Ex Parte Smith et al

Patent Trial and Appeal Board

Apr 27, 2016

12285663 (P.T.A.B. Apr. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/285,663 10/10/2008
135866 7590 04/27/2016
LAW OFFICE OF LOUIS WOO
717 NORTH FAYETTE STREET
ALEXANDRIA, VA 22314
FIRST NAMED INVENTOR
Guy A. Smith
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0106/0046 8992
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3769
MAILDATE DELIVERY MODE
04/27/2016 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 GUY A. SMITH, MATTHEW T. OSWALD,
MATTHEW L. BROWN, and MATTHEW E. ELLIS
Appeal2014--001120
Application 12/285,663
Technology Center 3700
Before ERIC B. GRIMES, ULRIKE W. JENKS, and
ROBERT A. POLLOCK, Administrative Patent Judges.
PERCURIAM
DECISION ON APPEAL
This is a decision on appeal 1 under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1-24. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
STATEMENT OF THE CASE
The Specification discloses "a wireless telecommunications network
that may be used in the medical industry, and ... relates to a nodal network
that has a plurality of node communicators for conveying patient parameters
1 Appellants identify the Real Party in Interest as Smiths Medical ASD, Inc.
(App. Br. 3).
Appeal2014--001120
Application 12/285,663
remotely from the site where the patient is being monitored." Spec. if 1.
Claim 1 is representative of the claims on appeal and reads as follows:
1. A communicator adapted to receive data relating to
physical attributes of patients and to transmit the physical
attributes of the patients out to a predetermined transmission
area, compnsmg:
a data receiving circuit for receiving data of a patient
relating to at least one physical attribute of the patient;
at least one memory for storing data of the patient
received by said data receiving circuit, the data of the patient, if
any, previously stored in said one memory and the data of the
patient received being aggregated so that newer data of the
patient is stored in said one memory;
a data transmitting circuit for transmitting the newer data
of the patient stored in said one memory out to the
predetermined transmission area; and
a processor for controlling the operation of the data
receiving and data transmitting circuits.
The claims stand rejected as follows:
in view of Jollota· 2
'
Claims 2, 3, and 7 under 35 U.S.C. § 103(a) in view ofJollota and
Herrmann· 3
'
Claim 6, 9, 12, and 13 under 35 U.S.C. § 103(a) in view Jollota and
Crump;4 and
Claim 19 under 35 U.S.C. § 103(a) in view of Jollota, Herrmann, and
Crump.
2 James Jollota et al., US 2007/0258395 Al, published Nov. 8, 2007
3 Christian Herrmann, US 2006/0056433 Al, published Mar. 16, 2006
4 Cindy Crump et al., US 2006/0202816 Al, published Sept. 14, 2006
2
Appeal2014--001120
Application 12/285,663
Issue
l.
The Examiner has rejected claims 1, 4, 5, 8, 10, 11, 14--18, and 20-24
under 35 U.S.C. § 102(e) as anticipated by Jollota. Ans. 3-7.
The issue presented is: Does the evidence of record support the
Examiner's finding that Jollota discloses a communicator that comprises a
data receiving circuit, a data transmitting circuit, a processor, and at least
one memory for storing the received data, with "the data of the patient, if
any, previously stored in said one memory and the data of the patient
received being aggregated so that newer data of the patient is stored in said
one memory," as required by claim 1.
Analysis
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claims 1, 4, 5, 8, 10, 11, 14--18, and 20-24 as anticipated by
Jollota. App. Br. 11-18. We disagree with Appellants' contentions and
adopt the findings concerning the scope and content of the prior art set forth
in the Examiner's Answer and Non-Final Rejection dated Jan. 14, 2013. For
emphasis, we highlight and address the following:
FF 1. J ollota discloses "medical devices and medical device
networks, such as infusion systems that deliver fluids into a patient's body."
Jollota, i-f 2. Figure 1 of Jollota is shown below:
3
Appeal2014--001120
Application 12/285,663
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Figure 1 shows "a schematic representation of a network-based infusion
system." Id. i-f 11. The medical device system 100 "includes a local infusion
system 102 having one or more local devices that communicate
(unidirectional or bidirectional) with one or more network devices 104."
Id. i-f 54.
FF2. Jollota discloses that
Data communicated within local infusion system 102 ... [or
with] network devices 104 may include ... physiologic patient
data, device status information ... and other information related
to the operation, status, or condition of the patient, [or] related
to any of the devices within local infusion system 102.
Id. i-f 55. Jollota discloses that "devices within local infusion system 102 can
communicate with network devices 104 via a suitably configured translation
device, system, or application 113." Id. i-f 56.
4
Appeal2014--001120
Application 12/285,663
FF3. Figure 2 of Jollota is shown below:
FIG. 2
Figure 2 shows "a front view of a bedside infusion system monitor." Id.
i-f 12. Jollota discloses that "bedside monitor 200 may be deployed in local
infusion system 102 (as monitor 140) and/or as a network device 104 (e.g.,
as monitor 114)." Id. i-f 71. "Bedside monitor 200 may, but need not, be
utilized to monitor the activity of an insulin infusion pump." Id.
"Embodiments of bedside monitor 200 may include ... one or more local
device interfaces 214, and one or more network interfaces 216." Id.
FF4. Jollota discloses that "[b ]edside monitor 200 may include
processing logic, a display driver, and memory ... that is suitably
configured to display information on display element 206." Id. i-f 73. "In
embodiments, bedside monitor 200 functions to display ... status data for
the infusion pump, such as, for example, BG levels, BG trends or graphs, or
fluid delivery information." Id. "Bedside monitor 200 may be configured to
display information conveyed in local communications received from an
infusion pump or from any device within the local infusion system." Id.
Bedside monitor 200 may also include "one or more communication
modules ... that facilitate data communication between bedside monitor 200
5
Appeal2014--001120
Application 12/285,663
and other local devices within the local infusion system and/ or data
communication between bedside monitor 200 and network devices that are
external to the local infusion system." Id. i-f 74.
FF5. Figure 8 of Jollota is shown below:
FIG. 8
Figure 8 shows "a schematic representation of a network-based infusion
system." Id. i-f 19. "Network-based infusion system 800 generally includes
an infusion pump 802, a monitor device 804 ... and a network device 806."
Id. i-f 122. "[M]onitor device 804 and network device 806 communicate with
each other via ... communication network 808." Id.
FF6. The Specification discloses "a nodal network that has a
plurality of node communicators for conveying patient parameters remotely
from the site where the patient is being monitored." Spec. ,-r 1. "As data is
disseminated or propagated from one node to the other nodes, the data is
aggregated in each of the nodes that received the data." Spec. i-f 14. "The
aggregated data is disseminated across the network, so that the messages
being propagated across the network are continuously updated. Aggregation
takes place in a node when the message received by that node is newer than
the message previously stored in that node." Id. "By a process of
aggregation performed in each of the nodes, the most recently obtained data
6
Appeal2014--001120
Application 12/285,663
is broadcast by the nodes so that the integrity of the data being
communicated is enhanced." Spec. i-f 53.
Spec. ,-r 14.
FF7. Figure 8 of the Specification discloses "an ad hoc mesh
communications network of the instant invention where a wireless oximeter
sensor device 22 ... [is] in communication with a communicator 6a." Spec.
,-r 62.
Upon receipt of the data file from oximeter device 22, communicator
6a stores the data file for patient 1 as P 1 in its remote data display
RDD table 28a. The patient 1 previously stored data in the memory of
communicator 6a is replaced or updated by the latest data from patient
1.
Spec. ,-r 64.
The Examiner finds that Jollota discloses "a fluid infusion system
comprising a number of local body network devices, including [an] infusion
pump, handheld monitor/controller, physiological sensor and a
bedside/hospital monitor" where "each of these local body network devices
is interpreted as a communicator because all network devices are capable of
receiving and transmitting/broadcasting data." Ans. 3 (bolding removed).
"The networked devices each comprise wireless transceivers ... [a] memory
... and [a] processor" and "are configured to support 2 way-wireless
communications (interpreted as transmitting and receiving data) ... within
the local network, and with external devices." Id. (bolding removed). The
Examiner finds that Jollota discloses that data packets received by a device
are aggregated into a memory of the device and then forwarded to other
devices using various wireless protocols. Id. at 3--4. The Examiner further
7
Appeal2014--001120
Application 12/285,663
finds that Jollota discloses a processor that "compares the incoming data
packet with prestored existing packets that are already in the memory," and
thus determines whether the incoming data has already been received. Id. at
4 (bolding removed). In addition, "the device must maintain past data to
maintain a record of what has been received and what has not in order to
perform the header analysis for subsequent incoming data packets." Id.
Appellants argue that, for the claimed communicator, "the data of the
patient is aggregated or compared with data of the patient ... that had
previously been stored in the communicator so that the older data of the
patient is replaced or updated with the newer data of the patient." App.
Br. 11. This newer data is then "broadcast to the predetermined
transmission area of the communicator, so that the newer data of the patient
is propagated to other communicators that are the in the transmission area of
the communicator." Id. In construing the term aggregate, Appellants point
to a definition of the term as "a structured collection of data objects that
form a data type" or "a transmitted carrier signal that consists of the 12
single sidebands being sent over the transmission circuit." See App. Br. 16
(referencing Dictionary of Computing, (Eighth Ed., 1987)).
Appellants argue the rejection is in error because Jollota does not
disclose that the physiological data is "aggregated in a memory of a device
that has stored therein the previous data patient, if any, as required in claim
1, or that the data from the patient be updated by any of the local devices
before transmission, or thereafter by the devices in the remote network."
App. Br. 13. Appellants argue that there is "no patient data that is being
updated or aggregated by any of the devices in local infusion system 102"
(id. at 12) nor do any of the devices within the local infusion system or the
8
Appeal2014--001120
Application 12/285,663
remote network "aggregate or compare the data of the patient that it receives
with previously stored data of the patient, or rep lac[ e] the older data of the
patient with the received newer data of the patient, and then transmit[] the
newer patient data out to their respective predetermine[ d] transmission
areas" (id. at 14).
Rather, Appellants argue, Jollota "merely discloses that information,
data and content from any of the devices within the local infusion system
102 may be sent to the other devices in the local infusion system 102, and
... [to] devices in the remote network 104." App. Br. 14, citing Jollota, Fig.
1 and i-fi-154--55.
The Examiner responds that as used in claim 1, the term aggregate
merely "requires: 1) the memory to store at least 2 items ... and 2) the
memory to store the newer data, if any," and neither the claim language nor
"the provided dictionary definition mention anything about replacing
exi[s]ting data." Ans. 13 The Examiner finds that Jollota discloses that
"patient data is generated from any transmitting device within the local
infusion system; specifically, a sensor detects patient's physiological data,
and then transmits the physiological data to ... destination devices,
including at least the bedside monitor device, hospital monitor device, and
physiological characteristic meter." Id., citing Jollota, i-f 126. The
Examiner finds that Jollota discloses that received data "is accumulated in
the device memory, such that it can be transferred to any newly connected
device." Ans. 13-14, citing Jollota, i1271.
Appellants' arguments are not persuasive. The Board gives claims
"their broadest reasonable interpretation consistent with the specification."
PPC Broadband, Inc. v. Corning Optical Commc 'ns RF, LLC, No. 2015-
9
Appeal2014--001120
Application 12/285,663
1364, 2016 WL 692369, at *2 (Fed. Cir. Feb. 22, 2016) (emphasis added).
Applying that standard, we agree with the Examiner's interpretation that the
term aggregate in the context of clairn l requires combining new data with
old data in the memory of a device. Here, Jollota discloses that a device of
the disclosed system, such as a monitor, for example, stores, displays, and
transmits patient data such as blood glucose levels and trends in blood
glucose. FF3---4. Jollota specifically discloses that the monitor is able to
receive and transmit data (FF4) and has a memory to store data. Thus,
storing and displaying patient data such as blood glucose (BG) levels over
time-as illustrated by the graph of blood glucose in Jollota Figure 2-
would necessarily require storing new patient data and historical patient
data. 1\tforeover, even under _.Appellants' proposed constn1ction, the display
of blood glucose levels over time in Jo11ota Figure 2 entails updating or
aggregating data as more recent time points are shown on the display.
Thus, \Ve affirm the rejection of claim 1 as being anticipated by
Jollota. Claims 4, 5, 8, 11, 14--17, 20-22, and 24 have not been argued
separately and therefore fall with claim 1. See 37 C.F.R. § 41.37(c) (1) (iv).
Appellants also argue the rejection of claim 10. Depending from
claim 1, claim 10 requires a multiplicity of "communicators each [] assigned
a given time slot of a time slotted scheduled communications protocol so
that each communicator has its own communications schedule for the
transmission, reception and/or broadcasting of signals and/or data." In
appealing the rejection, Appellants argue that "[ n ]one of the
communications methods disclosed in Jollota has anything to do with the
time slotted scheduled communication protocol shown in Fig. 9" of the
instant Specification. App. Br. 16-17.
10
Appeal2014--001120
Application 12/285,663
The Examiner responds that "Jollota discusses time slots for
communication," as explicitly recited in paragraph 242 of Jollota (Ans. 15),
reproduced below:
Thereafter, the rece1vmg devices will transmit the response
packets (and the originating device will receive the response
packets) using time slots and/ or using a sequence that is
determined by the pseudorandom order (task 2312). In one
embodiment, the pseudorandom order (which will be shared with
the network devices) is utilized to derive different response
time slots for the receiving devices; each receiving device will
have a pseudo randomly designated time slot for transmitting its
response packet.
Jollota 242 (emphasis added).
Accordingly, we are not persuaded by Appellants arguments and the
rejection of claim 10 is affirmed.
Appellants also argue the rejection of claims 18 and 23, which depend
from independent claims 11 and 20, respectively. Claim 18 is
representative5 and recites (emphasis added):
18. The communicator of claim 11, wherein said
communicator acts as a node of a network of communicators by
receiving the data of respective patients when it is within
respective reception ranges of the sensor and the other
communicators and, after aggregating the received data with
previously stored data to update the data of the respective
patients, propagating the updated data of the respective patients
by transmitting the updated data to its transmission area for
reception by the other communicators that are in its
transmission area.
5 Appellants assert that claim 23 "recites substantially the same subject
matter as claim 18" and the same argument is applicable to claim 23. App.
Br. 18.
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Appeal2014--001120
Application 12/285,663
Appellants argue that claim 18 "defines the communicator to act as a
node of a network of a communicator by receiving data of respective
patients," whereas Jollota does not disclose "the ad hoc communication
network encompassed by claim 18 ... [because] it is obvious that the
infusion pump 128 in the local infusion system 102 only be used for a given
patient." App. Br. 17.
The Examiner responds that claim 18 does not recite the term "ad hoc
communication network," but points out that Jollota discloses "a broad range
of wireless devices in Fig. I-local network 103 where each device acts as a
node based on 2 way wireless communication for receiving and further
broadcasting/transmitting messages to other connected devices." Ans. 15,
citing Jollota, i-fi-f 126-127. In particular, Jollota describes "a plurality of
sensors e.g. S 1-S5, wherein each sensor having sensor identifier and patient
identifier; wherein the wireless telemetry router 1500 acts as a node in the
system to receive, process, store and/or broadcast the data received from
each of SI through S5." Ans. 15, citing Jollota, Fig. 21andi-f192. Jollota
further discloses that "wireless telemetry router 1500 maintains or access[ es]
a lookup table containing the different sensor identifiers." Ans. 15, citing
Jollota, i-f 193. Accordingly, we affirm the rejection of claims 18 and 23 as
anticipated by Jollota.
II.
Depending from claim 1, claim 2 requires that data of the patient from
multiple communicators "is compared by said processor with the data
previously stored in [a] memory table and, if newer, updated, so that said
one memory table stores the newer data of the patient from the other
12
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Application 12/285,663
communicators." Depending from claim 2, claim 3 relates to the subsequent
broadcast of data.
Issue
The Examiner has rejected claims 2, 3, and 7 under 35 U.S.C.
§ 103(a) as obvious in view of Jollota and Herrmann. Ans. 7-8.
The issue presented is: Would it have been obvious to one of ordinary
skill in the art to apply the memory tables of Herrmann to data storage in the
devices of Jollota?
Analysis
We have reviewed Appellants' contentions that the Examiner erred in
rejecting claims 2, 3, and 7 as obvious in view of Jollota and Herrmann.
App. Br. 18-20. We disagree with Appellants' contentions and adopt the
findings concerning the scope and content of the prior art set forth in the
Examiner's Answer and Non-Final Rejection dated Jan. 14, 2013. For
emphasis, we highlight and address the following:
FF8. Herrmann discloses "message queuing in an asynchronous
messaging network ... [and] methods, systems, and computer program
products for processing messages and searching for the locations of
messages in such a messaging network." Herrmann 1, i-f 1. Figure lB of
Herrmann is shown below:
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