Ex Parte Pelissier et al

Patent Trial and Appeal Board

Dec 21, 2018

13565696 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/565,696 08/02/2012
23266 7590 12/26/2018
DAUGHERTY & DEL ZOPPO CO., LP.A.
38500 CHARDON ROAD
WILLOUGBY HILLS, OH 44094
FIRST NAMED INVENTOR
Laurent Pelissier
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.
ULT-10-7519 2067
(ANAl 198-US)
EXAMINER
TURCHEN, ROCHELLE DEANNA
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
adelzoppo@dd-iplaw.com
carole@dd-iplaw.com
mwheeler@dd-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAURENT PELISSIER, KRIS DICKIE, and
KWUN-KEAT CHAN
Appeal 2017-011386
Application 13/565,696
Technology Center 3700
Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner's decision to reject claims 1---6 and 8-21 (Appeal Brief filed April
7, 2017 ("App. Br.") 4--10.) We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants report that the real party in interest is Analogic Corporation.
(App. Br. 2.)
Appeal 2017-011386
Application 13/565,696
Appellants' Specification provides a patient monitoring system
including ultrasound devices that wirelessly communicate with a central
station. (Specification ("Spec."), abstract.) The ultrasound device includes
an ultrasound transducer assembly and a control and data processing system.
(Spec. ,r 14.) Signal processing may be performed by the ultrasound device
or by the central station for more refined images. (Id. ,r 18.) The system
may generate alerts from the ultrasound device to the central station, from
the central station to a portable device, or from the ultrasound device to a
portable device through the central station. (Id. ,r 16.) The ultrasound
device may be equipped with a strap or other retaining mechanism to be held
in place against the skin of a subject. (Id. ,r 20.)
Appellants present three independent claims: claims 1, 13, and 14.
Although Appellants present separate arguments against the rejections of
independent claims 1, 13, and 14, they do not present separate arguments
against the rejections of the claims that depend on them.
Claim 1 recites 2 :
A patient monitoring system comprising:
at least one ultrasound device comprising an ultrasound
transceiver,
an ultrasound transducer configured to transmit
and receive ultrasound signals,
a control and data processing system configured to
cause the ultrasound device to operate intermittently to
generate first images of a structure within a subject that is
being monitored and by processing ultrasound signals
received at the ultrasound transducer by applying first
processing to the ultrasound signals to generate the first
ultrasound images,
2 Indentations added for clarity.
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Application 13/565,696
a local display operable to display the first
ultrasound images,
a wireless network interface; and
a station connected to a network to receive ultrasound
data from the ultrasound device by way of the wireless network
interface and network,
the station comprising
a station display and
a processor configured to further process the
ultrasound data from the ultrasound device according to
second processing different from the first processing to
generate second ultrasound images for display on the
station display;
wherein the ultrasound device is configured to process
the ultrasound data to detect a presence of voids within the
subject and generates an alarm signal in response to a result of
the processing indicating that a void is present within the
subject,
wherein the void includes one of edema or internal
bleeding, and the ultrasound device transmits the alarm to the
station.
(App. Br. 11, Claims App'x.)
Independent claim 13 is similar to independent claim 1, with two
differences of note: (1) the ultrasound transducer and the control and data
processing system are disposed in a same unitary housing; and (2) the station
is configured to detect the presence of voids, generate an alarm signal, and
transmit the alarm to a portable viewer, which is not the ultrasound device.
(App. Br. 7, 13, Claims App'x.)
Independent claim 14 is a method of patient monitoring using a
system similar to that of claims 1 and 13. The method of claim 14 is
differentiated by: (1) holding a single enclosure ultrasound device including
both transducer and control and data processing system with a retaining
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mechanism at a static location against a subject: and (2) transmitting an
edema alarm from the ultrasound device to a portable device. (App. Br. 8,
14, Claims App'x.)
The Examiner rejects the claims under 35 U.S.C. § I03(a)(pre-AIA)
as follows (Final Office Action mailed November 9, 2016 ("Final Act.")):
Claims References Final Office Action
Citation
1-3, 6, and 8 Berger, 3 Grabb, 4 2-5
Lang, 5 and Giftakis 6
4, 5, and 9-12 Berger, Grabb, Lang, 5---6
Giftakis, and Gatzke 7
13-21 Berger, Grabb, Lang, 6-12
Giftakis and Hanafy8
Findings of Fact
1. Berger teaches a medical imaging system including a hand-held
ultrasound probe with a transducer array, transmit/receive module, portable
processing unit, memory, system controller, integrated compact video
display, and wireless communications chip set. (See Berger ,r,r 103, 458,
Fig. 1, Fig. 50.)
2. Berger teaches that the system includes a host computer, with a
microprocessor and display controller connected to a display device. (Id.
i1103, Fig. 1.)
3 Berger et al., US 2004/0015079 Al; published Jan. 22, 2004
4 Grabb et al., US 2005/0228251 Al; published Oct. 13, 2005
5 Lang et al., US 6,358,208 Bl; issued Mar. 19, 2002
6 Giftakis et al., US 2006/0135877 Al; published June 22, 2006
7 Gatzke, US 2003/0163045 Al; published Aug. 28, 2003
8 Hanafy et al., US 2004/0158154; published Aug. 12, 2004
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3. Referring to Figures 17 A-17C, Berger teaches the system may
include an ultrasound probe wirelessly connected to a host computer, which
is wirelessly connected to a portable information/computing device that
includes a remote display. (See id. ,r,r 275-277, Figs. 17 A-17C.)
4. Referring to the same embodiment, Berger teaches
electronically connecting ultrasound systems allowing physicians to send
and receive messages, diagnostic images, and reports. (See id.)
5. Grabb teaches an ultrasound system that generates warnings of
unreliable location data. (See Grabb ,r 15, 24.)
6. Lang teaches using an ultrasound probe that is programmed to
detect edema and alert a physician with an alarm. (See Lang col. 31, 11. 3-8;
col. 34, 11. 37-50; col. 51, 11. 22-28.)
7. Giftakis teaches a medical monitoring system that may monitor
pulmonary edema, record diagnostic information, and initiate a warning or
alert to patient caregiver or remote monitoring station. (See Giftakis ,r,r 104,
169.)
8. Hanafy teaches a handheld image processing ultrasound device
including an ultrasound transducer and an ultrasound processor in the same
housing. (See Hanafy ,r,r 19-20, Fig. 1.)
Analysis
Appellants argue that Giftakis fails to teach that the ultrasound device
transmits an alarm to a station. (App. Br. 5.) Appellants argue that Giftakis
does not teach or suggest ultrasound in the portions cited by the Examiner,
and does not suggest that ultrasound is employed by the diagnostic system
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disclosed by the reference. (Id. 5---6.) Therefore, Appellants argue, the cited
paragraphs of Giftakis fail to make up for the conceded deficiency of the
combination of Berger, Grabb and Lang, and the combination of references
does not disclose or suggest all of the claimed limitations. (App. Br. 6.)
We are not persuaded by Appellants' arguments. The Examiner cites
Berger as teaching ultrasound, Lang (and/or Grabb) as teaching an alarm,
and Giftakis for teaching the transmission of an alarm to a station. (Final
Act. 3--4.) More specifically, the Examiner cites Giftakis as teaching
initiating a warning or alert from a monitoring device to a patient caregiver
or remote monitoring location. (Ans. 14.) The Examiner combines Giftakis
with Berger's ultrasound system, which wirelessly transmits ultrasound data
from an ultrasound device to a station, and Lang's (and/or Grabb's)
ultrasound system, which transmits an alarm when identifying edema. Id.
"Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). By
considering the combination of the prior art as a whole, we are not
persuaded that the Examiner erred in determining that it would have been
obvious to one of ordinary skill in the art to modify Berger's wireless
ultrasound device, by transmitting an alarm in view of Lang (and/or Grabb)
to a station in view of Giftakis, to provide portable transmission. (See Ans.
14.)
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Appellants further argue that Giftakis does not describe an ultrasound
device, station, or transmission, and therefore cannot be used to modify
another reference to disclose or suggest transmission by an ultrasound
device to a portable viewer. (App. Br. 6.)
We are not persuaded by Appellants' argument. The Examiner cites
references directed to patient monitoring systems that are configured to
communicate medical data from a monitoring device to a remote station
and/or portable viewer. (See Final Act. 3-5; Ans. 3-5.) "[I]f a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here, a
person of ordinary skill in the art would recognize that the techniques used
to improve the monitoring system of Giftakis would be readily applicable to
the similar monitoring devices of Berger, Lang, and/or Grabb. Furthermore,
Appellants have not directed us to evidence that it would be beyond the skill
of one in the art to improve the combination of Berger, Lang, and Grabb
with the similar device of Giftakis. Therefore, we are not persuaded that the
Examiner erred in rejecting claim 1.
Appellants argue separately for the patentability of dependent claims
2---6 and 8-12, but rely on the same arguments against the rejection of claim
I. (See App. Br. 6.) For the reasons provided above, we are not persuaded
that the Examiner erred in rejecting these dependent claims.
Similarly, Appellants present essentially the same arguments against
the rejection of independent claim 13. (See App. Br. 6-7 (Giftakis does not
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teach "an ultrasound device transmits the alarm to a portable viewer ... ").)
For the reasons provided above, we are not persuaded that the Examiner
erred in rejecting claim 13.
Appellants argue against the rejection of independent claim 14 with
the same argument raised against claims 1 and 13, regarding the
combination of the art with Giftakis. (See App. Br. 8.) As discussed above,
we find this argument unpersuasive.
Appellants further argue that the Examiner did not address the subject
matter of claim 14 by referring to "transmitting the first ultrasound data from
the hand-held ultrasound device directly to a portable device" rather than
"transmitting the alarm from the hand-held ultrasound device to a portable
device." (See App. Br. 8.)
We do not find Appellants' argument persuasive. The record supports
the Examiner's finding that Berger discloses transferring ultrasound data to a
wireless station, which transmits data to a portable viewer, where the data
may include an alarm as taught by Grabb, Lang, and/or Giftakis. (See Ans.
19.) Therefore, we are not persuaded that the Examiner erred in rejecting
claim 14.
Appellants argue separately for the patentability of dependent claims
15-21, but rely on the same arguments raised against the rejection of claim
14. (See App. Br. 10.) For the reasons provided above, we are not
persuaded that the Examiner erred in rejecting these dependent claims.
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Conclusion
Upon consideration of the record and the reasons given, we sustain the
rejection of claims 1---6 and 8-21 under 35 U.S.C. § 103(a).
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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