Ex Parte Sanchez et al

Patent Trial and Appeal BoardMar 22, 2017

12760755 (P.T.A.B. Mar. 22, 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. 12/760,755 04/15/2010 Gabriel Sanchez H-RM-02034US 9700 94654 7590 Covidien LP ATTN: IP Legal 6135 Gunbarrel Avenue BOULDER, CO 80301 EXAMINER HEFFNER, NED T ART UNIT PAPER NUMBER 3778 NOTIFICATION DATE DELIVERY MODE 03/24/2017 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): ip.legal@covidien.com medtronic_mitg-pmr_docketing@cardinal-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GABRIEL SANCHEZ and NIRAV PATEL1 Appeal 2014-004919 Application 12/760,755 Technology Center 3700 Before STEFAN STAICOVICI, KEN B. BARRETT, and AMANDA F. WIEKER, Administrative Patent Judges. WIEKER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Gabriel Sanchez and Nirav Patel (“Appellants”) appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1—20. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the Real Party in Interest is Covidien LP. Appeal Br. 2 (filed Sept. 30, 2013). Appeal 2014-004919 Application 12/760,755 CLAIMED SUBJECT MATTER The invention concerns “alarm systems and methods for use in devices such as medical ventilators.” Spec. 1:22—23. Claim 1 is illustrative of the subject matter on appeal, and recites: 1. A medical device comprising: a processor that monitors operation of the medical device and that determines a current status of the medical device; one or more indicators visible in a 360 degree arc around the medical device when viewed from a predetermined height, the one or more indicators including: a current status indicator adapted to display a different color or a different combination of color and behavior based on the current status of the medical device; and a secondary indicator adapted to display a different color or a different combination of color and behavior based on a highest historical status of the medical device. Appeal Br. 23 (Claims App.) (emphases added). Independent claims 11 and 17 also recite a secondary indicator. Id. at 24, 25 (Claims App.). REJECTIONS The claims stand rejected as follows: I. Claims 1—5, 10, 11, 15—17, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over Kroeger (US 2008/0183054 Al, pub. July 31, 2008) and Halpem (US 5,687,717, iss. Nov. 18, 1997).2 2 Although the Examiner rejects claims 1—5 and 10 over Kroeger “in view of’ Halpem, (see Final Act. 3 (mailed May 1, 2013)), and rejects claims 11, 15—17, 19, and 20 over Halpem “in view of’ Kroeger, (see id. at 6, 8), we treat the rejections of these claims together. “[Wjhere the relevant factual inquiries underlying an obviousness determination are otherwise clear, characterization by the examiner of prior art as ‘primary’ and ‘secondary’ is 2 Appeal 2014-004919 Application 12/760,755 II. Claims 6—9 and 12—14 under 35 U.S.C. § 103(a) as unpatentable over Kroeger, Halpem, and Fishman (US 2007/0068523 Al, pub. Mar. 29, 2007). III. Claim 18 under 35 U.S.C. § 103(a) as unpatentable over Kroeger, Halpem, and Westenskow (US 2003/0156143 Al, pub. Aug. 21, 2003). ANALYSIS Rejection I — Kroeger and Halpern — Claims 1—5, 10, 11, 15—17, 19, and 20 The Examiner finds that Kroeger teaches a “secondary indicator” as claimed, because Kroeger discloses a “latching alarm [that is] displayed following an alarm event even if alarm causing conditions are no longer in effect. . . [and] thus said graphical user interface of Kroeger is effectively an indicator . . . based on a highest historical status of the medical device.” Final Act. 3,7, 10 (citing Kroeger | 68); Ans. 11—13 (mailed Dec. 24, 2013) (citing Kroeger || 59, 68 102, 1091, Fig. 9). Appellants argue that Kroeger fails to disclose a secondary indicator that is based on the highest historical status. Appeal Br. 13—15, 17—18; Reply Br. 3—8 (filed Feb. 21, 2014). According to Appellants, Kroeger’s “Amber Latching” alarm indicates when a past Red level alarm issued but was not acknowledged. Appeal Br. 13; Reply Br. 4. Appellants argue that indicating a past, unacknowledged Red level alarm does nothing to indicate the highest historical status, “which can be any medical device status . . . merely a matter of presentation with no legal significance.” In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012). It is the combination of references together that is important. In re Bush, 296 F.2d 491, 496 (CCPA 1961). 3 Appeal 2014-004919 Application 12/760,755 [such as] an acknowledged low or medium level alarm or even a no alarm state if that alarm level is the highest that has been encountered by the device since the historical status indicator last was reset.” Reply Br. 4; see also Spec. 8:11—24, 12:12—25. Because Kroeger’s latching alarm indicates only the presence of a past, unacknowledged Red level alarm, Appellants contend that “[a] clinician would be unable to determine from the alarm system in Kroeger whether the medical device had emitted a previous alarm at any level other than the level associated with the latching alarm.” Appeal Br. 15. We agree with Appellants that the Examiner erred in finding that Kroeger discloses a secondary indicator based on a highest historical status. Kroeger discloses a physiology monitoring (PM) system with alarm functionality. Kroeger H 36, 51. Kroeger explains that using multiple alarm levels “allow[s] medical personnel] to respond accordingly. In general, Red alarms require immediate attention and are less likely to be false alarms.” Id. 1 65. To that end, Kroeger discloses a series of alarm levels, including: (1) “No Alarm,” (2) a “Yellow System” alarm that indicates, e.g., an equipment alarm, (3) “4 levels” of “Amber” alarms, and (4) a “Red (Active)” alarm that issues when a Red alarm condition is in effect. Id. 56—63. Kroeger explains the “Amber” alarm levels as follows Amber Latching—no active alarm but a past Red alarm was not acknowledged; Amber (Active)—an Amber alarm condition is in effect; Amber Recent Persistent—an Amber alarm condition exists for N/M seconds but not currently; Amber (Active) Persistent—an Amber alarm condition exists for N/M seconds and currently. Id. 11 59-62 (emphasis added). 4 Appeal 2014-004919 Application 12/760,755 Kroeger explains that specific alarms may be configured as latching alarms. Id. 1 67. According to Kroeger, a “latching” alarm provides a notification “even if the alarm conditions are in effect for only a short period of time.” Id. | 66. For example, an Amber Latching alarm may be associated with a Red alarm. Id. Tflf 68—69. In such a circumstance, the “Amber Latching alarm replaces an unacknowledged latching alarm when the [Red] alarm conditions are no longer in effect.” Id. | 68. This serves to “ensure[] that someone is always made aware of a Red alarm event in the case where no one was available to take note at the actual time of occurrence.” Id. 1 69. The portions of Kroeger cited by the Examiner concern the Amber Latching alarm discussed above. See Final Act. 3,7, 10 (citing Kroeger 1 68); Ans. 11—13 (citing Kroeger || 59, 68 102, Fig. 9). This exemplary alarm makes a clinician aware of a Red alarm event, even when the Red alarm event has passed, by persistently displaying an Amber Latching alarm after expiry of the Red alarm event. Kroeger || 68—69. Appellants are correct to note that the Amber Latching alarm does not necessarily relate to a highest historical status. Appeal Br. 14; Reply Br. 4. It simply indicates the presence of a past, unacknowledged Red level event, but does not indicate, for example, that the highest historical status was a Yellow System alarm, in that circumstance. As a result, the Examiner’s finding that Kroeger teaches a “secondary indicator” based on highest historical status, is not supported by a preponderance of evidence. The Examiner does not rely upon Halpem to remedy this deficiency. Accordingly, we do not sustain the Examiner’s rejection of independent claims 1, 11, and 17, or dependent claims 2—5, 10, 15, 16, 19, and 20. 5 Appeal 2014-004919 Application 12/760,755 Rejection II— Kroeser, Halyern, and Fishman — Claims 6—9 and 12—14 The Examiner’s reliance on Fishman with respect to the limitations of dependent claims 6—9 and 12—14 does not remedy the deficiency discussed above. See Final Act. 5—6, 7—8; Appeal Br. 19. Accordingly, we do not sustain the Examiner’s rejection of these claims. Rejection III—Kroeser, Halyern, and Westenskow — Claim 18 The Examiner’s reliance on Westenskow with respect to the limitations of dependent claim 18 does not remedy the deficiency discussed above. See Final Act. 10-11; Appeal Br. 21. Accordingly, we do not sustain the Examiner’s rejection of this claim. DECISION The Examiner’s decision to reject claims 1—20 is REVERSED. REVERSED 6