Ex Parte Aarts

Patent Trial and Appeal Board

Aug 25, 2017

12063258 (P.T.A.B. Aug. 25, 2017)

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.
12/063,258 02/08/2008 Ronald M. Aarts 2005P01623WOUS 6000
24737 7590 08/29/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue EISEMAN, ADAM JARED
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
08/29/2017 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):
marianne. fox @ philips, com
debbie.henn @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 RONALD M. AARTS1
Appeal 2016-003028
Application 12/063,258
Technology Center 3700
Before ERIC B. GRIMES, FRANCISCO C. PRATS, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 involving claims to a medical
apparatus, which have been rejected as obvious. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse and enter a new ground of rejection.
STATEMENT OF THE CASE
Claims 2, 3, 5, 7—9, 11—13, 15, 24, 25, and 30-32 are on appeal.
Claims 2,5, and 11 are the independent claims and read as follows
(emphasis added):
1 Appellant identifies the Real Party in Interest as Koninklijke Philips N.V.
(Appeal Br. 2.)
Appeal 2016-003028
Application 12/063,258
2. An apparatus comprising:
a short range wireless communication interface;
a clock; and
a physiological measurement device configured to determine a value
of a physiological parameter of each of a plurality of patients in succession,
and physically coupled with the wireless communications interface, wherein
the wireless communication interface communicates output data to receiving
devices, each receiving device attached to one of the plurality of patients,
wherein the output data includes the values of the physiological parameter
corresponding to the patient and a source identifier which identifies a source
of the data, and wherein the source identifier includes a time of the clock
that the physiological parameter is determined, the apparatus identifier used
to determine the value of the physiological parameter and a user associated
with the apparatus at the time the physiological parameter is determined.
5. An apparatus, comprising:
a short range wireless communication interface;
a physiological measurement device configured to determine a value
of a physiological parameter of each of a plurality of patients in succession,
and the physiological measurement device is physically coupled with the
wireless communications interface to communicate output data to a
receiving device attached to each of the plurality of patients in succession,
and wherein the output data includes the value of the physiological
parameter corresponding to the patient and a source identifier which
identifies a source of the data; and
an operator interface configured to indicate to the user that the
wireless communication interface is in wireless communication with a
second device, and configured to receive operator confirmation required to
communicate the output data.
11. A method comprising:
determining a value indicative of a physiological parameter
corresponding to a patient using a first apparatus including a short range
wireless communication interface;
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Application 12/063,258
communicating, using the short range wireless communication
interface, the value, a time the value was determined by the first apparatus,
the identity of the first apparatus, and an identifier of a healthcare provider
operating the first apparatus to a second apparatus attached to the patient to
store the value, the time, the identity of the first apparatus, and the identity
of the healthcare provider operating the first apparatus; and
repeating the steps of using the first apparatus and using the short
range wireless communication interface for each of a plurality of patients.
I
The Examiner has rejected claims 2, 3, 5, 7, 8, 11—13, 15, 24, 25, and
30-32 under 35 U.S.C. § 103(a) as obvious based on De La Huerga ’9042
and DeLaHuerga ’3303 (Final Action 3). The Examiner has rejected claim 9
under 35 U.S.C. § 103(a) as obvious based on De La Huerga ’904,
DeLaHuerga ’330, and Soderberg4 (Final Action 8).
With regard to the rejections of claims 2, 3, 5, 7—9, 24, 25, and 30, we
reverse the rejections on procedural grounds because we conclude the claim
language is indefinite, for the reasons discussed in the new ground of
rejection below. See In re Steele, 305 F.2d 859, 862 (CCPA 1962). It
should be understood, however, that the reversal is not based on the merits
of the § 103(a) rejections. Should the indefmiteness issue be resolved, the
De La Huerga references are available as prior art if the Examiner decides
that they support a rejection of the claims later in prosecution.
2 De La Huerga, US 2002/0084904 Al, July 4, 2002.
3 DeLaHuerga, US 6,408,330 Bl, Jun. 18, 2002.
4 Soderberg, US 2004/0186357 Al, Sep. 23, 2004.
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Application 12/063,258
With regard to claims 11—13, 15, 31, and 32, the Examiner finds that
De La Huerga ’904 discloses all of the limitations of claim 11 except for
“the apparatus identifier used to determine the value of the physiological
parameter, and a user associated with the apparatus at the time the parameter
is determined.” (Ans. 3.) The Examiner finds that
De La Huerga ’330 teaches a similar system for providing
communications network between medical devices, patient
record means attached to a patient, and physician identification
means associated with a physician using a device or
administering a drug wherein the system can communicate the
medical device identifier, the physician identification and time
of the measurement for storage in the patient record means
(column 17, line 37 —column 64, line 19, specifically column 32,
line 55 — column 40, line 34 ; figures 8-12, 13c, 14b, 30).
(Id. at 4.)
The Examiner concludes that it would have been obvious
to modify De La Huerga ’904’s system and method to further
communicate medical device and physician identifiers along
with the time of the measurement and the determined
physiological value to the patient’s attached digital records
system as taught by De La Huerga ’330 in order to identify the
medical device used, the physician who took the measurement,
the determined physiological measurement value, and the time
of the measurement when reviewing the patients’ records.
(Id. at 5—6.)
Appellant argues that “De La Huerga ’330 discloses a physician
identity and a patient identity, but does not disclose an identity of an
apparatus, or moreover one which determines a value indicative of a
physiological parameter.” (Appeal Br. 8.)
We agree with Appellant that the Examiner has not identified a
disclosure or suggestion in the cited references of communicating, to an
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Application 12/063,258
apparatus attached to a patient, data that include “the identity of the first
apparatus” that was used to determine the value of a physiological
parameter. The Specification describes a “patient record device 100 .. .
preferably associated with a particular patient.” (Spec. 4:1.) The memory of
the patient record device “stores a plurality of patient physiological
information elements 120a, b, c . . . n. Each element 120 includes one or
more of a physiological parameter identifier 302, a physiological parameter
value 304, a time 306, an operator identifier 308, and a device identifier
310.” (Id. at 5:15—18.) The information stored in the patient record device
includes, among other things, a “device identifier” that is communicated
from a “patient measurement device.” (Id. at 8:8—13.) The device identifier,
“such as a designator or serial number . . . identifies the device 112.” (Id. at
8:13-14.)
Thus, we conclude that, when the claim language is read in light of
the Specification, “communicating ... the identity of the first apparatus,” as
recited in claim 11, requires communicating information that identifies the
particular apparatus that was used to determine the value of a physiological
parameter; that is, not simply the type of apparatus being used (e.g.,
thermometer) but an identifier specific to the device that was used, such as a
designator or serial number.
The Examiner finds that DeLaHuerga ’330 discloses this limitation
(Final Action 5) but does not point to any specific passage for its disclosure,
and no such disclosure is apparent to us. We therefore agree with Appellant
that the Examiner has not pointed to evidence that is sufficient to support a
prima facie case of obviousness with respect to claim 11. We reverse the
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Application 12/063,258
rejection of claim 11 and dependent claims 12, 13, 15, 31, and 32 under 35
U.S.C. § 103(a) based on De La Huerga ’904 and DeLaHuerga ’330.
II
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new ground of rejection:
Claims 2, 3, 5, 7—9, 24, 25, and 30 are rejected under 35 U.S.C. § 112,
second paragraph, as indefinite.
Claim 2 recites a physiological measurement device that
communicates output data to receiving devices, where the output data
include “a source identifier which identifies a source of the data, and
wherein the source identifier includes a time of the clock that the
physiological parameter is determined, the apparatus identifier used to
determine the value of the physiological parameter and a user associated
with the apparatus at the time the physiological parameter is determined.”
Similarly, claim 5 recites a physiological measurement device that
communicates output data to a receiving device, where “the output data
includes the value of the physiological parameter corresponding to the
patient and a source identifier which identifies a source of the data.”
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Application 12/063,258
The Specification states that “Figure 5 depicts source information
provided by a patient measurement device.” (Spec. 3:28.) Figure 5 is
reproduced below:
155
502
)
, 504
}
.506
S
PARAMETER USER DEVICE
IDENTIFIER IDENTIFIER IDENTIFIER
FIG
Figure 5 shows
source information 155 [that] is associated with each patient
measurement device 112. The information includes one or more
of a physiological parameter identifier 502 which identifies the
parameter or parameters measured by the measurement device
150, a user identifier 504 which identifies a health care provider
associated with the particular unit measurement device 112, and
a device identifier 506 such as a designator or serial number
which identifies the device 112.
{Id. at 8:8-13.)
Thus, the Specification states that source information can include a
physiological parameter identifier, a user identifier, or a device identifier.
However, the Specification does not make clear what information is
required by the recitation of a “source identifier” in claims 2 and 5. In
addition, claim 2 recites that the source identifier includes the time that a
physiological parameter was determined, but the Specification describes the
time as an element of the physiological parameter measurement, not as a part
of the source identifier. Compare Spec. 8:8—13 (“source information 155
. . . includes one or more of a physiological parameter identifier 502 . . . , a
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Application 12/063,258
user identifier 504 . . ., and a device identifier 506”) with id. at 10:17—22
(“The health care provider then uses the measurement device 150 to obtain
the value of the desired physiological parameter. . . . Information from the
clock 154 is used to establish the time that the measurement was obtained.”).
In short, the Specification does not make clear what is required by the
recitation in claims 2 and 5 of “a source identifier which identifies a source
of the data.” Consequently, the scope of claim 2 and 5, as well as dependent
claims 3, 7—9, 24, 25, and 30, is unclear and we are unable to determine,
without resorting to speculation, what prior art disclosures would have made
the claimed invention obvious to a person of ordinary skill in the art. We
therefore reverse, pro forma, the § 103(a) rejections on appeal, and enter the
new rejection above based on indefmiteness.
SUMMARY
We enter a new ground of rejection as to claims 2, 3, 5, 7—9, 24, 25,
and 30 on the basis of indefmiteness.
We reverse the Examiner’s obviousness rejection of claims 2, 3, 5, 7—
9, 24, 25, and 30 on procedural grounds because we conclude the claim
language is indefinite, for the reasons discussed in the new ground of
rejection. As noted, should the indefmiteness issue be resolved, the De La
Huerga references are available as prior art if the Examiner decides that they
support a rejection of the claims later in prosecution.
We reverse the Examiner’s obviousness rejection of claims 11—13, 15,
31, and 32, on the merits.
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TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
REVERSED: 37 C.F.R, $ 41.50(b)
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