's body and configured to measure a first signal from the
patient;
a second sensor configured to attach to a second portion of
the patient's body and configured to measure a second signal
from the patient; and
a monitor configured to be worn on the patient's body and
to be identified as uniquely associated with the patient on a
hospital patient data server, the monitor comprising
a housing;
a processing component within the housing and
comprising a microprocessor and an interface to both the first
and second sensors, the processing component configured to
receive the first and second signals and collectively process them
or versions thereof to calculate at least one vital sign value;
a wireless transmitter within the housing configured to
receive the at least one vital sign value from the processing
component and transmit it over a wireless interface through one
or more wireless access points within a hospital network to the
hospital patient data server, wherein the at least one vital sign
value is stored in the patient's medical information on the
hospital electronic medical records system; and
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Application 12/7 62, 7 51
a two-way communications system within the housing
configured to transmit and receive audio signals from a clinician
over the wireless interface through the one or more wireless
access points within the hospital network to the hospital patient
data server, the audio signals used to annotate the patient's
medical information stored on the hospital electronic medical
records system.
(Appeal Br. 13, Claims App.).
Rejections
Claims 1, 5, 6, and 8-18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hurtubise (US 2010/0056886 Al, pub. Mar. 4,
2010), Cobbs (US 2007/0094045 Al, pub. Apr. 26, 2007), Martel
(US 2006/0122469 Al, pub. June 8, 2006), and Morris
(US 2010/0234695 Al, pub. Sept. 16, 2010).
Claims 19-21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hurtubise, Cobbs, Martel, Morris, and Gorman
(US 5,913,827, iss. June 22, 1999).
ANALYSIS
Appellants contend the Examiner failed to make a prima facie case of
obviousness for two main reasons. First, Appellants argue the Examiner has
failed to show that the combination discloses all of the elements of the sole
independent claim, claim 1 (Appeal Br. 7-10; Reply Br. 2-5). Second,
Appellants argue the Examiner has failed to show that a person of ordinary
skill would be motivated to combine the references in the manner suggested
by the Examiner, and the Examiner's combination is driven by improper
hindsight (Appeal Br. 10-11; Reply Br. 5---6). We disagree with both of
these points. Rather, we agree with the Examiner's findings and reasoning
that the combination of Hurtubise, Cobbs, Martel, and Morris accounts for
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Application 12/7 62, 7 51
all of the elements of claim 1, and that a person of ordinary skill would be
motivated to combine the references as suggested by the Examiner. We
adopt the Examiner's findings and rationale as set forth in the Answer and
Final Action as our own, and we note the following for emphasis.
With respect to claim 1, Hurtubise discloses a first and second sensor
attached to a portion of the patient's body (Hurtubise, Fig. 3 (Sp02 sensor 70
and pulse sensor 72)), a processing component (id. (CPU 66)) configured to
calculate at least one vital sign (id. (showing CPU 66 receives raw data from
the sensor and calculates the actual value of the Sp02 and pulse)), a wireless
transmitter (id. (RF antenna 36)), a two-way communication system (id. i-f
32), and a housing (id. as recited in claim 1 (Final Act. 2-3). Appellants
concede that Hurtubise teaches that the monitor is uniquely associated with
the patient (Tr. 10:3-13).
The only elements of claim 1 not accounted for by Hurtubise are that
the two-way communication system is configured to transmit audio signals
and the audio signals are used to annotate patient records and the wireless
transmitter is configured to interface through one or more access points of a
hospital network and store the vital signs in the patient's records. For those
elements, the Examiner relies, in part, on Cobbs, which discloses an
apparatus for providing a notification of a message in a health care
environment (Cobbs, Abstract), Martel, which discloses a remote medical
monitoring system that stores patient data in the patient's records (Martel,
Abstract, Claim 1 ), and Morris, which discloses a medical data collection
system that includes the ability to annotate records with audio (Morris i-f 75).
In particular, Cobbs teaches that a two-way communication system
configured to transmit audio signals in speech to text format (Cobbs i-f 51 ).
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Application 12/7 62, 7 51
We agree with the Examiner that a person of ordinary skill would
have been motivated to add this functionality to the monitor of Hurtubise
because it provides the predictable result of providing an efficient and user
comfortable means for communicating and receiving communications from
the remote monitoring system (Final Act. 3). Martel teaches it was known to
connect a remote monitoring device to a hospital network for updating and
saving vital information into a patient's record, including annotating the
patient's record with data from the device (Martel, Fig. 3, Abstract). We
agree that a person of ordinary skill would include such functionality in the
combined sensor system of Hurtubise and Cobbs would be obvious because
it would provide the predictable result of maintaining updated records in
order to provide the most effective therapy protocols (Final Act. 3). Finally,
Morris teaches it was known to annotate patient medical records with audio
(Morris i-fi-174, 75, 83), and we agree with the Examiner that a person of
ordinary skill would be motivated to include this functionality in the
combined system because it provides user comfort and ease in obtaining
vital information for maintaining an updated patient record in order to
properly monitor a patient and provide the most effective care (Final Act. 3-
4).
We are not persuaded by Appellants' arguments to the contrary.
Appellants' arguments that Hurtubise, Cobbs, Martel, or Morris fail to
disclose certain elements of claim 1 (Appeal Br. 7-9; Reply Br. 3-5) are not
persuasive because the Examiner is relying on the combination of the
references, as described above. See In re Keller, 642 F.2d 413, 425-26
(CCP A 1981 ). In particular, Appellants' arguments that the device in Morris
is not worn by the patient, but instead by the first responder, such as a
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military medic (Appeal Br. 8-9; Reply Br. 3), fail to account for the
rejection's reliance on the combination of Hurtubise, Cobbs, and Martel, not
Morris, for a patient-worn monitor that relays information through the
wireless access points to the hospital's network for storage in the patient's
records. The Examiner is only relying on Morris to show that it was known
to annotate patient records with audio received over a two-way
communication system (Final Act. 3--4; Ans. 3).
As for Appellants' arguments that Cobbs discloses only a
conventional voicemail system (Appeal Br. 8), we disagree that Cobbs is so
limited. Although the communication capability and speech-to-text
capability is disclosed in the context of a voicemail system, nothing in
Cobbs limits the teaching of a two-way communication system for use in a
medical setting that can transmit and receive speech and convert speech to
text to only the voicemail context. Moreover, as detailed above, we
determined that the Examiner's findings regarding the references are
supported by a preponderance of the evidence.
With respect to Appellants' arguments that Martel fails to disclose a
wireless access point within the hospital network, as recited in claim 1
(Appeal Br. 9-10; Reply Br. 3-5), we do not agree. Although the
Examiner's construction of "wireless access point within a hospital
network," which includes Martel's disclosure of a device that communicates
wirelessly through a cellular station and the internet to the hospital data
server, is broad, we find that it is reasonable and supported by the
Specification. In particular, we note that the Specification discloses
embodiments that use cellular protocols and reach the wireless access point
indirectly through the internet (Spec. i-fi-f 13, 14, 23, 144--146, Figs. 26-28),
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which is consistent with the Examiner's construction. In addition, we note
that Hurtubise also discloses a wireless access point within the hospital's
network (See Hurtubise, Fig. 1 (Base Unit 16 connected through Internet 22
to Surveillance Center 20 and Data Bank 18), Fig 4 (showing Base Unit 16),
and Fig. 5 (showing schematic of Base Unit 16).
Finally, Appellants argue that there is no motivation to combine the
references in the manner suggested by the Examiner, and the Examiner's
finding of obviousness is driven by improper hindsight (Appeal Br. 10-11;
Reply Br. 5-6). We do not agree. Instead, as we detailed above, we find
that the Examiner has provided articulated reasons with rational
underpinnings to support the obviousness combination. Appellants have not
shown any of the findings of the Examiner would have either been outside
the knowledge of a person of ordinary skill in the art or which could only
have been gleaned from Appellants' Specification. See In re McLaughlin,
443 F.2d 1392, 1395 (CCPA 1971). Here, the Examiner's proposed
combination uses known techniques to improve similar devices in the same
way and applies a known technique to a known device ready for
improvement to yield predictable results-both motivations that the
Supreme Court recognized as suggesting that a combination would be
obvious. See KSR Int'! v. Teleflex, Inc., 550 U.S. 398 (2007). As such, we
find that Appellants have not shown the Examiner erred by relying on
improper hindsight to arrive at the combination.
Accordingly, we sustain the Examiner's rejection of claim 1.
Appellants raise no separate arguments regarding claims 5, 6, and 8-18.
Thus, we sustain the rejection of claims 5, 6, and 8-18 as obvious over
Hurtubise, Cobbs, Martel, and Morris.
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Application 12/7 62, 7 51
With respect to the rejection of claims 19----21 as obvious over
Hurtubise, Cobbs, Martel, Morris, and Gorman, Appellants raise no separate
arguments besides those considered regarding claim 1. Thus, we sustain the
rejection of claims 19-21 as unpatentable as obvious over Hurtubise, Cobbs,
Martel, Morris, and Gorman
DECISION
The Examiner's decision to reject claims 1, 5, 6, and 8-21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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