Ex Parte Couronne et al

Patent Trial and Appeal Board

Nov 7, 2016

11749668 (P.T.A.B. Nov. 7, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111749,668 05/16/2007 Robert Couronne
22862 7590 11/09/2016
GLENN PATENT GROUP
c/o Perkins Coie LLP
P.O. Box 1247
Seattle, WA 98111-1247
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.
110971-8448.USOl 8629
EXAMINER
CATINA, MICHAEL ANTHONY
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
11/09/2016 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):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT COURONNE, STEPHAN BODE,
STEFAN ASCHENBRENNER, and HANS-JOACHIM MOERSDORF 1
Appeal 2014-009010
Application 11/749,668
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1-22, 26, and 28-30. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The Specification discloses "a sensor, processing means and a
computer program for providing information on a vital parameter of a living
being ... [including] transmission plethysmography sensitive to movement
1 Appellants identify the Real Party in Interest as Fraunhofer-Gesellschaft
zur Foerderung der angewandten Forschung e.V. (App. Br. 3).
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Application 11/749,668
artifacts performed at the wrist" (Spec. 1:15-19). "[A] plethysmogram is
... used to represent volume changes of arterial blood vessels in the human
body" (Spec. 1 :32-34). "For recording a plethysmogram ... a sensor device
is typically used which contains a light source and a photoreceiver ... such
that light passes the tissue layers and the remaining light intensity is
measured by the photoreceiver" (Spec. 1:35-2:1 ). In one embodiment, the
"invention provides a sensor for providing information on a vital parameter
[] less sensitive to vibration than conventional sensors and making reliable
recording and evaluation of a plethysmogram considerably easier." Id. at
6:6-10.
Claim 1 is illustrative:
1. A sensor for providing information on a vital parameter of a living
being, comprising:
a mounter for attaching the sensor to the living being;
a light source connected to the mounter for radiating light into a part
of the body of the living being;
a light receiver connected to the mounter and implemented to receive
part of the light radiated to provide, in dependence on an intensity of the
light received, a light intensity signal depending on the vital parameter;
an acceleration sensor connected to the mounter and implemented to
provide an acceleration signal in dependence on an acceleration in at least
one direction; and
a light source driver implemented to switch off the light source when
the acceleration signal indicates that the acceleration is greater than a
maximally allowed acceleration;
wherein the sensor is implemented to transfer the light intensity signal
and the acceleration signal to a processor for a combining processing of the
light intensity signal and the acceleration signal.
The claims stand rejected as follows:
claims 26 and 28 under 35 U.S.C. § 101 as being abstract;
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claim 26 under 35 U.S.C. § 112, first paragraph, as lacking
enab lement;
claims 1, 2, 4, 5, 10, 14, and 15 under 35 U.S.C. § 102(b) in view of
Vetter2 ·
'
claims 1, 3, 11, 13, and 18 under 35 U.S.C. § 103(a) in view of Vetter
and Niwa3 ·
'
claims 1, 6, 7, 11, 12, and 23 under 35 U.S.C. § 103(a) in view of
Vetter and Banet4 ;
claim 9 under 35 U.S.C. § 103(a) in view of Vetter, Banet, and
Asada5;
claims 1and19 under 35 U.S.C. § 103(a) in view of Vetter and
Nazarian6;
claims 20 and 21under35 U.S.C. § 103(a) in view of Vetter,
Nazarian, and Ruchti 7;
claims 1, 17, 18, 26, and 28 under 35 U.S.C. § 103(a) in view of
Vetter and Kimball 8;
claim 22 under 35 U.S.C. § 103(a) in view of Vetter, Kimball,
Nazarian;
claim 16 under 35 U.S.C. § 103(a) in view of Vetter and Hanna9;
2 Rolf Vetter et al., US 2003/0065269 Al, Apr. 3, 2003 ("Vetter").
3 Minoru Niwa, US 5,025,791, June 25, 1991.
4 Matthew J. Banet et al., US 7,238,159 B2, July 3, 2007 ("Banet").
5 Haruhiko H. Asada, WO 98/17172, published April 30, 1998.
6 Richard A. Nazarian, US 2006/0084879 Al, published Apr. 20, 2006.
7 Timothy L. Ruchti, US 2004/0068163 Al, published Apr. 8, 2004.
8 Victor E. Kimball, US 6,879,850 B2, issued Apr. 12, 2005.
9 D. Alan Hanna et al., US 6,408,198 Bl, issued June 18, 2002 ("Hanna").
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claim 8 under 35 U.S.C. § 103(a) in view of Vetter and Tay1or10; and
claims 28----30 under 35 U.S.C. § 103(a) in view of Vetter and
Gerhard. 11
I.
The Examiner rejects claims 26 and 28 under 35 U.S.C. § 101. Final
Rej. 3; 12 see Ans. 2.
According to the Examiner, claims 26 and 28 are "directed to an
abstract idea," insofar as they "do not integrate the processing method steps
with a particular machine." Final Rej. 3. In particular, the Examiner finds
that the light sensor and accelerometer recited in the claims "do nothing
more than mere data gathering ... [which] is extra-solution activity." Id.
According to the Examiner, the "actual determination of when to tum off the
sensor must be tied to a machine that is integral to the operation and not
merely extra-solutional [activity]." Id. The Examiner, thus, rejects claims
26 and 28 as drawn to non-patent eligible subject matter because "[t]he
sensor ... does not process the acceleration data." Id.
As Appellants have not responded to the Examiner's rejection, we
summarily affirm the rejection of claims 26 and 28 under
35 U.S.C. § 101.
II.
The Examiner rejects claim 26 under 35 U.S.C. § 112, first paragraph,
as lacking enablement because it is "unclear how the acceleration sensor
10 James H. Taylor et al., US 5,919,133, issued July 6, 1999 ("Taylor").
11 Klamser Gerhard, US 5,517,988, issued May 21, 1996.
12 Office Action mailed June 21, 2013.
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Application 11/749,668
processes the signal as sensors are generally used for only data collection
and transmission unless otherwise stated to have processing means." Final
Rej. 4; see Ans. 2.
Appellants respond that the rejection is in error "because it is not clear
which objection the Examiner raises under 35USC§112" App. Br. 22.
Appellants further argue that "it is not apparent that claim 26 claims that the
acceleration sensor processes any signal. Moreover ... there are naturally
intelligent sensors available, such that it would even be possible to process a
signal using a sensor." App. Br. 22.
We agree with Appellants that the Examiner has not adequately
explained the rejection of claim 26 for lack of enablement. Claim 26 recites
the steps of "determining information on an acceleration of the light source,
the light receiver or the mounter using an acceleration sensor" and switching
off the light source if the information on the acceleration indicates that the
acceleration exceeds a predetermined acceleration limit. Thus, claim 26
only requires that the information on acceleration is determined by the
accelerometer, but does not specify any other processing requirements for
the accelerometer. Accordingly, we reverse the rejection of claim 26 under
35 U.S.C. § 112, first paragraph, for lack of enablement.
III.
Issue
The Examiner rejects claims 1, 2, 4, 5, 10, 14, 15, and 26 under
35 U.S.C. § 102(b) as anticipated by Vetter. Final Rej. 4--7, Ans. 2.
The issue presented is: Does a preponderance of the evidence support
the Examiner's finding that Vetter discloses "a light source driver
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implemented to switch off the light source when the acceleration signal
indicates that the acceleration is greater than a maximally allowed
acceleration," as required by claim 1?
Analysis
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claims 1, 2, 4, 5, 10, 14, and 15as anticipated by Vetter. App. Br.
17-20. We disagree with Appellants' contentions and adopt the findings
concerning the scope and content of the prior art set forth in the Examiner's
Answer and Final Rejection. For emphasis, we highlight and address the
following:
1. Vetter discloses "a device and a method for detecting the pulse
rate,~' wherein:
The measuring principle consists of emitting radiant
enenrv at ... human bodv tissue ( 5). bv means of a
(.:.;.,, ,,.; ' ol'
1ight~emitting source (10), measuring the intensity
of the radiant energy after propagation through the
human body tissue by means of at least first and
second light detectors ... and providing first and
second input signa1s (y1(t\ y2(t)) representative of
this propagation. Simultaneously, a motion
detecting device ( 40)_ such as a three dimensional
accelerorneterll provides a motion reference signal
(ax(t), ay(t\ az(t)) representative of motion of the
detecting device. . . . The input signals are then
processed in order to remove motion-related
contributions due to motion of the detecting device
(l) on and with respect to the human body tissue ( 5)
and to produce first and second enhanced signa1s ..
. . Pulse rate is then extracted from the enhanced
signals.
Vetter, Abstract
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2. Figure 2 of Vetter is shown below:
Figure 2 shows schematic side view of '"a portable pu1se rate detecting
device ... which is adapted to be worn on the wrist and cornpris[es] a light
source and two pairs of light detectors," and which further comprises an
accelerometer. Vetter ir4; 26 and 27. "Housing 2 comprises ... a light
source 10 for emitting radiant energy at the surface of (or through) the
human bodv tissue. designated bv reference numeral 5." Vetter~ 33.
,.,. / l-- ..J ,,
"[H]ousing 2 further includes two pairs oflight detectors 21 i 22 and 23, 24
for detecting the intensity of the radiant energy after propagation through the
human body tissue.'~ Vetter~[ 34.
3. Vetter discloses that "optical signals yi(t), y2(t) are enhanced
using nonlinear, model-based noise cancelling techniques .... For this to be
achieved ... an accurate motion reference signal ... is provided by the
accelerometer.~' Vetter~ 50.
4. Vetter discloses that prior rnode1-based noise reduction and
artifa.ct cancellation methods '"are not able to cope wHh highly non-
stationary signa1s such as the one resu1Ung from random irregular
movements." Vetter 41 62. "In order to avoid this drawback, a method is ...
included for determining non-stationary signal segments in the motion
reference signals.~' Vetter~ 63.
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5. Vetter further discloses that ''since signal non~stationaritv is
~- ~
caused by irregular random movement of short duration, missing probe
values can be obtained through methods based on signal prediction." Vetter
~ 68. Accordingly, "the light-emitting source ... may be disabled when
non-stationary signal segments are detected, this being advantageous in
terrns of power consumption since processing of the signals is not
unnecessarily performed in highly unstable environments." Vetter~! 68.
The Examiner interprets the phrase "maximally allowed acceleration"
in claim 1 as encompassing "some signal measure indicative of the
acceleration," not limited to a "'magnitude of acceleration."' Ans. 3.
Applying this definition, the Examiner finds that Vetter discloses a sensor
comprising "a light source driver implemented to switch off the light source
when the acceleration signal indicates that the acceleration is greater than a
maximally allowed acceleration [] wherein the light source can be turned off
when motion noise is too high." Final Rej. 5, citing Vetter i-f 68. In
particular, the Examiner finds that Vetter's sensor transfers "the light
intensity signal and the acceleration signal [to a] processor ... [wherein] the
acceleration signal is used to remove motion artifacts in the
[photoplethysmography] signal." Final Rej. 5, citing Vetteri-fi-f 37, 50, and
52 and Figs. 1-3.
Appellants argue that Vetter fails to disclose switching off a light
source when acceleration is too fast, because Vetter teaches a system
responsive to "an estimation of the variance of the activity signals" and "the
determination of the variance is substantially different from the
determination whether the acceleration is greater than a maximally allowed
acceleration." App. Br. 17-18 (citing Vetter i-fi-164--68). According to
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Appellants, Vetter' s method of evaluating the variance of activity signals
"indicates an irregular random movement" whereas evaluation of
acceleration, as required by claim 1, "indicates a regular, accelerated
movement." App. Br. 20.
We agree with the Examiner that Vetter discloses the sensor of claim
1. Applying the broadest reasonable interpretation in light of the
Specification, claim 1 only requires comparing an "acceleration signal" to "a
maximally allowed acceleration." See Spec. 5:25-31 (disclosing the
"advantage for the light intensity signal to be generated in dependence on
the acceleration signal, i.e. exemplarily, with an acceleration outside an
allowed region, generating either no light intensity signal at all ( exemplarily
by switching off the light source").
Vetter discloses that non-stationary segments are assessed for relative
increments of variance in acceleration that are larn:er than a detennined
<>
threshold of variance. FFs 4---5. Therefore, in Vetter, the acceleration signal
is evaluated at any point in time to determine \vhether the change in
acceleration is greater than the maxima11y allowed change in acceleration,
Le., whether the currently measured acceleration is greater than an
acceleration aHm,ved by the threshold of variance.
A preponderance of the evidence supports the Examiner's finding that
Vetter discloses a sensor that comprises "a light source driver implemented
to switch off the light source when the acceleration signal indicates that the
acceleration is greater than a maximally allowed acceleration," as required
by claim 1. Thus, we affirm the rejection of claim 1 under 35 U.S.C.
§ 102(b) as anticipated by Vetter.
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Claims 2, 4, 5, 10, 14, 15, and 26 have not been argued separately and
therefore fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
IV.
Issue
The Examiner rejects claims 1, 3, 6-9, 11-13, 16, 18-21, and23
under 35 U.S.C. § 103(a) as obvious in view of Vetter, and further in view of
one ofNiwa (claims 1, 3, 11, 13, and 18, Final Rej. 8-11; Ans. 2), Banet
(claims 1, 6, 7, 11, 12, and 23, Final Rej. 11-14; Ans. 2), Nazarian (claims 1
and 19, Final Rej. 18-20; Ans. 2), Hanna (claim 16, Final Rej. 20-21; Ans.
2), Taylor (claim 8, Final Rej. 21; Ans. 2), Banet and Asada (claim 9, Final
Rej. 21-22; Ans. 2 ), or Nazarian and Ruchti (claims 2 0 and 21, Final Rej.
22-23; Ans. 2).
Analysis
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claims 1, 3, 6-9, 11-13, 16, 18-21, and 23 as obvious over the
cited art. App. Br. 20. We disagree with Appellants' contentions and adopt
the findings concerning the scope and content of the prior art set forth in the
Examiner's Answer and Final Rejection.
Appellants argue that the Examiner acknowledged that none of Niwa,
Banet, or Nazarian disclose "turning off the light source when the
acceleration signal is too high" (App. Br. 20). Appellants argue that,
therefore, "even a combination of Vetter and any of the other prior art
documents cannot render obvious the subject matter as defined by
independent claim 1" (App. Br. 20).
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Appellants' arguments are not persuasive for the reasons discussed
above (III) with respect to the anticipation rejection based on Vetter. Thus,
we affirm the rejection of claims 1, 3, 11, 13, and 18 in view of Vetter and
Niwa, the rejection of claims 1, 6, 7, 11, 12, and 23 in view of Vetter and
Banet, and the rejection of claims 1 and 19 in view of Vetter and Nazarian.
Appellants have not presented any arguments directed to the Hanna,
Taylor, Asada, or Ruchti references. Thus, we also affirm the rejection of
claim 16 in view of Vetter and Hanna, the rejection of claim 8 in view of
Vetter and Taylor, the rejection of claim 9 in view of Vetter, Banet, and
Asada, and the rejection of claims 20 and 21 in view of Vetter, Nazarian,
and Ruchti.
V.
Issue
The Examiner rejects claims 1, 17, 18, 26, and 28 under 35 U.S.C.
§ 103(a) as obvious in view of Vetter and Kimball (Final Rej. 14--18; Ans.
2). The Examiner also rejects claim 22 under 35 U.S.C. § 103(a) as obvious
in view of Vetter and Kimball, and further in view of Nazarian. Final Rej.
23-24. The same issue is dispositive for both of these rejections and we will
consider them together.
Analysis
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claims 1, 17, 18, 26, and 28 as obvious over the cited art. App. Br.
20-22. With regard to claims 1, 18, and 26, we disagree with Appellants'
contentions and adopt the findings concerning the scope and content of the
prior art set forth in the Examiner's Answer and Final Rejection. With
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regard to claims 17 and 28, we agree with Appellants that the Examiner has
not adequately explained how the combination of Vetter and Kimball would
have made obvious the inventions recited in these claims, and we reverse the
rejection of claims 17 and 28.
For emphasis, we highlight and address the following:
6. Kimball discloses a need in the mi "for a technique to
compensate for, or eliminate, motion-induced artifa.cts in patient-attached
critical care monitoring instruments.~' KimbaH, /\bstract K1mba11 discloses
an improvement in "pulse-oximetry by incorporating additional signals to
aid in the triggering of the pulse-oximeter or in analyzing the data received
by the pulse oximeter. This includes detecting when the patient moves and
analyzing the pu1se-oximetry data in 1 ight of the detected movement.''
KimbaH, Abstract
7. Kimball discloses "a pulse oxhneter system 100 attached to a
patient's fingertip 102 , .. The patient's hand 104 is typically not
immobilized and is free to move throughout the measurement time interval."
Kimball, coL 5, 1L 6-9. "The system may include a data display 112 fi.1r
displaying the measured 1eve1 of hemoglobin oxygen saturation, and any
other infonnation.'' Kirnball, col. 5. 11. 1416. The svstem includes a . , .
"sensor head unit 302[, which] may contain the first light source 306 and the
second light source 308 and a photodetector 3lfl ananged so that light 316
and 318 from the light sources 306 and 308 illuminates the patient's finger
304." Kimball, coL 7, lL 21-25.
8. Kimball's "sensing head 606 may incorporate a motion sensor,
such as a linear accelerometer, which rnay sense erratic motion, periodic
rnotion (such as tapping), or even violent motion.'' Kirnball, coL 13, IL 63-
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66. "\\!here the detected motion lies above a particular threshold ... the
signal from the motion sensor may be used to generate a blanking command
in the main signal processing unit 608 to disregard data collected during
those incidents.'' Kimball) coL 14, 11. 1-7. "[D]uring periods where the
sensing head 606 is stationary, the signal from the motion sensor mav be
&_.) ,., ' ..._ ,.,
used as a gating comrnand to validate raw data as acceptable for downstrearn
processing.') Kimball~ col. 14, IL 7----10. "In another approach, the main
signal processing unit may be programmed to not take pu1se-oximetry data
while the motion sensor detects motion that exceeds a pmiicular threshold.)'
Kimball, coL 14, 11. 10-13.
9. Kimball discloses that the "unit display 622 may indicate that
the patient's movement has exceeded a certain threshold and, for example,
may be sufficient to adversely affect the pulse-oximetry measurement."
Kimball~ col. 14, lL 25-----28.
10. Kimball discloses that the
blanking signal 1104 may be used for any process used in
::-malyzing the data that is related to the patient's motion. For
exarnple, the b1anking data rnay be used to tag data taken during
periods of motion deemed to be too excessive to make accurate
pulse-oximetry readings, so those data taken during periods of
excessive motion may be ignored \vhen producing a pulse-
oximetrv result ,;
Kimball~ col. 14, lL 42----48. "[T]he unit may analyze the motion signal 1102
to deterrnine the frequency or frequencies of the patient's motion and then~
when analyzing the pulse-oximetry data, may filter out those artifacts having
a frequency or frequencies corresponding to the motion frequencies."
Kimball, col. 14, lL 50-55.
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Claims l, 17, 18, and 26
According to the Examiner, Kimball's sensor transfers "the light
intensity signal and the acceleration signal to a processor ... to generate the
light intensity signal in dependence on the acceleration signal." Final Rej.
15, citing Kimball, col. 14, 11. 3-13. The Examiner finds that Kimball
discloses "not using measurements in periods of excessive movement."
Final Rej. 15, citing Kimball, col. 14, 11. 1-9 and 42-55. Noting that
Kimball does not disclose turning off "the light source when the
acceleration/motion signal is too high," the Examiner looks to Vetter as
disclosing that "it is beneficial to tum off the light source when non-
stationary signals are detected or ... when the motion signal is too high."
Final Rej. 15, citing Vetter i-f 68. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art to combine Kimball's device
"with the teachings of Vetter in order to conserve power consumption of the
device." Final Rej. 16.
Appellants argue that in light of the Examiner's acknowledgment that
Kimball does not disclose "turning off the light source when the acceleration
signal is too high," a combination of Vetter and Kimball "cannot render
obvious the subject matter as defined by independent claim 1" or
independent claim 26. App. Br. 20.
Appellants' arguments are not persuasive. As discussed, Vetter
discloses turning off the light source when the acceleration signal is too
high. See FF 5. Thus, we affirm the rejection of independent claims 1 and
26 under
35 U.S.C. § 103(a) as obvious in view of Vetter and Kimball. Claims 17 and
18 have not been argued separately and therefore fall with claim 1. See
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37 C.F.R. § 41.37(c)(l)(iv).
Claim 28
Independent claim 28 is directed to "[a] non-transitory digital storage
medium comprising a computer program for performing a method for
providing information on a vital parameter of a living being." Claim 28
includes the following limitations:
wherein the information on the vital parameter is only
determined ... if the information on the acceleration indicates
that the acceleration is within a predetermined allowed region,
and
wherein otherwise, instead of current information on the
vital parameter, information, determined before, on the vital
parameter is provided, when the computer program runs on a
computer.
The Examiner finds that Kimball discloses that, if "the acceleration is
greater than a predetermined maximally allowed acceleration ... the
processor [provides a blanking function that] ignores ... the signal points
[acquired] during periods of excessive movement and does not use these
points ... , thereby interrupting the generation of the vital parameter
information." Final Rej. 17, citing Kimball, col. 13, 11. 63----67 and Fig. 6.
According to the Examiner, Kimball discloses that
the information on the vital parameter is only determined from
the light intensity signal or output if the information on the
acceleration indicates that the acceleration is with[in] a
predetermined allowed region and wherein otherwise, instead of
current information on the vital parameter, information
determined before[] on the vital parameter is provided.
Final Rej. 17-18, citing Kimball, col. 14, 11. 1-13 and 42-55. The Examiner
reasons that the "blanking signal eliminate[ es] the ability of the processor to
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determine the parameter for the current state and as there is no mention of
changing the output[,] the output would remain as the previously calculated
segments without the removed/blanked data." Final Rej. 18.
Appellants argue that, although Kimball, at column 14, provides "that
a signal from a motion sensor may be used to generate a blanking command
in a main signal processing unit to disregard data collected during those
incidents," the reference "does not indicate that, if the acceleration signal is
not within a predetermined allowed region, information, determined before,
on the vital parameter is provided. Rather, the 'blanking' [function]
mentioned by Kimball implies that []blanked information (for example, a
value of 0) is provided when there is excessive motion." App. Br. 21-22.
The Examiner responds that Kimball discloses "inhibiting the
processor from using the current readings to calculate the parameter during
times of excessive acceleration, specifically through the use of a blanking
function." Ans. 4, citing Kimball, col. 14, 11. 1-9 and 42-55. According to
the Examiner, Kimball's "processor ignores, using the blanking function, the
signal points during periods of excessive movement and does not use these
points to calculate the vital parameter, thereby interrupting the generation of
the vital parameter information." Ans. 4. According to the Examiner,
"Vetter is relied upon to specifically teach the threshold and deactivation of
the light source." Ans. 4. According to the Examiner, "Kimball discloses
blanking the contaminated segments wherein the blanking signal is not a
zero as Appellant argues." Ans. 4, citing Kimball, col. 14, 11. 1-16 and Fig.
11. According to the Examiner, "the blanking signal flags the data to be
disregarded or stops the sensor from taking readings during those periods[]
[and] Kimball discloses that ... blanking is used to disregard data collected
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in further downstream processing of the data to be calculated and output by
the device." Ans. 4, citing Kimball, col. 14, 11. 1-15 and 42-55. According
to the Examiner, "the device displays a graph of the waveform ... so if the
blanking signal disregards the motion contaminated signal parts and the
display shows the waveform then the previous data ... is displayed and the
current data is not." Ans. 4, citing Kimball, col. 6, 11. 46-56.
We agree with Appellants that the Examiner has not adequately
explained how the combination of Vetter and Kimball would have made
obvious "a computer program for performing a method for providing
information on a vital parameter of a living being" that operates to provide
earlier determined information on a vital parameter, rather than current
information or an error signal, if the acceleration is not within a
predetermined allowed range. Thus, we reverse the obviousness rejection of
claim 28 in view of Vetter and Kimball.
The Examiner also rejects claim 22 under 35 U.S.C. § 103(a) as
obvious in view of Vetter and Kimball, and further in view of Nazarian.
Claim 22 depends from independent claim 1 indirectly. Appellants have not
presented any separate arguments based on Nazarian, accordingly we affirm
this rejection for the reasons set out by the Examiner. Final Rej. 23-24.
VI.
The Examiner rejects claims 28-30 under 35 U.S.C. § 103(a) as
obvious in view of Vetter and Gerhard (Final Rej. 24--29; Ans. 2).
In the Appeal Brief, Appellants indicate that the rejection of claims
28-30 in view of Vetter and Gerhard is a ground of rejection to be reviewed
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on appeal but present no arguments directed toward the rejection. (App. Br.
16).
Accordingly, we affirm the rejection of claims 28-30 as obvious in
view of Vetter and Gerhard for the reasons set out by the Examiner.
SUMMARY
We affirm the rejection of claims 26 and 28 under
35 U.S.C. § 101.
We reverse the rejection of claim 26 under 35 U.S.C. § 112, first
paragraph.
We affirm the rejection of claims 1, 2, 4, 5, 10, 14, and 15under 35
U.S.C. § 102(b ).
We affirm the rejection of claims 1, 3, 6-9, 11-13, 16-22, 26, and 28-
30 under 35 U.S.C. § 103(a).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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