Ex Parte Abri

Patent Trial and Appeal Board

Apr 25, 2016

12270462 (P.T.A.B. Apr. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/270,462 11113/2008
131672 7590 04/25/2016
Whitmyer IP Group LLC
600 Summer Street
3rd Floor
Stamford, CT 06901
FIRST NAMED INVENTOR
OmidAbri
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.
04910-P0002B 2199
EXAMINER
NGUYEN, HIEP VAN
ART UNIT PAPER NUMBER
3686
MAILDATE DELIVERY MODE
04/25/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OMID ABRI
Appeal2014-001217 1
Application 12/270,4622
Technology Center 3600
Before BIBHU R. MOHANTY, KENNETH G. SCHOPPER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-15 and 17-19. We have jurisdiction under 35 U.S.C.
§ 6(b ).
1. Our decision references Appellant's Appeal Brief ("Appeal Br.," filed
June 24, 2013) and Reply Brief ("Reply Br.," filed October 25, 2013), the
Examiner's Answer ("Ans.," mailed August 29, 2013), and Final Office
Action ("Final Act.," mailed January 22, 2013).
2. Appellant identifies How To Organize (H20) GMBH as the real party in
interest (Appeal Br. 2). However, the assignee of record, on file with the
USPTO is Karl Storz GMBH & CO. KG, based on a transaction recorded
August 20, 2015 (see Reel/Frame 036407/0153).
Appeal2014-001217
Application 12/270,462
We REVERSE.
CLAIMED INVENTION
Appellant's claimed invention relates generally "to a method as well
as a device for documenting medical data" (Spec. if 2).
Claim 1, reproduced below with added bracketing, is illustrative of the
subject matter on appeal:
1. A method for documentation of medical data
compnsmg:
[a] introducing data from an operating room, captured by
at least one data entry device,
[b] activating a storage medium only in response to entry
of a patient to be operated upon into said operating room;
[ c] storing said data in said storage medium.
REJECTION
Claims 1-8, 15, 18, and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Uchikubo (US 6,955,671 B2, iss. Oct. 18, 2005), Packert
(US 7,667,606 B2, iss. Feb. 23, 2010), and Breazeale (US 2009/0204434
Al, pub. Aug. 13, 2009).
Claims 9, 10-14, and 17 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Uchikubo, Packert, Breazeale, and Beck
(US 2005/0203350 Al, pub. Sept. 15, 2005).
ANALYSIS
Independent claim 1 and dependent claims 2-9, 18, and 19
We are persuaded by Appellant's argument that the Examiner erred in
rejecting independent claim 1under35 U.S.C. § 103(a) because the
combination ofUchikubo, Packert, and Breazeale fails to disclose or suggest
2
Appeal2014-001217
Application 12/270,462
"activating a storage medium only in response to entry of a patient to be
operated upon into said operating room," as recited by limitation [b] in claim
1 (see Appeal Br. 5-16; see also Reply Br. 2-8).
In the Final Office Action, the Examiner acknowledges that
"Uchikubo does not disclose activating a storage medium only in response to
entry of a patient to be operated upon in said operating room" (Final Act. 2).
To address this deficiency, the Examiner turns to Packert, at column 3, lines
15--43 and column 5, lines 7-17, as disclosing argued limitation [b] (id. 3).
The Examiner then acknowledges that the combination ofUchikubo and
Packert fail to disclose "in response to entry of a patient," as required by
limitation [b], and turns to Breazeale, at paragraph 29, to address the missing
feature (id.). The Examiner concludes
(Id.).
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to incorporate health care
tracking as taught by Breazeale, JR. ('434; Abstract) into the
embodiment of remote surgery support system using endoscopic
images viewed as taught by U chikubo/Packert in order to
monitor the responses indicative entry activities of the patient
into the operating room and the combination would have yielded
predictable results.
Uchikubo is directed to a remote surgery support system wherein a
"surgical instrument 20 is used to perform surgery on [a] patient 7 for curing
a lesion under observation through the endoscopic imaging apparatus 10"
(Uchikubo col. 3, 11. 64---67). Uchikubo discloses that its system "can record
an endoscopic image captured by the video capture control unit 44. When a
recording instruction is given at the keyboard 34, a still image is recorded in
the HDD 41" (id. col. 9, 11. 57---60).
3
Appeal2014-001217
Application 12/270,462
Packert is directed "an RF -enabled surgical cart in an operating room
environment to provide monitoring and records of the surgery and the
equipment used by operating room personnel during a surgery" (Packert col.
1, 11. 16-19). Packert discloses using "radio frequency-enabled
identification tag associated with each of a plurality of persons assigned to
the surgical procedure, including for example, doctors, nurses, and/or the
patient" (id. col. 2, 11. 62-65).
Breazeale "relate[ s] generally to tracking patient or healthcare
provider locations in a hospital or other healthcare facility or locale, and
associating those locations with time" (Breazeale i-f 29). Breazeale discloses
utilizing an RFID tag associated with a patient in order to track and identify
a patient's location at certain times such as "entry by the patient into an
operating room in which the patient had surgery" (id.). Breazeale discloses
that "[t]he relevant tracked time-location data may then be used to determine
how long the patient was in certain areas during certain portions of their
stay, and that information may be used to produce accurate billing
information for the patient" (id.).
We have reviewed the cited portions of Packert and Breazeale and
agree with Appellant that neither Packert nor Breazeale, alone or in
combination with Uchikubo, disclose or suggest the argued limitation. In
particular, we fail to see, and the Examiner does not adequately explain, how
the log created in Packert from monitoring RFID tags associated with people
involved in a surgical procedure (e.g., doctors, nurses, patient) (see Packert
col. 2, 11. 62---65) in combination with Breazeale' s similar disclosure
regarding the use of RFID tags to track and identify a patient's location at
certain times such as "entry by the patient into an operating room in which
4
Appeal2014-001217
Application 12/270,462
the patient had surgery" for billing purposes (see Breazeale if 29) discloses
or suggests "activating a storage medium only in response to entry of a
patient to be operated upon into said operating room," as recited by
limitation [b] in claim 1. That is, we agree with Appellant (see e.g., Appeal
Br. 11-12) that none of the references provide any teaching or suggestion
that the storage medium was not already active, i.e., recording, before a
patient's entry into an operating room. Therefore, although both Packert and
Breazeale disclose identifying when a patient is in an operating room or
enters an operating room, we find the combination ofUchikubo, Packert,
and Breazeale fails to disclose or suggest "activating a storage medium only
in response to entry of a patient to be operated upon into said operating
room," as claim 1 requires.
In view of the foregoing, we do not sustain the Examiner's rejection
of claim 1under35 U.S.C. § 103(a). For the same reasons, we also do not
sustain the Examiner's rejections of claims 2-9, 18, and 19, which depend
therefrom.
Independent claim 10 and dependent claims 11-14 and 17
Independent claim 10 includes a limitation similar to limitation [b] in
independent claim 1. The Examiner's rejection of independent claim 10
based on Beck, in addition to the combination ofUchikubo, Packert, and
Breazeale, does not cure the above-discussed shortcomings of the
combination ofUchikubo, Packert, and Breazeale identified by Appellant
with respect to independent claim 1 (see Appeal Br. 14--15). Thus, for the
same reasons, we also do not sustain the Examiner's rejection of
5
Appeal2014-001217
Application 12/270,462
independent claim 10 and claims 11-14 and 17, which depend therefrom,
under 35 U.S.C. § 103(a).
Independent claim 15
Independent claim 15 include language substantially similar to the
language of independent claim 1, and is rejected based on the same rationale
applied with respect to independent claim 1 (see Final Act. 3). Thus, for the
same reasons, we also do not sustain the Examiner's rejection of
independent claim 15 under 35 U.S.C. § 103(a).
DECISION
The Examiner's rejections of claims 1-15 and 17-19 under 35 U.S.C.
§ 103(a) is reversed.
REVERSED
6