13977927 (P.T.A.B. Feb. 27, 2019)

Ex Parte Kurzenberger

Patent Trial and Appeal BoardFeb 27, 2019

13977927 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/977,927 07/02/2013 Heinz Otto Kurzenberger 24737 7590 03/01/2019 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. 2011P00057WOUS 1013 EXAMINER CWERN, JONATHAN ART UNIT PAPER NUMBER 3793 NOTIFICATION DATE DELIVERY MODE 03/01/2019 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 HEINZ OTTO KURZENBERGER Appeal2018-004334 Application 13/977 ,927 1 Technology Center 3700 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and CYNTHIA L. MURPHY, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), the Appellant appeals from the Examiner's decision rejecting claims 1, 4--7, 10-12, 14--19, and 21-26. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 "The real party in interest for this appeal and the present application is KONINKLUKE PHILIPS N.V." Appeal Br. 1. Appeal2018-004334 Application 13/977,927 STATEMENT OF THE CASE Subject Matter on Appeal The Appellant's "invention relates to a barcode scanning device configured for [ and a method of] determining a physiological quantity of a patient," for example a respiratory frequency or a pulse frequency of the patient. Spec. 1, 11. 2-5, 9-10; see id. at 3, 11. 1--4. Claims 1, 14, and 16 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the appealed subject matter. 1. A barcode scanning device configured both for reading a barcode attached to a patient and for determining a physiological quantity of the patient wherein the physiological quantity of the patient comprises at least one of a respiratory frequency of the patient or a pulse frequency of the patient, the barcode scanning device comprising: a light emitting unit configured for emitting light towards a surface to be sensed of the patient, wherein a wavelength of the emitted light comprises visible light or infrared light, and wherein the emitted light comprises a light pattern of at least one of a rectangular shape, a rectangular framed shape, a grid shape, and a spot shape, a light receiving unit configured for: (i) receiving light reflected from a surface to be sensed of the patient, and (ii) acquiring images based on the received light, and a signal processing unit configured for: (i) reading a barcode, and (ii) determining the physiological quantity of the patient based on the received light, wherein the signal processing unit comprises: (i) a change signal determining unit configured for determining a signal indicative of a change between the images acquired based on the received light, and 2 Appeal2018-004334 Application 13/977,927 (ii) a peak detector configured for determining a peak of the signal indicative of the change between the acquired images. Rejections I. Claims 1, 4---6, 10-12, 14--17, 19, 21, 22, and 25 are rejected under (pre-AIA) 35 U.S.C. Â§ I03(a) as unpatentable over Wood et al. (US 2008/0045818 Al, pub. Feb. 21, 2008) (hereinafter "Wood") and Greenwald et al. (US 2004/0015091 Al, pub. Jan. 22, 2004) (hereinafter "Greenwald"). II. Claims 7, 18, and 26 are rejected under (pre-AIA) 35 U.S.C. Â§ I03(a) as unpatentable over Wood, Greenwald, and either Whitestone et al. (US 2012/0078088 Al, pub. Mar. 29, 2012) (hereinafter "Whitestone"), Lu (US 2008/0130015 Al, pub. June 5, 2008), or Schlagheck et al. (US 2009/0048523 Al, pub. Feb. 19, 2009) (hereinafter "Schlagheck"). III. Claims 23 and 24 are rejected under (pre-AIA) 35 U.S.C. Â§ I03(a) as unpatentable over Wood, Greenwald, and Thomsen et al. (US 2013/0060098 Al, pub. Mar. 7, 2013) (hereinafter "Thomsen"). ANALYSIS Independent claim 1 calls for a barcode scanning device with a signal processing unit including "a peak detector configured for determining a peak of the signal indicative of the change between the acquired images." Appeal Br., Claims App. Similarly, independent claim 14 calls for a method having a step of "determining a peak of the signal indicative of the change between the images," and independent claim 16 calls for a scanning device with a 3 Appeal2018-004334 Application 13/977,927 signal processor configured to "determine a peak of a signal indicative of a change between the acquired images." Id. The Examiner's rejection of claims 1, 14, and 16 includes a finding that Wood teaches a light emitting unit (i.e., a laser), a light receiving unit (i.e., a camera), and a signal processing unit including a change signal determining unit. 2 Final Act. 5. The Examiner also finds that "Wood does not explicitly refer to a peak detector for determining a peak of the signal indicative of the change between the acquired images." Id. at 6 ( citing Wood ,r,r 122, 124). To remedy this deficiency, the Examiner turns to Greenwald and finds: Greenwald discloses a PPG monitoring system. Greenwald teaches determining changes in reflected light by measuring a PPG signal for each cardiac cycle, analyzing each of the plurality of signals by determining the timing of the pulse by detecting the peak using a threshold, and outputting the resulting information to the user. Id. at 6 (citing Greenwald ,r,r 22-24). The Examiner concludes: It would have been obvious to one of ordinary skill in the art ... to have modified the invention of Wood to evaluate the received signal using known signal processing techniques, such as by determining the timing of the pulse by detecting the peak using a threshold as taught by Greenwald, in order to accurately determine the pulse rate of the patient, and provide diagnostic information to the user of the system. Wood refers to the use of signal processing techniques well known in the art ([0122], [0124]). Furthermore, as Wood acquires images, in the combined invention, the peak which represents a change in 2 The Examiner finds that "Wood fails to explicitly state that both the pulse rate detection and barcode detection embodiments may be utilized in a single embodiment," and determines that "[i]t would have been obvious to one of ordinary skill in the art ... to have combined the embodiments of the pulse rate detection and barcode detection." Final Act. 5, 6. 4 Appeal2018-004334 Application 13/977,927 pulsation will necessarily be indicative of a change between the acquired images, the change being caused by the pulsation. Id. at 6-7. The Appellant argues that Greenwald "does not suggest using its ECG and PPG signals to indicate a change between acquired images." Appeal Br. 9; Reply Br. 2. The Appellant points out that the cited paragraphs of Greenwald teach "analyzing an electrocardiogram (ECG) waveform and a photoplethysmography (PPG) waveform in order to identify pulse onsets and arrival times." Appeal Br. 8; Reply Br. 2. Also, the Appellant points out that the Examiner does not find that Wood teaches "a peak detector configured for determining a peak of the signal indicative of the change between the acquired images." Reply Br. 2-3. The Appellant's argument is persuasive. Although the Examiner's position is based on applying Greenwald' s peak detection technique as a signal processing technique in the image comparison for determining a PPG signal of Wood (Ans. 2-3), there is a gap between the teachings of the references and the claimed subject matter. Most notably, the Examiner does not find that Wood or Greenwald teaches "a peak detector configured for determining a peak of the signal indicative of the change between the acquired images," as recited in claim 1. Rather, the Examiner relies on Greenwald to teach a peak detector configured for determining a peak of a signal, but does not find that Greenwald's signal is indicative of the change between the acquired images. And, to the extent that the Examiner relies on applying a well-known signal processing technique for PPG signals, we determine that the Examiner does not adequately support, on the record, why one of ordinary skill in the art would 5 Appeal2018-004334 Application 13/977,927 use Greenwald's peak detection technique for determining a peak of Wood's signal indicative of the change between the acquired images. Thus, we do not sustain the Examiner's rejection of independent claims 1, 14, and 16, and dependent claims 4---6, 10-12, 15, 17, 19, 21, 22, and 25, as unpatentable over Wood and Greenwald (Rejection I). Additionally, the Examiner's rejections of dependent claims 7, 18, 23, 24, and 26 do not include findings and/or reasoning that cure the inadequately supported rejection of the independent claims. Thus, we do not sustain the Examiner's rejections of dependent claims 7, 18, 23, 24, and 26 (Rejections II-III). DECISION We REVERSE the Examiner's decision rejecting claims 1, 4--7, 10-12, 14--19, and 21-26. REVERSED 6