Ex Parte Miller

Patent Trial and Appeal Board

Mar 25, 2016

12415520 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/415,520
52144 7590
Covidien LP
ATTN: IP Legal
FILING DATE
03/31/2009
03/29/2016
6135 Gunbarrel Avenue
Boulder, CO 80301
FIRST NAMED INVENTOR
Mark C. Miller
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.
H-RM-01237 2838
EXAMINER
STOUT, MICHAEL C
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
ip.legal@covidien.com
medtronic_mitg-pmr_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK C. MILLER
Appeal2014-001740
Application 12/415,520
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving claims to a system
and method for generating corrective actions correlated to medical sensor
errors. The Examiner rejected the claims on the grounds of anticipation and
obviousness. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-
part.
1 Appellant identifies the Real Party in Interest as Covidien LP (see App. Br.
2).
Appeal2014-001740
Application 12/415,520
Statement of the Case
Background
Appellant's invention "relates generally to medical devices and, more
particularly, to determination of errors and generation of potential corrective
actions for the errors" (Spec. i-f 1 ).
The Claims
Claims 1-23 are on appeal. Independent claim 1 is representative and
reads as follows (emphasis added):
1. A pulse oximeter comprising:
a processor configured to determine if a signal received by
the pulse oximeter corresponds to a detection error, and to
probabilistically determine a corrective action based at least in
part upon the detection error.
The Issues
A. The Examiner rejected claims 1--4, 6-10, 13-17, 19, and 20 under
,..... ,_ TT r'1 I'\ l\ -1 Al""llo /"1 '\. -1 • , • • , 1 -1 ~ 1 ') / .6. l""llo -1 £'\.'\.
j) u.~.L. s lUL~DJ as oemg annc1patea oy tiaKer ~Ans. L-lUJ.
B. The Examiner rejected claims 5 and 11 under 35 U.S.C. § 103(a) as
obvious over Baker and Cohen3 (Ans. 11-13).4
C. The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as obvious
over Baker, Cohen, and Sugiura5 (Ans. 13-14).
D. The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as obvious
over Baker and Sugiura (Ans. 14--15).
2 Baker, Jr., US 6,035,223, issued Mar. 7, 2000.
3 Cohen, US 2008/0103403 Al, published May 1, 2008.
4 We note that the Examiner identified US 2008/0103403 as Eyal, instead of
Cohen, as published.
5 Sugiura et al., US 6,259,406 Bl, issued July 10, 2001.
2
Appeal2014-001740
Application 12/415,520
E. The Examiner rejected claims 21-23 under 35 U.S.C. § 103(a) as
obvious over Baker and Lane6 (Ans. 15-16).
Because the same issue is dispositive for all five rejections, we will
consider all of the rejections together.
The Examiner finds that Baker teaches a pulse oximeter having "a
processor configured to determine if a signal received by the pulse oximeter
corresponds generally to a detection error ... , and probabilistically
determine a corrective action based at least in part upon the detection error"
(Ans. 2--4; citing Baker Fig. 3; 3:1-5:67; 7:1-10:67).
Appellant contends that Baker fails to disclose probabilistically
determining a corrective action (App. Br. 9-10; Reply Br. 3-5).
The issue with respect to these rejections is: Does the evidence of
record support the Examiner's findings that Baker teaches probabilistically
determining a corrective action?
Findings of Fact
1. The Specification teaches that " [ t ]he corrective action analysis
... may be performed, for example, using a probabilistic state transition
scheme," "[t ]his probabilistic state transition scheme may include mapping
the conditioned data against trained data, whereby the trained data may
include actual data results preprogrammed into the pulse oximeter,"
"[p ]erforming a corrective action analysis ... may, in an embodiment,
utilize a neural network," and "[i]n accordance with an embodiment, metrics
may be used in a neural network to determine the probability of a given error
6 Lane et al., US 2009/0275805 Al, published Nov. 5, 2009.
3
Appeal2014-001740
Application 12/415,520
type and the corresponding corrective action based on received signals from
the detector" (Spec. i-fi-135, 37; see also Ans. 17-18).
2. Baker teaches
[a] method for determining whether a sensor is coupled
to a tissue sample . . . . The sensor is operable to generate a
detector signal indicative of absorption of electromagnetic
radiation by the tissue sample. A plurality of metric values
corresponding to the detector signal are generated. A neural
net is employed with the metric values to determine whether
the sensor is coupled to the tissue sample.
(Baker Abstract; see also Ans. 2--4, 5---6, 7-8.)
3. Baker teaches that an artificial neural net is employed "to
discriminate between two conditions designated [as] the SENSOR ON and
SENSOR OFF conditions" (Baker 2:2-5; see also Ans. 3, 5---6, 7-8).
4. Figure 1 of Baker is reproduced below:
1<:<· j !{1$
r .... ~ .................................. 1.: ... ~........ i ~
i, ~ r~~ ........ ~:~!=~... l
U'iO 0<1>~ ~"'"""' , ll!~~i"Y ,.. · ·· · ·--: Pt0~