Ex Parte Kuri

Patent Trials and Appeals BoardFeb 22, 2019

15194656 - (D) (P.T.A.B. Feb. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 15/194,656 06/28/2016 YamilKuri 66386 7590 02/26/2019 JACQUELINE TADROS, P.A. P.O. Box 4564 FORT LAUDERDALE, FL 33338-9998 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. Kuri- CIP 2541 EXAMINER HOUGH, JESSANDRA F ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 02/26/2019 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): JTADROS@INTELLECTUALPROPERTYNOW.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte Y AMIL KURI Appeal 2018-003424 Application 15/194,656 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Y amil Kuri ("Appellant") appeals under 3 5 U.S. C. Â§ 134( a) from the Examiner's decision rejecting claims 12-15 1 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Matsumoto (US 2008/0214961 Al, pub. Sept. 4, 2008). Final Act. 2--4. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Claims 1-11 and 16-30 are withdrawn. Final Act. 1 (Office Action Summary); Suppl. Appeal Br. 1--4, 6-10 (Claims App.). Appeal2018-003424 Application 15/194,656 THE CLAIMED SUBJECT MATTER Claims 12 and 14 are independent. Claim 12, reproduced below, is illustrative of the claimed subject matter on appeal. 12. A system for calculating an arterial compliance index for determining the arterial stiffness of an artery of a subject, consisting of: a blood pressure monitoring device configured to measure a systolic blood pressure reading and a diastolic blood pressure reading for the artery of the subject; a device for measuring a first diameter of the artery at a peak systolic pressure and a second diameter of the artery at a peak diastolic pressure; a central processing unit configured to calculate the arterial compliance index as a function of the subject's: (a) systolic blood pressure reading as measured by the blood pressure monitoring device; (b) diastolic blood pressure reading as measured by the blood pressure monitoring device; ( c) the first diameter of the artery determined at a peak systolic phase of contraction of the subject's heart muscle as measured by the device; and ( d) the second diameter of the artery determined at a peak diastolic phase of relaxation of the subject's heart muscle as measured by the device. OPINION Appellant presents arguments for independent claim 12 ( Appeal Br. 7-14), and relies on the same arguments for independent claim 14 (id. at 14--16) and dependent claims 13 and 15 (id. at 16-18). We select claim 12 as representative of the issues that Appellant presents in the appeal, and claims 13-15 stand or fall therewith. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner finds that Matsumoto discloses all the limitations of independent claim 12, including, in relevant part, 2 Appeal2018-003424 Application 15/194,656 [a] system consisting of: a blood pressure monitoring device configured to measure a systolic blood pressure reading and a diastolic blood pressure reading for the artery of the subject (e.g. Figure 1; [0074]); [and] a device for measuring a first diameter and/or area of the artery at a peak systolic pressure and a second diameter and/or area of the artery at a peak diastolic pressure ( e.g. Figure 1; [0048]-cross-sectional area;[0075]-[0079]; [0082]). Final Act. 2-3. The Examiner also explains, in the Answer, that Matsumoto's "pressure container and pressure controllers are components that are used as the blood pressure measurement device (e.g. [0123]-[0124]; Fig 10)." Ans. 5. Appellant argues that "[t]he use of the transitional term 'consisting' [in claim 12] specifically excludes a pressure container (24) and a pressure controller (74) to set the pressure Pc in the pressure container (24)." Appeal Br. 12 (citing Matsumoto ,r 77). According to Appellant, Matsumoto's pressure container ... is not used or configured to measure either the systolic or diastolic pressure. The pressure in the container is raised to a value higher than the systolic pressure by a pre- determined value at a pre-determined rate and the blood pressure measuring device measures the pressure in the container not the subject. Reply Br. 2 (underlining omitted) (citing Matsumoto ,r 125). These arguments are unpersuasive for the following reasons. Matsumoto discloses a first embodiment, depicted in Figure 1, that includes "a blood pressure measuring unit 68 of the main unit 12 [that] corresponds to a claimed blood pressure measuring means." Matsumoto ,r 74 (boldface omitted). Matsumoto discloses that cuff 36 is wound around a subject's upper arm 34 to measure systolic blood pressure Ps and diastolic blood pressure Pd. Id. ,r,r 67, 7 4. Matsumoto discloses that controller 7 4 3 Appeal2018-003424 Application 15/194,656 varies the pressure Pc inside pressure container 24 based on the systolic and diastolic blood pressures Ps, Pd in evaluating the shape and diameter of an artery in the subject's forearm 22. Id. ,r,r 72, 75-78. In other words, in Matsumoto's first embodiment, blood pressure measuring unit 68 measures the subject's systolic and diastolic blood pressures Ps, Pd using cuff 36, and does not appear to require pressure container 24 or controller 74 to do so. However, Matsumoto also discloses a second embodiment, depicted in Figure 10, in which "the biological luminal body evaluating apparatus 90 differs from the above-described biological luminal body evaluating apparatus 10 [(i.e., the first embodiment)] in that a blood pressure measuring unit 68 uses the pressure container 24 in place of the cuff 36 during blood pressure measurement." Id. ,r 124 (boldface omitted) (emphasis added). In other words, Matsumoto's first embodiment measures a subject's systolic and diastolic blood pressures Ps, Pd using cuff 36 (id. ,r 74), whereas the second embodiment uses pressure container 24 (which is controlled by controller 74) (id. ,r 124). See id. ,r 125 ("[T]he blood pressure measuring unit 68 determines the pressure Pc in the pressure container 24 at predetermined timing [in which the amplitude differential of the pulse wave is maximized] as the diastolic pressure and the systolic pressure." (boldface omitted) (emphasis added)); and id. ,r 127 (indicating that the second embodiment obtains "the same effects" as the first embodiment with the "advantage[] that the cuff 36, the pressure controlling valve 40, etc .... can be eliminated" (boldface omitted)). Appellant asserts that "[ t ]he pressure container ... does not replace a cuff as used in a traditional blood pressure measuring device to measure systolic and diastolic blood pressure." Reply Br. 3. Even assuming that 4 Appeal2018-003424 Application 15/194,656 blood pressure is measured differently when using a cuff as in the first embodiment, as opposed to the pressure container as in the second embodiment, Appellant has not adequately explained why the pressure container of the second embodiment cannot reasonably be considered part of the claimed "blood pressure monitoring device configured to measure a systolic blood pressure reading and a diastolic blood pressure reading," particularly in light of Matsumoto's disclosure discussed above. For the foregoing reasons, Appellant does not apprise us of error in the Examiner's finding that Matsumoto discloses all of the limitations of independent claim 12 and discloses an embodiment that includes only those elements specified in the claim in accordance with the scope of a claim defined by the transitional phrase "consisting of." Accordingly, we sustain the rejection of claim 12, and of claims 13-15 falling therewith, under 35 U.S.C. Â§ 102(a)(l) as anticipated by Matsumoto. DECISION The Examiner's decision to reject claims 12-15 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Matsumoto is AFFIRMED. 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 5