Ex Parte Patterson et alDownload PDFPatent Trial and Appeal BoardJan 26, 201712901298 (P.T.A.B. Jan. 26, 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. MGC016 9726 EXAMINER CUOMO, PETER M ART UNIT PAPER NUMBER 3673 MAIL DATE DELIVERY MODE 12/901,298 10/08/2010 Richard A. Patterson 46056 7590 01/26/2017 LAW OFFICE OF JACK V. MUSGROVE 2911 BRIONA WOOD LANE CEDAR PARK, TX 78613 01/26/2017 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 RICHARD A. PATTERSON and RALPH M. SMUCKER Appeal 2015-004015 Application 12/901,298 Technology Center 3600 Before LYNNE H. BROWNE, MICHELLE R. OSINSKI, and NATHAN A. ENGELS, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Richard A. Patterson and Ralph M. Smucker (Appellants) appeal under 35 U.S.C. § 134 from the rejection of claims 1—3, 5—9, 12—14, and 16— 19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Appeal 2015-004015 Application 12/901,298 CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of transporting a patient, comprising: positioning a transfer device adjacent a support surface for the patient, the transfer device having a base and a table assembly movable between a home position over the base and an extended position to a side of the base, the table assembly further having upper and lower tables with counter-rotating upper and lower belts; adjusting a height of the table assembly to a height of the support surface; determining that the patient has a characteristic whose value is within a predetermined range; and moving the table assembly toward the extended position to place the table assembly underneath the patient but resting upon the support surface, while keeping the base stationary and with the upper belt moving at a rotational speed which is greater than a translational speed of the table assembly in response to said determining. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kasagami US 6,932,209 B2 Aug. 23,2005 Patterson ’1011 US 2008/0289101 A1 Nov. 27, 2008 Patterson ’044 US 7,540,044 B2 June 2,2009 1 The Examiner refers to US 7,603,729 B2 as Patterson ’101 presumably because US 7,603,729 is the patent that issued based on US 2008/0289101 Al. Further, the Examiner refers to paragraph 37 of US 2008/0289101 in the statement of the rejection. Accordingly, we refer to US 2008/0289101 as Patterson ’ 101, rather than the patent that issued therefrom. 2 Appeal 2015-004015 Application 12/901,298 REJECTIONS I. Claims 1, 2, 5—8, 12—14, and 16—19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kasagami in view of Patterson ’101. II. Claims 3 and 9 stand rejected under 35 U.S.C. 103(a) as unpatentable over Kasagami, Patterson ’101, and Patterson ’044. DISCUSSION Rejection I Claims E 2, 5—8, 12, and 13 The Examiner finds that Kasagami and Patterson ’101 disclose or suggest all of the limitations of independent claim 1. See Final Act. 2—5. In particular, the Examiner finds that Patterson ’101 discloses a patient transfer device with upper and lower table members having belts (20a, 20b) (para [0037]; Fig. la) and wherein the upper belt moves at a rotational speed greater than a translational speed of the table assembly (par [a] [0037] — speed of the belts can be mismatched to the eversion rate of the upper and lower belt tables by as much as 25% to reduce the tendency for the belts to create a pushing sensation on the patient during the acquisition process). Id. at 4. Appellants contend that Patterson ’ 101 ’s paragraph 37 “does not describe the upper belt moving at a rotational speed which is different than a translational speed of the table assembly.” Appeal Br. 10-11. In support of this contention, Appellants explain that “this paragraph simply states that the speed of the belts may be ‘mismatched’ to the eversion rate of the upper and lower belt tables.” Id. at 11. Appellants note that “it is not clear what the 3 Appeal 2015-004015 Application 12/901,298 ‘eversion rate’ of the upper and lower belt tables is. Patterson ’101 uses this term in relation to the belts in paragraph 51, but not in relation to the tables.” Id. Appellants further note that “paragraph 51 states that the timing of the belts’ rotation (eversion rate) is synchronized with the lateral movement of slide assembly.” Id. Based on this disclosure in Patterson ’101, Appellants argue that Patterson ’ 101 ’s disclosure is contrary to the teachings of the present invention.” Id. Paragraph 37 of Patterson ’101 states: FIG. 1A illustrates a patient acquisition position of slide assembly 18 and table assembly 20 wherein a leading edge of table assembly 20 has crawled about halfway under the patient 24 who is resting on a bed or other support surface 26. Table assembly 20 includes an upper table 20a and a lower table 20b each of which is surrounded by a respective endless belt or web. In the patient acquisition position, upper table 20a is in forcible contact with lower table 20b, and the upper and lower belts counter rotate. The movement of slide assembly 18 may be synchronized with the belt drive mechanism so that the extending carriages slide sideways to or from the home position at a speed that matches the eversion rate of the upper and lower belts; however, in some cases the speed of the belts may be mismatched to the eversion rate of the upper and lower belt tables by as much as 25% to reduce the tendency for the belts tables to create a pushing sensation on the patient during the acquisition process. In this manner, table assembly 20 can move under (or away from) the patient with essentially no frictional engagement between patient 24 and the upper belt, or between bed 26 and the lower belt and in doing so, only gently lift or lower the patient without pushing the patient to the side, and further performs this operation without requiring that base 12 also move sideways. Patterson ’101137 (emphasis omitted). Appellants are correct that the meaning of the phrase “however, in some cases the speed of the belts may be mismatched to the eversion rate of the upper and lower belt tables by as much as 25% to reduce the tendency for the belts tables to create a pushing 4 Appeal 2015-004015 Application 12/901,298 sensation on the patient during the acquisition process” is unclear because it is unclear how belt tables can have an eversion rate. It is also unclear what “the speed of the belts” means considering that the movement of the belts has been generally otherwise described in terms of an “eversion rate.” See Patterson ’101, H 37, 51. “[The Board] may not resolve doubts in favor of the Patent Office determination when there are deficiencies in the record as to the necessary factual bases supporting its legal conclusion of obviousness.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Here, there are doubts that Patterson ’101 discloses “an upper belt moving at a rotational speed which is greater than a translational speed of the table assembly” as required by claim 1. Thus, we cannot sustain the Examiner’s decision rejecting claim 1, based on this finding. In the Answer, the Examiner proffers alternative rationales for modifying Kasagami. See Ans. 4. However, these rationales are incomplete and do not cure the deficiency in the Examiner’s finding discussed supra. For these reasons, we do not sustain the Examiner’s decision rejecting claim 1, and claims 2, 5 and 6, which depend therefrom. The Examiner relies on the same erroneous finding that Patterson ’101 discloses “an upper belt moving at a rotational speed which is greater than a translational speed of the table assembly” for the rejection of independent claim 7 (Final Act. 6— 8), which similarly recites an “upper belt moving at a rotational speed which is greater than a translational speed of said table assembly.” Appeal Br. 19. The Examiner does not make additional findings of fact to cure this reliance on an erroneous finding. Accordingly, we do not sustain the Examiner’s decision rejecting claim 7, and claims 8, 12, and 13, which depend therefrom for the same reason. 5 Appeal 2015-004015 Application 12/901,298 Claim 14 Unlike claims 1 and 7, independent claim 14 does not require an upper belt moving at a rotational speed which is greater than a translational speed of said table assembly. See Appeal Br. 20. Rather, claim 14 requires a control system which selectively controls said first and second motors to move said upper belt at either a first rotational speed which is greater than a translational speed of said table assembly with respect to said base or a second rotational speed which is approximately equal to the translational speed of said table assembly. Id. The Examiner finds that Patterson discloses such a control system. See Final Act. 11. In addition, the Examiner finds that Kasagami discloses a base. Id. at 9. Appellants contend that “Kasagami is inapplicable since ... it generally does not disclose a transfer device having an extending table assembly supported by a base.” Appeal Br. 14. In support of this contention, Appellants argue that device 500 is not a base because “accommodating device 500 is not attached to the transfer device in any way.” Appeal Br. 9. Appellants further argue that “Kasagami clearly identifies the accommodating device 500 as being separate from the transfer device.” Id. Appellants’ arguments are not indicative of error, because claim 14 does not require the base to be attached to the transfer device or preclude it from being separate from the transfer device. See Appeal Br. 20. Appellants further contend that Kasagami “would be rendered inoperable if modified as suggested in the final Office Action” and refer our attention to the discussion of this argument as it pertains to claim 1. Appeal Br. 14—15. However, the claim language discussed in this context (i.e. the requirement in claim 1 that movement of the upper belt be greater while the 6 Appeal 2015-004015 Application 12/901,298 table assembly is moving) is not the same as the language at issue in claim 14. Claim 14 employs alternative claim language which can be met be a device where the rotational speed of the upper belt is “approximately equal to the translational speed of the table assembly.” Id. at 20.2 Accordingly, Appellants’ argument is not commensurate in scope with the claim, and thus, is unconvincing. In addition, Appellants argue that “Kasagami does not disclose a control system which controls the first and second motors to achieve the belt-table speed differential.” Appeal Br. 15; see also Reply Br. 6. This fact is not in dispute. As noted supra, the rejection relies upon Patterson ’101 for this feature. See Final Act. 11. Finally, Appellants argue that: Claim 14 recites that the control system includes a keyboard with a user input indicating that the user has selected the faster upper belt speed. Nothing in Patterson ’101, or any other prior art of record, suggests or describes such selective operation of an upper belt at one of two available rotational speeds. Appeal Br. 15. However, claim 14 is not so limited. As discussed supra, claim 14 uses alternative language and merely requires a control system that “selectively controls said first and second motors to move said upper belt at either a first rotational speed which is greater than a translational speed of said table assembly with respect to said base” or that selectively controls the first and second motors to move the upper belt at “a second rotational speed 2 Appellants themselves acknowledge that “the translational speed of the [Kasagami] device (as it crawls underneath the patient) must be the same as the [upper and lower] belt speed according to the laws of physics.” Appeal Br. 9. Accordingly, there can be no dispute that the combination of Kasagami and Patterson teaches a control system which is able to move the upper belt at a rotational speed that is approximately equal to the translational speed of the table assembly. 7 Appeal 2015-004015 Application 12/901,298 which is approximately equal to the translational speed of said table assembly.” Id. at 20. As discussed supra, the combination of Kasagami and Patterson ’101 teaches the latter control system. Accordingly, Appellants do not apprise us of error. For these reasons, we sustain the Examiner’s decision rejecting claim 14. Claim 16 Appellants argue that “[cjlaim 16 specifies that the user input indicates a patient acquisition mode, which imparts separate patentability as discussed above in conjunction with Claim 7.” Appeal Br. 16. In contesting the rejection claim 7, Appellants argue that “the final Office Action . . . discusses how the force applied by friction is proportional to the patient’s mass, but this reasoning does not pertain to a patient acquisition mode.” Id. at 13-14. Appellants appear to misapprehend the rejection. The Examiner finds that Patterson ’101 “discloses wherein the user input indicates a patient acquisition mode.” Final Act. 11 (citing Patterson ’101 60—61). In paragraph 60, Patterson ’101 states that the “sensors provide positional information to an electronic control system for motors 96 which is responsive to operator input commands for patient acquisition and delivery.” Patterson ’101 | 60 (emphasis omitted). Thus, the Examiner’s finding is correct. We sustain the Examiner’s decision rejecting claim 16. Claims 17—19 Appellants argue that “[cjlaim 17 specifies that the user input indicates that a patent characteristic is within a predetermined range, which imparts separate patentability as discussed above in conjunction with Claim 8 Appeal 2015-004015 Application 12/901,298 1.” Appeal Br. 16. In contesting the rejection of claim 1, Appellants argue that: The final Office Action does not directly address the determination/indication that a patient has the particular characteristic. At numbered page 3 of the final Office Action the analysis of Claim 1 jumps from the “adjusting a height . . .” element to the “moving the table assembly...” element, skipping over the element of “determining that the patient has a characteristic whose value is within a predetermined range”. The only discussion regarding this feature is the same reference to paragraph 37 of Patterson ’101, with a conclus[o]ry statement that this feature would have been obvious. Id. at 11. Appellants are correct. The Examiner has not adequately articulated rational underpinnings to support the rejection. We do not sustain the Examiner’s decision rejecting claim 17, and claims 18 and 19, which depend therefrom. Rejection II Claim 3 depends from claim 1 and claim 9 depends from claim 7. Patterson ’044 does not cure the deficiency in the rejection of claims 1 and 7. Accordingly, we do not sustain the Examiner’s decision rejecting claims 3 and 9 for the reasons discussed supra. DECISION The Examiner’s rejection of claims 14 and 16 is AFFIRMED. The Examiner’s rejections of claims 1—3, 5—9, 12, 13, and 17—19 are REVERSED. 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). 9 Appeal 2015-004015 Application 12/901,298 AFFIRMED-IN-PART 10 Copy with citationCopy as parenthetical citation