Ex Parte Geiger

Board of Patent Appeals and Interferences

Jun 5, 2009

10976338 (B.P.A.I. Jun. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte MARK A. GEIGER
________________

Appeal 2009-002787
Application 10/976,338
Technology Center 2800
________________

Decided:1 June 5, 2009
________________

Before CHUNG K. PAK, TERRY J. OWENS, and
JEFFREY T. SMITH, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-5, 7-20, 22-27, 40-44, 46 and 48-51, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-002787
Application 10/976,338

The Invention
The Appellant claims a pupilometer and a system and method which
use the pupilometer to monitor vital signs. Claim 1 is illustrative:
1. A vital signs monitoring system comprising:
a pupilometer to obtain pupilometer information from a patient, the
pupilometer including a first wireless telemetry module to transmit the
information; and
a vital signs monitor that is associated with the patent and not
associated with any other patients having a second wireless telemetry
module to receive the transmitted information.

The References
Stark 6,260,968 B1 Jul. 17, 2001
West 2002/0013518 A1 Jan. 31, 2002
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
5, 7-20, 22-27 and 51 over West in view of Stark, and claims 40-44, 46
and 48-50 over Stark in view of West.
OPINION
We reverse the Examiner’s rejections.
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that the applied references would have rendered prima facie
obvious, to one of ordinary skill in the art, transmitting patient information
wirelessly from a pupilometer to a vital signs monitor that is associated with
the patient and not with any other patients?

2
Appeal 2009-002787
Application 10/976,338

Findings of Fact
West discloses a vital signs monitor (22) that “includes one or more
sensor input ports for receiving patient vital signs data, a controller coupled
to receive the vital signs data via the one or more input ports, and a wireless
transceiver controllable by the controller to communicate with the at least
one central station” (¶ 0005). Each monitor includes a portable housing (80)
having one or more sensor input ports (82) adapted to receive and connect to
sensor cables (83), each of which is attached to one or more vital signs
sensor assemblies that detect and/or measure selected vital signs data from a
patient and transmit the vital signs data to vital signs monitor 22 via
cables 83 (¶ 0071; Fig. 5).
Stark discloses a medical diagnosis system comprising a hand-held
pupilometer (10) and a medical database for correlating actual or derived
pupilary image analysis data with stored medical data to formulate medical
diagnoses (col. 1, ll. 14-15, 20-23). Pupilometer data can be downloaded via
an infrared data interface to a related network (col. 12, ll. 19-22).
Analysis
The Appellants argue that West’s vital signs monitor 22 sends patient
information wirelessly to a centralized monitoring system, but does not
receive patient information from a wireless telemetry module (Br. 7).
The Examiner argues that Stark discloses a wireless telemetry module
at column 12, lines 20-22.
That disclosure pertains to downloading pupilometer data wirelessly
to a related network. “[D]uring examination proceedings, claims are given
their broadest reasonable interpretation consistent with the specification.” In
re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007), quoting In
3
Appeal 2009-002787
Application 10/976,338

re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). The Appellants’
Specification states (Spec. ¶ 0005):
Vital signs monitors are used within a clinic or hospital, as well as in
the field during delivery of emergency medical services. A vital signs
monitor typically includes multiple inputs to receive vital signs
information from a variety of sensors, such as electrocardiogram
(ECG) electrodes, blood pressure (BP), pulse oximetry (Sp) 2),
temperature sensors, respiration sensors, and the like.

The Examiner has not established that the applied references would have led
one of ordinary skill in the art to send pupilometer data to a vital signs
monitor, as the term “vital signs monitor” reasonably would have been most
broadly construed consistently with the Appellants’ Specification, let alone
to send the data to vital signs monitor wirelessly.
The Examiner argues that one of ordinary skill in the art would have
modified “the teachings of West et al. with the teachings of Stark et al. in
order to monitor neurological pupilary control to further formulate medical
diagnoses, as taught by Stark et al. (col. 1, ln. 20-23)” (Ans. 4), and would
have modified “the teachings of Stark et al. with the teachings of West et al.
in order to monitor patients’ neurological pupilary response” (Ans. 8).
The Examiner, however, does not explain how the applied references
would have led one of ordinary skill in the art to send Stark’s pupilometer
data to West’s vital signs monitor 22 wirelessly. The Examiner also does
not provide such an explanation in the Examiner’s response to the
Appellant’s arguments (Ans. 10-12).
As stated in KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007),
“‘rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
4
Appeal 2009-002787
Application 10/976,338

rational underpinning to support the legal conclusion of obviousness’”
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The Examiner has
not provided the required articulated reasoning with rational underpinning.
Conclusion of Law
The Appellant has shown reversible error in the Examiner’s
determination that the applied references would have rendered prima facie
obvious, to one of ordinary skill in the art, transmitting patient information
wirelessly from a pupilometer to a vital signs monitor that is associated with
the patient and not with any other patients.

DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1-5, 7-20, 22-27 and
51 over West in view of Stark, and claims 40-44, 46 and 48-50 over Stark in
view of West are reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED

tc

SHUMAKER & SIEFFERT, P.A.
1625 RADIO DRIVE
SUITE 300
WOODBURY, MN 55125

5