Ex Parte Dmello et al

Patent Trial and Appeal BoardApr 19, 2016

12628358 (P.T.A.B. Apr. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/628,358 12/01/2009 Melwyn Dominic Dmello 61604 7590 04/21/2016 GE Healthcare, IP Department 9900 W. Innovation Drive Mail Code RP2131 Wauwatosa, WI 53226 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. 238927PN 5785 EXAMINER COX, THADDEUS B ART UNIT PAPER NUMBER 3735 NOTIFICATION DATE DELIVERY MODE 04/21/2016 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): HCTechnologies@ge.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MEL WYN DOMINIC DMELLO and MEENAKSHISUNDARAM RAMKUMAR Appeal2014-000947 Application 12/628,358 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 1 under 35 U.S.C. Â§ 134 from the Examiner's rejection of claims 1-14 and 16-24. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. STATEMENT OF THE CASE The Specification discloses that "[i]nfant care apparatus such as infant warmers or incubators includes an infant platform, which needs to be moved during a clinical procedure. The infant care apparatus is provided with a drive mechanism to move/tilt the infant platform" (Spec. 1 i-f 2). 1 Appellants identify the Real Party in Interest as General Electric Company (App. Br. 1 ). Appeal2014-000947 Application 12/628,358 "Conventionally a drive control mechanism or a user interface for moving the infant bed is provided at the front side of the infant platform. In a resuscitation situation, the clinician will be standing at the front side of the warmer" (id. at 1 i-f 3). The Specification discloses an infant care apparatus having a drive mechanism with a user interface that can be accessed from the side (id. at 2 ,-r 8). Claim 1 is representative of the claims on appeal and reads as follows (emphasis added): 1. An infant care apparatus comprising: a base; a frame member extending upwardly from said base: an infant platform extending outwardly from said frame member positioned above the base and having lateral side walls and a bottom support; a heating arm extending outwardly from said frame member, positioned above the infant platform; and at least one drive mechanism connected to the frame member and to the infant platform, the drive mechanism comprising at least one user interface extending laterally from the drive mechanism, wherein the user interface is configured to control the drive mechanism to thereby move the infant platform. The claims stand rejected as follows: 411 Claims 1, 2, 9, and 19-22 under 35 U.S.C. Â§ 102(b) in vie\v of Benson;2 411 Clairns 3-8 under 35 U.S.C. Â§ 103(a) in view of Benson and Schaefer;3 2 Benson et al., US 5,980,449, issued Nov. 9, 1999. 3 Schaefer, US 5,029,826, issued July 9, 199L 2 Appeal2014-000947 Application 12/628,358 Â° Clairn 10 under 35 U.S.C. Â§ 103(a) in view of Benson and Koch;4 411 Claims 11, 12, and 17 under 35 U.S.C. Â§ 103(a) in view of Benson and Speraw;5 411 Clairns 13 and 18 under 35 U.S.C. Â§ 103(a) in view of Benson, Speraw, and Schaefer; Â° Clahn 14 under 35 U.S.C. Â§ 103(a) in view of Benson, Speraw, Schaefer, and Volker;6 Â° Claim 16 under 35 U.S.C. Â§ 103(a) in view of Benson, Speraw, and Volker; and Â° Claims 23 and 24 under 35 U.S.C. Â§ 103(a) in view of Benson and Benzo.7 I. Issue The Examiner has rejected claims 1, 2, 9, and 19-22 as anticipated by Benson (Final Rejection8 (Final Rej.) 2--4). The Examiner has also rejected claims 3-8, 10, 23, and 24 as obvious in view of Benson and either Schaefer (claims 3-8, Final Rej. 5-8), Koch (claim 10, Final Rej. 8), or Benzo (claims 23 and 24, Final Rej. 13). The same issue is dispositive for all of these rejections, and we will consider them together. 4 Koch, US 7,482,558 B2, issued Jan. 27, 2009. 5 Speraw et aL, US 6,540,660B1, issued Apr. 1, 2003. 6 Volker et al., US 2005/0146187 Al, published July 7, 2005. 7 Benzo et al., US 2009/0094745 Al, published Apr. 16, 2009. 8 Office Action mailed Feb. 15, 2013. 3 Appeal2014-000947 Application 12/628,358 The issue presented is: Does the evidence of record support the Examiner's finding that Benson discloses an infant care apparatus comprising a "drive mechanism comprising at least one user interface extending laterally from the drive mechanism," as required by claim 1? Findings of Fact 1. The Examiner finds that Benson discloses an infant care apparatus comprising a base, a frame member, an infant platform, and a drive mechanism connected to the frame member and to the infant platform, "the drive mechanism comprising at least one user interface ( 65, 66) extending laterally from the drive mechanism, wherein the user interface is configured to control the drive mechanism" (Final Rej. 2-3 (citing Benson, Fig. 12, col. 6, 1. 50-col. 7, 1. 62, col. 7, 11. 12-32)). 2. Benson discloses "infant warmer open care beds" (Benson, col. 1, 11. 6-8). 3. Figure 12 of Benson is shown below: 4 Appeal2014-000947 Application 12/628,358 Figure 12 shows "an enlarged view of a section of the infant warmer ... showing the inclination adjustment linkage mechanism" (Benson, col. 3, 11. 23-25). 4. Benson discloses that the basinet "is attached to the support column 5 by an inclination adjusting linkage arrangement ... [that] comprises two link members 60 and 61" (Benson, col. 6, 11. 53-56). "Preferably each link member is 'U' shaped and the two legs of the link member are pivotally attached to either side of the support column 5 at their proximal ends" through pivot points 62 and 63 (Benson, col. 6, 11. 56---63). 5. Benson discloses that the "pivot points 62 and 63 are connected into ... 'T' shaped sliding blocks to allow rapid height adjustment of the basinet relative to the support column 5" (Benson, col. 6, 1. 67---col. 7, 1. 3). "Upon tightening the screw or bolt ... the 'T' shaped block is firmly frictionally held in position in the channel" (Benson, col. 7, 11. 3-7). 6. Benson discloses that the "distal ends of the link members are attached to two mounting brackets 65 and 66 which are connected ... within a specially shaped channel in the basinet" (Benson, col. 7, 1. 11-15). 7. The Specification states that "[ e ]xamples of the drive mechanism include rotating gear mechanism, gas spring mechanism, switch mechanism and lead-screw mechanism, but need not be limited to these. The drive mechanism 140 is operated manually through a user interface 150" (Spec. 6 ii 24 ). 8. The Specification discloses that a "user interface 150 is connected to the drive mechanism 140 .... Examples of the user interface 5 Appeal2014-000947 Application 12/628,358 150 include a touch panel, lever, rotary knob or similar mechanism" (Spec. 7 ii 25). Analysis Claim 1 Appellants argue that the Examiner "points to the mounting brackets 65 and 66 as disclosing a user interface extending laterally from the drive mechanism and configured to control the drive mechanism thereby to move the infant platform" (App. Br. 6) but "it cannot reasonably be said that the 'drive mechanism' ... (the 'linkage arrangement') has at least one user interface extending laterally from the drive mechanism" (id. at 7). Appellants argue that "Benson does not disclose any element extending laterally from the 'linkage arrangement' that is appropriate for interfacing by a user" (id.). Appellants also argue that "the mounting brackets 65 and 66 do not extend laterally from the drive mechanism" because "the mounting brackets are internal to the 'linkage arrangement' and form an integral part of the linkage structure that connects the link members 60 and 61 to the basinet" (id.). The Examiner responds that claim 1 recites that "the user interface is part of the drive mechanism ('the drive mechanism comprising at least one user interface') and not a separate element" (Ans. 3). The Examiner reasons that "mounting brackets 65 and 66 do extend laterally from the drive mechanism, as they extend in several different directions relative to other components of the drive mechanism" (id.). We agree with the Examiner's reasoning and conclusion. Claim 1 recites that "the drive mechanism compris[ es] at least one user interface," 6 Appeal2014-000947 Application 12/628,358 which makes clear that the user interface is part of drive mechanism. Thus, we agree with the Examiner's reasoning that the mounting brackets 65 and 66 on Benson's infant care apparatus could be both part of the drive mechanism and a user interface for the drive mechanism (see FF 3---6). We also agree with the Examiner that the mounting brackets 65 and 66 extend laterally from the drive mechanism within the meaning of claim 1. That is, link members 60 and 61 are attached at one end to mounting brackets 65 and 66, and at the other end to "T" shaped sliding blocks (FF4- FF6). Thus, mounting brackets 65 and 66 extend laterally from part of the "T" shaped sliding blocks, which are also parts of the drive mechanism. Appellants argue that "Benson does not disclose a user interface configured to control the drive mechanism" (App. Br. 8) (emphasis omitted). Appellants argue that one of skill in the art "would not recognize the mounting brackets 65 and 66 as appropriate locations for the user to interface with the device in order to move the infant platform" (id. at 7-8) and "a user would have a difficult time moving the infant platform by grasping one of the mounting brackets 65 or 66 because the user would have little to no leverage for tilting or controlling the platform" (id. at 8). Appellants also argue that "adjusting the basinet 10 in Benson by grasping the mounting brackets 65 and 66 directly controls the movement of the basinet, rather than controlling the drive mechanism to thereby move the infant platform" (id.). The Examiner responds that "the mounting brackets are clearly capable of being 'interfaced' by a user, as they are easily accessible by a user and can be moved to thereby move and rotate the infant platform" (Ans. 7 Appeal2014-000947 Application 12/628,358 4). The Examiner further responds that "[i]f the mounting brackets are grasped and moved by a user, the remaining components of the drive mechanism (and the basinet) move as well" (id. at 4--5). We agree with the Examiner's reasoning and conclusion. [T]he PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the aii, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The Specification does not define a "user interface," but only states that the "drive mechanism 140 is operated manually through a user interface 150" (FF 7), that "user interface 150 is connected to the drive mechanism 140" (FF 8), and that user interface examples "include a touch panel, lever, rotary knob or similar mechanism" (FF 8). Thus, the broadest reasonable interpretation of the term user inteJjace that is consistent with the Specification is that a user interface is a component of the drive mechanism that can be touched by a user to operate a connected drive mechanism. Benson discloses that mounting brackets 65 and 66 are connected, via link members 60 and 61, to T-shaped blocks that slide to allow height adjustment of the basinet (FFs 4----6). Given the connection between the mounting brackets and the T-shaped sliding blocks, Benson's infant platform could be moved by grasping the mounting brackets to adjust the height of the infant platform. Thus, we agree with the Examiner that Benson's mounting brackets 65 and 66 correspond the user interface of claim 1. 8 Appeal2014-000947 Application 12/628,358 Appellants argue that Benson does not disclose "a drive mechanism within the meaning of claim 1" (App. Br. 8). Appellants argue that, as understood by those in the art, "a drive mechanism [is] a mechanism that drives-i.e., 'propels or carries along by force in a specified direction.' (The New Oxford American DictionaryÂ© 2001.)" (Id. at 9.) Appellants argue that Benson's linkage system "does not meet with that definition because it does not impart motion on the infant platform" (id.). Rather, Appellants argue, Benson's system "relies on the user to propel and position the basinet 10, and the 'Basinet Support System' simply holds, or 'supports', the basinet in place once the user has positioned it" (id.). The Examiner responds that Benson discloses a drive mechanism even under the above definition, reasoning that, "if the mounting brackets (which are part of the drive mechanism) are grasped and moved by a user (i.e., the user is imparting a force upon the brackets in a particular direction), this will correspondingly move the basinet" (Ans. 5). We agree with the Examiner's reasoning and conclusion. As discussed above, claim terms are given the broadest reasonable interpretation that is consistent with the Specification. Here, the Specification does not preclude the use of user-applied force as part of the drive mechanism operation, but rather discloses that a drive mechanism is manually operated through a user interface (FF 7). Thus, we affirm the rejection of claim 1under35 U.S.C. Â§ 102(b). Claims 2, 9, and 20-22 have not been argued separately and therefore fall with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv). 9 Appeal2014-000947 Application 12/628,358 Claim 19 Appellants separate I y argue claim 19, which is similar to claim 1, and differs only in requiring the apparatus to have (a) a platform with a front side wall and an end wall, in addition to lateral side walls, and (b) requiring the drive mechanism to be "connected to the frame member and to the end wall of the infant platform, the drive mechanism being provided with at least one user interface extending to the lateral side walls of the infant platform." Appellants argue that Benson does not disclose "a user interface extending to the lateral side walls of the infant platform" or "a drive mechanism connected to the end wall of the infant platform" (App. Br. 10) (emphasis omitted). The Examiner responds that he "has interpreted the drive mechanism disclosed by Benson more broadly (i.e., to include more elements) than for the purposes of claim 1" (Ans. 6). Specifically, the Examiner interprets the drive mechanism to include elements 12 and 34 of Benson's apparatus (id.). Elements 12 and 34 are extrusions of the basinet frame of Benson's apparatus (Benson4:12-15, 15-17, 5:9-16, Figs. 5, 7). According to the Examiner, "it is not the user interface that is required to extend to the lateral side walls, but instead the drive mechanism" (Ans. 7). The Examiner reasons that, "because the drive mechanism includes extrusions 12 and 34 ... the drive mechanism clearly extends to the lateral side walls" (Ans. 7). We agree with Appellants that the Examiner has not adequately explained how Benson discloses a drive mechanism "with at least one user interface extending to the lateral side walls of the infant platform." Claims 10 Appeal2014-000947 Application 12/628,358 are given their broadest reasonable interpretation when examined, but that interpretation must be consistent with the Specification. See In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000) ("[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification."). Claims 19 recites a "drive mechanism being provided with at least one user interface extending to the lateral side walls of the infant platform." The Specification describes the user interface as a distinct portion of the drive mechanism. See, e.g., Spec. 7 i-f 25 ("At least one user interface 150 is provided on the drive mechanism 140 .... The user interface 150 is connected to the drive mechanism 140.") The Specification also describes the user interface as extending to the sidewalls of the infant platform (id. at 2 i-f 8). Thus, the Examiner's interpretation of claim 19 as only requiring the drive mechanism, not the user interface, to extend to the lateral side walls of the infant platform is not reasonable in light of the Specification. We therefore reverse the rejection of claim 19 as anticipated by Benson. The Examiner has also rejected claims 3-8, 10, 23, and 24 as obvious over Benson in combination with Schaefer, Koch, or Benzo. Appellants argue that these rejections should be reversed for the reasons discussed above with regard to independent claim 1 (App. Br. 11-12). Because we have found that Benson discloses the invention of claim 1, and Appellants have waived arguments directed to Schaefer, Koch, or Benzo, we affirm the rejection of claims 3-8, 10, 23, and 24 under 35 U.S.C. Â§ 103(a). 11 Appeal2014-000947 Application 12/628,358 Conclusion of Law The evidence of record supports the Examiner's finding that Benson discloses an infant care apparatus comprising a "drive mechanism comprising at least one user interface extending laterally from the drive mechanism," as required by claim 1. II. Issue The Examiner has rejected claims 11, 12, and 17 as obvious in view of Benson and Speraw (Final Rej. 9-10 and 12). The Examiner has also rejected claims 13, 14, 16, and 18 as obvious in view of Benson and Speraw, and further in view of Schaefer (claims 13 and 18), Volker (claim 16), or Schaefer and Volker (claim 14). The same issue is dispositive for these rejections, and we will consider them together. Claim 11 is directed to an infant care apparatus that comprises, among other things, "two drive mechanisms extending outwardly from the frame member, each drive mechanism connected in parallel to the bottom support of the infant platform, each drive mechanism being provided with a user interface extending to one of the lateral side walls of the infant platform for moving the infant platform" (emphasis added). The issue presented is: Does the evidence of record support the Examiner's conclusion that the combination of Benson and Speraw would have made obvious the infant care apparatus of claim 11? 12 Appeal2014-000947 Application 12/628,358 Findings of Fact 9. The Examiner relies on Benson, as discussed above, but finds that Benson does not "disclose that the apparatus has two drive mechanisms, each provided with a user interface" (Final Rej. 9). 10. The Examiner finds that Speraw discloses "an infant care apparatus 32 (col. 1, 11. 10-29) with two drive mechanisms 90 (col. 6, 11. 37- 47) each provided with a user interface 99 (col. 7, 11. 1-5)" (Final Rej. 9). 11. Speraw discloses "a patient-support assembly for a thermal support apparatus such as an infant warming device .... [T]he present invention relates to a tilting mechanism and an X-ray tray that are included in the patient-support assembly" (Speraw, col. 1, 11. 10-15). 12. Figure 3 of Speraw is shown below: '~~fil "..... .Â·.Â·.Â·.Â·.Â· Â·.-.Â·.Â· Â·.Â·.Â·.Â·.Â·.jÂ· Â·.Â·.Â·.Â·.Â·.Â·.Â·.Â·.Â·.Â·.Â·.~Â· ~ Figure 3 shows "a side elevation view of the patient-support apparatus ... with portions broken away, showing one end of the deck assembly elevated above the other end of the deck assembly" (Speraw, col. 3, 1. 66-col. 4, 1. 2). 13. Speraw discloses that the patient-support assembly 32 "includes a pair of elevation mechanisms 90, each of which are independently 13 Appeal2014-000947 Application 12/628,358 operable to raise and lower the respective overlying first and second ends 86, 88 of deck assembly 84" (Speraw, col. 6, 11. 34--40). 14. The Examiner concludes that it "would have been obvious to one of ordinary skill in the art ... to modify Benson's invention by adding a second drive mechanism and user interface as taught by Speraw because this allows both sides of the infant platform to be independently raised and lowered ... and also allows multiple caregivers to operate the drive mechanism simultaneously" (Final Rej. 9-10). Analysis Appellants argue that "neither Benson nor Speraw, alone or in combination, disclose two drive mechanisms connected in parallel" (App. Br. 12). Appellants argue that, as disclosed in the instant Specification, "two drive mechanisms are connected in parallel ... to synchronize the operation of the two mechanisms" (id. at 13 (citing the Spec. at i-f 29 and Fig. 2)). We agree. Speraw states that the elevation mechanisms 90 of its apparatus are "independently operable to raise and lower the respective overlying first and second ends" of the deck assembly (FF13). Drive mechanisms that are independently operable are not "connected in parallel," as required by claim 11 and as described in Appellants' Specification. The Examiner reasons that "this limitation means that both drive mechanisms are connected to the bottom support of the infant platform and are parallel to each other" (Ans. 8). The Examiner adopts this interpretation "because 'in parallel' describes how the two drive mechanisms are connected to the bottom support (i.e., their orientation to each other)" (id.). 14 Appeal2014-000947 Application 12/628,358 The Examiner's interpretation of the disputed limitation, however, is not consistent with the way the term is used in Appellants' Specification, which (as Appellants point out) describes two drive mechanisms connected so as to "synchronize the[ir] operation." (Spec. 8 i-f 29.) Because the rejection is based on an unreasonably broad claim interpretation, we reverse the rejection of claim 11 and dependent claims 12 and 17 as being obvious in view of Benson and Speraw. For the same reason, we reverse the rejection of claims 13, 14, 16, and 18, which depend from claim 11, under 35 U.S.C. Â§ 103(a) as obvious in view of Benson and Speraw, and further in view of Schaefer, Volker, or Schaefer and Volker. SUMMARY We affirm the rejection of claims 1, 2, 9, and 20-22 under 35 U.S.C. Â§ 102(b ), and but we reverse the rejection as applied to claim 19. We affirm the rejection of claims 3-8, 10, 23, and 24 under 35 U.S.C. Â§ 103(a). We reverse the rejection of claims 11-14 and 16-18 under 35 U.S.C. Â§ 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. Â§ 1.136(a). AFFIRMED-IN-PART 15