Ex Parte Gerst et al

Patent Trial and Appeal Board

Feb 24, 2017

11516300 (P.T.A.B. Feb. 24, 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.
11/516,300 09/05/2006 Kimberly S. Gerst 115.0112US01/ 05-409 8396
62058 7590 02/28/2017
PAULY, DEVRIES SMITH & DEFFNER, L.L.C.
Suite 900
121 South 8th Street
MINNEAPOLIS, MN 55402-2481
EXAMINER
HOLCOMB, MARK
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
02/28/2017 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):
docketing@pdsdlaw.com
kds@pdsdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIMBERLY S. GERST, BENJAMIN L. SOMBERG,
BHARAT K. JAIN, and LARRY D. CANADY
Appeal 2014-008973
Application 11/516,300
Technology Center 3600
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
final decision rejecting claims 1—33. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1 is illustrative:
1. A system for providing automatic setup of a remote patient
care environment, comprising:
a first remote interface to confirm connectivity over a network
connection to a centralized server;
Appeal 2014-008973
Application 11/516,300
a configuration module on a patient management device to induce
data reporting to the patient management device for a patient by wirelessly
connectable monitoring devices through control provided through a user
interface, wherein the induced data reporting establishes an initial
connection between each of the monitoring devices and the patient
management device, wherein the induced data reporting causes the
configuration module to execute an automated setup procedure enabling the
initial connection and subsequent connections between each of the
monitoring devices and the patient management device;
a lookup module configured to:
register each of the monitoring devices on a list of devices having
permission for access as each monitoring device attempts to establish
the initial wireless connection and report the data conditioned on
permission for access; and
look up each of the monitoring devices on the list of devices
having permission for access as each monitoring device attempts to
establish subsequent wireless connections and report the data
conditioned on permission for access; and
a second remote interface to wirelessly connect with each of the
monitoring devices upon granting of the permission for access and to
subsequently receive the data over the initial wireless connection.
Appellants appeal the following rejections:
1. Claims 1—3, 6—12, 14, 16—19, 22—28, 30, and 33, are rejected under
35 U.S.C. § 103(a) as being unpatentable over Schulze (US Patent
6,893,396 B2, May 17, 2005) in view of Snell (US Patent 5,716,382, Feb.
10, 1998) further in view of Haller (US Patent Publication 2001/0051787
Al, Dec. 13, 2001) or alternatively in view of Roehm (US Patent
Publication 2007/0156626 Al, July 5, 2007).
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Appeal 2014-008973
Application 11/516,300
2. Claims 5 and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Schulze, Snell, and Haller or alternatively Schulze, Snell, and
Roehm, further in view of Teller (US Patent Publication 2002/0013538
Al, Jan. 31,2002).
3. Claims 4, 15, 20, 31, and 32 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Schulze, Snell, and Haller or alternatively
Schulze, Snell, and Roehm, further in view of Condie (US Patent
6,882,883 B2, Apr. 19, 2005).
4. Claims 13 and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schulze, Snell, and Haller or alternatively, Schulze,
Snell, and Roehm, further in view of Kumar et al. (US Patent 6,416,471
Bl, July 9, 2002).
ISSUE
Did the Examiner err in rejecting the claims because the prior art does
not disclose a configuration module to exercise an automated setup
procedure?
ANALYSIS
The Appellants argue that neither Haller nor Roehm disclose a
configuration module to execute an automated setup procedure enabling the
initial and subsequent connections.
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Appeal 2014-008973
Application 11/516,300
The Examiner relies on Figure 9 A, steps 203, 205 and 223 of Haller
(Fin. Act. 8) for teaching this subject matter. We find that at step 203, the
patient uploads data from the implantable medical device (hereafter “IMD”)
to the communication module 100. At step 205, the IMD and
communication module 100 communicate and data is uploaded from the
IMD to the communication module. If it is determined at step 213 that the
IMD, PDA or mobile phone is not operating properly, the IMD can be
altered at step 223.
The Examiner is of the opinion that the establishment of the initial
connection at 203 comprises an automated setup procedure (Fin. Act. 8).
We agree with the Appellants that the relied on step of Haller does not
disclose an automated setup. It is not clear from these steps in Haller how
the IMD is setup. As is discussed in the Appellants’ specification, it is
possible that the Haller IMD, like other existing medical devices, is
manually setup (Spec. 2). In addition, even if we agreed with the Examiner
that the initial connection at 203 comprises an automated setup, there is
certainly no disclosure that this initial connection enables subsequent
connections. Rather, if the initial connection is a setup, subsequent
connection would also comprise a setup. Although the Haller IMD is altered
at step 223 if it is determined that the IMD is not operating properly, this
alteration takes place after a setup of the IMD.
In regard to the Roehm reference, we agree with the Appellants that
Roehm also does not disclose a configuration module to execute an
automated setup procedure enabling an initial connection and subsequent
connection. The Examiner relies on paragraph 29 and the Abstract of
Roehm for teaching this subject matter (Fin. Act. 10; Ans. 7).
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Appeal 2014-008973
Application 11/516,300
We find that the Abstract of Roehm discloses that a patient initiates
and activates sensing systems which include sensors 12 for sensing ECG,
heart rhythm, blood pressure etc. In the system and method, standard
parameters are sensed, and the information can then be processed and sent to
the physician or clinician through a patient/clinician interface 36. The
clinician then has the ability to remotely configure or reconfigure the
parameters of the sensing system so as to probe for more targeted
information based on the initial sensed data. Although, this portion of
Roehm discloses that the clinician has the ability to configure the sensing
system of sensors to gather targeted information, there is no disclosure that
the clinician has the ability to execute an automated setup procedure that
enables the initial connection much less enables subsequent connections as
required by claim 1.
Paragraph 29 of Roehm discloses that information collected from the
sensors is sent to the central hub through a wireless connection and reports
generated by the hub are sent to the clinician. There is no disclosure in this
paragraph of executing an automated setup procedure that enables an initial
connection or a subsequent connection as required by claim 1.
In view of the foregoing, we will not sustain the Examiner’s rejection
under 35 U.S.C. § 103 as being unpatentable over Schulze, Haller, and in the
alternative over Roehm of independent claim 1 and claims 2, 3, 6—13, and 16
dependent therefrom. We will also not sustain the Examiner’s rejections of
the remaining claims because the Examiner relies on Haller or Roehm for
teaching an automated setup procedure as recited in claim 1 and each of
these claims includes language similar to claim 1.
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Appeal 2014-008973
Application 11/516,300
DECISION
The decision of the Examiner is reversed.
ORDER
REVERSED
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