Ex Parte Kopperschmidt et al

Patent Trial and Appeal Board

Dec 11, 2012

10580869 (P.T.A.B. Dec. 11, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/580,869 07/23/2008 Pascal Kopperschmidt 2565/148 7312
26646 7590 12/12/2012
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
GIONTA, ALLISON
ART UNIT PAPER NUMBER
1777
MAIL DATE DELIVERY MODE
12/12/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE
THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte PASCAL KOPPERSCHMIDT
and Malte Gross
________________

Appeal 2011-012044
Application 10/580,869
Technology Center 1700
________________

Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012044
Application 10/580,869
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Pascal Kopperschmidt and Malte Gross (“Kopperschmidt”) timely
appeal under 35 U.S.C. § 134(a) from the final rejection1 of claims 29-38.2,3
We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
INTRODUCTION
The subject matter on appeal relates to a device that detects a
disruption in the blood flow in an extracorporeal blood circuit.4
Machine-aided blood treatment devices are used, for example, when
substances usually eliminated with urine remain in the blood due to kidney
failure. (Spec. 1.) The effectiveness of treating blood with such devices
may be reduced if the process leads to a thickening of the blood. (Id. at 2.)
Blood may be thickened, for example, if the dialyzer or filter in a blood
treatment device withdraws excessive amounts of blood fluid. (Id. at 1-2.)
Thickening of the blood may lead to flow resistance in the extracorporeal

1 Office Action mailed 29 June 2010. (Cited as “Office Action.”)
2 Claims 19-28 are withdrawn. (Appeal Brief, filed 24 January 2011
(“Br.”), 4.)
3 Oral Argument was heard 6 December 2012, before a court reporter. The
transcript, which was not available when this Opinion was mailed, will be
made of record.
4 Application 10/580,869, Method and Device for the Detection of
Disruptions of the Blood Flow in an Extracorporeal Blood Circuit,
filed 23 July 2008, claiming the benefit of PCT/EP2004/010180,
filed 11 September 2004 and priority to Germany 10355042.9,
filed 25 November 2003.
The specification is referred to as the “869 Specification,” and is cited
as “Spec.” The real party in interest is listed as Fresenius Medical Care
Deutschland GMBH. (Br. 2.)
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Application 10/580,869
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blood circuit, and such a disruption in the rate of blood flow must be
detected to avoid an interruption of the treatment. (Id. at 2.)
The 869 Specification explains that in the inventive device the
detection of disruptions in the blood flow in an extracorporeal blood circuit
is “based on the analysis of an oscillating pressure signal.” (Id. at 3.) More
specifically, the Specification explains: “The analysis of the phase angle of
at least one harmonic of the pressure signal permits the detection of an
impending thickening of the blood, so that countermeasures can be taken in
good time.” (Id.)5
According to the disclosure, the advantage of analyzing the phase
angle “lies in the fact that the oscillating pressure signal needs to be
measured at only one point of the extracorporeal blood circuit.” (Id.)
Because it is unnecessary to make additional measurements, additional
hardware and software are not required. (Id. at 4.) Thus, instead of a
differential approach (as between two measurements), “a critical absolute or
relative change in the absolute value of the phase compared to a limiting
value can be evaluated as an alarm criterion.” (Id.)

5 Spec. 3 (“[I]t is not the fundamental component of the oscillating pressure
signal, but at least one of the harmonic components of the pressure signal
that is analysed. The analysis of the phase angle of at least one harmonic of
the pressure signal permits the detection of an impending thickening of the
blood, so that countermeasures can be taken in good time. It is concluded
that there is a disruption in the blood flow when the phase angle of at least
one harmonic experiences a characteristic change.”)
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STATEMENT OF THE CASE
Representative Claim 29 reads:
A device for the detection of disruptions of blood flow in an
extracorporeal blood circuit during an extracorporeal blood
treatment with an extracorporeal blood treatment apparatus, the
extracorporeal blood circuit comprising an arterial branch
leading to a blood treatment unit and a venous branch leading
away from the blood treatment unit, the device comprising:
a means for generating an oscillating pressure signal
propagated in the extracorporeal blood circuit;
a means for measuring the oscillating pressure signal; and
a means for analyzing the oscillating pressure signal wherein
the means for analyzing the oscillating pressure signal
includes
a means for determining the phase angle of at least one
harmonic of the oscillating pressure signal and
a means for detecting a change in the phase angle.
(Claims App., Br. 13; indentation, paragraphing, and emphasis added.)
The Examiner maintains the following grounds of rejection:6
A. Claims 29, 30, & 35-38 stand rejected under 35 U.S.C. § 102(b)
in view of Gross.7
B. Claims 31-34 stand rejected under 35 U.S.C. § 103(a) in view
of the combined teachings of Gross and Zhang.8

6 Examiner’s Answer mailed 29 March 2011 (“Ans.”).
7 Malte Gross, Method and Device For Detecting Stenoses In A Tubular
Line System, U.S. Patent Application Publication 2002/0174721 A1
(28 November 2002). (Ans. 4-5).
8 Wei Zhang, DE 10213179 C1 (07 August 2003). The Examiner relies on
an EPO machine translation of EP 1348458 A1 (30 January 2003).
(Ans. 5-7).
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DISCUSSION
Kopperschmidt argues the patentability of claims 29-38 generally; i.e.,
without setting forth separate reasons for patentability with respect to any
one or more claims apart from the others. (Br. 8-11.) Accordingly, the
claims stand or fall with claim 29. 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Representative claim 29 stands rejected under 35 U.S.C. § 102(b) by
the Examiner as unpatentable over Gross, and under 35 U.S.C. § 103(a) in
view of the combined teachings of Gross and Zhang.
The Examiner holds that the claim limitations in representative
claim 29 invoke 35 U.S.C. § 112, ¶ 6 because in each instance, the claim
recites the phrase “means for,” modified by functional language, and the
phrase is not modified by structure, material, or acts for achieving the
specified function. (Ans. 3.)
According to the 869 Specification, the blood flow in an
extracorporeal blood circuit may be monitored by ascertaining the phase
angle of the harmonic components of an oscillating pressure signal imposed
on the flow. (Spec. 3-5.) Accordingly, the critical issue on appeal is the
interpretation of the claim phrase, “a means for analyzing the oscillating
pressure signal wherein the means for analyzing the oscillating pressure
signal includes a means for determining the phase angle of at least one
harmonic of the oscillating pressure signal and a means for detecting a
change in the phase angle.”
The Examiner interprets “means for analyzing the oscillating pressure
signal” to be “any evaluation unit.” (Ans. 4.)
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The Examiner interprets “means for determining the phase angle” to
be “a Fourier Transform Analysis Device.” (Id.)
The Examiner interprets “means for detecting a change in the phase
angle” to be “a central processing unit.” (Id.)
Based on these interpretations, the Examiner finds that Gross
anticipates the claimed invention because it “explicitly discloses a Fourier
Transform device for analyzing the oscillating pressure signal along with a
Central Processing Unit for analyzing the signal.” (Ans. 8 (citations
omitted).) It is the Examiner’s position that “[w]ithout the recitation of any
further structural limitations, Gross Fourier Transform device and central
processing unit are understood to be functional equivalents, having the
capability of determining the phase angle and detecting a change in the
phase angle.” (Office Action 7.)
Kopperschmidt argues that the Examiner’s interpretation of claim 29
is not proper, and that under a proper claim construction, representative
claim 29 is not anticipated by Gross. (Br. 8-11.) Kopperschmidt argues,
specifically, that “Gross does not disclose or suggest performing the
functions of determining the phase angle of at least one harmonic of the
oscillating pressure signal or detecting a change in the phase angle, as
claimed.” (Id. at 8.) In regard to equivalents under 35 U.S.C. § 112, ¶ 6,
Kopperschmidt argues that Gross must perform the claimed function, rather
than merely being capable of performing the function. (Id. at 9.)
Gross discloses a device for detecting stenosis, i.e., a kink or
constriction, in an extracorporeal blood circulation circuit. (Pg. 1, ¶ 0003.)
According to the description, the method of generating the oscillating
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pressure in Gross is “unimportant.” (Id. at ¶ 0013.) Rather, the essential
attribute of the device is the analysis of the frequency spectrum of the
oscillating pressure signal. (Id. at ¶ 0012, “When a change in the frequency
spectrum occurs, a stenosis is inferred.”) In particular, the device looks for a
decrease in the amplitude of the first harmonic component, the initial value
of which is stored as a reference value. (Id. at 2, ¶¶ 0014, 0015 and
at 3, ¶¶ 0037-0039.)
This “differential approach” is illustrated in Gross Figures 3 and 4.
Figure 3 shows the Fourier transform of the venous pressure signal, which
has harmonic components 2p, 3p, etc., prior to an experimental kinking
of the blood flow line. Figure 4 shows the Fourier transform of the venous
pressure signal after kinking the blood flow line. (Pg. 3 at ¶ 0035.) In
Figure 4, the amplitudes of the signals at the harmonics, 2p, 3p, etc., are
smaller than those previously recorded in Figure 3, signaling the existence of
a stenosis. (Id.)
OPINION
A reference is anticipatory under 35 U.S.C. § 102 only if it discloses
each and every element of the claimed invention, either explicitly or
inherently, and the elements are arranged or combined in the same manner
as in the claim. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009).
There is no dispute that representative claim 29 invokes
35 U.S.C. § 112, ¶ 6. Thus, the Examiner is required to review the
specification to determine the structure defined by the functional claim
language. In re Donaldson Co., Inc., 16 F.3d 1194-5 (Fed. Cir. 1994) (“Per
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our holding, the ‘broadest reasonable interpretation’ that an examiner may
give means-plus-function language is that statutorily mandated in paragraph
six. Accordingly, the PTO may not disregard the structure disclosed in the
specification corresponding to such language when rendering a patentability
determination.”)
When a claim is drawn to a computer implemented function invoking
35 U.S.C. § 112, ¶ 6, a general purpose computer is usually sufficient for the
corresponding structure for performing a general computing function, but
the corresponding structure for performing a specific function is required to
be more than simply a general purpose computer. In re Katz Interactive Call
Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011). The
structure needed to transform a general purpose computer into a specific
purpose computer is an algorithm. Aristocrat Techs. Australia Pty Ltd. v.
Int’l Game Tech., 521 F.3d 1328, 1338 (Fed. Cir. 2008). An algorithm is
defined, for example, as “a finite sequence of steps for solving a logical or
mathematical problem or performing a task.” MICROSOFT COMPUTER
DICTIONARY 23 (5th ed. 2002).
In this case, the Examiner appears to have misapprehended or
overlooked the algorithm in the 869 Specification that provides adequate
structure for the critical claim limitation. Kopperschmidt argues that
paragraphs 40 and 41 provide an algorithm for analyzing the oscillating
pressure signal. (Br. 8-9.)
The 869 Specification explains that evaluation unit 32 in Figure 1
receives the output signal of the pressure sensor 31 via signal line 33.
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(Spec. 8.) After the oscillating pressure signal is received by evaluation
unit 32, a sequence of steps for analyzing the signal is described.
Evaluation unit 32 has a Fourier analysis device 32a,
which analyses output signal 33 of venous pressure sensor 31.
Blood pump 6, e.g. a roller pump, generates oscillating pressure
pulses which are propagated via arterial and venous
branches 20, 21 of extracorporeal circuit 9. The oscillating
pressure pulses are measured with venous pressure sensor 31
and analysed by means of Fourier analysis device 32a of
evaluation unit 32.
The oscillating pressure signal has a static component
( = 0) and harmonic components. Since the roller pump is a
pump with two rollers, the odd harmonics (1, 3, 5 . . .) can
be neglected. Fourier analysis device 32a breaks down the
oscillating pressure signal into a static component and the even
harmonics (2, 4, 6 . . .), whereby the phase angle of the
harmonics is ascertained in each case.9 
The 869 Specification provides an algorithm for the claimed function,
which limits the claim to a specific computing device, rather than a general
computing device. Because Gross does not describe a computing device that
is programmed to measure and compare the phase angle of at least one

9 Spec. 9 (emphasis added). See also Spec. 4 (“In order to analyse one or
more harmonics of the oscillating pressure signal, the change in the phase
angle of at least one harmonic in a preset time unit is preferably compared
with a preset limiting value, whereby a disruption is detected if the amount
of the change in the phase angle is greater than the preset limiting value. It
has been shown in tests that the phase angle of a harmonic suddenly falls
relatively rapidly before the occurrence of a sharp increase in the flow
resistance. It has been shown that a characteristic change in the phase angle
occurs particularly markedly with higher-order harmonics. The greater the
ordinal number of the harmonic, the more marked the characteristic
change.”)
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harmonic component in a preset time unit with a preset limiting value (i.e.,
the algorithm associated with the functional claim language), anticipation
does not lie.
To the extent that the Examiner relies on the computing device in
Gross as an equivalent to the computing device required for the claimed
invention, the Examiner has not come forward with credible supporting
evidence. The Examiner has not provided evidence or a rationale for
establishing that the means for analyzing the oscillating pressure signal in
Gross and the means for analyzing the oscillating pressure signal in the
claimed invention are functionally identical. In other words, the Examiner
has not established that the claimed “means for determining the phase angle
of at least one harmonic of the oscillating pressure signal and a means for
detecting a change in the phase angle” and the prior art means “for analyzing
the frequency spectrum of the pressure signal” (Gross, ¶ 0037) perform the
same function in substantially the same way to achieve substantially the
same result. Gross appears to determine the existence of stenosis solely by
looking for diminished amplitudes of the harmonic component of the
oscillating pressure signal. Because there is no evidence that amplitudes of
the harmonics are functionally identical to the phase angles of the
harmonics, anticipation based on equivalents under 35 U.S.C. § 112, ¶ 6
does not lie.
The Examiner does not rely on Zhang to establish that analyzing the
amplitudes of the harmonics performs an equivalent function or provides the
same information as analyzing the phase angles of the harmonics.
Therefore, the obviousness rejection falls with the anticipation rejection.
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ORDER
We reverse all appealed rejections over prior art.
REVERSED
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