TACTILE SYSTEMS TECHNOLOGY, INC.

Patent Trials and Appeals Board

Mar 29, 2022

2021004726 (P.T.A.B. Mar. 29, 2022)

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. 15/652,832 07/18/2017 Carol L. Wright 0408.000052US02 1002 26813 7590 03/29/2022 MUETING RAASCH GROUP 111 WASHINGTON AVE. S., SUITE 700 MINNEAPOLIS, MN 55401 EXAMINER HENSON, DEVIN B ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 03/29/2022 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): ptodocketing@mrgs.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CAROL L. WRIGHT and GREGORY YURKO ____________ Appeal 2021-004726 Application 15/652,832 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, TARA L. HUTCHINGS, and ROBERT J. SILVERMAN, Administrative Patent Judges. HUTCHINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Tactile Systems Technology, Inc. as the real party in interest. Appeal Br. 2. Appeal 2021-004726 Application 15/652,832 2 CLAIMED INVENTON Claims 1, 19, and 20 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of electronically measuring a volume of a body part using a compression therapy device, the method comprising: providing the compression therapy device comprising an inflatable compression sleeve comprising at least one compression cell, the inflatable compression sleeve adapted to deliver compressive force in a compression therapy protocol to relieve a medical condition, a source of fluid for inflating the compression sleeve, and a controller for controlling the inflation of the compression sleeve, wherein the controller comprises at least one sensor associated with the compression sleeve, at least one memory storage device to store a plurality of measurement data, at least one communication device, at least one user input interface device, and at least one user output interface device; introducing the body part into the compression sleeve; inflating, by the controller, the at least one compression cell with the fluid until at least one controller parameter attains a first pre-set controller parameter value; measuring, by the controller, at least one first compression cell parameter value; and calculating, by the controller, a volume of at least a portion of the patient body part based at least in part on the at least one first compression cell parameter value, wherein: the at least one first pre-set controller parameter value is stored in the controller memory storage device, and calculating the volume of the body part comprises: providing, by the controller, a parameter value look-up table having a plurality of look-up values; and comparing, by the controller, the at least one first compression cell parameter Appeal 2021-004726 Application 15/652,832 3 value to one or more of the plurality of look-up values to determine the volume of the body part using the compression therapy device. REJECTIONS Claims 1-5, 8-10, and 12-20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schnall (US 2006/0104824 A1, pub. May 18, 2006), Barak (US 2008/0103397 A1, pub. May 1, 2008), and Coble (US 5,089,961, iss. Feb. 18, 1992). Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schnall, Barak, Coble, and Deshpande (US 8,753,300 B2, iss. June 17, 2014). Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schnall, Barak, Coble, and Vess (US 2011/0190675 A1, pub. Aug. 4, 2011). Claims 1-20 are rejected on the ground of nonstatutory double patenting as unpatentable over claims 1-17 of Wright (US 9,737,238 B2, iss. Aug. 22, 2017). ANALYSIS Double Patenting Appellant does not address the nonstatutory double patenting rejection of claims 1-20 over claims 1-17 of Wright. Accordingly, we summarily affirm the Examiner’s double patenting rejection. Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that summary affirmance without consideration of the substantive merits is appropriate where an appellant fails to contest a ground of rejection). Appeal 2021-004726 Application 15/652,832 4 Obviousness We are persuaded that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 103(a), because Coble does not teach or suggest that calculating the volume of a body part comprises “providing . . . a parameter value look-up table having a plurality of look-up values; and comparing . . . the at least one first compression cell parameter value to one or more of the plurality of look-up values to determine the volume of the body part using the compression therapy device,” as recited in claim 1. Appeal Br. 9-14; see also Reply Br. 2-3. The Examiner finds that Coble discloses providing a parameter value look-up table and comparing a first compression cell parameter value to one or more of the look-up values to determine the volume of a body part using the compression therapy device, as required by claim 1. Final Act. 4 (citing Coble 3:27-52, 5:15-32, 6:38- 57, 8:14-35, Figs. 2A, 2B, 3B). We have reviewed the portions of Coble relied upon by the Examiner as disclosing the argued limitation. However, we find nothing that discloses or suggests the step of calculating the volume of a body part, as recited in claim 1. Coble pertains to vascular examination of a patient limb using pressure of air in a cuff of a pneumatic system. Coble 1:27-32. Column 3, lines 37-52 of Coble, for example, describes performing a calibration of a cuff by reducing a reference volume having a known pressure by a known amount, measuring the resultant pressure, and outputting the reference and calibration pressure levels to a chart recorder. The calibration pressures levels at the reference volume and altered volume are stored in memory. Id. at 6:38-45. The two calibration pressure points define a linear relationship between system pressure and limb volume, which allows subsequent system Appeal 2021-004726 Application 15/652,832 5 pressure changes to be expressed as changes in limb volume, i.e., through calculations. See id. at 6:45-48. Appellant argues that Coble teaches calculating a volume from pressure using a linear relationship between the two reference points, rather than using a look-up table. Appeal Br. 12 (citing Coble 6:38-57). In response, the Examiner further explains that Coble’s “memory, reference pressure, and altered pressure values . . . satisfy the requirements of the claim limitations ‘look-up table’ and ‘look-up values’ under the broadest reasonable interpretation standard, even if such values require a subsequent calculation from the linear relationship to determine the volume of the patient’s limb.” Ans. 4. Appellant has the better position. Although Coble teaches storing two calibration pressure values in a process for determining volume, Coble does not teach using the two calibration pressure values as a look-up table to determine volume, as required by claim 1. For example, Coble does not describe measuring a pressure of a body part and then comparing that value with one or both of the two calibration pressure values to determine volume. Instead, Coble teaches calculating a volume based on a linear relationship that is defined by the two calibration pressure values. See Coble 6:45-48. Accordingly, we do not sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103(a). Independent claims 19 and 20 recite language similar to claim 1, and are rejected based on the same erroneous rationale. Therefore, we do not sustain the rejection of claims 19 and 20 under 35 U.S.C. § 103(a) for the same reasons set forth above with respect to claim 1. The rejections of the dependent claims do not cure the deficiencies of the independent claims. Thus, we do not sustain the Appeal 2021-004726 Application 15/652,832 6 rejections of the dependent claims under 35 U.S.C. § 103(a) for the same reasons set forth above with respect to the independent claims. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 8- 10, 12-20 103(a) Schnall, Barak, Coble 1-5, 8-10, 12-20 6, 7 103(a) Schnall, Barak, Coble, Deshpande 6, 7 11 103(a) Schnall, Barak, Coble, Vess 11 1-20 Nonstatutory Double Patenting US 9,737,238 1-20 Overall Outcome 1-20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED