Ex Parte GilesDownload PDFPatent Trial and Appeal BoardAug 22, 201813832594 (P.T.A.B. Aug. 22, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/832,594 03/15/2013 19407 7590 08/23/2018 Fitch, Even, Tabin & Flannery, LLP 120 South La Salle Street, Suite 2100 Chicago, IL 60603-3406 FIRST NAMED INVENTOR Andrew Giles 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 9262-130327-US (10626U) 1009 EXAMINER EKRAMI, YASAMIN ART UNIT PAPER NUMBER 3739 MAIL DATE DELIVERY MODE 08/23/2018 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREW GILES 1 Appeal2017-006745 Application 13/832,594 Technology Center 3700 Before TONI R. SCHEINER, CHRISTOPHER G. P AULRAJ, and JOHN E. SCHNEIDER, Administrative Patent Judges. SCHNEIDER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to methods and apparatuses for monitoring temperature, which have been rejected as anticipated and as obvious. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. STATEMENT OF THE CASE Personal patient-warming apparatuses are designed to provide local patient warming for the benefit of the patient as opposed to warming of a general area around the patient. Spec. ,r 2. "In some cases the delivery of 1 Appellant identifies the Real Party in Interest as Medline Industries, Inc. Appeal Br. 3. Appeal2017-006745 Application 13/832,594 warmth to the patient includes using sensed-temperature feedback to modulate and control, to some extent, the temperature of the warming medium." Spec. ,r 4. The Specification describes "a control circuit wirelessly couple[ d] to at least one free-standing wireless temperature sensor that the control circuit employs to monitor a temperature corresponding to a patient and thereby provide monitored-temperature information that the control circuit then uses to control personal warming of the patient." Spec. Claims 1-16 are on appeal. Claims 1 and 9 are the sole independent claims and read as follows: 1. A method comprising: by a control circuit that wirelessly couples to at least one free-standing, untethered wireless temperature sensor: monitoring a temperature corresponding to a patient via the at least one free-standing, untethered wireless temperature sensor to provide monitored-temperature information; using the monitored-temperature information to control personal warming of the patient 9. An apparatus comprising: at least one free-standing, untethered wireless temperature sensor; a control circuit operably coupled to the at least one free- standing, untethered wireless temperature sensor and configured to: monitor a temperature corresponding to a patient via the at least one freestanding, untethered wireless temperature sensor to provide monitored-temperature information; use the monitored-temperature information to control personal warming of the patient. 2 Appeal2017-006745 Application 13/832,594 The claims stand rejected as follows: Claims 1, 8, 9, and 16 have been rejected under 35 U.S.C. § I02(b) as anticipated by Callister. 2 Claims 2--4 and 10-12 have been rejected under 35 U.S.C. § I03(a) as unpatentable over Callister in view of Y arden. 3 Claims 5-7 and 13-15 have been rejected under 35 U.S.C. § I03(a) as unpatentable over Callister on view of Klewer. 4 ANTICIPATION Issue The issue with respect to this rejection is whether a preponderance of the evidence supports the Examiner's conclusion that claims 1, 8, 9, and 16 are anticipated by Callister. The Examiner finds that Callister discloses a temperature sensor that can be a wireless separate component associated with a temperature controller. Final Act. 2-3. The Examiner finds that the temperature sensor of Callister provides temperature data to a microprocessor which monitors and analyzes the temperature data and controls a heating/cooling unit which heats or cools a patient. Final Act. 3. Appellant contends that Callister does not disclose the claimed invention as the temperature sensor of Callister is not a free-standing, untethered wireless sensor as required by the claims. Appeal Br. 7. 2 Callister et al., US 2010/0152822 Al, published June 17, 2010 ("Callister"). 3 Yarden et al., US 2009/0299682 Al, published Dec. 3, 2009 ("Yarden"). 4 Klewer et al., US 2012/0024833 Al, published Feb. 2, 2012 ("Klewer"). 3 Appeal2017-006745 Application 13/832,594 Appellant contends that the sensor of Callister is not free-standing in that it is an integral part of a larger apparatus. Appeal Br. 8. Appellant contends that the Examiner improperly finds that Callister teaches that the temperature can be untethered. Appeal Br. 13. Finally, Appellant argues that the Examiner improperly equates free-standing with untethered. Id. Findings of Fact We adopt the Examiner's findings as our own, including with regard to the scope and content of the prior art. The following findings are highlighted for emphasis and reference purposes: FF 1. Callister relates to a system and method for monitoring and controlling the body temperature of a patient. Callister, Abstract. FF2. Callister discloses the use of temperature sensor to monitor the temperature of a patient. Callister ,r 63. FF3. Callister discloses "the temperature sensor may be a separate component that is removably mounted to the catheter." Callister ,r 71. FF4. Callister discloses that "[i]n yet another embodiment, a temperature sensor may be inserted through a lumen of the catheter and positioned beyond the catheter into the blood stream. In this manner, the sensor is isolated from any contact with the catheter itself, and floats freely in the blood stream." Callister ,r 72. FF5. Callister discloses that the temperature sensor can be inserted into the blood stream and can transmit data wirelessly to the controller. Callister ,r 15 3 . FF6. Callister discloses that the position of the sensor can be adjusted as needed during treatment of the patient. 4 Appeal2017-006745 Application 13/832,594 FF7. The Specification teaches "[a]s used herein, the expression 'free-standing' will be understood to refer to a fielded configuration that is not intended or designed for a static installation configuration as an integral part of some larger apparatus, component, or assembly." Spec. ,r 28. FF8. The Specification discloses an embodiment of a free-standing wireless temperature sensor comprising a "free-standing wireless temperature sensor 205-3 [which] is attached to an esophageal probe 303 and placed within the patient 300 to assess the patient's interior temperature." Id. FF9. The Specification goes on to teach Though "free-standing," these teachings will accommodate using, or not using, attachment mechanisms to temporarily fix the free-standing wireless temperature sensor 205 at a desired location. Example attachment mechanisms include but are not limited to an adhesive ( as noted above), a clip, clasp, pin, or the like, magnets, and so forth. "Free- standing" sensors can also include temporarily-implantable sensors (including both tethered and untethered sensors configured to be temporarily placed within a living body). Spec. ,r 29. Principles of Law [T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant. After evidence or argument is submitted by the applicant in response, patentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument. 5 Appeal2017-006745 Application 13/832,594 In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). "Anticipation requires that all of the claim elements and their limitations are shown in a single prior art reference." In re Skvorecz, 580 F.3d 1262, 1266 (Fed. Cir. 2009). Analysis We find the Examiner has established by a preponderance of the evidence that the claims are anticipated by Callister. Appellant has not produced evidence showing, or persuasively argued, that the Examiner's determinations on anticipation are incorrect. Only those arguments made by Appellant in the Briefs have been considered in this Decision. Arguments not presented in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2015). We have identified claim 1 as representative; therefore, all claims fall with claim 1. We address Appellant's arguments below. Appellant contends that Callister does not disclose the use of a free- standing temperature probe because the temperature probe in Callister is an integral part of a larger apparatus. Appeal Br. 11. In support of this argument, Appellant relies of Figure 2 of Callister reproduced below: 6 Appeal2017-006745 Application 13/832,594 FIG. 2 Figure 2 of Callister shows a schematic diagram of a heat control unit. Appellant argues that Figure 2 shows that the heat sensor 80 is an integral part of the overall system and is, therefore, not free-standing as defined by the Specification. Appeal Br. 12. We have considered Appellant's argument and find it unpersuasive. As shown by Figure 2 of the present application, reproduced below, the temperature sensor is also part of a larger temperature monitoring system. 7 Appeal2017-006745 Application 13/832,594 r- 1 I I I I I I 204 y \ i WIRELESS RECEIVER 205 y \ ! FREE¥STAND1NG WIRELESS TEMPERATURE SENSOR I • ' !_.."~~~~.-~~-~~~~-~~~I 2/3 ------------·----1 l t l I l MEMORY t"--202 l t l I <-------~-------- 201 206 1 I I I CONTROL CIRCUIT I I NONh:,ii~tJ~DING -! I TEMPERATURE I I SENSOR I I i ......,. _____ ___,• I L-~-------~-------~J 203 FIG. 2 Figure 2 of the present application showing a block diagram of the invention. The Specification teaches that the apparatus shown in Figure 2 also includes a wireless receiver 204 that also operably couples to the control circuit 201. This wireless receiver 204 is configured to compatibly receive wireless communications from wireless temperature sensors described further herein. If desired, this wireless receiver 204 can comprise a wireless transceiver to thereby permit the control circuit 201 to transmit information as well as receive information. Transmitted information might include, by way of example, polling instructions to wireless temperature sensors to cause the latter to report their presently-sensed temperatures and/or to provide a batch report of a plurality of previously-sensed temperatures. Spec. ,r 23. Callister likewise teaches that the sensor communicates signals representative of the temperature to the controller, which then uses the data 8 Appeal2017-006745 Application 13/832,594 to control the heating/cooling element. Callister ,r 70. We thus find that the sensor in Callister acts in the same manner as the "free-standing" temperature probes of the present invention and as recited in the claims on appeal. Moreover, as shown in Figure 2 of Callister, while the temperature sensor 80 is connected to the controller, 54, it is not an integral part of the controller. Appellant next contends that the Examiner has improperly concluded that a wireless sensor is also untethered. Appeal Br. 12. Appellant argues that a sensor can transmit data wirelessly and still be attached or tethered. Id. Appellant argues that the Examiner has conflated "free-standing" with "untethered." Appeal Br. 13. Appellant further argues that a sensor can be free-standing and be either tethered or untethered. Id. Appellant contends that the limitations are independent of each other. Appeal Br. 14. We have considered Appellant's argument and we remain unpersauded. While Appellant may be correct that sensor may be both wireless and tethered, we do not agree that Callister does not teach a sensor that is both wireless and untethered. Callister specifically teaches a sensor that "floats freely in the blood stream." FF4. Callister goes on to teach that a sensor in the blood stream can transmit data wirelessly to the controller. FF5. Thus, we find Callister teaches a sensor that is untethered and wireless. Appellant contends that the Examiner's premise that the sensor may be a separate component that is removably attached to a catheter does not support a conclusion that the sensor is free-standing. Appeal Br. 13. Appellant contends that Callister teaches that the sensor is only operable 9 Appeal2017-006745 Application 13/832,594 when it is attached to the catheter. Id. Appellant argues that the sensor must be tethered or else the sensor will register inappropriate measurements. Id. We find these arguments unpersuasive. The Examiner relied on the teachings in Callister that the sensor can be removably attached to the catheter to demonstrate that the sensor can be free-standing. Ans. 3. The definition of a free-standing sensor as set forth in the Specification specifically includes sensors that are removably attached FF8. Moreover, as discussed above, Callister specifically teaches the use of a free-floating sensor, which is properly interpreted to mean an untethered sensor. FF 5. With respect to Appellant's contention that a free floating sensor will result in inappropriate measurements, Appellant has offered no proof that this will occur. "Attorneys' argument is no substitute for evidence." Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Conclusion of Law We conclude that a preponderance of the evidence supports the Examiner's conclusion that claim 1 is anticipated by Callister. Claims 1, 8, 9, and 16 have not been argued separately and therefore fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv). OBVIOUSNESS Appellant's only argument with respect to the obviousness rejections is that since the independent claims are not anticipated, the dependent clams are allowable. Appeal Br. 14. Since we have affirmed the rejection of the 10 Appeal2017-006745 Application 13/832,594 independent claims as anticipated and Appellant offers no separate argument for the dependent claims, we affirm the rejections based on obviousness. SUMMARY We affirm the rejection under 35 U.SC. § I02(a). We affirm the rejections under 35 U.S.C. § I03(a). 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 11 Copy with citationCopy as parenthetical citation
