Ex Parte Patterson et al

Patent Trial and Appeal Board

Jan 26, 2017

12901298 (P.T.A.B. Jan. 26, 2017)

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.
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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
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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
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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.
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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
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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.
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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
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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).
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Appeal 2015-004015
Application 12/901,298
AFFIRMED-IN-PART
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