Ex Parte Chen et al

Patent Trial and Appeal Board

Feb 23, 2018

14234449 (P.T.A.B. Feb. 23, 2018)

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.
14/234,449 01/23/2014 Yinan Chen 2011P00688WOU SOI 6047
24737 7590 02/27/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue TURCHEN, ROCHELLE DEANNA
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
02/27/2018 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):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YINAN CHEN, WEIJIA LU, JIANYI ZHONG,
AJAY ANAND, and JOHN PETRUZZELLO1
Appeal 2017-002145
Application 14/234,449
Technology Center 3700
Before ERIC B. GRIMES, JOHN G. NEW, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method,
device, and system for automatic blood pressure measurement, which have
been rejected as anticipated; one claim has also been rejected as indefinite.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm the indefmiteness rejection but reverse the anticipation
rejection.
1 Appellants identify the Real Party in Interest as Koninklijke Philips
Electronics N.V. (Appeal Br. 2.)
Appeal 2017-002145
Application 14/234,449
STATEMENT OF THE CASE
“[T]he auscultatory method ... is the predominant method of clinical
measurement” of blood pressure. (Spec. 1: 16-17.) In this method, the
inflatable cuff of a sphygmomanometer is inflated until the artery is
completely occluded, then the cuff is deflated. {Id. at 18-20.) “Clinicians
manually detect the moment of occlusion and the moment of reopening of
the artery by listening with a stethoscope or a Doppler probe and read the
SBP [systolic blood pressure] values from the sphygmomanometer.” {Id. at
1:23-25.)
The Specification discloses an automatic “method of detecting
occlusion and/or reopening of an artery of the body caused by a changing
pressure applied on the artery.” {Id. at 2:10-11.)
The basic idea is to detect the occlusion/reopening of an
artery on the basis of at least one of a first variable indicative of
the magnitude of the blood flow in the artery and a second
variable indicative of the periodicity of the blood flow in the
artery. In other words, the occlusion/reopening of the artery is
automatically detected on the basis of the change of the
amplitude and/or the periodicity of the blood flow in the artery.
{Id. at 2:21-25.) “[PJeriodicity of the blood flow corresponding to the heart
rate.” {Id. at 4:3.)
Claims 1-19 are on appeal. Claim 1 is illustrative and reads as
follows (emphasis added):
1. A method of detecting occlusion or reopening of
an artery of a body caused by a changing pressure applied to the
artery, the method comprising the steps of:
obtaining a blood flow signal indicative of a change of a
blood flow in the artery caused by the changing pressure using
a Doppler Ultrasound transducer attached to the exterior of the
body;
2
Appeal 2017-002145
Application 14/234,449
deriving, from the blood flow signal, a first variable
indicative of a magnitude of the blood flow and a second
variable indicative of a periodicity of the blood flow, and
detecting the occlusion or reopening of the artery on the
basis of the magnitude of the first variable relative to at least
one magnitude threshold and the periodicity of the second
variable relative to a periodicity range.
Claims 7 and 13 are the other independent claims. Claim 7 is directed
to a device and claim 13 is directed to a system; both the device and the
system include, among other things, a processor configured to “derive, from
the blood flow signal, a first variable indicative of a magnitude of the blood
flow and a second variable indicative of a periodicity of the blood flow.”
The claims stand rejected as follows:
Claim 19 under 35 U.S.C. § 112, second paragraph, as indefinite
(Ans. 2) and
Claims 1-19 under 35 U.S.C. § 102(b) as anticipated by Ogawa2
(Ans. 4).
I
The Examiner has rejected claim 19 as indefinite. Claim 19 is
directed to “[t]he system as claimed in claim 13, further including: a device
configured to communicate the determined blood pressure to a user.”
The Examiner finds that
“a device configured to communicate” is a limitation that
invokes 35 U.S.C. 112, sixth paragraph. However, the written
description fails to disclose the corresponding structure, material,
or acts for the claimed function. There is no known structure to
2 Ogawa et al., US 5,072,736, Dec. 17, 1991.
3
Appeal 2017-002145
Application 14/234,449
correspond to the claim elements and there is insufficient
disclosure in the written description of a corresponding structure.
(Ans. 3.)
Appellants do not dispute that the limitation in question invokes 35
U.S.C. § 112, sixth paragraph. (See Appeal Br. 8, Reply Br. 3.) However,
Appellants argue that
it is implicit and inherent in the written description of the
specification that the determined blood pressure is
communicated to a user. This is typically performed by a display
device, such as an LCD, LED, CRT, or other well-known digital
display screen. Sensors themselves do not communicate
measurement readings to a user.
(Reply Br. 3.)
We affirm this ground of rejection. Appellants do not point to any
disclosure in the Specification that describes a digital display screen as the
structure corresponding to the recited “device configured to communicate.”
We do not agree that such a disclosure is implicit or inherent in the
Specification, since a blood pressure measurement could be conveyed by a
variety of other means; e.g., an analog display such as a dial with a movable
arrow, an audible signal that recites the measured blood pressure, or a
display that is an integral part of the system of claim 13 rather than being a
separate device as recited in claim 19. We therefore agree with the
Examiner that that claim 19 as written is indefinite.
II
The Examiner has rejected all of the claims on appeal as anticipated
by Ogawa. The Examiner finds that Ogawa discloses a method meeting all
of the limitations of claim 1, including “deriving, from the blood flow signal,
a first variable indicative of a magnitude of the blood flow and a second
4
Appeal 2017-002145
Application 14/234,449
variable indicative of a periodicity of the blood flow (fig.4a; col.3,11.42-
44).” (Ans. 4.)
Appellants argue that Ogawa’s “Figure 4A . . . illustrates that blood
flow, indeed, does have a periodicity, but [the Examiner] fails to point out
any portion of Ogawa which calls for deriving a variable indicative of the
periodicity.” (Appeal Br. 8.) Appellants argue that Ogawa’s disclosure at
column 3, lines 42^14 “is expressly directed to amplitude data and does not
disclose a variable indicative of periodicity.” (Id.) Appellants also argue
that the other portions of Ogawa that the Examiner pointed to “are also
expressly directed to amplitude data, not a variable indicative of periodicity.
Contrary to the Examiner’s assertion, there is no disclosure in these cited
portions of Ogawa related to a variable indicative of periodicity.” (Id. at 9.)
We agree with Appellants that the Examiner has not persuasively
shown that Ogawa discloses all of the limitations of claim 1. “[AJnticipation
requires that the four comers of a single, prior art document describe every
element of the claimed invention, either expressly or inherently, such that a
person of ordinary skill in the art could practice the invention without undue
experimentation.” Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d
1272, 1282 (Fed. Cir. 2000).
Ogawa states that an automatic blood pressure measuring apparatus
using the oscillometric method “detects a pulse wave caused by the pulsation
of the artery as a vibration upon the internal pressure of the cuff and
measures the blood pressure based on the change of this vibration.” (Ogawa
1:20—23.) Ogawa discloses an “apparatus based on a new system” in which
“maximal and minimal blood pressures can be measured with high accuracy
since the values of both blood pressures can be directly determined from the
5
Appeal 2017-002145
Application 14/234,449
pulse signals whose vibrating amplitude is more correctly correlated with the
depression of the internal pressure of the cuff.” {Id. at 1: 61-66.)
Ogawa discloses that its apparatus can include a microcomputer, a
cuff, and an ultrasonic blood flow meter with a probe. {Id. at 3:9-18.)
Ogawa discloses that
[a]t the time of measuring the blood pressure, the cuff 1 is
decompressed for measuring the blood pressure after being
compressed. ... In this decompression process . . . , the blood
flow signal . . . detected by the blood flow meter gradually
increases in its vibration amplitude from the hemostasis and its
vibration amplitude reaches its maximum in the average blood
pressure region.
{Id. at 2:47-55.) Ogawa describes Figure 4(a) as showing the amplitude
data obtained during the process of measuring blood pressure. {Id. at 3:43.)
The evidence therefore supports Appellants’ position that Ogawa’s
method of measuring blood pressure is based on the amplitude of vibrations
resulting from blood flow rather than the periodicity of the blood flow, as
required by the claims on appeal. The Examiner reasons that
the term “periodicity” is defined as the tendency to recur at
intervals. The cardiac cycle is a repeating cycle having the
tendency to recur at intervals. Claim 1 discloses a “second
variable indicative of periodicity” but does not explicitly disclose
what the second variable is and how it is “indicative of’
periodicity. Examiner’s position is the periodicity variable of
Ogawa et al is the location in time of the cardiac cycle.
(Ans. 12.)
We disagree with this reasoning, for two reasons. First, claim 1 on
appeal expressly requires “deriving ... a second variable indicative of a
periodicity of the blood flow,” not any natural process showing periodicity.
Second, even if we accepted the Examiner’s claim interpretation, the
6
Appeal 2017-002145
Application 14/234,449
Examiner has not pointed to any disclosure in Ogawa of basing its blood
pressure measurements on the location in time of the cardiac cycle.
Because the Examiner has not shown that Ogawa discloses a method
meeting all of the limitations of claim 1, we reverse the rejection of that
claim as anticipated by Ogawa. Claims 7 (device) and 13 (system) include
the same limitation, and claims 2-6, 8-12, and 14-19 depend from one of
claims 1, 7, or 13. We therefore reverse the rejection as to those claims as
well.
SUMMARY
We affirm the rejection of claim 19 under 35 U.S.C. § 112, second
paragraph.
We reverse the rejection of claims 1-19 under 35 U.S.C. § 102(b)
based on Ogawa.
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).
AFFIRMED-IN-PART
7