2020001166 (P.T.A.B. Jun. 10, 2021)

Robert Arling et al.

Patent Trials and Appeals BoardJun 10, 2021

2020001166 (P.T.A.B. Jun. 10, 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. 13/990,831 05/31/2013 Robert Stanley Arling 2010P00751WOUS 4174 24737 7590 06/10/2021 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER LAM, ELIZA ANNE ART UNIT PAPER NUMBER 3686 NOTIFICATION DATE DELIVERY MODE 06/10/2021 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT STANLEY ARLING and JOSEPH ERNEST ROCK ____________ Appeal 2020-001166 Application 13/990,831 Technology Center 3600 ____________ Before JEFFREY S. SMITH, NABEEL U. KHAN, and AMBER L. HAGY, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Pursuant to 37 C.F.R. § 41.52, Appellant filed a Request for Rehearing (“Req. Reh’g”), dated May 17, 2021, seeking reconsideration of our Decision on Appeal mailed March 18, 2021 (“Decision”), in which we affirmed the Examiner’s rejection of claims 1 and 22–41. We have jurisdiction over the Request for Rehearing under 35 U.S.C. § 6(b). A request for rehearing must state with particularity the points believed to have been misapprehended or overlooked. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the briefs are not permitted in the request for rehearing. See 37 C.F.R. § 41.52(a)(1) (2018). Also, a request for rehearing is not an opportunity to merely express disagreement with a decision without setting forth points believed to have been misapprehended or overlooked. The proper course for Appeal 2020-001166 Application 13/990,831 2 an Applicant dissatisfied with a Board decision is to seek judicial review, not to file a request for rehearing to reargue issues that have already been decided. See 35 U.S.C. §§ 141, 145. In our Decision, we found that Appellant’s argument that “the nodes do not display medical findings, measurement values, or patient demographics” (Appeal Br. 6 (emphasis added)), is not commensurate with the scope of the claim, which only requires that the logical reporting elements be “from a group consisting of a medical finding, a measurement value, and a patient demographic” without requiring that they display this information. Decision 5. In the Request for Rehearing, Appellant argues that we misapprehended the claims because the claims do, in fact, “require displaying a medical finding, a measurement value and/or a patient demographic in the one or more logical reporting element windows since it displays elements and the elements are from a group consisting of a medical finding, a measurement value, and a patient demographic.” Req. Reh’g 2. Appellant argues that nodes in Figure 2 of Parkhurst display text indicative of the function performed by the decision nodes, but do not display a medical finding, a measurement value, or a patient demographic. Req. Reh’g 3. Thus, according to Appellant, under an interpretation that requires the logical reporting elements to display a medical finding, a measurement value, or a patient demographic, Parkhurst does not satisfy the claims. Req. Reh’g 2–3. Claim 1 recites “one or more logical reporting element windows, each displaying a different set of logical reporting elements, wherein the different sets of logical reporting elements are from a group consisting of a medical finding, a measurement value, and a patient demographic.” Thus, we Appeal 2020-001166 Application 13/990,831 3 interpret the claim to require, at minimum, displaying at least one logical reporting element window, which displays at least one logical reporting element that is from a group consisting of a medical finding, a measurement value, and a patient demographic. To the extent our Decision is inconsistent with this interpretation, we now revise our Decision to make clear that the claim requires displaying logical reporting elements that are from a group consisting of a medical finding, a measurement value, and a patient demographic. The Examiner finds Parkhurst’s displaying of decision nodes in Figure 2 discloses displaying the claimed logical reporting elements that are from a group consisting of a medical finding, a measurement value, and a patient demographic. Ans. 4 (“In particular a node checking information provided about a patient corresponds to a patient demographic and one or more test results corresponds to medical findings and measurement values.”). As an example of a decision node that discloses a medical finding or measurement value, the Examiner points to paragraph 68 of Parkhurst, which discloses a range node1 in which a decision is made whether a test result for serum calcium is within a particular range. Ans. 4 (citing Parkhurst ¶ 68 (explaining that a range node may check whether serum calcium is between various ranges, including a critical range of between 8 and 15 mg/dL)). We agree with the Examiner. The Examiner’s finding is consistent with Appellant’s Specification, which describes, as one example of logical 1 A range node is a type of decision node configured to determine whether an input is above, below, or within a predetermined range. Parkhurst ¶ 36. Appeal 2020-001166 Application 13/990,831 4 reporting elements, a “measurement proposition,”2 which “includes a logical statement dealing with a specific anatomic measurement that evaluates to true or false” or which “involve[s] stating the measurement value is inside/outside a specific range.” Spec. 6 (explaining that “[o]ne example [of a measurement] might be LVIDd < 3.0 cm.”). Consistent with the Specification’s description, the range node of Parkhurst similarly deals with a specific measurement that evaluates to true or false or is a measurement value of whether a test result is inside/outside a specific range (e.g. a measurement determining whether serum calcium is between 8 and 15 mg/dL). Parkhurst ¶¶ 67–68. Thus, by displaying the range node in Figure 2, Parkhurst discloses displaying a logical reporting element that is “from a group consisting of a medical finding, a measurement value, and a patient demographic.” To the extent Appellant’s argument implies that the claims require displaying the data underlying the medical finding, measurement value or patient demographic, this argument is inconsistent with the Specification. For example, Figure 3 of the Specification shows logical reporting window 3042 displaying logical reporting elements in the form of measurement values (also referred to as measurement propositions) but does not display the underlying data of those measurements. Similarly, logical reporting window 3043 displays logical reporting elements such as “Age” and “Date of Birth,” that are patient demographics, but does not display the data underlying these demographics (i.e. does not display the numerical age or 2 The Specification uses terms such as “findings proposition,” “measurement proposition,” and “attribute propositions” as respectively referring to medical findings, measurement values, and patient demographics. See Spec. 6–7. Appeal 2020-001166 Application 13/990,831 5 date). Spec. 6–7, Fig. 3. Thus, Appellant’s argument that Parkhurst displays text indicative of the function performed by the decision nodes, but does not display a medical finding, a measurement value or a patient demographic (Req. Reh’g. 3) is inconsistent with the Specification and scope of the claim, as we explained in our Decision. Decision 5. Instead, as explained above, by displaying a range node that displays text such as “Critical Range,” which refers to, for example, serum calcium levels between 8 and 15 mg/dL, Parkhurst displays a logical reporting element that is a measurement value. CONCLUSION Accordingly, we have granted Appellant’s Request for Rehearing to the extent that we have revised our Decision as explained above, but we deny the Request otherwise. DECISION Appellant’s Request for Rehearing is denied for the aforementioned reasons. Outcome of Decision on Rehearing: Claims 35 U.S.C § Reference(s)/Basis Denied Granted 1, 22–26, 28–41 102 Parkhurst 1, 22–26, 28–41 27 103 Parkhurst 27 Overall Outcome 1, 22–41 Appeal 2020-001166 Application 13/990,831 6 Final Outcome of Appeal after Rehearing: Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 22–26, 28–41 102 Parkhurst 1, 22–26, 28–41 27 103 Parkhurst 27 Overall Outcome 1, 22–41 DENIED