Marie A. JohnsonDownload PDFPatent Trials and Appeals BoardNov 4, 201914270541 - (D) (P.T.A.B. Nov. 4, 2019) Copy Citation 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. 14/270,541 05/06/2014 Marie A. Johnson 4402.03US03 7844 135778 7590 11/04/2019 Patterson Thuente Pedersen, P.A. 4800 IDS CENTER 80 SOUTH 8TH STREET MINNEAPOLIS, MN 55402-2100 EXAMINER CHEN, TSE W ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 11/04/2019 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): efsuspto@ptslaw.com rabe@ptslaw.com rausch@ptslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARIE A. JOHNSON Appeal 2018-003692 Application 14/270,541 Technology Center 3700 BEFORE JENNIFER D. BAHR, EDWARD A. BROWN, and RICHARD H. MARSCHALL, Administrative Patent Judges. MARSCHALL, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4–11, 13, and 15–21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as AUM Cardiovascular, Inc. Appeal Br. 2. Appeal 2018-003692 Application 14/270,541 2 CLAIMED SUBJECT MATTER The claims are directed to systems and methods for detecting cardiovascular disease. Spec. 1:15–17. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A medical device comprising: at least one pressure sensor; a housing coupled to the at least one pressure sensor and configured to position the at least one pressure sensor to collect pressure data, the pressure data including a representation of blood flow through an artery of a user; a processor operably coupled to the pressure sensor and configured to receive the pressure data and determine a presence or absence of vessel turbulence based at least on the pressure data; and a securing mechanism configured to secure the housing to a portion of the user. Appeal Br. 23 (Claims App.). REJECTION ON APPEAL Claims 1, 2, 4–11, 13, and 15–21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Guion–Johnson,2 Turcott,3 and Guillory.4 Final Act. 2. ANALYSIS Appellant argues the rejected claims on appeal as a group, without specifically addressing any particular claims or limitations. See Appeal Br. 2 U.S. Patent Pub. No. 2006/0245597 A1, published November 2, 2006 (“Guion-Johnson”). 3 U.S. Patent No. 6,527,729 B1, issued March 4, 2003 (“Turcott”). 4 U.S. Patent Pub. No. 2008/0091090 A1, April 17, 2008 (“Guillory”). Appeal 2018-003692 Application 14/270,541 3 14–21. We select claim 1 as representative, with claims 2, 4–11, 13, and 15–21 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Guion-Johnson discloses the majority of limitations of claim 1, including an acoustic sensor, housing, and processor. Final Act. 2–3. The Examiner finds that “Guion-Johnson does not explicitly disclose the sensor as a pressure sensor” or “the use of a securing mechanism configured to secure the housing to a portion of the user.” Id. at 5. The Examiner finds that Turcott discloses the pressure sensor and Guillory discloses the securing mechanism. See id. The Examiner determines that it would have been obvious to “use a pressure sensor to record the audible and inaudible vibrations from the body as taught by Turcott as simple substitution of one known element for another to yield a predictable result.” Id. at 6. The Examiner also determines that it would have been obvious “to further modify the Guion-Johnson/Turcott combination to include a securing mechanism as taught by Guillory in order to secure[] the sensor to a portion of the user’s body for monitoring . . . physiological parameters/condition[s].” Id. Appellant does not dispute the Examiner’s finding that the applied prior art discloses all of the recited limitations of the claims. Instead, Appellant argues that the “Examiner fails to provide any motivation to combine” the references. Appeal Br. 14. As to the combination of Guion- Johnson and Turcott, Appellant argues that the Examiner fails “to even allege any motivation to combine Turcott with the other references whatsoever, other than that it ‘teaches a similar device to Guion-Johnson.’” Id.; see also id. at 16–17 (“To date, the only reasoning provided is that Turcott ‘teaches a similar device to Guion-Johnson.’”). Appellant contends Appeal 2018-003692 Application 14/270,541 4 that Turcott teaches implantable devices positioned in a chest cavity, which are not similar enough to Guion-Johnson’s electronic stethoscope or the mounting means of Guillory to justify the proposed combination. Id. As to the combination of Guion-Johnson and Guillory, Appellant argues that Guillory’s physiological monitor “is intended to stay in place for extended periods of time” and measures blood oxygenation or electrical signals, unlike Guion-Johnson’s “electronic stethoscope used to take eight-second- long recordings at a variety of locations” and measure cardiovascular acoustics. Id. at 15. Appellant also argues that the Examiner’s proposed combination frustrates the purpose of each of the references. Id. at 17–18. More specifically, Appellant argues that (1) “the purpose of an electronic stethoscope (Guion-Johnson) is frustrated if that device is implanted” as in Turcott, and (2) Guion-Johnson’s device takes measurements at multiple locations and among multiple patients, while Turcott’s device takes measurements “at one location in one patient.” Id. Appellant argues that fixing Guion-Johnson’s stethoscope in place by adhering it to a patient as in Guillory would also frustrate the purpose of Guion-Johnson. Id. at 18. Appellant contends that the only motivation for the combination relies on improper hindsight reasoning. Id. at 19. In response, the Examiner finds that Appellant fails to address the motivation to combine as set forth in the rejection, and repeats those findings in the Answer. Ans. 11–12. As to the combination of Guion-Johnson and Guillory, the Examiner further finds that Guillory teaches more than merely measuring blood oxygenation or electrical signals as Appellant contends, and also measures heart rate, blood pressure, ECG, acoustic signals, and vibratory signals. Id. at 12–13 (quoting Guillory ¶ 41). As to the Appeal 2018-003692 Application 14/270,541 5 combination of Guion-Johnson and Turcott, the Examiner points out that the proposed combination does not implant Guion-Johnson’s stethoscope inside a patient—the combination only relies on Turcott for its teaching of a pressure sensor to record sound and vibrations from the body. Id. at 13–14. As to Appellant’s frustration of purpose argument, the Examiner again points out that the combination merely replaces Guion-Johnson’s acoustic sensor with Turcott’s pressure sensor, which would not frustrate the purpose of Guion-Johnson. Id. at 15. The Examiner also finds that securing Guion- Johnson’s stethoscope with adhesive as taught by Guillory to ensure “strong and consistent measurements” does not frustrate Guion-Johnson’s purpose, and Guion-Johnson’s disclosure of eight-second measurements does not teach away from longer measurements. Id. at 15–16. We do not discern error in the Examiner’s findings or the determination that it would have been obvious to combine Guion-Johnson with Turcott and Guillory. As noted above, Appellant does not contest the Examiner’s finding that once combined, the references disclose all of the limitations in claim 1. Appeal Br. 14–21. Further, although Appellant argues against the proposed combinations, Appellant fails to address the Examiner’s stated basis for those combinations. Instead, Appellant incorrectly argues that the Examiner based the combinations on mere similarity between the references and “fails to even allege any motivation to combine” the references. See id. at 14, 16–17. The Examiner did not fail to provide a rationale for the proposed combination, or merely find that the references are similar. See Final Act. 6; Ans. 11–12, 15. As to the Guion- Johnson/Turcott combination, the Examiner determines that it would have been obvious to “use a pressure sensor to record the audible and inaudible Appeal 2018-003692 Application 14/270,541 6 vibrations from the body as taught by Turcott as simple substitution of one known element for another to yield a predictable result.” Final Act. 6. As to the Guion-Johnson/Guillory combination, the Examiner determines that it would have been obvious “to further modify the Guion-Johnson/Turcott combination to include a securing mechanism as taught by Guillory in order to secure[] the sensor to a portion of the user’s body for monitoring physiological parameters/condition[s]” in order to “ensure strong and consistent measurements.” Id.; Ans. 15. Appellant does not address these specific findings, and we discern no error in the unrebutted rationale provided by the Examiner in support of the proposed combination, which does not suggest the use of improper hindsight. We are also unpersuaded by Appellant’s remaining arguments. For example, Appellant argues that Guillory’s physiological monitor measures blood oxygenation or electrical signals, unlike Guion-Johnson’s measurement of cardiovascular acoustics. Appeal Br. 15. The Examiner persuasively finds, however, that Guillory teaches more than measurement of blood oxygenation and electrical signals. See Ans. 12–13. Guillory discloses measurement of “acoustic or vibratory signals,” similar to rather than different from the acoustic signals of Guion-Johnson. Guillory ¶ 41. As to Appellant’s argument that one would not combine Turcott’s implant with Guion-Johnson’s stethoscope, and that such a combination would frustrate Guion-Johnson’s purpose, the Examiner correctly points out that the proposed combination does not rely on implanting Guion-Johnson’s stethoscope, and that Turcott was merely relied upon for the teaching of a pressure transducer. Ans. 14–15. The Examiner also persuasively finds that Guion-Johnson’s teaching of an eight-second recording does not teach away Appeal 2018-003692 Application 14/270,541 7 from longer recordings that may be involved when employing the securing means of Guillory, and that the combination “ensure[s] strong and consistent measurements.” Id. at 15–17. These and other pertinent findings from the Examiner’s Answer go largely unchallenged by Appellant, and we find the Examiner’s findings and explanations in response to Appellant’s arguments persuasive. Based on the foregoing, we sustain the rejection of claim 1. Because claims 2, 4–11, 13, and 15–21 were not argued separately and fall with claim 1, we sustain the rejection of those claims for the same reasons discussed above. CONCLUSION We affirm the Examiner’s rejection of claims 1, 2, 4–11, 13, and 15– 21. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 2, 4–11, 13, and 15–21 103(a) Guion-Johnson, Turcott, Guillory 1, 2, 4–11, 13, 15–21 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation