Ex Parte Banet et alDownload PDFPatent Trial and Appeal BoardJun 21, 201712559426 (P.T.A.B. Jun. 21, 2017) Copy Citation 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. 12/559,426 09/14/2009 Matt BANET TWI-21000-UT 8389 35938 7590 Acuity Law Group, P.C. 12707 High Bluff Drive Suite 200 San Diego, CA 92130-2037 06/23/2017 EXAMINER WEARE, MEREDITH H ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 06/23/2017 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): docketing @ acuitylg.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATT BANET, DEVIN McCOMBIE, and MARSHAL DHILLON Appeal 2015-004967 Application 12/559,426 Technology Center 3700 Before GEORGE R. HOSKINS, BRADLEY B. BAYAT, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Matt Banet et al. (“Appellants”)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 4, 6—10, and 13—18 in this application.2 The Board has jurisdiction over the appeal under 35 U.S.C. § 6(b). An oral hearing was held on June 6, 2017. We REVERSE. 1 The Appeal Brief identifies Sotera Wireless, Inc. as the real party in interest. Appeal Br. 4. 2 Claims 2, 3, 5, 11, and 12 have been canceled. Appeal Br. 4. Appeal 2015-004967 Application 12/559,426 CLAIMED SUBJECT MATTER Appellants’ invention relates to “medical devices for monitoring vital signs, e.g., respiration rate.” Spec. 13. Claim 1 is independent, representative of the claimed subject matter, and recites: 1. A body-worn system for monitoring respiratory rate from a patient, comprising: a housing configured to be mounted on the patient’s torso; an impedance pneumography system contained within the housing comprising: i) a connecting portion configured to connect to a plurality of electrodes configured to be worn on the patient; ii) a differential amplifier configured to receive electrical signals from each of the plurality of electrodes and process them to generate an analog impedance pneumography signal; and iii) an analog-to-digital converter configured to convert the analog impedance pneumography signal into a digital impedance pneumography signal; an accelerometer system contained within the housing comprising: i) an accelerometer configured to generate an analog motion signal indicating movement of the chest or abdomen; and ii) analog-to-digital converter configured to convert the analog motion signal into a digital motion signal; a transceiver component contained within the housing configured to transmit the digital impedance pneumography signal and the digital motion signal according to the CAN communication protocol via a cable electrically connected thereto; and a processing system configured to be mounted on the patient’s wrist, the processing system comprising a processor and a CAN transceiver in electrical communication with the cable and configured to receive and collectively process the digital impedance pneumography and digital motion signals to determine the patient’s respiratory rate. Appeal Br. 15 (Claims App.). 2 Appeal 2015-004967 Application 12/559,426 REJECTIONS ON APPEAL I. Claims 1, 4, 6—8, and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kovacs (US 2007/0208262 Al, pub. Sept. 6, 2007), Hansmann (US 2008/0139955 Al, pub. June 12, 2008), and Scanaill (Cliodhna Ni Scanaill et al., A Review of Approaches to Mobility Telemonitoring of the Elderly in Their Living Environment, Annals ofBiomed. Eng. 34: 547—63, 2006). II. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kovacs, Hansmann, Scanaill, and Gal (US 2007/0270671 Al, pub. Nov. 22, 2007). III. Claims 13—15, 17, and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kovacs, Hansmann, Scanaill, and Gibson (US 2008/0281168 Al, pub. Nov. 13, 2008). IV. Claims 1, 6, and 13 are provisionally rejected for non-statutory double patenting as unpatentable over claims 1 and 7 of co pending Application No. 12/762,963 (Banet, US 2011/0257555 Al, pub. Oct. 20, 2011) and Scanaill. ANALYSIS Rejection I For independent claim 1, the Examiner finds the combination of Kovacs and Hansmann “does not disclose the transceiver component is configured to transmit the digital signals according to the CAN communication protocol and the processing system comprises a CAN transceiver.” Final Act. 6. Relying on Scanaill’s disclosure that it was known to use a CAN network with a “ health smart home” to transmit data 3 Appeal 2015-004967 Application 12/559,426 from magnetic switches and infrared (IR) sensors located in doorframes, the Examiner concludes it would have been obvious to modify the Kovacs/Hansmann combination further to utilize the CAN communication protocol “in order to provide the predictable results of enabling the transfer of data from multiple sensors to a local processing system (e.g., a wrist-worn processing system) with a single cable, thereby reducing the amount of cabling required to be connected to the patient.” Id. at 6—7 (citing Scanaill 551). Appellants challenge this conclusion and argue it lacks a rational underpinning because none of the evidence presented supports the Examiner’s determination that a skilled artisan would have recognized the advantages a CAN communication protocol provides to wearable sensors. Appeal Br. 9-11. Responding to Appellants’ challenge, the Examiner finds Scanaill evidences that a skilled artisan would have recognized the advantages of health smart homes could be incorporated into wearables as a result of an increasing popularity of data processing wearables, which is due to the rapid development of PDA and microprocessor technology and the desirability of increased comfort the smaller form factor of these units provides. Final Act. 15; Ans. 3^4. Ergo, according to the Examiner, one of ordinary skill in the art would readily recognize that the advantages the CAN protocol offers in terms of “smart home” monitoring would be applicable to said data processing wearables, providing a similar benefit/advantage, such as reducing the amount of cabling required for transferring data from a plurality of sensors to a processing component (e.g., PDA, microprocessor, etc.). Final Act. 15. 4 Appeal 2015-004967 Application 12/559,426 Appellants persuasively argue the totality of Scanaill’s teachings suggest a contrary conclusion. Appeal Br. 10. Appellants note that, while Scanaill and several other references discuss using the CAN communication protocol in the context of non-wearable health applications, in each case the same references also discuss wearable health devices without any indication the CAN communication protocol addresses any particular complication that a skilled artisan would have recognized as existing in the wearable health devices. Id. at 9-11. Consistent with Appellants’ argument, we note the health smart homes advantages that Scanaill discloses as being available in wearable devices are “discretion, multi-parameter measurement, and ease of use.” Scanaill p. 559. The Examiner fails to explain why a skilled artisan would have considered the CAN protocol as part of these advantages. In addition, the Examiner fails to identity any evidence that wearable health devices suffered from having too many cables between a housing with a transceiver and a structurally separate processing system that receives data from the transceiver, thereby demonstrating a need to reduce the amount of cabling required to be connected to the patient. In fact, regarding the Kovacs wearable device, the Examiner finds, [a]s only one interface, which can be wired (1 [112]), is supplied to communicate physiological data collected from a plurality of sensors connected to the integrated circuit (30), such as the impedance-based respiration sensors and accelerometers, the data from these various physiological sensors must necessarily be communicated over a common cable. Ans. 3. As such, the Examiner’s finding directly undercuts the very reason the Examiner provides as a motivation for why a skilled artisan would have sought the CAN protocol. In view of the foregoing, we are persuaded the Examiner relied on hindsight because the reason offered for why a skilled 5 Appeal 2015-004967 Application 12/559,426 artisan would have been motivated to incorporate the CAN communication protocol into a wearable health device lacks a rational underpinning. Therefore, we do not sustain the rejection of claim 1 and, for the same reasons, claims 4, 6—8, and 16 depending therefrom. Rejections II and III Claims 9, 10, 13—15, 17, and 18 each depend, either directly or indirectly, from claim 1, and the Examiner’s rejections of those claims incorporate the deficiencies discussed above with the Kovacs/Hansmann/Scanaill combination (see supra, Rejection I). See Final Act. 9—12. Neither Gal nor Gibson is relied upon by the Examiner to cure those deficiencies. See id. Therefore, we also do not sustain Rejections II and III. Rejection IV To support the Examiner’s provisional double patenting rejection, the Examiner relies on Scanaill to determine it would have been obvious to combine the CAN communication protocol with a health wearable device. Final Act. 14. For the same reasons discussed above (see supra, Rejection I), we are persuaded the rejection is improper. Therefore, Rejection IV is not sustained. DECISION The Examiner’s decision to reject claims 1, 4, 6—10, and 13—18 is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation