Ex Parte Niethammer

Patent Trial and Appeal BoardJan 22, 2014

10804683 (P.T.A.B. Jan. 22, 2014)

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. 10/804,683 03/19/2004 Matthias Niethammer P04,0082 8170 7590 01/23/2014 SCHIFF HARDIN LLP Patent Department 6600 Sears Tower 233 South Wacker Drive Chicago, IL 60606 EXAMINER FISHER, PAUL R ART UNIT PAPER NUMBER 3689 MAIL DATE DELIVERY MODE 01/23/2014 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 1 ___________ 2 3 BEFORE THE PATENT TRIAL AND APPEAL BOARD 4 ___________ 5 6 Ex parte Matthias Niethammer 7 ___________ 8 9 Appeal 2011-010559 10 Application 10/804,683 11 Technology Center 3600 12 ___________ 13 14 15 Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 16 PHILIP J. HOFFMANN, Administrative Patent Judges. 17 FETTING, Administrative Patent Judge. 18 DECISION ON APPEAL 19 Appeal 2011-010559 Application 10/804,683 2 STATEMENT OF THE CASE1 1 1 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed February 14, 2011) and Reply Brief (“Reply Br.,” filed June 9, 2011), and the Examiner’s Answer (“Ans.,” mailed April 12, 2011). Matthias Niethammer (Appellant) seeks review under 35 U.S.C. § 134 of 2 a final rejection of claims 1 and 4-12, the only claims pending in the 3 application on appeal. We have jurisdiction over the appeal pursuant to 4 35 U.S.C. § 6(b). 5 The Appellant invented a way of allowing an external component of an 6 installed medical system to be remotely serviced (Specification 1: Field of 7 the Invention). 8 An understanding of the invention can be derived from a reading of 9 exemplary claim 1, which is reproduced below [bracketed matter and some 10 paragraphing added]. 11 1. A medical system comprising: 12 [1] 13 [1a] an installed computed tomography apparatus 14 comprising a plurality of installation components 15 that permanently install said computed 16 tomography apparatus at an installation site, 17 and 18 [1b] a control unit 19 that operates the computed tomography apparatus; 20 Appeal 2011-010559 Application 10/804,683 3 [2] a remote access interface 1 connected to the control unit 2 configured to allow the control unit to communicate with 3 a remote location 4 for remote servicing of the computed tomography 5 apparatus; 6 [3] a power contrast agent injector, 7 separate and removable from said computed tomography 8 apparatus at said installation site 9 and 10 configured for temporary connection to said control unit 11 for temporary operation 12 in combination with said installed computed 13 tomography apparatus, 14 said power contrast agent injector comprising an injector 15 interface; 16 [4] said control unit being configured 17 to place said power contrast agent injector in 18 communication with said remote access interface, 19 via said injector interface, 20 to allow remote servicing of said power contrast agent 21 injector from said remote location 22 through said control unit of said computed 23 tomography apparatus 24 via said remote access interface and said injector 25 interface, 26 only while said power contrast agent injector is 27 connected to said control unit; 28 and 29 Appeal 2011-010559 Application 10/804,683 4 [5] said control unit comprising security protection 1 that isolates said power contrast agent injector 2 from components of said installed computed tomography 3 apparatus 4 that are not involved in the remote servicing of the 5 power contrast agent injector. 6 The Examiner relies upon the following prior art: 7 Fichtner US 6,360,362 B1 Mar. 19, 2002 Shiraishi US 2003/0050792 A1 Mar. 13, 2003 Lisa Fratt, What's Up with Contrast Injectors?, Medical Imaging 8 Mag.com, (Feb. 2003), available at 9 http://www.medicalimagingmag.com/issues/articles/2003-02_06.asp 10 A. Alipour, R. R. Herge, and W.F. Heybruck, Device and Method for 11 Monitoring Computer, IBM, Research Disclosure, Vol. 42, Iss. 421, 12 (May 1, 1999). 13 Dell, The Dell Online Store, (June 10, 2002), 14 www.dell.com. 15 Claims 1, 4, 8, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as 16 unpatentable over Shiraishi, Fratt, Fichtner, and Alipour. 17 Claim 5, 6, 7, 9, and 10 stands rejected under 35 U.S.C. § 103(a) as 18 unpatentable over Shiraishi, Fratt, Fichtner, Alipour, and Dell. 19 ISSUES 20 The issues of obviousness turn primarily on whether it was known to 21 service devices attached to CT scanner consoles remotely and if so whether 22 it was known to isolate such devices in some instances during servicing. 23 Appeal 2011-010559 Application 10/804,683 5 FACTS PERTINENT TO THE ISSUES 1 The following enumerated Findings of Fact (FF) are believed to be 2 supported by a preponderance of the evidence. 3 Facts Related to the Prior Art 4 Shiraishi 5 01. Shiraishi is directed to a remote site monitoring system for 6 monitoring the status of a machine for operating a specialized 7 function, especially that for operating a medical imaging device. 8 Shiraishi para. [0001]. 9 02. Shiraishi provides a remote site management system capable of 10 providing timely and efficient maintenance services. Shiraishi 11 para. [0005]. 12 03. Shiraishi’s X-ray CT system is comprised of a gantry integrally 13 attached with an X-ray detecting mechanism for emitting X-rays 14 onto a subject and detecting X-rays passing through the subject, 15 and an operating console for performing several kinds of operation 16 settings for the gantry apparatus and reconstructing an X-ray 17 tomographic image based on data output from the gantry 18 apparatus for display. Shiraishi para. [0030]. 19 Fratt 20 04. Fratt is directed to Contrast Injectors. Fratt Title. 21 05. Power injectors are the wave of the future. The growth of CT 22 power injectors is driven by the technological advancements 23 provided by the new faster multi-detector (MDCT) scanners. New 24 Appeal 2011-010559 Application 10/804,683 6 CT technology has fueled the growth of new CT applications and 1 procedures such as CT angiography, cardiac CT and perfusion 2 imaging. And faster scanners require precise contrast delivery to 3 match both the speed and power of MDCT technology. Fratt 4 para. [5]. 5 Fichtner 6 06. Fichtner is directed to updating firmware between an imaging 7 device and a host system. Fichtner 2:24-25. 8 Alipour 9 07. Alipour is directed to special circuitry designed to monitor the 10 well being of the computer as well as its configuration. Alipour 1: 11 para. [1]. 12 08. With adapters that are not automatically configurable, the 13 monitor can advise the user of the appropriate settings that an 14 adapter should be configured. The monitor can isolate the adapter 15 until the settings are changed and verify that the adapter operates 16 accordingly. Alipour 2: para. [2]. 17 ANALYSIS 18 We are not persuaded by the Appellant’s argument that 19 the Examiner has defined the gantry apparatus as being a 20 mechanical component, and therefore there is no point to 21 remotely connecting such a mechanical component (as an 22 alleged "external device") to a router or server for remote 23 servicing thereof. Remote servicing of the gantry is not a 24 feasible concept, which is a reason why those of ordinary skill 25 would not consider the gantry apparatus to be an "external 26 Appeal 2011-010559 Application 10/804,683 7 device" with regard to the overall computed tomography 1 apparatus. 2 App. Br. 6. A CT gantry is electro-mechanical and responds to the control 3 computer to acquire the CT data for producing CT images. As such, one of 4 ordinary skill would immediately appreciate the need for servicing, 5 particularly remote servicing if a repair technician were not on site. As the 6 electronics of the gantry are controlled by the control computer via some 7 interface, remote servicing is more than feasible. We also find that the claim 8 does not recite remote servicing of the gantry in any event. The Examiner 9 only cited the potential for such servicing to show that Shiraishi’s remote 10 servicing interface would apply to devices attached to the control console as 11 well as the control console itself. Ans. 5. 12 We are not persuaded by the Appellant’s argument that 13 updating is undertaken by connecting the camera to a computer, 14 but the Fichtner et al. reference does not relate to a medical 15 system, and does not disclose a system having an "external 16 device" as set forth in the claims. 17 App. Br. 7. The Appellant’s contention does not persuade us of error 18 because the Appellant responds to the rejection by attacking the references 19 separately, even though the rejection is based on the combined teachings of 20 the references. Nonobviousness cannot be established by attacking the 21 references individually when the rejection is predicated upon a combination 22 of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 23 (Fed. Cir. 1986). The Examiner applied Fichtner only to show it was known 24 to perform remote servicing, such as software updates, on computerized 25 imaging system peripherals. We find the fact that Fratt’s power contrast 26 Appeal 2011-010559 Application 10/804,683 8 agent injector connects to a CT device much as a peripheral device is 1 uncontested and not even raised as an issue. 2 We are not persuaded by the Appellant’s argument that 3 [t]he most that can be said of the Alipour et al. reference is that 4 it provides a teaching of isolating a peripheral device, under 5 catastrophic conditions, from a computer that is being remotely 6 serviced. The Alipour et al. reference provides no teachings that 7 relate to the remote servicing of such a peripheral device itself. 8 App. Br. 8. The claim limitation at issue is 9 security protection that isolates said power contrast agent 10 injector from components of said installed computed 11 tomography apparatus that are not involved in the remote 12 servicing of the power contrast agent injector. 13 Claim 1. This does not recite or even limit what triggers such security 14 protection. More to the point, Alipour describes isolating an adapter until its 15 parameters are understood. This would be an instance of servicing such an 16 adapter. 17 CONCLUSIONS OF LAW 18 The rejection of claims 1, 4, 8, 11, and 12 under 35 U.S.C. § 103(a) as 19 unpatentable over Shiraishi, Fratt, Fichtner, and Alipour is proper. 20 The rejection of claim 5, 6, 7, 9, and 10 under 35 U.S.C. § 103(a) as 21 unpatentable over Shiraishi, Fratt, Fichtner, Alipour, and Dell is proper. 22 DECISION 23 The rejection of claims 1 and 4-12 is affirmed. 24 Appeal 2011-010559 Application 10/804,683 9 No time period for taking any subsequent action in connection with this 1 appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 2 § 1.136(a)(1)(iv) (2011). 3 4 AFFIRMED 5 6 7 8 tkl 9