Marie A. Johnson

Patent Trials and Appeals Board

Nov 4, 2019

14270541 - (D) (P.T.A.B. Nov. 4, 2019)

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
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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

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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”).
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Application 14/270,541

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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
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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
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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
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Application 14/270,541

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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
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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