Ennett, Colleen et al.

Patent Trials and Appeals Board

Oct 23, 2019

14424055 - (D) (P.T.A.B. Oct. 23, 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.
14/424,055 02/26/2015 Colleen Ennett 2012P01034WOUS 1207
24737 7590 10/23/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
LIU, CHU CHUAN
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
10/23/2019 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):
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 COLLEEN ENNETT and
STIJN DE WAELE

Appeal 2019-002143
Application 14/424,055
Technology Center 3700
____________

Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

HOELTER, 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, 3–7, 9, 13, 16–18, and 20–28. 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. Appellant identifies the real party in interest as
“Koninklijke Philips N.V.” Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to assessing patient health.”
Spec. 1:3. System claims 1 and 24, and method claim 13, are independent.
Claim 13 is illustrative of the claims on appeal and is reproduced below.
13. A method performed by one or more processors for
assessing the health of a patient, the method comprising:
receiving medical data representing a patient's oxygen
saturation;
detecting oxygen desaturation events from the medical
data;
determining recovery responses of the patient following
each oxygen desaturation event; and
generating a health assessment based on the recovery
responses of the patient, wherein the health assessment is based
on at least the patient's recovery responses with caregiver
intervention and the patient's recovery responses without
caregiver intervention.
EVIDENCE
Lynn et al. (“Lynn ’064”) US 6,223,064 B1 Apr. 24, 2001
Lynn et al. (“Lynn ’144”) US 2006/0149144 A1 July 6, 2006
REJECTIONS
Claims 13, 16–18, 20, and 21 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Lynn ’064.
Claims 1, 3–7, 9, and 22–28 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Lynn ’064 and Lynn ’144.
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ANALYSIS
The rejection of claims 13, 16–18, 20, and 21
as anticipated by Lynn ’064
Appellant argues these claims (i.e., claims 13, 16–18, 20, and 21)
together.2, 3 We select independent claim 13 for review, with the remaining
claims (i.e., claims 16–18, 20, and 21) standing or falling with claim 13. See
37 C.F.R. § 41.37(c)(1)(iv).
Claim 13 recites the step of generating a health assessment “based on”
patient responses “with caregiver intervention” and also “without caregiver
intervention.” The Examiner relies on Lynn ’064 for such teaching. Final
Act. 2–3 (referencing the fifteen steps listed at Lynn ’064 11:20–58).
Appellant states,
Lynn ’064 appears to disclose, for the sake of discussion,
generating, in a first run, a first health assessment based on the
patient’s recovery responses with caregiver intervention . . . and
generating, in a second run, a second health assessment based
on the patient’s recovery responses without caregiver
intervention.
Appeal Br. 7–8; Reply Br. 4. Thus, Appellant is acknowledging Lynn
’064’s teaching of both the “with” and “without” caregiver limitation.
However, Appellant explains, “Applicants respectfully submit that
such interpretation of Lynn ’064 does not support a conclusion that Lynn
’064 teaches or suggests that a health assessment is based on at least the

2 Regarding claim 16 (which depends from claim 13), Appellant repeats
arguments previously presented and does not present a separate argument
regarding the additional limitations recited in claim 16. See Appeal Br. 8.
3 Regarding dependent claim 21, Appellant’s arguments are a repeat of
arguments presented with respect to claim 13. See Appeal Br. 11–12; Reply
Br. 9–11.
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patient’s recovery responses with caregiver intervention and the patient’s
recovery responses without caregiver intervention.” Appeal Br. 8; Reply Br.
5 (emphasis added).
To better understand the following analysis, the fifteen steps recited in
Lynn ’064 require further description. Steps 1–13 identify certain
procedures to follow and actions to take (e.g., attach an oximeter, define
intervals, baseline ranges, events, etc.). Lynn ’064 11:20–54. Step 14
instructs to “[t]reat the sleep apnea . . . based on a diagnosis,” which
constitutes caregiver intervention within the meaning of the claims. Lynn
’064 11:55–56; see also Ans. 4. Step 15 states “[r]epeat steps 1–14 to
confirm the diagnosis and efficacy of treatment.” Lynn ’064 11:57–58; see
also Ans. 4. Regarding the step 15 instruction to “confirm the diagnosis and
efficacy of treatment,” Appellant does not explain how such confirmation
could be undertaken unless the initial and then repeated steps are compared.
In other words, Appellant does not show how Lynn ’064’s teaching of
ascertaining proper treatment (see, e.g., Lynn ’064 Abstract) could be
accomplished without such treatment being “based on” these repeat-to-
confirm results. See also Ans. 4–5.
Appellant additionally contends, “there is no suggestion in Lynn ’064
as to whether steps 1–14 are performed in multiple cycles in which one cycle
is with caregiver intervention and another cycle[] is without caregiver
intervention.” Appeal Br. 7; see also id. and Reply Br. 3 (Both arguing
“there is no indication that multiple iterations of these steps are performed
both with caregiver intervention and without caregiver intervention.”). This
contention is contrary to the above acknowledgement that Lynn ’064
discloses both situations. Further, the Examiner identified which steps are
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the “with” cycle and which steps are the “without” cycle, stating, “first
performs steps 1–13 to obtain data without caregiver intervention and after
treatment [(i.e., after step 14)], with caregiver intervention, repeat steps 1–14
to confirm.” Final Act. 3; see also id. at 9, Ans. 3.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claims 13, 16–18, 20, and 21 as anticipated
by Lynn ’064.
The rejection of claims 1, 3–7, 9, and 22–28
as unpatentable over Lynn ’064 and Lynn ’144
Both independent claims 1 and 24 include (which claim 13 does not) a
limitation directed to a “display.” The Examiner relies on Lynn ’144 for
such “display” teachings. See Final Act. 5. Regarding claim 1, Appellant
repeats the arguments addressed above concerning the generation of an
assessment “based on” responses “with caregiver intervention” and also
“without caregiver intervention.” Appeal Br. 9; see also Reply Br. 6–8. We
do not change our analysis in this matter. No further arguments are
presented on behalf of independent claim 1. See Appeal Br. 9–10.
Regarding dependent claim 3, the Examiner relies on Lynn ’144 for
such additional recitations. See Final Act. 6. Appellant, however, again
references the arguments made above regarding the performance of multiple
cycles “in which one cycle is with caregiver intervention and another cycle[]
is without caregiver intervention.” Appeal Br. 10; see also Reply Br. 8–9.
Again, for the reasons expressed above, we do not change our analysis.
Regarding claims 4–7, 9, 22, and 23 (all of which depend from claim
1), no further separate argument is presented. See Appeal Br. 10; Reply Br.
9. Instead, Appellant contends that these claims are allowable “for at least
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the reasons set forth above.” Appeal Br. 10; Reply Br. 9. We are not
persuaded by such contentions.
Claim 25 is similar to claim 3 above. See Appeal Br. 12; Reply Br.
12. We are not persuaded of Examiner error for similar reasons.
Claims 26–28 depend from independent claim 24. Appellant argues
that claim 24 “is believed to be allowable over the references of record for at
least the reasons set forth above.” Appeal Br. 12; Reply Br. 12. Such
statements are not persuasive of Examiner error.
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 1, 3–7, 9, and 22–28 as unpatentable over
Lynn ’064 and Lynn ’144.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
13, 16–18,
20, 21

102(b) Lynn ’064 13, 16–18,
20, 21

1, 3–7, 9,
22–28
103(a) Lynn ’064, Lynn ’144 1, 3–7, 9,
22–28

Overall
Outcome
1, 3–7, 9,
13, 16–18,
20–28

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED