Ex Parte Kozin et alDownload PDFPatent Trial and Appeal BoardMay 30, 201713981712 (P.T.A.B. May. 30, 2017) Copy Citation 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. 13/981,712 07/25/2013 Simon Edward Kozin 2011P00083WOUS 9737 24737 7590 06/01/2017 PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS EXAMINER 465 Columbus Avenue FLORY, CHRISTOPHER A Suite 340 Valhalla, NY 10595 ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 06/01/2017 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): marianne. fox @ philips, com debbie.henn @philips .com patti. demichele @ Philips, com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SIMON EDWARD KOZIN and ANTHONY MATHESON1 Appeal 2016-003665 Application 13/981,712 Technology Center 3700 Before DONALD E. ADAMS, ERIC B. GRIMES, and TIMOTHY G. MAJORS, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35U.S.C. § 134 involving claims to a defibrillator, which have been rejected as obvious as anticipated or obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. STATEMENT OF THE CASE “External defibrillators typically act through hand-held electrode paddles or adhesively-applied electrode pads applied across the chest of the 1 Appellants identify the Real Party in Interest as Koninklijke Philips Electronics N.V. (Br. 3.) Appeal 2016-003665 Application 13/981,712 patient.” (Spec. 1 8.) “Paddle electrodes typically have a shock delivery button(s) or key(s) located on the paddles themselves.” (Id.) “[Ajdhesive electrodes . . . typically rely on a shock delivery button that resides on the defibrillator’s front control panel.” (Id. 19.) The Specification states that “users unfamiliar with the complexity of the defibrillator may become confused by the differences between the appearance of the defibrillation control buttons on the front panel of the device and of the control buttons on the external paddles.” (Id. 112.) The Specification discloses “a defibrillator for use with both paddle and adhesive electrodes . . ., wherein the shock button or buttons on the paddles are configured to visually match the orange triangular shock button on the front panel of the defibrillator.” (Id. 114.) Claims 1 and 3—10 are pending and stand rejected. (Br. 3—4.) Appellants request review of the rejection of claims 1 and 7. (Id. at 6.) Because Appellants do not request review of the rejection of claims 9 and 10 under 35 U.S.C. § 102(b) or the rejection of claims 3—6 and 8 under 35 U.S.C. § 103(a), those rejections are summarily affirmed. Claim 1 is illustrative and reads as follows (emphasis added): 1. A defibrillator (100) configured to use both of a paddle electrode and an adhesive electrode (190), comprising: a base unit with a user control panel (115); a first shock delivery button (110) having a first shape disposed on the user control panel; a paddle electrode (200) electrically connected to the base unit; a second shock delivery button (210) having the first shape disposed on the paddle electrode; and a plurality of non-shock delivery buttons having a plurality of shapes, 2 Appeal 2016-003665 Application 13/981,712 and further wherein the first shape is different than any other of the plurality of shapes. DISCUSSION The Examiner has rejected claims 1 and 7 under 35 U.S.C. § 102(b) as anticipated by Sullivan.2 (Final Action3 2.) The Examiner finds that Sullivan discloses a defibrillator that includes all of the limitations of claims 1 and 7. (Id. at 2—3.) As relevant here, the Examiner finds that Sullivan’s defibrillator includes shock delivery buttons having a first shape (round), as well as “a plurality of non-shock delivery buttons and knobs different from the shock delivery buttons which are oblong and otherwise not round, i.e. having a plurality of different shapes which are not the first shape.” (Id. at 3.) In response to Appellants’ argument that some of the non-shock delivery buttons on Sullivan’s defibrillator are round, like the shock delivery buttons, the Examiner reasons that Sullivan’s defibrillator has multiple buttons that are oblong-shaped, and claiming that a first shape is different than a plurality of other shapes is not equivalent to precluding any button other than a defibrillation button from being round, as is argued by Appellant. It is entirely appropriate and permissible to not rely on buttons 276 and 278 in the applied rejection, as they are not required to meet what is actually claimed of a plurality of non-round buttons. (Ans. 5.) That is, the Examiner interprets the claim to require multiple non-shock delivery buttons that have a shape different from that of the shock 2 Sullivan et al., U.S. 5,713,925, Feb. 3, 1995. 3 Office Action mailed Feb. 11, 2015. 3 Appeal 2016-003665 Application 13/981,712 delivery buttons, but to be open to the additional presence of non-shock delivery buttons that have the same shape as the shock delivery button. Appellants argue that “the term ‘wherein the first shape is different than any other of the plurality of shapes[’] . . . would be clearly understood by one of ordinary skill in the art reading the Specification as meaning that the first shape differs in shape from every other button shape on the panel.'1'’ (Br. 8, emphasis added.) In support of their interpretation of the claim language, Appellants point to the Specification’s statement that It is understood that the shock delivery button 210, as well as the shock delivery button on the user control panel, differs in shape and appearance from any of the other non-shock delivery buttons employed by the defibrillator. In addition, the color and/or illumination of shock delivery button 210 is distinctive from any of the other non-shock delivery buttons employed by the defibrillator. These features further reduce operator confusion and more quickly direct the operator’s attention to the controls required to deliver defibrillation therapy. (Spec. 133.) We agree with Appellants’ interpretation of the disputed phrase. While the Examiner’s reading of the claim language is not unreasonable on its face, it is broader than is reasonable when the claim language is read in light of the Specification. In particular, the Specification’s paragraph 33, quoted above, states that the shock delivery buttons “differ[] in shape and appearance from any of the other non-shock delivery buttons employed by the defibrillator” (emphasis added). That paragraph also states that this feature reduces operator confusion and directs an operator’s attention to the required controls. This is consistent with the Specification’s description of the invention as solving the problem of delays in providing defibrillation by 4 Appeal 2016-003665 Application 13/981,712 reducing operator confusion. (Spec. 113; see also id. at 114 (“[T]he overall user interface is conformed and simplified, which reduces confusion during use.”).) We conclude that, when the claim language is read in light of the Specification, the broadest reasonable interpretation of the phrase “the first shape is different than any other of the plurality of shapes” requires the shape of the shock-delivery buttons to differ from the shape of any of the non-shock delivery buttons on the device. Sullivan’s device includes non-shock delivery buttons that have the same shape (round) as the shock delivery buttons. (Sullivan, Figs. 1 and 7.) It therefore does not meet all of the limitations of claim 1. Claim 7 depends from claim 1. We therefore reverse the rejection of claims 1 and 7 as anticipated by Sullivan. SUMMARY We reverse the rejection of claims 1 and 7 under 35 U.S.C. § 102(b) based on Sullivan. We affirm the rejection of claims 9 and 10 under 35 U.S.C. § 102(b) based on Sullivan. We affirm the rejection of claims 3—6 and 8 under 35 U.S.C. § 103(a) based on Sullivan and Hansen. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. §1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 5 Copy with citationCopy as parenthetical citation