Ex Parte Nilsson et al

Patent Trial and Appeal Board

Jan 22, 2019

14248202 (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/248,202 04/08/2014
154242 7590 01/24/2019
Physio-Control
c/o Miller Nash Graham & Dunn LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
FIRST NAMED INVENTOR
Anders Nilsson
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.
614281-0070 8710
EXAMINER
STUART, COLINW
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
01/24/2019 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):
eofficeaction@appcoll.com
patdocketing@millernash.com
becky.summers@millernash.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDERS NILSSON and ANDERS JEPPSON
Appeal2018-005506 1
Application 14/248,2022
Technology Center 3700
Before PHILIP J. HOFFMANN, KENNETH G. SCHOPPER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 31--48. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references the Appeal Brief filed Sept. 11, 2017 ("Br."), the
Examiner's Answer mailed Mar. 1, 2018 ("Ans."), and the Final Office
Action mailed Dec. 9, 2016 ("Final Act.").
2 According to Appellants, the real party in interest is Physio-Control, Inc.
Br. 3.
Appeal2018-005506
Application 14/248,202
BACKGROUND
According to Appellants, "[t]he present invention relates to an
apparatus and a method for cardiopulmonary resuscitation." Spec. 1.
CLAIMS
Claims 31 and 42 are the independent claims on appeal. Claim 31 is
illustrative of the appealed claims and recites:
31. A CPR apparatus, comprising:
a chest compression unit comprising:
a housing;
a plunger disposed in the housing, the plunger having a
compression member at one end of the housing that extends from
the housing, wherein the plunger is configured to be driven in a
reciprocating manner, and wherein the compression member is
configured to deliver compressions to a patient's chest; and
a control unit that includes a microprocessor configured to
detect an initial chest height of the patient's chest by determining
a resistance against compression by the patient's chest before
delivering the compressions, to record the initial chest height of
the patient, and to set a full compression depth of the
compressions to a given fraction of the initial chest height,
wherein the control unit further includes a memory configured to
store the initial chest height; and
a mounting device configured to mount the chest
compression unit on the patient.
REJECTIONS
1. The Examiner rejects claims 31, 33-37, 39--41, and 47 under 35 U.S.C.
§ I03(a) as unpatentable over Nowakowski3 in view of Myklebust. 4
3 Nowakowski, US 5,327,887, iss. July 12, 1994.
4 Myklebust et al., US 2008/0097534 Al, pub. Apr. 24, 2008
("Myklebust").
2
Appeal2018-005506
Application 14/248,202
2. The Examiner rejects claim 32 under 35 U.S.C. § I03(a) as unpatentable
over Nowakowski in view of Myklebust and Kelly. 5
3. The Examiner rejects claim 38 under 35 U.S.C. § I03(a) as unpatentable
over Nowakowski in view of Myklebust and Tjolsen. 6
4. The Examiner rejects claims 42--46 and 48 under 35 U.S.C. § I03(a) as
unpatentable over Nowakowski in view of Steen. 7
DISCUSSION
Claims 31--41 and 47
We agree with and adopt the Examiner's findings and conclusions
with respect to claim 31. See Final Act. 4--5; Ans. 9-15. As discussed
below, we are not persuaded of reversible error by Appellants' arguments.
Appellants argue that the combination "fails to teach or suggest
determining a resistance against compression by the patient's chest to detect
an initial chest height." Br. 7. Appellants assert that Nowakowski does not
teach a control unit that detects and adjusts the system based on initial chest
height, and instead teaches a system that requires the operator to perform
span adjustment between the thumper and the base member. Id. at 8.
Appellants also assert that Myklebust fails to cure this deficiency in
Nowakowski because Myklebust teaches measuring the force exerted and
depth traveled by the device during actual compressions and not before
delivering the compressions, as required by the claims. Id. at 8-9.
We are not persuaded of error for the reasons provided by the
Examiner. See Ans. 11-12. We agree that Appellants are inappropriately
5 Kelly, US 5,496,257, iss. Mar. 5, 1996.
6 Tjolsen et al., US 2008/0092677 Al, pub. Apr. 24, 2008.
7 Steen, US 2004/0230140 Al, pub. Nov. 18, 2004.
3
Appeal2018-005506
Application 14/248,202
arguing against the references individually. The Examiner makes clear that
the limitation requiring determining chest height is made obvious by the
combination of Nowakowski and Myklebust, and not either reference alone.
The Examiner finds that Nowakowski teaches "a manual means of setting
the compression based on patient height ... [and] that patient size and stroke
length of compressions are related." Ans. 12. The Examiner also finds that
Myklebust teaches a "signal processor and measuring devices to determine
chest height from force sensors which measure resistance to compression by
the patient's chest." Id. Based on these findings, the Examiner concludes
that it would have been obvious to modify Nowakowski based on Myklebust
to "provide an automated means for measuring patient's initial chest height
to set compressions based thereon." Id. Thus, even if Myklebust does not
explicitly disclose measuring chest height before any compressions are
delivered, the Examiner's conclusion explains that this would be obvious in
light of the teachings of both Nowakowski and Myklebust. Appellants'
argument does not address the Examiner's findings and conclusion regarding
the combination of references.
Next, Appellants argue that Myklebust is silent regarding the timing
and function of the control signals relied upon by the Examiner. Br. 9.
However, we agree with the Examiner that one of ordinary skill in the art
would understand that "the control signals are used to control operation of
the system, i.e. the chest compression device." Ans. 13. Further, to the
extent this argument is related to Appellants' argument above regarding the
timing of the chest measurements in Myklebust, we are not persuaded of
error for the reasons discussed above.
4
Appeal2018-005506
Application 14/248,202
Finally, Appellants argue that the combination "frustrates the purpose
of adjusting the thumper compression force during the administration of the
compressions of Nowakowski." Br. 10. Appellants assert that Nowakowski
teaches adjusting compression force "for the instant patient, as opposed to
the force or depth of the compressions data of Myklebust collected from the
instant patient ... and used only for future uses other than the instant
patient." Id. This argument also appears to be related to Appellants'
argument above regarding the timing of measurements calculated in
Myklebust. We find that argument unpersuasive here as well.
Based on the foregoing, we are not persuaded of reversible error in the
rejection of claim 31. Accordingly, we sustain the rejection of claim 31.
We also sustain the rejections of dependent claims 32--41 and 47, for which
Appellants do not present separate arguments.
Claim 42
We agree with and adopt the Examiner's findings and conclusions
with respect to claim 42. See Final Act. 8-9; Ans. 15-17. As discussed
below, we are not persuaded of reversible error by Appellants' arguments
with respect to this claim.
Appellants argue that the combination of Nowakowski and Steen
"fails to teach or suggest detecting damages to the patient's chest." Br. 10-
11. Specifically, with respect to the Examiner's reliance on Steen,
Appellants assert that Steen only discloses detecting increases in chest
resistance that are indicative of revival of the patient's heart function, which
is different than detecting damage to the chest before CPR is started, as
required by claim 42. Id. However, we are not persuaded of error for the
reasons provided by the Examiner. See Ans. 16-17. First, we agree with the
5
Appeal2018-005506
Application 14/248,202
Examiner that the broadest reasonable interpretation of the claim does not
require that damage is detected before CPR is started, as argued by
Appellants. Id. at 16. Rather, the claim requires only determining resistance
against compression before delivering compressions and does not preclude
determining resistance during CPR before subsequent compressions are
delivered. Further, the claim itself defines that detecting damage to the chest
is based on determining resistance against compression, which Steen
discloses. Steen provides monitoring of chest resistance to maintain
compression depth and that doing so in the context of "changing chest
resistance as the subject's heart function revives" is only given as an
example of when monitoring chest resistance may be useful. See Steen ,r 71.
Finally, the Examiner makes clear that
[t]he modification of Nowakowski in view [of] Steen involved
providing the Nowakowski system with the ability to adjust the
force/vigor of compressions based on changing chest resistance
and therefore, if a patient has chest damage, the Nowakowski
system will be able to detect this by the monitoring of chest
resistance and will accordingly limit the force/vigor of further
compressions based on the detection.
Ans. 17. Appellants' argument does not persuade us of error in the
Examiner's findings.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 42. Accordingly, we sustain the rejection of claim 42. We also
sustain the rejection of claims 44--46 and 48, for which Appellants do not
present separate arguments.
Claim 43
Claim 43 recites:
The CPR apparatus of claim 42, wherein the
microprocessor is further configured to detect the damage by
6
Appeal2018-005506
Application 14/248,202
comparing data for resistance to chest compressions recorded in
persons having a physically uncompromised chest with the
determined resistance against compression by the patient's chest.
The Examiner finds and concludes:
Regarding claim 43, the modified Nowakowski device is
silent as to the microprocessor detecting damage by comparing
data for chest compression resistance in a normal patient to the
resistance data obtained for the patient prior to compressions;
however, Steen teaches the use of empirical data for chest
compression resistance ( see Steen para. 0071) and it would have
been obvious to use this as a comparison to initial patient chest
status in order to provide a CPR device which is adaptive to the
conditions of a particular user, from user to user.
Final Act. 9.
Appellants argue that "[n]either Nowakowski nor Steen teaches
recording the chest resistance of persons with a physically uncompromised
chest" or comparing the uncompromised chest resistance with the chest
resistance of the patient's chest. Br. 12. We agree. Steen discloses only
that data shows that compression force "decreases with time into the CPR
administration." Steen ,r 71. However, Steen does not disclose any
comparison of compression resistance in a particular patient with
compression resistance in patients with uncompromised chests or any other
comparison between the instant patient and other patients, as required by the
claim. Further, the Examiner does not explain why such a comparison
would have been obvious in light of the disclosures in the art or the
knowledge of one of ordinary skill in the art. In the Answer, the Examiner
concludes that including such a comparison would have been obvious "to
determine whether or not to adjust the force of compression." Ans. 18.
However, that conclusion merely explains the logical result of making such
a comparison without providing a reason for modifying Nowakowski or
7
Appeal2018-005506
Application 14/248,202
Steen to make such a comparison. Accordingly, we are persuaded of error
and we do not sustain the rejection of claim 43.
CONCLUSION
We AFFIRM the rejections of claims 31--42 and 44--48. We
REVERSE the rejection of claim 43.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
8