Ex Parte Roberts et al

Patent Trial and Appeal BoardNov 30, 2012

10561334 (P.T.A.B. Nov. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte DOUGLAS ROBERTS and KIM HANSEN ____________________ Appeal 2010-005671 Application 10/561,334 Technology Center 3700 ____________________ Before EDWARD A. BROWN, JAMES P. CALVE, and WILLIAM A. CAPP, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005671 Application 10/561,334 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-20. (App. Br. 3). We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b). We REVERSE. THE CLAIMED SUBJECT MATTER Independent claim 1, reproduced below, is illustrative of the appealed subject matter: 1. A defibrillator apparatus comprising: an electrode with attached lead wire; an electrode compartment with an attached conductor; a source of alternating current; and an electrode deployment detector configured for: monitoring a magnitude of an electrical characteristic measured from an electrical circuit having from said source an alternating electric current path that includes said electrode with attached lead wire, said conductor, and a space or other electrical insulator intervening between said conductor and said electrode with attached lead wire, said compartment conductor being disposed in proximity of said electrode with attached lead wire to create capacitance in said electrical circuit; and identifying, based on a change of said magnitude, an occurrence of at least one of handling of said electrode with attached lead wire and removing of said electrode with attached lead wire from the compartment. Appeal 2010-005671 Application 10/561,334 3 THE REJECTIONS 1. Claims 1-4, 7, 10-14, 17, and 20 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Lyster (US 2003/0055478 A1; pub. Mar. 20, 2003) and Pihl (US 4,785,812; iss. Nov. 22, 1988). 2. Claims 5, 6, 15, and 16 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Lyster, Pihl, and Thu (US 6,336,047 B1; iss. Jan. 1, 2002). 3. Claims 9 and 19 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Lyster, Pihl, and Matthews (EP 0 057 561 A1; pub. Aug. 11, 1982). ANALYSIS Claims 1-4, 7, 10-14, 17, and 20 â€“ Lyster and Pihl Claim 1 is directed to a defibrillator apparatus and recites "an electrode deployment detector configured for . . . identifying, based on a change of said magnitude, an occurrence of at least one of handling of said electrode with attached lead wire and removing of said electrode with attached lead wire from the compartment." The Examiner found Lyster discloses a defibrillator apparatus comprising an electrode 150 with an attached lead wire, an electrode compartment (housing 450 or 3050) with an attached conductor (one of electrodes 150), and an electrode deployment detector configured for performing the claimed "identifying" step. Ans. 4 (citing Lyster, paras. [0195]-[0208], [0234]-[0243], [0259]-[0262]; figs. 20- 21D, 27-30). The Examiner found Lyster does not explicitly disclose an alternating current source. Ans. 4. The Examiner found Pihl discloses a defibrillation apparatus having an AC current source, and concluded that it Appeal 2010-005671 Application 10/561,334 4 would have been obvious to one of ordinary skill in the art to modify Lyster's device to incorporate an AC current source. Ans. 5. Appellants contend that Lyster does not disclose "identifying handling or removal of the electrode from the compartment based on a change in the monitored electrical characteristic." App. Br. 9. The Examiner cited to paragraphs [0200] and [0259]-[0262] of Lyster as allegedly disclosing this "indentifying." Ans. 9. The Examiner stated: Handling of the electrodes (among other things) in the broadest sense would be what would cause damage, defects, or hydrogel drying, potentially to the point that they are no longer fit for use. As such, Lyster's system is configured to monitor the electrodes for handling to the point where they are no longer fit for use. Ans. 9-10. Appellants contend that the purpose of Lyster is to sense whether the hydrogel layer of a defibrillator electrode has dried out and is unsafe or incapable of delivering a defibrillation shock to a patient. Reply Br. 2. Figure 30 of Lyster depicts a package 3000 comprising a housing 3050, and electrodes 3094 mounted upon a release liner 3098 and attached to the package via wires. See also, Lyster, paras. [0259]-[0260]. The electrodes 3094 form a parallel plate capacitor. See also, Lyster, para. [0198]. We agree with Appellants that the disclosure in Lyster relied on by the Examiner does not indicate that handling of electrodes 3094 would have any noticeable effect on hydrogel drying (Reply Br. 40), or that Lyster's measurement of the hydrogel moisture content would provide an indication of handling of an electrode. Reply Br. 4. Thus, the Examiner has not adequately explained how monitoring a magnitude of an electrical characteristic, such as a real Appeal 2010-005671 Application 10/561,334 5 impedance to identify when a hydrogel layer on electrodes may have dried out, also necessarily identifies whether an electrode has been handled or removed from the compartment. Accordingly, we do not sustain the rejection of claim 1, and claims 2-4, 7, and 10, which depend from claim 1. Independent claim 11 is directed to a method of detecting when a defibrillator electrode has been handled or removed from a storage compartment and recites "identifying, based on said magnitude, an occurrence of at least one of handling of said electrode with attached lead wire and removing said electrode with attached lead wire from the storage compartment." The Examiner's findings and conclusions (Ans. 6) in regard to claim 11 are the same as those discussed supra for claim 1. Accordingly, we do not sustain the rejection of claim 11, and claims 12-14, 17, and 20, which depend from claim 11, for similar reasons as those for claim 1. Claims 5, 6, 15, and 16 â€“ Lyster, Pihl, and Thu Claims 5 and 6 depend from claim 1, and claims 15 and 16 depend from claim 11. The Examiner's application of Thu to the rejection of claims 5, 6, 15, and 16 (Ans. 6-7) does not cure the deficiencies of the Examiner's reliance on Lyster and Pihl for the rejection of claims 1 and 11. Accordingly, we do not sustain the rejection of claims 5, 6, 15, and 16. Claims 9 and 19 â€“ Lyster, Pihl, and Matthews Claims 9 and 19 depend from claims 1 and 11, respectively. The Examiner's application of Matthews to the rejection of claims 9 and 19 (Ans. 8-9) does not cure the deficiencies of the Examiner's reliance on Lyster and Pihl for the rejection of claims 1 and 11. Accordingly, we do not sustain the rejection of claims 9 and 19. Appeal 2010-005671 Application 10/561,334 6 DECISION The Examiner's decision rejecting claims 1-20 is REVERSED. REVERSED Klh