2021000906 (P.T.A.B. Dec. 9, 2021)

NIHON KOHDEN CORPORATION

Patent Trials and Appeals BoardDec 9, 2021

2021000906 (P.T.A.B. Dec. 9, 2021)

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. 15/768,871 04/17/2018 Yasushi OIKAWA 59094 2769 116 7590 12/09/2021 PEARNE & GORDON LLP 1801 EAST 9TH STREET SUITE 1200 CLEVELAND, OH 44114-3108 EXAMINER VOORHEES, CATHERINE M ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 12/09/2021 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): patdocket@pearne.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte YASUSHI OIKAWA ____________ Appeal 2021-000906 Application 15/768,871 Technology Center 3700 ____________ Before NATHAN A. ENGELS, JAMES W. DEJMEK, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s final decision to reject claims 1, 3–7, and 9–13, which are all of the pending claims. 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 (2019). The Appellant identifies the real party in interest as Nihon Kohden Corporation. Appeal Br. 2. Appeal 2021-000906 Application 15/768,871 2 CLAIMED SUBJECT MATTER The Appellant’s invention “relates to a vital sign waveform display apparatus, . . . method, a program for executing the method, and a storage medium storing the program.” Spec. ¶ 1. Claims 1, 7, and 13 are the independent claims on appeal. Claim 1 is illustrative of the subject matter on appeal and is reproduced below (with added paragraphing and bracketing for reference): 1. A vital sign waveform display apparatus comprising: [(a)] an acquiring section configured to acquire vital sign waveform data representing a plurality of electrocardiogram (ECG) waveforms; [(b)] a generating section configured to generate the plurality of ECG waveforms, based on the acquired vital sign waveform data; and [(c)] a display controller configured to display the generated ECG waveforms side by side on a display screen, wherein: [(c1)] the display controller highlights a first ECG waveform when the first ECG waveform is selected from the ECG waveforms displayed on the display screen, and then [(c2)] the display controller highlights the first ECG waveform and a second ECG waveform when the second ECG waveform is selected from the ECG waveforms displayed on the display screen. Appeal Br. 8, Claims App. Appeal 2021-000906 Application 15/768,871 3 REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Tanii US 2014/0206962 A1 July 24, 2014 Al-Ali et al. (“Al-Ali”) US 2015/0099955 A1 Apr. 9, 2015 Grube et al. (“Grube”) US 2015/0282726 A1 Oct. 8, 2015 REJECTIONS Claims 1, 3, 4, 7–10, and 13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Tanii and Al-Ali.2 Claims 5, 6, 11, and 12 stand rejected under 35 U.S.C. § 103 as being unpatentable over Tanii, Al-Ali, and Grube. OPINION The Examiner finds that Tanii teaches “the vital sign waveform display apparatus of claim 1 and the vital sign waveform display but does not expressly disclose that the vital sign waveforms are electrocardiogram waveforms.” Final Act. 5; see also id. at 3–4; Ans. 3–4. The Examiner relies on Al-Ali to cure this deficiency and determines it would have been obvious to one of ordinary skill in the art to modify Tanii’s display apparatus 2 Based on entering the After-Final Amendment filed May 26, 2020 (see Advisory Action, mailed June 15, 2020) that canceled and incorporated claims 2 and 8 into claims 1, 7, and 13, the rejection of claims 1, 7, and 13 under 35 U.S.C. § 102(a)(1) was modified to a rejection under 35 U.S.C. § 103, as explained for claims 2 and 8 in the Final Action (pages 5–6). Ans. 3. Appeal 2021-000906 Application 15/768,871 4 to display electrocardiogram waveforms for the benefit of having the ability to monitor cardiac patients when needed. See Final Act. 5; Ans. 4–5. The Appellant does not contest the Examiner’s findings regarding Tanii and Al-Ali but “argues that one would not incorporate the display features.” Appeal Br. 5; see also Reply Br. 2–3. Specifically, the “Appellant does not argue that Al-Ali and Tanii lack only an express suggestion for combination; rather, the Appellant argues that there is no suggestion for combining the references,” because 1) the problems solved by the display features of Tanii do not exist with ECG waveforms in Al-Ali and thus there is no reason to apply Tanii’s display to the ECG waveform display in Al-Ali, and 2) the alleged motivation does not support the combination since the cardiac vital signs of a patient can be monitored without the display features of Tanii. Appeal Br. 5–6. The Appellant’s arguments are unpersuasive of Examiner error. The Examiner reasons that modifying Tanii’s medical apparatus to display ECG waveforms, as taught by Al-Ali, instead of EEG waveforms would provide the benefit of allowing Tanii’s display to be used for cardiac patients, i.e., allowing an operator to use Tanii’s display based on the needs of the patient. See Final Act. 5; Ans. 5. That Tanii addresses a problem associated with “analyz[ing] the data and evaluat[ing] a patient” when there are numerous data from “several tens of channels” (Appeal Br. 4; see also Reply Br. 2) would not lead one of ordinary skill in the art away from modifying Tanii’s display to display ECG waveforms. The change in the amount of waveforms from an EEG to an ECG does not lessen the importance to an operator of highlighting the most significant data from a plurality of data displayed to provide better care to the patient. Indeed, Tanii Appeal 2021-000906 Application 15/768,871 5 provides that its display is for “assisting a measurement operator in the judgment by visual inspection,” the “specific part of the data depending on the purpose,” and specifically does not limit this benefit to Tanii’s type of “biological activity.” Tanii ¶ 14. Thus, the Examiner provides articulated reasoning with rational underpinnings. See KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). And, that a cardiac patient can be monitored without Tanii’s apparatus (Appeal Br. 6) does not render erroneous the Examiner’s determination that modifying Tanii’s apparatus makes it easier to monitor cardiac patients by displaying ECG waveforms “with emphasis so that they are visually conspicuous when selected” (Ans. 4; see also id. at 5). Therefore, we are not persuaded of error in the Examiner’s rejection under 35 U.S.C. § 103 of independent claim 1, of dependent claims 3, 4, 9, and 10, and of independent claims 7 and 13, for which the Appellant relies on the arguments presented for claim 1. See Appeal Br. 4, 6. We also sustain the Examiner’s rejection under 35 U.S.C. § 103 of dependent claims 5, 6, 11, and 12, for which the Appellant relies on the arguments presented for the rejection of claim 1. See Appeal Br. 6. CONCLUSION The Examiner’s decision to reject claims 1, 3–7, and 9–13 is sustained. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1, 3, 4, 7, 9, 10, 13 103 Tanii, Al-Ali 1, 3, 4, 7, 9, 10, 13 Appeal 2021-000906 Application 15/768,871 6 Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 5, 6, 11, 12 103 Tanii, Al-Ali, Grube 5, 6, 11, 12 Overall Outcome 1, 3–7, 9–13 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED