Lurie, Keith G.

Patent Trials and Appeals Board

Jul 2, 2021

2021000010 (P.T.A.B. Jul. 2, 2021)

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.
15/160,492 05/20/2016 Keith G. Lurie 085921-1012047-000580US 7094
20350 7590 07/02/2021
Kilpatrick Townsend & Stockton LLP - West Coast
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
LOUIS, LATOYA M
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
07/02/2021 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte KEITH G. LURIE,
KANCHANA SANJAYA GUNESEKERA KARUNARATNE,
JOSEPH MANNO, and JOHN P. GRIMM
__________

Appeal 2021-000010
Application 15/160,492
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6–25, and 30. Claims 26–29 are

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real parties in interest as Keith G.
Lurie and AdvancedCPR Solutions, LLC. Appeal Brief (“Appeal Br.”) 3,
filed April 3, 2020.
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allowed and claim 5 has been canceled. Non-Final Act. 1–2.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “systems, devices, and methods
of administering CPR to a patient in a head and thorax up position.” Spec.
¶ 4.3 Claims 1, 14, and 21 are independent. Claim 1 is illustrative of the
claimed subject matter and recites:
1. An elevation device used in the performance of
cardiopulmonary resuscitation (CPR) and after resuscitation,
comprising:
a rigid base configured to sit upon a support surface and to
support an individual’s lower body, including an abdomen of the
individual;
an upper support operably coupled to the base, wherein the
upper support comprises a predefined head-receiving region and
a predefined thorax-receiving region, the upper support being
configured to support and elevate the individual’s upper back,
shoulders and head such that a central portion of the brain is
positioned above the heart and shoulders relative to a horizontal
plane at all angular positions of the upper support including both
an elevated and a lowered position of the upper support when the
individual’s head is supported by the predefined head-receiving
region and the individual’s chest is supported by the predefined
thorax-receiving region;
a support mechanism that is configured to maintain the
upper support at a desired elevated position that is elevated
relative to the lowered position, wherein at the desired position
the upper support elevates a center of the heart to a first height of

2 Non-Final Office Action (“Non-Final Act.”), dated Nov. 1, 2019.
3 Specification (“Spec.”), filed May 20, 2016.
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between about 3 cm and 8 cm above the support surface and
elevates the center of the brain to a second height of between
about 10 cm and 40 cm relative to the support surface;
a chest compression device mount positioned proximate
the predefined thorax-receiving region; and
a chest compression device operably coupled with the base
using the chest compression device mount, the chest
compression device being configured to compress the chest and
to actively decompress the chest.

THE REJECTIONS
I. Claims 1–4, 6, 7, 9–11, 13, 25,4 and 30 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Reinhold (US 4,060,079, issued Nov. 29, 1977)
and Cantrell (US 2004/0116840 A1, published June 17, 2004).
II. Claim 8 stands rejected under 35 U.S.C. § 103 as unpatentable over
Reinhold, Cantrell, and Voss (US 2012/0330200 A1, published Dec. 27,
2012).
III. Claim 12 stands rejected under 35 U.S.C. § 103 as unpatentable over
Reinhold, Cantrell, and Paulussen (US 2012/0042881 A1, published Feb. 23,
2012).
IV. Claims 14, 17, 18, and 20–23 stand rejected under 35 U.S.C. § 103 as
unpatentable over Reinhold.
V. Claim 15 stands rejected under 35 U.S.C. § 103 as unpatentable over
Reinhold and Voss.
VI. Claims 16, 19, and 24 stand rejected under 35 U.S.C. § 103 as
unpatentable over Reinhold and Paulussen.

4 We note that claim 25 depends from claim 21, rather than claim 1. See
Appeal Br. 20 (Claims App.).
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ANALYSIS
Rejection I — Obviousness over Reinhold and Cantrell
As to independent claim 1, the Examiner finds that Reinhold discloses
an elevation device having an upper support (sub-frame 32) configured to
support and elevate the individual’s upper back, shoulders and head such
that a central portion of the brain is positioned above the heart and
shoulders, relative to a horizontal plane at all angular positions of the upper
support, including both an elevated and a lowered position of the upper
support. Non-Final Act. 6 (citing Reinhold Fig. 5). The Examiner
acknowledges that Reinhold does not disclose a support mechanism that is
configured to maintain the upper support at a desired elevated position that
is elevated relative to the lowered position, wherein at the desired position
the upper support elevates a center of the heart to a first height of between
about 3 cm and 8 cm above the support surface and elevates the center of the
brain to a second height of between about 10 cm and 40 cm relative to the
support surface. Id. The Examiner, however, finds that it would have been
obvious to modify the upper support of Reinhold “with an elevation to
provide the claimed heights to the heart and brain as such is well with an
artisan’s skill and would provide the advantage of enhanced accommodation
to different user’s sizes” because “it has been held that where the general
conditions of a claim are known, it is not inventive to determine optimum or
workable ranges by routine experimentation.” Id. at 6–7;5 see also Ans. 13–
14.6

5 The Examiner relies on the teachings of Cantrell for limitations other than
those discussed above. Non-Final Act. 7.
6 Examiner’s Answer (“Ans.”), dated July 30, 2020.
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Appellant contends that
[w]hile Appellant agrees that Fig. 5 of the Reinhold reference
discloses the positioning of a patient such that the patient’s head
is elevated relative to the chest, Appellant respectfully submits
that disclosure of a single position of an elevation device is
insufficient disclosure that such relative positioning of the head
and chest is maintained “at all angular positions of the upper
support including both an elevated and a lowered position of
the upper support” as presently required by the claim.
Appeal Br. 10. Appellant argues that “the figures of the Reinhold reference
explicitly disclose that in at least the lowered configuration of the upper
support the central portion of the brain is lower than the shoulders” and “as
illustrated in Fig. 3 of the Reinhold reference . . ., the sub-frame 32
maintains a central portion of the brain in a lower position than the shoulders
when in a lowered configuration.” Id. Appellant points out that “[t]he
Reinhold reference further indicates that such positioning of the head lower
than the chest/upper back is important for airway management.” Id. (citing
Reinhold 2:26–33). As such, Appellant contends that “a person of skill in
the art would not be motivated to modify the Reinhold reference in a manner
inconsistent with the teachings of the reference.” Id.
The Examiner responds that Reinhold’s Figure 3 “is a lowermost flat
position and is not angled.” Ans. 13. The Examiner further states that
“[s]ince the heart and head are aligned (linear), the head would
be vertically higher than the heart at any angled position of the
support above zero degrees (zero degrees as no angle) including
at an elevated position (i.e. 45 degrees, fig. 5) and at a lowered
position (i.e. less elevated position, i.e. 10 degrees). As shown
in fig. 5, the head region is above the thorax region and the head
would be higher than the chest of the user at the higher elevated
positions (i.e. 45 degrees; fig. 5) and at the less elevated positions
(i.e. lowered position, i.e. 10 degrees) of the upper support.
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Id.
Appellant has the better position. As an initial matter, we note that
the term “angular position,” as recited in claim 1, is not defined in the
Specification. See Spec., passim. We also note that the Specification
appears to equate the term “flat” with the term “supine.”7 For example, the
Specification describes the position of a patient lying on a flat table shown in
Figure 1A as “receiving CPR in a supine configuration.” Spec. ¶ 7, Fig. 1A.
The Specification further describes Figure 1A as “a demonstration of the
standard supine (SUP) CPR technique,” in which “a patient 100 is
positioned horizontally on a flat or substantially flat surface 102 while CPR
is performed.” Spec. ¶ 93, Fig. 1A. In contrast, the Specification describes
Figure 1B as “a head and thorax up (HUP) CPR technique,” in which “the
patient 100 has his head and thorax elevated above the rest of his body,
notably the lower body.” Spec. ¶ 93, Fig. 1B. Additionally, the
Specification describes Figure 3 as “depict[ing] a patient 300 having the
head 302 and thorax 304 elevated above the lower body 306,” wherein “the
patient 300 has its head 302 at a higher height A than thorax at height B, and
both are elevated relative to the flat or supine lower body at height C.”
Spec. ¶ 95 (emphasis added), Fig. 3. Upon review of Appellant’s
Specification, an ordinarily skilled artisan would understand the term
“angular position” as excluding a “flat” position. We further note that claim

7 The ordinary and customary meaning of the term “supine” is “lying on the
back or with the face upward.” https://www.merriam-
webster.com/dictionary/supine (last accessed June 30, 2021). However, we
recognize that an applicant may choose to be his own lexicographer. See
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

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1 recites “a central portion of the brain is positioned above the heart and
shoulders relative to a horizontal plane at all angular positions of the upper
support.” Appeal Br. 15 (Claims App.) (emphasis added). As such, we
construe the term “angular position” as any position other than a flat
position, relative to a horizontal plane.
In describing Figure 5, Reinhold discloses that “suitable means is
provided for releasably retaining the sub-frame 32 in its raised position” and
“such means includes a U-shaped strut member 36 having the free ends of its
legs pivotally connected to the outer surfaces of the leg portions of the sub-
frame 32 as indicated at 38.” Reinhold 4:40–46. Reinhold further discloses
that “[e]xtending outwardly from the legs of strut 36 adjacent the bight
portion thereof is a pair of pins 40 which are received within guide tracks 42
provided in track assemblies 44 suitably secured to the upper surface of the
adjacent leg portions of the main frame member 18” and “each of the tracks
includes a notch portion 46 which receive[s] the pins 40 when the strut
member 36 is disposed in a position to support the sub-frame in its raised
position.” Id. at 4:46–54. Reinhold goes on to state that “[t]he strut is
released by lifting upwardly thereon to move the pins out of the notches 46
enabling the pins to move toward the bight portion of the main frame 18,
thus permitting the sub-frame 32 to move into its lowered position.” Id. at
4:54–59. Reinhold does not disclose that in “its lowered position,” sub-
frame 32 is at 0 degree, 10 degrees, or any particular degrees, with respect to
a horizontal plane––contrary to the Examiner’s interpretation in the Answer,
reproduced above. See Ans. 13. The only thing that is certain here is that
Reinhold’s sub-frame 32 can move to a position depicted in Figure 5 and at
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least one “lowered position.”8 It appears that Figure 3 of Reinhold depicts
such a “lowered position.” The Examiner does not direct us to any
discussion in Reinhold indicating that sub-frame 32 in Figure 3 is in a flat
position (i.e., zero degrees with respect to a horizontal plane). Hockerson-
Halberstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951 (Fed. Cir. 2000),
states that “patent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” Id. at 956. Without
additional information from Reinhold’s written description, sub-frame 32 in
Figure 3 cannot be regarded as being in a flat position. In addition,
Appellant points out,
merely elevating the support of Reinhold to an angle of 1 degree
(which is included in both the Appellant’s interpretation of all
angular positions and the Examiner’s interpretation) would not
be sufficient to raise the central portion of the brain above the
heart and shoulders relative to a horizontal plane as required by
the present claims.
Reply Br. 3.9 We agree with Appellant’s assessment. Further, given
Reinhold’s objective of “support[ing] the head of the patient in a position
extending downwardly from the adjacent back area so that the breathing
channel is maintained in a favorable position for the reception of oxygen”
(Reinhold 2:26–30 (emphasis added); see also id. at Abstr.), it is more likely
than not that Reinhold’s elevation device with an upper support is not
configured “such that a central portion of the brain is positioned above the
heart and shoulders relative to a horizontal plane at all angular positions of

8 It appears that sub-frame 32 can be positioned to a single lowered position,
rather than multiple lowered positions.
9 Reply Brief (“Reply Br.”), filed Sept. 30, 2020.
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the upper support including both an elevated and a lowered position of the
upper support,” as required by claim 1. The Examiner’s findings in regard
to this claimed subject matter rests on speculation. Rejections based on 35
U.S.C. § 103 must rest on a factual basis. In making such a rejection, the
Examiner has the initial duty of supplying the requisite factual basis and
may not, because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions, or hindsight reconstruction to supply
deficiencies in the factual basis. In re Warner, 379 F.2d 1011, 1017 (CCPA
1967).
Appellant also contends that “the Reinhold reference fails to disclose
that the heart is elevated between 3 cm and 8 cm and the head is elevated to
between 10 cm and 40 cm” and that Appellant’s Yannopoulos Declaration10
discusses that
the height ranges provided by the support mechanism in the
current claim are not merely obvious design considerations, but
instead represent critical ranges that provide increased blood
flow to the brain compared to standard CPR flat while reducing
intrathoracic pressure to a level that is unlikely to cause
damaging concussive effects.
Appeal Br. 11.
Once again, Appellant has the better position. We first note that the
Examiner’s proffered reason for the proposed modification is via “routine
optimization.” Non-Final Act. 7; Ans. 14. The following principles apply to
this line of modification: (1) “[W]here the general conditions of a claim are
disclosed in the prior art, it is not inventive to discover the optimum or

10 Declaration of Demetris Yannopoulos (“Yannopoulos Declaration”), filed
Dec. 5, 2018.
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workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456
(CCPA 1955); (2) “[T]he discovery of an optimum value of a variable in a
known process is usually obvious.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d
1348, 1368 (Fed. Cir. 2007); and (3) The rationale for determining the
optimal parameters for prior art result effective variables “flows from the
‘normal desire of scientists or artisans to improve upon what is already
generally known.’” Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed.
Cir. 2003)).
In this case, we note the Examiner does not provide supporting
evidence that the variables concerning “the claimed heights to the heart and
brain” (Non-Final Act. 6–7) are result effective variables, which is a
prerequisite to invoking “routine optimization” as a motivation for
modifying Reinhold’s sub-frame 32. Peterson, 315 F.3d at 1330. We also
note the Examiner’s rationale of “accommodation to different user’s sizes”
would relate to the size of the upper support––rather than its position relative
to a horizontal plane (and thus its height position above a support surface).
See Appeal Br. 11 (“These ranges are not provided to accommodate users of
different sizes, but are needed to provide proper elevation to maximize the
benefits associated with head up CPR.”). As such, the Examiner’s rationale
for the proposed modification lacks rational underpinning. See In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.”).
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Accordingly, for the above reasons, we do not sustain the Examiner’s
rejection of claim 1, and claims 2–4, 6, 7, 9–11, 13, 25,11 and 30 depending
therefrom, as unpatentable over Reinhold and Cantrell.

Rejection IV — Obviousness over Reinhold
Independent claims 14 and 21 recite similar limitations as discussed
above for claim 1. Appeal Br. 17–20 (Claims App.). The Examiner’s
rejection of these claims is predicated on the same unsupported findings and
rationales addressed above. Non-Final Act. 10–13. Accordingly, for
reasons similar to those discussed above for claim 1, we do not sustain the
Examiner’s rejection of claims 14 and 21, and claims 17, 18, 20, 22, and 23
depending therefrom, as unpatentable over Reinhold.

Rejections II, III, V, and VI — Obviousness over Reinhold, Cantrell, and
either Voss or Paulussen, Reinhold and Voss, or Reinhold and Paulussen
Claims 8, 12, 15, 16, 19, and 24 depend either directly or indirectly
from claim 1, 14, or 21. Appeal Br. 16–20 (Claims App.). The Examiner
relies on Voss for disclosing “an impedance threshold device configured to
interface with the individual’s airway during CPR” and on Paulussen for
disclosing “at least a portion of the upper support ha[ving] a curved profile
such that a medial section of the portion of the upper support is lower
relative to end sections of the portion of the upper support” and for
disclosing a “chest compression device [being] removably coupled with one
or both of the base or the upper support.” Non-Final Act. 9, 10, 13, 14. The

11 As noted above in footnote 4, the Examiner includes claim 25 in this
rejection although claim 25 does not depend from claim 1.
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Examiner does not rely on the teachings of Voss or Paulussen in any manner
that remedies the deficiencies of the combination of Reinhold and Cantrell,
or of Reinhold alone, as addressed above. Accordingly, for reasons similar
to those discussed above for claim 1, we do not sustain the Examiner’s
rejections of claims 8, 12, 15, 16, 19, and 24 as unpatentable over the
various combinations of cited prior art.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1–4, 6, 7, 9–
11, 13, 25, 30
103 Reinhold,
Cantrell
1–4, 6, 7, 9–
11, 13, 25,
30
8 103 Reinhold,
Cantrell, Voss
8
12 103 Reinhold,
Cantrell,
Paulussen
12
14, 17, 18,
20–23
103 Reinhold 14, 17, 18,
20–23
15 103 Reinhold, Voss 15
16, 19, 24 103 Reinhold,
Paulussen
16, 19, 24
Overall
Outcome
1–4, 6–25,
30

REVERSED