Ex Parte Chen et al

Patent Trial and Appeal Board

Jan 31, 2019

13389226 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/389,226 04/20/2012
23505 7590 02/04/2019
CONLEY ROSE, P.C.
575 N. Dairy Ashford Road
Suite 1102
HOUSTON, TX 77079
FIRST NAMED INVENTOR
Zhi Hao Chen
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.
2060-06200 2977
EXAMINER
BERHANU, ETSUB D
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
pathou@conleyrose.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZHI HAO CHEN,
JU TENG TEO, and XIUFENG YANG
Appeal 2018-004038
Application 13/389,226
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection2 of claims 1-5, 7, 9, 20, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Nafarrate (US 5,212,379; issued May 18, 1993) and
Varshneya (US 6,498,652 Bl; issued Dec. 24, 2002). We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
1 Appellants identify the real party in interest as Agency for Science,
Technology and Research (A*STAR). Br. 3.
2 Appeal is taken from the Final Office Action dated December 15, 2016.
Appeal 2018-00403 8
Application 13/389,226
STATEMENT OF THE CASE
Claims 1 and 20 are the independent claims on appeal. Claim 1,
reproduced below with disputed limitations italicized for emphasis, is
exemplary of the subject matter on appeal.
1. A vital signs detecting device, the device comprising,
a multimode optical fiber;
a light source for inputting light into the multimode optical
fiber;
a light detection unit for detecting light modulation in the
multimode optical fiber;
a first lx2 fiber coupler for connecting the light source and
the light detection unit to the multimode optical fiber at a first
end of the multimode optical fiber; and
a mechanical structure configured for disposition between
a person's body and a support surface so as to receive a pressure
exerted by a person's body as a result of one or more of a group
consisting of a movement of the person's body, a respiratory
action of the person's body and a heart beat action of the person's
body, the mechanical structure including first and second sets of
micro bending elements to cause micro bending of the multimode
optical fiber and associated bending losses under the exerted
pressure;
wherein the multimode optical fiber is disposed between
the first and second sets of microbending elements of the
mechanical structure substantially in a direction of the exerted
pressure; and
wherein the light detection unit is adapted for determining
the one or more of the movement of the person's body, the
respiratory action of the person's body and the heart beat action
of the person's body based on light intensity variations caused
by bending losses induced by the microbending.
2
Appeal 2018-00403 8
Application 13/389,226
ANALYSIS
Regarding independent claim 1, the Examiner finds, inter alia, that
N afarrate discloses a vital signs detecting device comprising the various
components as claimed, including a mechanical structure (i.e., mat or
blanket 3) and a light detection unit (i.e., photodetector 5, electronic alarm
system 6). Final Act. 2 (citing Nafarrate 1 :23---66, 3:60---63). The Examiner
also finds that N afarrate' s mechanical structure is "configured ... to cause
microbending of a multimode optical fiber and associated bending losses
under the exerted pressure" and also that Nafarrate's light detection unit is
"adapted for determining the one or more of the movement of the person's
body ... based on light intensity variations caused by bending losses
induced by the microbending," as claimed. Final Act. 2 ( citing 1 :47---66,
3:24--44, 3:55--4:34) (emphasis added).
The Examiner relies on Varshneya for disclosing "details of a
mechanical structure" including a first set of micro bending elements (i.e., a
sensor pad 120 (citing Varshneya 15:25-16:40)) and a second set of
microbending elements (i.e., a polyester jacket (citing Varshneya 17:12--47,
Fig. 4)) to cause micro bending of the multimode optical fiber and associated
bending losses under exerted pressure. Final Act. 3. Alternatively, the
Examiner finds that Varshneya discloses sandwiching a fiber between two
sheets of high density foam, wherein each foam sheet is a micro bending
element, which, together, disclose the mechanical structure as claimed. Ans.
4 (citing Varshneya 16:41--42).
The Examiner reasons that
it would have been within the skill of the art to use the
mechanical structure of Varshneya . . . as the mat, blanket or
sleepware ofNafarrate ... since Nafarrate ... teaches that other
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Application 13/389,226
items of bed clothes or sleepware are capable of being used, and
the mechanical structure of Varshneya . . . is an item of bed
clothes or sleepware capable of providing a motion sensitive
mechanical interface between the multimode optical fiber and the
person being monitored.
Final Act. 3.
Appellants argue that the Examiner erred because N afarrate and
Varshneya, alone or in combination, fail to disclose a light detection unit
adapted for determining body movement based on light intensity variations
caused by bending losses induced by micro bending of a multimode optical
fiber, as claimed. Br. 12 ( emphasis added). In support, Appellants rely on
the Specification for defining the difference between macrobending and
microbending in optical fibers: "macrobending typically causes light to leak
out of a fiber due to macroscopic deviations of the fiber's axis from a
straight line," wherein "microbending is typically due to mechanical stress
on a fiber that introduces local discontinuities which can result in light
leaking form the core of the fiber to a cladding via mode coupling." Id. 12-
13 ( citing Spec. ,r 4 )3• Appellants submit that "the working mechanism of
the detection unit 5 disclosed in N afarrate is fundamentally different [than]
that of the detection unit of claim 1," because "[ a ]s is known in the art, and
described in Nafarrate, an optical detector 5 monitors the status of an object .
. . based on detection of modal noise produced by minute motions in a ...
3 Appellants appear to be referring to the U.S. publication of the pending
application (US 2012/0203117; published May 23, 2017) rather than the
publication of the International Application as filed (WO 2011/016778 Al;
published Feb. 10, 2011. All references to the Specification herein will be to
such U.S. publication. Paragraph 4 of the U.S. Publication corresponds to
page 1, line 26-page 2, line 12 of the International Application.
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Appeal 2018-00403 8
Application 13/389,226
multimode-optical fiber," and that "'modal noise' is generated in line with
the 'modal noise modulation mechanism'," as described at column 3, lines
25-37 ofNaffarate, as follows:
Some light, which a moment before was guided in certain high-
ordered guided modes (i.e., modes propagating at such large
angles to the fiber axis that they are close to the radiative 'cut-off
angle), may be switched into non-guided (radiative) modes (i.e.,
modes propagating at angles exceeding the cut-off angle) when
the fiber moves, contributing to a reduction in the total guided
optical power. Similarly, fiber motion may cause some light,
which a moment before was being coupled into radiative modes
(and thus being lost from the fiber), to be switched back into
guided modes, contributing to an increase in the total guided
optical power. Thus modal noise current fluctuations are
generated when the fiber moves, even in the case where the
detector is illuminated by all the guided modes.
Br. 13.
Appellants conclude that although "modal noise current fluctuations
correspond to the change of speckle pattern, which may be interpreted as a
form of light intensity variation," Nafarrate discloses that "optical detector 5
detects vital signs based on modal noise current fluctuations ... caused by
deviation of the fiber's axis induced by fiber motions (i.e., 'macrobending'
[as defined in the Specification supra])." Id. at 13-14. Appellants submit
that "Nafarrate is different from 'microbending' as recited in claim 1,
because [N afarrate] does not introduce discontinuities which result in light
leaking from the core of the fiber to a cladding," and "the speckle pattern
detection Nafarrate uses is essentially in optical interferometric effect ... ,
not loss (intensity) related to modulation." Id. at 14 (citing Nafarrate 3:46
("[a]s will be appreciated by one skilled in the art, the speckle pattern is
essentially an optical interferometric effect")).
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Appeal 2018-00403 8
Application 13/389,226
Appellants also argue that V arshneya does not cure the deficiencies in
the Examiner's reliance on Nafarrate because Varshneya "explicitly teaches
against optical intensity modulation, let alone light intensity variations
caused by bending losses induced by the microbending," by disclosing that
to overcome the limitations, shortcoming, and disadvantages of
prior art, the present invention provides a novel fiber optic
monitor that utilizes optical phase interferometry to monitor a
patient's vital signs. A number of advantages are provided ... For
example, because these sensors utilize optical phase as compared
to optical intensity modulation characteristics, they provide a
very high detection sensitivity while advantageously needing
only single mode fibers.
Br. 14--15 (quoting Varshneya 4:51-62). Thus, Appellants submit that
"Varshneya's system and method is for phase detection only, not loss
(intensity) detection." Id. at 15.
The Examiner responds that "there is no reason that the light detection
unit ofNafarrate would be unable to detect light intensity
modulation/variations caused by microbending," because Appellant's
Specification does not disclose that a light detection unit must be
"particularly configured in a special way such that it is able to detect light
intensity variations caused by microbending"----only that the light detection
unit has a "high sensitivity," and the Examiner determines that Nafarrate
discloses a highly sensitive light detection unit. Ans. 7 ( citing Spec. ,r 4;
Nafarrate 3:52-54). The Examiner also determines that Nafarrate's light
detection unit would be "capable of detecting light intensity variations
caused by microbending," for example, because Nafarrate's light detection
unit involves light intensity variations relative to a speckle pattern, and
further, that "[t]here is no teaching in Nafarrate that the mechanical stress
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Appeal 2018-00403 8
Application 13/389,226
applied to the optical fibers is incapable of cause microbending." Id. at 7-8
( citing Varshneya 3: 18-27 ( evidencing that the prior art recognizes
Nafarrate as using a "speckle-based monitor")). The Examiner also
determines that, contrary to Appellant's argument, Nafarrate fails to disclose
that the light intensity variations caused by bending the multimode optical
fiber are losses based on macrobending, as opposed to microbending. Id.
Alternatively, the Examiner determines that, although Varshneya was
not relied on by the Examiner for disclosing a light detection unit adapted
for determining body movement based on light intensity variations caused
by bending losses induced by microbending as claimed, "Varshneya
explicitly teaches that its light detection unit measures light intensity
variations." Ans. 9 (citing Varshneya 7:27-36 (disclosing a photo detector
that "detects and processes time varying fringes")). The Examiner
determines that Varshneya's "optical fringe serial train is caused by
microbending produced by a patient's body").
We are persuaded by Appellants' argument. Claim 1 does not merely
require a light detection unit that is adapted for determining light intensity
variations, but claim 1 requires a light detection unit that is adapted for
determining a body's movement based on losses induced by microbending.
In view of Appellants' distinction between microbending and macrobending,
a preponderance of the evidence supports Appellants' argument that
Nafarrate does not expressly disclose making such a determination based on
microbending losses consistent with how this claim term has been described
and distinguished. In other words, although N afarrate' s photodetector 5 may
be adapted for determining body movement based on light intensity
variations in a speckle pattern, Nafarrate fails to expressly disclose that such
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Appeal 2018-00403 8
Application 13/389,226
light intensity variations are caused by microbending, or more critically, that
the photodetector 5 is adapted for making a determination about body
movement based on light intensity variations caused by bending losses
induced by microbending, as opposed to macrobending or some other
endeavor. We also determine that the Examiner's finding that Nafarrate's
photodetector 5 is capable of making the claimed determination lacks
sufficient support, in that it is unclear whether the speckle pattern generated
by N afarrate 's system and detected by N afarrate' s photodetector 5 is
determining body movement based on light intensity variations caused by
microbending and/or macrobending, although Appellants submit that one
skilled in the art would know Nafarrate's photodetector 5 determines body
movement based on macrobending.
Further, Varshneya discloses that, at least in one embodiment with
respect to the high density foam sheets (see Examiner's findings supra),
"[ s ]electing the right adhesive is useful to reduce microbending stresses in
the fiber due to temperature variations that would otherwise contribute to
excess optical signal attenuation." Varshneya 16:42-61 (emphasis added).
Thus, contrary to the Examiner's finding, Varshneya suggests that
microbending stresses are not the bending losses relied on in making a
determination based on movement other than temperature induced
expansion/contraction of the fiber itself. Varshneya's disclosure also
suggests that the main function of the high density foam sheets, which are
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Appeal 2018-00403 8
Application 13/389,226
relied on by the Examiner as first and second sets of microbending elements,
as stated supra, is to cause bending other than micro bending. 4
Accordingly, we cannot sustain the Examiner's rejection of
independent claim 1, and claims 2-5, 7, and 9. The Examiner relies on the
same findings with respect to Nafarrate in the rejection of independent claim
20, which also requires "detecting light modulation ... to determine ...
movement ... based on light intensity variations caused by bending losses
induced by ... microbending," and therefore, for essentially the same
reasons as set forth supra, we also cannot sustain the Examiner's rejection of
independent claim 20 and claim 26 depending therefrom. Final Act. 5; Br.
23 (Claims App.).
DECISION
The Examiner's decision rejecting claims 1-5, 7, 9, 20, and 26 is
REVERSED.
REVERSED
4 We caution Appellants that in the event an Examiner's Answer presents
new findings and reasoning, and Appellants choose not to file a Reply Brief,
Appellants risk waiving any arguments against the new Examiner's findings
and reasoning. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
("Informative") ("[ A ]rguments that could be made in the reply brief, but are
not, are waived."). To the extent that an Examiner's Answer constitutes new
grounds of rejection, Appellants may file a petition to the Director under 37
C.F.R. § 1.181. See 37 C.F.R. § 41.40(a).
9