Ex Parte Krijnsen et al

Patent Trial and Appeal Board

Dec 16, 2015

12299809 (P.T.A.B. Dec. 16, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/299,809 11/06/2008
29150 7590 12/18/2015
LEE & HA YES, PLLC
601 W. RIVERSIDE A VENUE
SUITE 1400
SPOKANE, WA 99201
FIRST NAMED INVENTOR
Henrike Krijnsen
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.
M090-0011US 3052
EXAMINER
SIRMONS, KEVIN C
ART UNIT PAPER NUMBER
3763
NOTIFICATION DATE DELIVERY MODE
12/18/2015 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HENRIKE KRIJNSEN, GEERT LANGEREIS,
MICHEL VANBRUGGEN, and VENTZESLA V IORDANOV
Appeal2013-003871
Application 12/299,809
Technology Center 3700
Before BIBHU R. MOHANTY, JAMES A. WORTH, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1-10. We have jurisdiction over this appeal under 35
U.S.C. § 6(b).
We REVERSE.
1 "The real party in interest" is "Koninklijke Philips Electronics, N.V."
(Appeal Br. 3.)
Appeal2013-003871
Application 12/299,809
STATEMENT OF THE CASE
The Appellants' "invention is in the field of devices for the analysis of
a patient as well as devices for drug administration." (Spec. 1, lines 6-7.)
Illustrative Claim2
1. A device for drug administration and/or monitoring the status
of a patient comprising
a) a measuring means, which measures at least one first
body parameter of a patient for at least one measuring cycle and
at least one monitoring cycle,
b) a normalizing means, which generates a normalized
curve for each of the measured body parameter( s) of the patient
from the data obtained in the measuring cycles and adjusts the
data obtained in the at least one monitoring cycle to normalized
data based on the normalized curve to obtain normalized
monitoring data,
c) a second measuring means which measures at least one
second body parameter in response to the output of the
normalizing means of the at least one first body parameter,
d) a comparison means which compares the second body
parameter data with prestored comparison data, and
e) a drug delivery device which comprises a drug release
means, which starts a drug release program based upon the
comparison between the second body parameter data and the
pre-stored comparison data.
Rejection
The Examiner rejects claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over Uber, 3 Ali-Ali, 4 and Friedman. 5
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") set forth on pages 12-14 of the Appeal Brief.
3 US 2008/0294096 Al, published Nov. 27, 2008.
4 US 2006/0281983 Al, published Dec. 14, 2006.
5 US 2010/0063367 Al, published Mar. 11, 2010.
2
Appeal2013-003871
Application 12/299,809
ANALYSIS
Claims 1 and 9 are the independent claim on appeal, with the rest of
the claims on appeal (i.e., claims 2-8 and 10) depending therefrom. (Claims
App.) Independent claim 1 requires a drug release means to "start[] a drug
release program based upon the comparison between [] body parameter data
and []pre-stored comparison data." (Id.) Independent claim 9 requires a
step of "starting of a drug release" based upon a similar comparison. (Id.)
The Examiner finds that Uber discloses a drug release means and that
Friedman teaches means for comparing body parameter and pre-stored
comparison data. (See Final Action 2-3.) The Examiner determines that it
would have been obvious to improve on Uber's device by providing it with a
comparison means as taught by Friedman. (Id. at 4.)
We agree, at least arguendo, with these findings and this determination
by the Examiner. Uber discloses that a monitor 600 that can be used to
"monitor the state of [a] patient [] and ensure that [an] injection procedure
does not harm [the] patient." (Uber i-f 234.) Friedman teaches that body-
parameter data can be compared to an alarm limit (based on historic patient
data) so that "an alarm can be generated to immediately indicate to medical
personnel that the patient has significantly deviated from past medical
readings." (Friedman i-f 48.) One of ordinary skill in the art would appreciate
that an incorporation of such a comparison means into Uber's monitor 600
"would make sure the patient's health was within safe limits" and would
render "the predictable result of making the patient safer." (See Final
Action 4.)
However, we agree with the Appellants' position that the proposed
improvement to Uber' s device would not result in the "start" of a drug
3
Appeal2013-003871
Application 12/299,809
release as required by independent claims 1 and 9. (See Appeal Br. 8-9.)
Instead, the Examiner's proposed improvement would seemingly result in
Uber's monitor 600 comparing body-parameter data to past medical readings
so that an alarm can be generated ifthe comparison reveals that an injection
procedure is harming a patient. And the Examiner does not adequately
explain how or why one of ordinary skill in the art would equate "an alarm
condition" to "a drug delivery program" and/or "a program that shuts off
pumping." (See Answer 7-8.) As such, the Examiner does not sufficiently
establish a prima face case of obviousness.
Thus, we do not sustain the Examiner's rejection of independent
claims 1 and 9. The Examiner's further findings with respect to the
dependent claims (see Final Action 3-5) do not compensate for the above
discussed shortcoming in the prior art, so we also do not sustain the
Examiner's rejection of dependent claims 2-8 and 10.
DECISION
We REVERSE the Examiner's rejection of claims 1-10.
REVERSED
mls
4