Ex Parte Banet et al

Patent Trial and Appeal Board

Jun 21, 2017

12559426 (P.T.A.B. Jun. 21, 2017)

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.).
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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
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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.
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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
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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
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