Ex Parte WalkerDownload PDFPatent Trial and Appeal BoardJul 22, 201310981365 (P.T.A.B. Jul. 22, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte ROB WALKER __________ Appeal 2011-007593 Application 10/981,365 Technology Center 3700 __________ Before ERIC GRIMES, MELANIE L. McCOLLUM, and SHERIDAN K. SNEDDEN, Administrative Patent Judges. SNEDDEN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant requests rehearing of the Decision on Appeal entered April 19, 2013, which affirmed the Examiner’s rejections of claims 19-22, 26-34, 69-74, 76-79, 88-105, and 108-111 under 35 U.S.C. § 103(a). We agree with Appellant that the Decision overlooked or misapprehended certain arguments presented by Appellant. The request for rehearing is granted. Appeal 2011-007593 Application 10/981,365 2 DISCUSSION Claim 19, which is illustrative of the claims on appeal, is directed to a “method of controlling the administration of cardiopulmonary resuscitation (CPR) to a patient through a mechanical CPR device during a CPR delivery period according to a CPR protocol programmed in a controller of the mechanical CPR device” (Decision 2). In affirming the Examiner’s rejection of claim 19 over AHA, 1 Kern, 2 and Weisfeldt, 3 we stated as follows: We conclude that the rejection’s evidence and reasoning supports a prima facie case for the obviousness of applying both known methods of administering CPR to a patient in need of resuscitation. The hoped for result is the patient’s revival, and it would have been reasonable to expect that combining the known methods would have achieved that result at least as effectively as either method used alone. We agree with the Examiner that a person of ordinary skill in the art of designing CPR protocols for mechanical devices, aware of the AHA guidelines and Kern’s results, would have had the skill to choose the sequence and timing of CPR administration as that person judged the patient’s need and condition. Given Weisfeldt’s teaching of a versatile system capable of varying operation as required, we conclude that mechanical administration would have been obvious. (Decision 12-13.) Appellant argues that we overlooked or misapprehended his arguments in reaching this conclusion. In particular, Appellant argues that 1 Part 3: Adult Basic Life Support, pp I-22 – I-59 in 102 CIRCULATION (suppl I) (2000), © 2000 American Heart Association, Inc. 2 Karl B. Kern et al., Efficacy of chest compression-only BLS CPR in the presence of an occluded airway, 39 RESUSCITATION 179-188 (1998). 3 Myron L. Weisfeldt et al., US 4,397,306, issued August 9, 1983. Appeal 2011-007593 Application 10/981,365 3 “Kern indicates that [the standard CPR and compression only CPR] techniques are similar in efficacy but indicates that compression only CPR should be used in the first minutes of cardiac arrest to gain public acceptance of coming to aid of those struck with cardiac arrest, opposite of what is claimed” (Req. Reh’g 6). Indeed, Kern teaches that [T]hese and previous studies call into question the presently recommended sequence of ventilation prior to chest compression and of the 15 compressions then two ventilations cycle for single rescuer basic life support CPR. It is probable that patients with non-respiratory cardiac arrest, have oxygenated air in their lungs, and oxygenated blood in their pulmonary veins, left atrium, left ventricle, and entire arterial system at the time of arrest, and that the time wasted for the two initial ventilations is not justified. Such experimental studies also suggest that longer periods of compression before stopping for ventilation may be better because of improved coronary perfusion pressure during chest compression-only CPR[.] (Kern 187, paragraph spanning left and right columns.) In addition, Kern teaches that “the most important determinant of successful resuscitation within the first 7 min of cardiac collapse is perfusion, not ventilation” (id. at 188). On reconsideration, we agree with Appellant that the reasoning relied on in the Decision improperly treated Appellant’s arguments regarding Kern’s preference to initiate resuscitation with compression. We find that Kern does not support, without more, a finding that CPR with compression and ventilation should precede compression-only CPR. In this regard, the Examiner has pointed to nothing in the cited prior art that would have suggested the specific order required by the Examiner’s combination. Accordingly, we conclude that the Examiner has not set forth a prima facie Appeal 2011-007593 Application 10/981,365 4 case of obviousness. Thus, the request for rehearing is granted and the Examiner’s rejections, both of which rely on the combination of AHA and Kern, are reversed. REHEARING GRANTED cdc Copy with citationCopy as parenthetical citation