Ex Parte Starr

Patent Trial and Appeal Board

Sep 22, 2017

11389403 (P.T.A.B. Sep. 22, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/389,403 03/24/2006 Eric W. Starr 2005P03193US01 9598
24737 7590 09/26/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue JANG, CHRISTIAN YONGKYUN
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
09/26/2017 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 ERIC W. STARR1
Appeal 2016-008103
Application 11/389,403
Technology Center 3700
Before ULRIKE W. JENKS, RYAN H. FLAX, and TIMOTHY G.
MAJORS Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims directed to a physiologic monitor system and method, and a ventilator
system and method, for use during sedation. Claims 1—24 are on appeal as
rejected under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies the Real Party in Interest as “Koninklijke Philips
N.V.” Br. 2.
Appeal 2016-008103
Application 11/389,403
STATEMENT OF THE CASE
The Specification explains, “[t]he present invention relates to
resolving apnea episodes during sedentary anesthesia, and, in particular, to
the use of a ventilator system that delivers timed back-up breaths to patients
during sedentary anesthesia, and to a PC-based physiologic monitor used in
such a system.” Spec. 12.
Claims 1, 12, 14, and 22 are independent claims. Claim 1 is
representative and is reproduced below (emphasis added to highlight
Appellant’s argued limitations):
1. A physiologic monitor system for use during sedation,
the system comprising:
a personal computer having a controller, a display and at
least one standard input/output port;
a pressure/flow generator coupled to the controller through
the at least one standard input/output port and to a patient through
a conduit, the conduit forming a path for the pressure/flow
generator to supply respiration gas to the patient;
a physiologic sensor configured to couple to the patient
and providing an output including at least one respiration
parameter to the controller, the output is graphically displayed on
the display,
an amplifier configured to
couple the respective physiologic sensor to the at
least one standard input/output port,
receive the output and a feedback control signal
set by a user,
modify the output in accordance with the feedback
control signal, and
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Appeal 2016-008103
Application 11/389,403
send the modified output to the controller,
wherein the controller is configured to control
pressure/flow generator to provide added positive pressure that
exceeds a normal operating pressure of the pressure/flow
generator supplied to the patient in response to the at least one
respiration parameter falling outside a preset threshold based
on the feedback control signal.
Br. 15 (Claims App’x).
The following rejection is on appeal:
Claims 1—24 stand rejected under 35 U.S.C. § 103(a) over Hickle,2
Schwartz,3 and Knapp.4 Final Action 3.
FINDINGS OF FACT
We agree with and adopt the Examiner’s findings of fact and
determinations as to the scope and content of the prior art. We identify the
following findings of fact to highlight certain evidence.
FF1. Knapp discloses:
The system 10 includes a processor 14 in electrical
communication with a memory 16, a display 18 and a user
interface 20. An inspiration volume amplifier circuit 24 is
coupled to a patient interface 28 and includes circuitry for
measuring the inductance of the patient interface to provide an
analog amplifier output signal 26 indicative of the patient's
instantaneous inspiration volume. The amplifier output signal 26
is coupled to an analog-to-digital converter 30 for conversion
2 US 2003/0145854 A1 (published Aug. 7, 2003) (“Hickle”).
3 US 6,457,472 B1 (issued Oct. 1, 2002) (“Schwartz”).
4 US 6,740,046 B2 (issued May 25, 2004) (“Knapp”).
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Appeal 2016-008103
Application 11/389,403
into a digital signal 34 indicative of the patient’s instantaneous
inspiration volume which is coupled to the processor 14.
Knapp 3:61—4:4; see also Final Action 3—5, and Ans. 2—3 (discussing
Knapp).
FF2. Further to the preceding finding of fact, Knapp illustrates
such a system at Figure 1, reproduced below:
/i#
*< CtSPLav
Figure 1 shows a patient interface 28, which senses patient
physiological data such as breathing behavior, connected to an
amplifier 24, such that signals are output from the patient interface 28
to the amplifier 24. The amplifier 24 is shown connected (via an A/D
converter 30) to a processor 14, such that signals are output from the
amplifier 24 to the processor 14. The processor 14 is connected to a
display 18, such that signals are output from the processor and
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Appeal 2016-008103
Application 11/389,403
displayed on the display 18. A user interface 20 is shown connected
to the processor 14.
FF3. Knapp discloses the “amplifier 24 may be implemented
in the form of a ‘circuit module’ adapted for insertion into an
Input/Output (I/O) port or slot 86 of a standard personal computer
chassis 22.” Knapp 4:66—5:2; see also Final Action 3—5, and Ans. 2—
3 (discussing Knapp).
FF4. Knapp discloses:
the processor 14 can communicate with and control the
inspiration volume amplifier circuit module 24 via the
computer’s standard busses and the circuit 20 module can draw
on the power available to the computer components. The
processor 14 transmits any control information to the circuit
module 24 via the computer’s digital control bus 36 and receives
the digital version 34 of the analog amplifier output signal 26 via
the computer’s digital control bus 36.
Knapp 5:18—26; see also Final Action 3—5, and Ans. 2—3 (discussing
Knapp).
FF5. Knapp’s Figure 3 illustrates the circuitry within its
amplifier 24; this figure is reproduced below:
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Application 11/389,403
Figure 3 shows the Knapp amplifier 24 includes a signal generator 40
portion of the circuit, a filter 70 portion of the circuit, and an output
stage portion 80 portion of the circuit. Knapp 5:29-6:67; see also
Final Action 3—5, and Ans. 2—3 (discussing Knapp).
FF6. Knapp discloses that the sensor output received from the
patient interface 28, as input at the amplifier 24, is modified in several
ways, one of which being that:
The filter output signal 78 is coupled to an operational
amplifier 76 of the output stage 80. The output stage 80 includes
an offset adjustment control 82 in the form of a potentiometer
coupled to the inverting input of the amplifier 76. The
potentiometer 82 is user-adjustable in order to reduce or remove
the DC offset of the signal 78. This can be achieved by
displaying the filtered signal 78 on the display 18, thereby
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Appeal 2016-008103
Application 11/389,403
enabling the user to adjust the potentiometer 82 until the DC
offset is reduced or removed.
Knapp 6:57—56 (emphasis added); see also Final Action 3—5, and Ans.
2—3 (discussing Knapp).
DISCUSSION
“[W]hen a patent claims a structure already known in the prior art that
is altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (citing U.S. v. Adams,
383 U.S. 39, 50—51 (1966)). “The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” Id.
We find that in view of the findings of fact, under the above
precedent, the Examiner has established a prima facie case that claim 1
would have been obvious over Hickle, Schwartz, and Knapp. Appellant has
not produced evidence showing, or persuasively argued, that the Examiner’s
determinations are incorrect. Only those arguments made by Appellant in
the Brief have been considered in this Decision. Arguments not presented in
the Brief are waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2015). We address
Appellant’s arguments below.
Appellant’s argument is limited to the contention that:
It is undisputed that Hickle and Schwartz do not teach,
disclose or suggest “an amplifier that [is configured to] receive []
a feedback control signal set by a user and modify the output in
accordance with said signal set.” (See, Final Office Action, page
4.) Knapp is cited to provide that which is admitted missing from
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Application 11/389,403
Hickle and Schwartz, however, it is respectfully submitted that
reliance on Knapp is misplaced.
Br. 10. We look to the Specification to better understand the claim language
at issue, where Fig. 4 illustrates an embodiment of the argued configuration;
it is reproduced, as annotated, below:
Fig. 4 illustrates an amplifier 82 (annotated in solid red outline) connected to
a computer 30 via a controller 90 therein and to a sensor 80. Spec. 125. A
signal 84 is output from the sensor 80, and input to the controller 90, through
the amplifier 82. Id. The amplifier 82 also receives a feedback control
signal 86 from the controller 90, which the Specification describes, “controls
the modification of the output of the physiologic sensor.” Id. A user input
device 92 is connected with the controller 90 to allow a “user to set and
modify the feedback control signal 86 to control the modification of the
output of the physiologic sensor 80.” Id. Thus, with respect to the sensor
80, amplifier 82, controller 90, and the signals transferred therebetween,
Fig. 4 illustrates a generic configuration defined by claim 1, except that, we
note, claim 1 does not require (1) that the user set the feedback control signal
86 via interfacing with the controller 90 or (2) that the feedback control
30
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Application 11/389,403
signal 86 received by the amplifier 82 comes from the controller 90, which
is illustrated by the added dashed-line and arrow, above. However, this last
point, ultimately, does not factor into our decision.
Appellant argues:
that in accordance with Knapp, before the signal 78
reaches the amplifier 76, the DC offset of the signal 78 is
adjusted using the potentiometer 82. It is the adjusted filter
output signal 78 that is then, after the adjustment, provided to the
amplifier 76. As such as clear from Knapp, no feedback control
signal set by a user is provided to the amplifier 76. As is clear
from a simple inspection of Knapp and potentiometer 76, only a
single input is provided. Furthermore, the amplifier 76 does not
couple sensors to the standard input/output ports of a computer.
Br. 10—11. Appellant’s argument can be summarized as: the amplifier 76
disclosed by Knapp is on the wrong side of the user-input-modified signal
and the amplifier 76 does not receive the feedback control signal that
dictates the signal modification. Appellant also adds that the Knapp
amplifier 76 is not coupled to a standard I/O computer port.
Appellant’s argument is not persuasive. Appellant reads Knapp too
narrowly. Appellant identifies “amplifier 76” as Knapp’s disclosed
amplifier, but amplifier 76 is but one portion of the total circuit (at an output
stage) of Knapp’s amplifier circuit 24 (which “may be implemented in the
form of a ‘circuit module’ adapted for insertion into an Input/Output (I/O)
port or slot 86 of a standard personal computer.”). FF1—FF6. Thus, as
taught by Knapp, a user can control the functioning of an amplifier
connecting a physiological sensor with a processing controller to modify the
signal received from the sensor by the amplifier, within the amplifier, before
it is output to the controller. FF2, FF6.
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Application 11/389,403
For the reasons above, we affirm the rejection.
SUMMARY
The obviousness rejection is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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