Robert W. Fasciano

Patent Trials and Appeals Board

Dec 30, 2019

11769168 - (D) (P.T.A.B. Dec. 30, 2019)

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.
11/769,168 06/27/2007 Robert W. Fasciano 054343-038F01US 4319
124541 7590 12/30/2019
Mintz Levin/Codman & Shurtleff
One Financial Center
Boston, MA 02111
EXAMINER
CHEN, TSE W
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
12/30/2019 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):
ipdocketingbos@mintz.com
ipfileroombos@mintz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROBERT W. FASCIANO
____________________

Appeal 2018-004155
Application 11/769,168
Technology Center 3700
____________________

Before PHILIP J. HOFFMANN, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection of claims 1–3, 6–19, 21–25, 27, 28, and 30–33. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.
According to Appellant, the “invention . . . relates to methods and
devices for monitoring a patient[,] and for monitoring and displaying the

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as DePuy
Synthes Products, Inc. Appeal Br. 1.
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value of a physiological parameter.” Spec. ¶ 1. Claims 1, 8, 14, 22, and 28
are the independent claims on appeal. Below, we reproduce claim 1 as
illustrative of the appealed claims.
1. A method for monitoring a physiological parameter,
comprising:
receiving data representing a value of a physiological
parameter over time with processing circuitry operatively
connected to a display, the physiological parameter being
measured from a patient and comprising intracranial pressure,
the processing circuitry configured to perform the steps of:
displaying a current value screen on the display in a
first window on a monitoring screen on the display;
displaying a trend screen on the display in a second,
different window on the monitoring screen that is
displaying the current value screen;
drawing, on the current value screen, a graphical
representation of the value of the physiological parameter
over a first time period;
determining a mean value of the physiological
parameter over time;
drawing, on the trend screen, a graphical
representation of the mean value of the physiological
parameter over a second time period, the first time period
having a duration shorter than the second time period;
drawing, superimposed on the graphical
representation of the mean value on the trend screen, a
threshold line indicating a predetermined value;
drawing, on the current value screen, a graphical
representation of the mean value of the physiological
parameter over a third time period in response to a user
input that changes the first time period to the third time
period; and
drawing, on the trend screen, a graphical
representation of the mean value of the physiological
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parameter over a fourth time period in response to a user
input that changes the second time period to the fourth
time period.

REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 1, 6, 8, 11, 12, 28, and 33 under 35 U.S.C. § 103(a) as
unpatentable over Bray, Jr. (US 4,893,630, iss. Jan. 16, 1990)
(hereinafter “Bray”), Brauker et al. (US 2005/0203360 A1, pub.
Sept. 15, 2005) (hereinafter “Brauker”), Griffiths et al.
(US 4,937,037, iss. June 26, 1990) (hereinafter “Griffiths”), and
Tarassenko et al. (US 7,031,857 B2, iss. Apr. 18, 2006)
(hereinafter “Tarassenko”); and
II. Claims 2, 3, 7, 9, 10, 13–19, 21–25, 27, and 30–32 under
35 U.S.C. § 103(a) as unpatentable over Bray, Brauker,
Griffiths, Tarassenko, and Henry et al. (US 2005/0137488 A1,
pub. June 23, 2005) (hereinafter “Henry”).

ANALYSIS
Rejection I—Obviousness rejection of claims 1, 6, 8, 11, 12, 28,
and 33
Independent claim 1 and its dependent claims 6 and 33
As set forth above, independent claim 1 recites, in relevant part,
displaying a current value screen on the display in
a first window on a monitoring screen on the display;
displaying a trend screen on the display in a second,
different window on the monitoring screen that is
displaying the current value screen;
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drawing, on the current value screen, a graphical
representation of the value of the physiological parameter
over a first time period; . . . [and]
drawing, on the trend screen, a graphical
representation of the mean value of the physiological
parameter over a second time period, the first time period
having a duration shorter than the second time period.
Appeal Br., Claims App. (emphases added).
In the Appeal Brief, Appellant argues that the Examiner errs in
determining that it would have been obvious to combine the references to
provide a method including displaying simultaneously on a same screen i) a
value of a physiological parameter over a first, shorter time period and ii) a
mean value of the physiological parameter over a second, longer time
period. See id. at 6–9; see also, e.g., Figs. 2, 3. Based on our review of the
record, for the following reasons, we agree with Appellant.
In response to Appellant’s argument in the Appeal Brief, the Examiner
relies on Griffiths’s
disclos[ure] . . . [of a] system [that] is capable of displaying 2 or
more windows simultaneously on a display (column 4, lines 5–
14)[, and] that the user can display any set of recorded data on
the display depending on the user input into the system
controlling the displayed data (column 2, lines 52–61)
to support the determination that
it would have been obvious . . . to select a first time period for
the current value screen . . . [which] has a duration shorter than
the second time period of the trend screen as obvious to try,
choosing from a finite number of identified predictable solutions
(either displaying the same duration for the first and second time
periods, the second time period a shorter duration than the first
time period, or the second time period a longer duration for the
first time period).
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Answer 13, 14 (underlining omitted). We determine that the Examiner does
not support adequately that, based on the cited portions of Griffiths, it would
have been obvious to display simultaneously on a same screen i) a value of a
physiological parameter over a first, shorter time period and ii) a mean
value of the physiological parameter over a second, longer time period, as
the Examiner states.
The portion of Griffiths’s column 4 that the Examiner cites reads as
follows:
In addition, the display control means may select a set of
values from one location in the memory and another set of values
for display from another location in the memory, []the display
screen then being split to allow two sets[] of values to be
displayed at once for comparison purposes. The screen may be
split longitudinally or transversely (in relation to the time axis)
for this purpose and, indeed, more than two separate sets of
signals may be displayed at any one time if comparison . . .
[among] three or more sets of signals is required.
Griffiths col. 4, ll. 5–14. This portion of Griffiths does not disclose anything
about adjusting or changing a time period over which a data set is displayed,
or displaying different data sets over different time periods on a same screen.
The portion of Griffiths’s column 2 cited by the Examiner states the
following:
A very much greater number of signals than can be
displayed at any one time on the display screen can be stored in
the memory and, therefore, there are preferably provided means
for selecting the set of displayed digitized values from the total
set of stored values in the memory. An operator may thus choose
to display the set of most recent signals, or any set of signals from
a period in the past selected by operating, for example, on a
keyboard linked to a microprocessor controlling the apparatus.
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Griffiths col. 2, ll. 52–61. This portion of Griffiths also does not disclose
anything about adjusting a time period over which a data set is displayed,
displaying different data sets over different time periods on a same screen, or
even displaying different data sets on the same screen.
Therefore, the Examiner does not support adequately that, based on
the cited portions of Griffiths, it would have been obvious to display
different data sets over different time periods on a same screen.
It is not clear whether the Examiner is providing an alternate basis for
the rejection, for the first time in the Answer. Specifically, the Examiner
states
that in view of Brauker it would be obvious to show a trend value
screen over a longer period of time than the current value screen
as the data of a trend value screen is meant to show data over a
longer period of time (i.e.[,] see [F]igure 29 of Brauker) than a
current value screen (i.e.[,] see [F]igure[s] 5 and 7 of Brauker
which show raw current value data).
Answer 14 (italics added). However, even if we agree with the Examiner
that each of Brauker’s Figures 5, 7, and 29 discloses drawing a graphical
representation of data on a display screen (as opposed to these figures
simply providing graphical representations of data which Brauker does not
display), each figure at most illustrates a screen showing a single set of data
over a single time period. Thus, Brauker also does not disclose displaying
different data sets over different time periods on a same screen.
Based on the foregoing, we do not sustain the Examiner’s obviousness
rejection of independent claim 1. We also do not sustain the obviousness
rejection of claims 6 and 33 that depend from claim 1.

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Independent claim 8 and its dependent claims 11 and 12
Independent claim 8 recites the following:
8. A user interface for a medical monitoring device,
comprising:
a display;
processing circuitry operatively connected to the display
and configured to cause the display to show:
a current value screen for displaying a graphical
representation of a value of a physiological parameter
over a first time period, the physiological parameter being
measured from a patient;
a trend screen for displaying a graphical
representation of a mean value of the physiological
parameter calculated over a time period including
multiple heartbeats over a second time period, and for
displaying a threshold line indicating a predetermined
value, the threshold line being superimposed on the
graphical representation of the mean value on the trend
screen, the current value screen and the trend screen each
being displayed together as part of a monitoring screen;
and
a historical trend screen for displaying on the
monitoring screen a graphical representation of a mean
value of the physiological parameter that is calculated over
at least a third time period that precedes the second time
period,
wherein the physiological parameter comprises
intracranial pressure.
Appeal Br., Claims App. (emphases added). Thus, independent claim 8
includes recitations similar to those discussed above with respect to
independent claim 1. Therefore, we do not sustain the Examiner’s
obviousness rejection of independent claim 8 for substantially the same
reasons that we do not sustain claim 1’s obviousness rejection. We also do
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not sustain the Examiner’s rejection of claims 11 and 12 that depend from,
and the Examiner rejects with, independent claim 8.

Independent claim 28
Independent claim 28 recites the following:
28. A method for monitoring a physiological parameter,
comprising:
receiving data representing a value of a physiological
parameter over time with processing circuitry operatively
connected to a display, the physiological parameter being
measured from a patient, the processing circuitry configured to
perform the steps of:
displaying together on the display, on a monitoring
screen, a current value screen and a trend screen;
drawing, on the current value screen, a graphical
representation of the value of the physiological parameter
over a first time period;
determining a plurality of mean values of the
physiological parameter, each mean value calculated over
multiple patient heartbeats;
drawing, on the trend screen, a graphical
representation of the plurality of mean values of the
physiological parameter over a second time period, the
graphical representation of the plurality of mean values
only being displayed when the physiological parameter is
in an out-of-limit condition in which the measured
physiological parameter exceeds a predetermined
threshold value.
Appeal Br., Claims App. (emphases added). Appellant argues that the
Examiner’s rejection is in error because “Tarassenko . . . displays the
measured value at all times, not just when the threshold value is crossed.”
Id. at 15 (underlining omitted). Thus, according to Appellant, the Examiner
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does not support adequately that it would have been obvious to combine the
references such that “a graphical representation of the plurality of mean
values . . . [is] only . . . displayed when the physiological parameter is in an
out-of-limit condition.” Id. at 16. Based on our review of the record, we
agree with Appellant.
In the Final Office Action, the Examiner relies on Tarassenko to
disclose the claimed predetermined threshold value. See, e.g., Final
Action 4. We agree with Appellant, however, that Tarassenko discloses
“that the monitored value is displayed even when the value moves between
being below and above the threshold line TH.” Appeal Br. 16 (citing
Tarassenko Figs. 18(C), 20(C)).
According to the Examiner,
it would have been obvious . . . to further modify the
Bray/Brauker/Griffiths combination to superimpose a threshold
line on the graphical representation of the current value screen
and trend screen as taught by Tarassenko in order to allow the
user to visualize a threshold line with indicates a predetermined
alarm condition for the user for that measured parameter.
Answer 6. Also according to the Examiner,
Tarassenko teaches measuring and monitoring the area of the
signal when it exceeds the predetermined threshold value for an
alarm condition. Thus it would have been obvious . . . to modify
the Bray/Brauker/Griffiths/Tarassenko combination to indicate
and display the representation and time period of the data when
the signal exceeds the threshold value as taught by Tarassenko to
allow the practitioner to monitor the alarm condition area of the
measured signals when the alarm is sounded.
Id. at 7–8. None of these determinations, however, adequately supports that
it would have been obvious to combine the references to “draw[] . . . a
graphical representation of the plurality of mean values of the physiological
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parameter . . ., the graphical representation of the plurality of mean values
only being displayed when the physiological parameter is in an out-of-limit
condition in which the measured physiological parameter exceeds a
predetermined threshold value.” Further, the Examiner’s response to
Appellant’s argument also does not adequately support only displaying a
value when a threshold is exceeded, based on Tarassenko’s disclosure that a
value is constantly displayed.
Based on the foregoing, we do not sustain the Examiner’s obviousness
rejection of claim 28.

Rejection II—Obviousness rejection of claims 2, 3, 7, 9, 10, 13–19,
21–25, 27, and 30–32
Dependent claims 2, 3, 7, 9, 10, and 13
Claims 2, 3, 7, 9, 10, and 13 depend from independent claims 1 and 8.
As discussed above, we do not sustain the Examiner’s obviousness rejection
of these independent claims. The Examiner does not rely on Henry to
disclose anything that remedies the deficiency in the independent claims’
rejection. Thus, we also do not sustain the obviousness rejection of
claims 2, 3, 7, 9, 10, and 13.

Independent claim 14 and its dependent claims 15–19, 21,
and 30
Independent claim 14 recites the following:
14. A method for monitoring a physiological parameter,
comprising:
receiving data representing a value of a physiological
parameter over time with processing circuitry operatively
connected to a display, the physiological parameter being
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measured from a patient, the processing circuitry configured to
perform the steps of:
drawing, on a trend screen on the display, a
graphical representation of the value of the physiological
parameter over a time period of about ten minutes or
longer;
automatically marking in real time, on the trend
screen, the graphical representation with an event marker
disposed at a point of time at which a medically-related
event associated with the measured physiological
parameter occurred, the time corresponding to any of a
start or an end of an out-of-limit condition of the measured
physiological parameter, the time falling within the time
period,
wherein the physiological parameter comprises
intracranial pressure.
Appeal Br., Claims App. (emphasis added).
Based on our review of the record, Appellant does not persuade us
that the Examiner’s obviousness rejection of independent claim 14 is in
error.
Appellant argues that the Examiner’s “rejection is based on a
mischaracterization of Henry and thus cannot be upheld because it fails to
establish a prima facie case of obviousness.” Appeal Br. 18. Specifically,
according to Appellant, “while Henry discloses analyzing a monitored signal
‘in real time,’ there are no event markers (or anything else) automatically
marked on a screen in real time.” Id. Thus, according to Appellant, “Henry
therefore fails to disclose automatically marking in real time, on a screen, a
graphical representation with an event marker disposed at a point in time at
which a medically-related event associated with a measured physiological
parameter occurred.” Id. at 19.
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This argument is not persuasive, however, because the Examiner does
not rely on Henry to disclose marking anything on a screen in real time.
Specifically, in support of claim 14’s rejection, the Examiner explains that
the [E]xaminer is relying on Henry’s teaching of a real-time
analyzing means for analyzing collected data and identifying
medically relevant events to improve and modify the
Bray/Brauker/Griffiths/Tarassenko combination[,] such that the
markers taught by Brauker and Tarassenko for marking
medically relevant events can be placed automatically on the
graphical display using Henry’s real-time analyzer. Thus,
although . . . Henry . . . in of itself doesn’t mark a medically
relevant event on a graphical representation until a later period
of time, it still teaches the real-time analyzer function which
automatically identifies medically relevant events which would
work with the markers of the Bray/Brauker/Griffiths/Tarassenko
combination in order to automatically mark the graphical
representations of the current value and trend value screens to
show the medically relevant events to the practitioner and/or user
of the device.
Answer 19. See also Final Action 10 (“Tarassenko discloses integrating the
signal which extends above the threshold value until is returns to a level
below the threshold value. Henry teaches automatically marking relevant
events in a measured signal. Thus it would have been obvious . . . to modify
the Bray/Brauker/Griffiths/Tarassenko/Henry combination to automatically
mark the time which the signal exceeds and returns from alarm condition
above the threshold value as they are medically relevant events.”).
Appellant also does not persuade us that the Examiner uses
impermissible hindsight to combine the references upon which the rejection
is based. Appeal Br. 21. According to Appellant, “[t]he Examiner’s
proposed combination of the references is . . . clearly based on
impermissible hindsight because no reference discloses the claim’s
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automatic marking.” Id. (emphasis added). This is not persuasive of error,
however, because the Examiner need not show that a single reference
discloses the automatic marking as claimed. Here, the Examiner
appropriately relies on a combination of references to teach the claimed
automatic marking; and Appellant does not persuade us that the Examiner’s
proposed combination fails to do so.
Thus, we sustain the Examiner’s obviousness rejection of independent
claim 14. We also sustain the Examiner’s rejection of claims 15–19, 21,
and 30 that depend from claim 14, and which Appellant does not argue
separately.

Independent claim 22 and its dependent claims 23–25, 27, 31
and 32
Appellant argues that the rejection of independent claim 22 is in error
for the same reasons that the rejection of independent claim 14 is in error.
Appeal Br. 22. Thus, inasmuch as we sustain claim 14’s rejection, we also
sustain the Examiner’s obviousness rejection of claim 22. Further, we
sustain the obviousness rejection of claims 23–25, 27, 31 and 32 that depend
from independent claim 22.

CONCLUSION
We REVERSE the Examiner’s obviousness rejections of claims 1–3,
6–13, 28, and 33.
We AFFIRM the Examiner’s obviousness rejection of claims 14–19,
21–25, 27, and 30–32.

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In summary:
Claims
Rejected
35 U.S.C. § Basis/References Affirmed Reversed
1, 6, 8, 11,
12, 28, 33
103(a) Bray, Brauker,
Griffiths,
Tarassenko
1, 6, 8, 11,
12, 28, 33
2, 3, 7, 9,
10, 13–19,
21–25, 27,
30–32
103(a) Bray, Brauker,
Griffiths,
Tarassenko, Henry
14–19,
21–25,
27, 30–
32
2, 3, 7, 9,
10, 13
Overall
Outcome
14–19,
21–25,
27, 30–
32
1–3, 6–13,
28, 33
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 IN PART