Ex Parte Jaffe

Patent Trial and Appeal Board

Dec 26, 2018

13635919 (P.T.A.B. Dec. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/635,919 09/19/2012 Michael Brian Jaffe
24737 7590 12/28/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2010P00238WOUS 9600
EXAMINER
YU, JUSTINE ROMANG
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
12/28/2018 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 MICHAEL BRIAN JAFFE
Appeal2017-010389
Application 13/635,919
Technology Center 3700
Before DANIELS. SONG, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael Brian Jaffe ("Appellant") appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1--4, 6-17, and 19-22. 1 We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Koninklijke Philips N.V. is identified as the real party in interest. Appeal
Br. 3.
Appeal2017-010389
Application 13/635,919
THE CLAIMED SUBJECT MATTER
Appellant's invention "relates to monitoring the effectiveness of
cardiopulmonary resuscitation in real time." Spec. ,r 1. Claim 1, reproduced
below, is illustrative of the claimed subject matter.
1. A system configured to monitor cardiopulmonary
resuscitation, the system comprising:
a gas sensor configured for placement in fluid
communication with an airway of a subject, the gas sensor
being further configured to generate an output signal conveying
information related to one or more gas parameters of gas at or
near the airway of the subject;
a motion sensor configured to generate an output signal
conveying information related to motion of a chest of the
subject; and
a processor configured (a) to determine a therapy
parameter related to an effectiveness of cardiopulmonary
resuscitation received by the subject based on both (a)(i) the
output signal of the gas sensor and (a)(ii) the output signal of
the motion sensor and (b) to provide feedback, via a user
interface, about the cardiopulmonary resuscitation being
provided to the subject, wherein the feedback is based on an
analysis of the determined therapy parameter,
wherein the motion sensor includes a non-contact motion
sensor configured to detect the motion of the chest of the
subject in a non-contact manner, the non-contact motion sensor
including an imaging sensor configured to capture an image of
the chest of the subject.
REJECTIONS
1) Claims 1, 2, 4, 6, 7, 9, 11, 12, 14, 21, and 22 are rejected under
35 U.S.C. § 103(a) as unpatentable over Freeman (US
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Application 13/635,919
2007/0225623 Al, published Sept. 27, 2007) and Centen (US
2011/0040217 Al, published Feb. 17, 2011 ).
2) Claims 3, 8, and 13 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Freeman, Centen, and Jiang (US 2007 /027 6299
Al, published Nov. 29, 2007).
3) Claims 10, 15, and 16 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Freeman, Centen, and Sherman (US 6,066,106,
issued May 23, 2000).
4) Claims 17, 19, and 20 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Freeman, Centen, and Lurie (US 6,155,257,
issued Dec. 5, 2000).
DISCUSSION
Rejection 1
Claims 1, 6, and 11
Appellant argues claims 1, 6, and 11 as a group. Appeal Br. 19. We
select claim 1 as representative and claims 6 and 11 stand or fall with
claim 1. 37 C.F.R. § 41.37 (c)(l)(iv).
The Examiner finds that Freeman discloses all the limitations of
claim 1 except it "lacks that the motion sensor includes a non-contact motion
sensor" as recited in the wherein clause of claim 1. Final Act. 2-3 ( citing
Freeman ,r,r 24--25). Appellant contends that Freeman does not disclose "a
processor configured" as recited in claim 1 for the reasons "described in
Section 7.B" of Appellant's Brief. Appeal Br. 17-19. Appellant does not
direct us to a specific portion of Section 7 .B in support of this argument. See
id. at 19. Section 7B of Appellant's Brief begins with a discussion of what
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Application 13/635,919
Appellant alleges Freeman discloses. Id. at 13-15. Under the heading "Of
importance to note is," Appellant first contends that Freeman fails to
disclose "a determination by microprocessor 14 of a therapy parameter
related to an effectiveness of cardiopulmonary resuscitation received by the
subject." Id. at 16. Appellant then contends that Freeman fails to disclose
"a feedback via a user interface of any analysis of a therapy parameter
related to an effectiveness of cardiopulmonary resuscitation received by the
subject." Id.
Appellant's contentions are apparently based on two proposed claim
construction arguments. First, Appellant argues that
'a therapy parameter related to an effectiveness of
cardiopulmonary resuscitation received by the subject' as
recited in independent claim 1 ... excludes therapy parameters
generally related to a performance of a cardiopulmonary
resuscitation received by the subject, particularly a therapy
parameters related to a ventilation received by the subject
during the cardiopulmonary resuscitation as taught by Freeman.
Appeal Br. 12. Appellant does not direct us to any portion of the
Specification in support of this construction but rather requests that we
construe this claim limitation to exclude disclosure in the prior art reference
cited by the Examiner. See id. We note that among the therapy parameters
described in Appellant's Specification is "end-tidal carbon dioxide partial
pressure." Spec. ,r 24. Freeman specifically discloses that it relies on just
this parameter. Freeman ,r 24 ("process[ing] these various signals such as
end-tidal carbon dioxide measurement."). Consequently, we are not
persuaded by Appellant's argument that one of ordinary skill in the art after
reviewing Appellant's Specification would understand that Appellant's
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proposed construction is the broadest reasonable interpretation of this claim
limitation.
Second, Appellant argues that the limitation "the feedback is based on
an analysis of the determined therapy parameter" as recited in claim 1
"encompasses the feedback being different [than] the therapy parameter."
Id. at 13. Appellant does not direct us to any portion of the Specification in
support of this proposed construction. Id. The Examiner disagrees with
Appellant's proposed construction as narrow and directs us to paragraph 3 7
of Appellant's Specification. Ans. 4. Appellant's Specification provides
"[t]he feedback may include the therapy parameter determined at operation
42, and/or may be based on the therapy parameter." Spec. ,r 37, Fig. 2.
Consequently, we are not persuaded by Appellant's argument that one of
ordinary skill in the art after reviewing Appellant's Specification would
understand that Appellant's proposed construction is the broadest reasonable
interpretation of this claim limitation.
The Examiner responds to Appellant's first contention finding that
"the determined therapy parameter is 'the patient's physiological and
physical state' determined by the processing of data from physiological
sensors and sternal motion measurement." Ans. 9 ( citing Freeman ,r 24); see
also Final Act. 3. In response to the second contention, the Examiner
responds that
[f]ig. 1 of Freeman shows a user interface ... in communication with
the microprocessor 14, in addition to an external laptop 1 7 in
communication with the microprocessor 14, to provide feedback via a
user interface of an analysis of the therapy parameter ... One form of
the analysis of the therapy parameter (patient's physiological/physical
state) disclosed by Freeman is the changes made by the laptop 1 7 ...
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in the control of the therapy provided by the ventilator 15 or chest
compressor 14.
Id. at 10 (citing Freeman ,r 24). For the following reasons, we sustain the
rejection of claim 1.
In connection with both of Appellant's contentions, Appellant's
argument is merely a statement of the claim language followed by an
assertion that Freeman does not disclose the claim limitation. See Appeal
Br. 16 (Paragraphs 2, 4). Appellant does not offer any analysis why
Freeman does not disclose the claim limitations. Id. An argument which
"merely points out what a claim recites will not be considered an argument
for separate patentability of the claim." 37 C.F.R. § 4I.37(c)(l)(iv); see also
In re Lovin, 652 F.3d 1349, 1356-57 (Fed. Cir. 2011). We also note that
Appellant does not specifically argue that its proposed construction of these
claim limitations supports its contentions nor does Appellant specifically
explain why its proposed construction apprises us of error in the rejection.
See Appeal Br. 16. However, even if Appellant provided argument
explaining how the proposed construction supported patentability, we do not
adopt Appellant's proposed construction as explained above. We also note
that Appellant does not persuasively explain why Freeman's disclosure of
"end-tidal carbon dioxide measurement" (Freeman, ,r 24) does not
correspond to the "therapy parameter" recited in claim 1 or why Freeman's
"end-tidal carbon dioxide measurement" cannot constitute the "feedback"
recited in claim 1 in light of Paragraph 37 of Appellant's Specification.
We have considered all of Appellant's contentions in connection with
claim 1 and determine that Appellant has not apprised us of Examiner error.
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Therefore, we sustain the rejection of claim 1. Claims 6 and 11 fall with
claim 1.
Claims 2 and 4
Claims 2 and 4 depend from claim 1. Appeal Br. 28-29 (Claims
App.). Appellant contends that these claims are patentable for the same
reasons as claim 1. Id. at 20. We, thus, sustain the rejection of claims 2 and
4 for the same reasons as claim 1.
Claims 7 and 9
Claims 7 and 9 depend from claim 6. Appeal Br. 30 (Claims App.).
Appellant contends that these claims are patentable for the same reasons as
claim 6. Id. at 20. We, thus, sustain the rejection of claims 7 and 9 for the
same reasons as claim 6.
Claims 12 and 14
Claims 12 and 14 depend from claim 11. Appeal Br. 31-32 (Claims
App.). Appellant contends that these claims are patentable for the same
reasons as claim 11. Id. at 20. We, thus, sustain the rejection of claims 12
and 14 for the same reasons as claim 11.
Claims 21 and 22
Claim 21 depends from claim 1 and recites "wherein the processor
determines the therapy parameter from a correlation of the output signal of
the gas sensor and the output signal of the motion sensor." Appeal Br. 33
(Claims App.). Claim 22 depends from claim 6 and contains the same
limitation as claim 21. Id. The Examiner finds that Freeman discloses this
limitation. Final Act. 7 (citing Freeman ,r 24). Appellant's contention of
error is nothing more than a recitation of the language of the claim limitation
at issue. Appeal Br. 16, 19, 21. Appellant does not offer any analysis why
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Freeman does not disclose the claim limitation. Id. An argument which
"merely points out what a claim recites will not be considered an argument
for separate patentability of the claim." 37 C.F.R. § 4I.37(c)(l)(iv); see also
In re Lovin, 652 F.3d at 1356-57. Appellant's contention is, thus, not
persuasive and we sustain the rejection of claims 21 and 22.
Rejection 2
Claim 3 depends from claim 1 and recites "wherein the determined
therapy parameter comprises at least one of respiratory rate and volumetric
deadspace." Appeal Br. 29 (Claims App.). Claims 8 and 13 contain the
same limitation. Id. at 30-32. The Examiner finds that Jiang discloses this
limitation and determines that it would have been obvious to one of ordinary
skill in the art to "modify Freeman's system to additionally determine the
patient's respiratory rate, as taught by Jiang, in order to be able to institute a
basic backup ventilation rate in case the patient ceases its own respiratory
effort." Final Act. 8 (citing Jiang ,r 28).
Appellant first contends that "Jiang fails to describe, teach or suggest
a modification of Freeman in view of Centen to incorporate the
aforementioned limitations of independent claims 1, 6[,] and 11." Appeal
Br. 22. This contention is not persuasive for the reasons stated above in
connection with the rejection of claims 1, 6, and 11.
Id.
Appellant next contends that
any alleged teachings by Jiang of a determination of a respiratory rate
is unrelated to an effectiveness of a cardiopulmonary resuscitation
received by a subject ... and wholly irrelevant to the synchronized
control of a synchronized chest compressor 12 and ventilator 15
relative to ECG signal 1 during CPR of patient 11 as shown in FIGS.
3 and 4 of Freeman.
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The Examiner responds that "Jiang's invention is related to artificial
ventilation of a patient comprising chest compression and ventilation," and it
"teaches that sensing the patient's respiratory rate is particularly beneficial
because it can determine if the patient is making his/her own respiratory
effort and establish a backup ventilatory rate if necessary." Ans. 13. The
Examiner further responds that "Jiang's teachings provide evidence of why
it would be beneficial to measure a patient's respiratory rate in addition to
end tidal CO2 ( as already measured by Freeman ... ) to be able to determine
if additional respiration is necessary." Id. at 14. In reply, Appellant
reiterates the arguments from the Appeal Brief and does not challenge the
Examiner's explanation of the relevance of Jiang. Reply Br. 16-17. We
sustain the rejection of claims 3, 8, and 13 for the following reasons.
Appellant does not dispute the Examiner's specific factual findings
based on Jiang. Appeal Br. 21-22. Appellant appears to be challenging the
Examiner's reasoning for combining the teachings of Freeman and Jiang
with the argument that Jiang is "wholly irrelevant" to the system disclosed in
Freeman. Id. at 22. The Examiner's conclusion that one of ordinary skill in
the art would combine the teachings of Jiang and Freeman in order to
establish "a backup ventilatory rate" (Ans. 13) is reasonable and supported
by the disclosure of Jiang. Jiang specifically discloses the parameters
"respiratory rate, tidal volume" and "end tidal CO2 measurements." Jiang ,r
28. As noted above, Freeman also discloses end tidal CO2 measurements.
Therefore, we are not persuaded that Jiang's disclosure is "wholly
irrelevant" to Freeman's system but agree with the Examiner that Jiang
suggests supplementing Freeman's system with respiration and tidal volume
as required by claim 3. We, thus, sustain the rejection of claims 3, 8, and 13.
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Rejection 3
Claim 10, depends from claim 6, and recites "wherein the second
output signal conveys information related to a circumference of the chest of
the subject." Appeal Br. 30 (Claims App.). Claims 15 and 16 contain
substantially similar limitations. Id. at 32. The Examiner finds that
Sherman discloses "a CPR assistance device and method wherein the
physical parameter sensors further measure the chest circumference to
incorporate into the control system as an additional parameter to be factored
into the adjustment of compression rates and force." Final Act. 9 (citing
Sherman 10:27--40). The Examiner concludes that it would have been
obvious to one of ordinary skill in the art to modify "Freeman's method with
an additional output signal of the chest circumference, as taught by Sherman,
in order to provide additional parameters for calculating the adjustment of
compression rates." Id.
Appellant first contends that "Sherman fails to describe, teach or
suggest a modification of Freeman in view of Centen to incorporate the
aforementioned limitations of independent claims 1, 6[,] and 11." Appeal
Br. 23-24. This contention is not persuasive for the reasons stated above in
connection with the rejection of claims 1, 6, and 11.
Appellant next contends that
any alleged teachings by Sherman of a motion sensor conveying
information related to a circumference of the chest of a subject is
unrelated to an effectiveness of a cardiopulmonary resuscitation
received by a subject ... and wholly irrelevant to the synchronized
control of a synchronized chest compressor 12 and ventilator 15
relative to ECG signal 1 during the CPR of patient 11 as shown in
FIGS. 3 and 4 of Freeman.
Id. at 24.
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The Examiner responds that "Sherman teaches that incorporating
chest circumference data into a CPR system enhances the personalization of
the CPR treatment to the subject" and its teachings "are applicable to any
automated CPR system, including that of modified Freeman." Ans. 15-16.
In reply, Appellant reiterates the arguments from the Appeal Brief and does
not challenge the Examiner's explanation of the relevance of Sherman.
Reply Br. 17. We sustain the rejection of claims 10, 15, and 16 for the
following reasons.
Appellant does not dispute the Examiner's specific factual findings
based on Sherman. Appeal Br. 23-24. Appellant appears to be challenging
the Examiner's reasoning for combining the teachings of Freeman and
Sherman with the argument that Sherman is "wholly irrelevant" to the
system disclosed in Freeman. Id. at 22. The Examiner, however, provides a
reasoned explanation supported by a rational underpinning why one of
ordinary skill in the art would combine the teachings of Sherman and
Freeman. We agree with the Examiner that one of ordinary skill in the art
would do so in order to "to provide additional parameters for calculating the
adjustment of compression rates." Final Act. 9; see Sherman 10:27-35.
Therefore, we are not persuaded that Sherman's disclosure is "wholly
irrelevant" to Freeman's system. We, thus, sustain the rejection of
claims 10, 15, and 16.
Rejection 4
Claim 1 7 depends from claim 1 and recites "wherein the information
related to the one or more gas parameters of the gas include at least one of
temperature and humidity of the gas." Appeal Br. 32 (Claims App.).
Claims 19 and 20 include the same limitation. Id. The Examiner finds that
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Lurie discloses "a CPR/ventilation system comprising a temperature sensor."
Final Act. 10 ( citing Lurie 8 :22-29). The Examiner concludes that it would
have been obvious to one of ordinary skill in the art to modify "Freeman's
system to explicitly sense a temperature of the gas, as taught by Lurie, in
order to detect when the temperature of the gas has been lowered by 1-2
degrees." Id. at 10-11.
Appellant first contends that "Lurie fails to describe, teach or suggest
a modification of Freeman in view of Centen to incorporate the
aforementioned limitations of independent claims 1, 6[,] and 11." Appeal
Br. 25. This contention is not persuasive for the reasons stated above in
connection with the rejection of claims 1, 6, and 11.
Appellant next contends that
any alleged teachings by Lurie of a gas sensor conveying information
including a temperature of the gas and/or a humidity of the gas is
unrelated to an effectiveness of a cardiopulmonary resuscitation
received by a subject ... and wholly irrelevant to the synchronized
control of a synchronized chest compressor 12 and ventilator 15
relative to ECG signal 1 during CPR of patient 11 as shown in FIGS.
3 and 4 of Freeman.
Id. at 25-26.
The Examiner responds that "Lurie explicitly teaches that providing
data about the temperature of the gas during synchronized CPR
compressions and ventilation is a useful data point in providing ventilation
during CPR." Ans. 17 (citing Lurie 8: 17-29). The Examiner further
responds that "Lurie directly relates temperature sensors ... to the delivering
of respiratory gases to a subject during CPR." Id. at 18. In reply, Appellant
reiterates the arguments from the Appeal Brief and does not challenge the
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Examiner's explanation of the relevance of Lurie. Reply Br. 18. We sustain
the rejection of claims 17, 19, and 20 for the following reasons.
Appellant does not dispute the Examiner's specific factual findings
based on Lurie. Appeal Br. 25-26. Appellant appears to be challenging the
Examiner's reasoning for combining the teachings of Freeman and Lurie
with the argument that Lurie is "wholly irrelevant" to the system disclosed
in Freeman. Id. at 22. The Examiner, however, provides a reasoned
explanation supported by rational underpinnings why one of ordinary skill in
the art would combine the teachings of Lurie and Freeman. We agree with
the Examiner that one of ordinary skill in the art would do so because
temperature relates "to the delivering of respiratory gases to a subject during
CPR." Ans. 18; see Lurie 8: 17-29. Therefore, we are not persuaded that
Lurie's disclosure is "wholly irrelevant" to Freeman's system. We, thus,
sustain the rejection of claims 17, 19, and 20.
DECISION
The Examiner's decision rejecting claims 1--4, 6-17, and 19-22 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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