Ex Parte V et al

Patent Trial and Appeal Board

Apr 26, 2016

12497849 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/497,849 0710612009
93730 7590 04/28/2016
HONEYWELL/WOOD PHILLIPS
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Arunraj V
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.
H0023158/8364/l 08691/2850 7332
EXAMINER
FARDANESH, MARJAN
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
04/28/2016 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):
ksanderson@woodphillips.com
patentservices-us@honeywell.com
docketing@woodphillips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARUNRAJ V, VIGNESHKUMAR NATESAN,
YUV ANY AG, and ABARNA SHANMUGASUNDARAM1
Appeal2014-001890
Application 12/497,849
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
PER CURIAM
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
protective glove with a wireless physiological sensor. The claims are
rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the Real Party in Interest is Honeywell
International Inc. (App. Br. 2).
Appeal2014-001890
Application 12/497,849
STATEMENT OF THE CASE
Appellants' invention "pertains to gloves usable by [] individuals
which can feedback physiological information to other local personnel, for
example situation commanders, as to the health of the respective first
responder" (Spec. i-f 1 ). Claims 6-9, 21, and 22 are on appeal. Claim 21 is
illustrative and reads as follows (emphasis added):
21. An apparatus including a multi-finger protective glove
compnsmg:
a glove body from which extends a plurality of protective
finger enclosures, the body has an open end into which a user can
insert a hand and associated fingers, the finger enclosures extend
from the body, away from the open end, each of the finger
enclosures has a closed distal end;
a wireless transmitter is carried on the body, adjacent to
the open end;
at least some of the finger enclosures each include an
elongated elastomeric sleeve positioned in the respective
enclosure with a distal end of the respective elastomeric sleeve
located adjacent to a respective closed distal end of the finger
enclosure;
a plurality of physiological sensors selected from a class
which includes at least an oximeter, a thermal sensor, a blood
pressure sensor and a pulse rate sensor where respective sensors
are each affixed to the distal end of a respective, elongated,
elastomeric sleeve adjacent to the closed distal end of the
respective finger enclosure; and
where the sensors are coupled to the transmitter.
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Appeal2014-001890
Application 12/497,849
Claims 6-9, 21, and 22 stand rejected under 35 U.S.C. § 103(a) as
being obvious based on Banet,2 Branigan,3 and Finarov.4
Findings of Fact
We adopt the Examiner's findings concerning the scope and content
of the prior art (Ans. 3---6), and repeat the following findings for emphasis.
FF 1. Banet discloses
a monitoring system [] that measures vital signs, motion, and
even impact forces from a user's wrist[]. The system [] features
a monitoring device [] that measures and wirelessly transmits the
measurements through a short-range wireless link [] to an
external laptop computer [] or hand-held device [] for further
processing [] with a software program stored in a memory, or for
transmission over a network[].
(Banet 3:55---62; see also Ans. 3--4.)
FF 2. Banet discloses that "the vital sign monitor[] in the finger-
mounted module [] measures blood flow in the user's finger, and sends this
information through the cable [] to the wrist-mounted module," and that
"[a]dditional software programs can further analyze the user's blood
pressure, heart rate, and pulse oximetry values to characterize the user's
cardiac condition" (Banet 5:24--38; see also Ans. 3--4).
FF 3. Banet depicts in Figure 11 a schematic view of a monitoring
device worn on a user's hand (Banet 3:48-50; see also Ans. 3--4). Figure 11
is reproduced below.
2 Banet et al., US 7,238,159 B2, issued July 3, 2007.
3 Branigan et al., US 5,452,717, issued Sept. 26, 1995.
4 Finarov et al., US 2002/0077535 Al, published June 20, 2002.
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Appeal2014-001890
Application 12/497,849
Fig. 11
(Banet Fig. 11; see also Ans. 3--4.) Figure 11 shows a monitoring device
having a hand-worn glove 113 with a vital-sign monitor 116" which
connects to the data-processing circuit 118" through an electrical lead 125",
and a small-scale integrated optical system that optically measures blood
flow from the athlete's index finger 114" to determine heart rate, pulse
oximetry, and blood pressure (Banet 8:36-46; see also Ans. 3--4).
FF 4. Banet discloses that "the glove 113 includes a flexible display
122 that connects to the data-processing circuit 118" using another electrical
lead 127 to display, e.g., information relating to the athlete's vital signs and
motion" (Banet 8:62- 65), and that "[t]he glove 113, for example, could be
an exercise glove, such as that used during biking" (id. at 8:66-68). Banet
further teaches that "the [] hand-worn glove [] can process the above-
described optical waveform to measure a user's heart rate during periods of
rest or exercise" (id. at 9: 1--4), "the monitoring device [] can be used to
dynamically track and characterize vital signs along with hand and arm
motions in a range of different competitive and training activities" (id. at
9:23-26), and "[t]rends in the athlete's performance, such as an increase in
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Appeal2014-001890
Application 12/497,849
heart rate, or a sudden drop in pulse oximetry, can be easily determined with
the external computer" (id. at 9:43-9:45). (See also Ans. 3-5).
FF 5. Branigan discloses
[a]n oximetric sensor probe [that] is movably coupled to a
patient's finger to facilitate transillumination and detection of
optical energy through a portion of the patient's finger without
subjecting the finger to significant deformation. The finger is
received within a receptacle having a cup-shaped closed end and
an opposite open end[]. An optical source and an optical detector
are arranged in spaced axial alignment with each other on
opposite sides of the finger so that optical energy transmitted by
the source through the finger is received by the detector. The
detected light is analyzed to noninvasively determine the
saturation of oxygen within the patient's blood.
(Branigan Abstract; see also Ans. 4, 6.)
FF 6. Finarov discloses a device that is "aimed at enhancing blood-
related signals and improving their quality during noninvasive
measurements of blood parameters," and that "[t]he device is applicable to a
patient's finger or toe, and comprises a cover for wrapping at least a part of
the finger or toe including a tip portion thereof in a manner to provide even
pressurization of tissue within the wrapped portion with a pressure less than
a systolic pressure" (Finarov Abstract; see also Ans. 4, 6).
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Appeal2014-001890
Application 12/497,849
FF 7. Finarov depicts in Figures 4A--4C a device having a cover that
is made of relatively low elastic material (Finarov i-f 49; see also Ans. 4).
Figures 4A--4C are reproduced below.
.·;;,.:
' .. ~"/
·--":··------~---------.-. ~:~:}" ---,.,'',1.·~.--"' ... ··'1.,.···'1 .. ,··· .... ······,·--------~-'.(_: ~~._._._._._u•·'••"'':.:.,._.._, •• , ............ • •-
Fr{}, .•~:A
(Finarov Figs. 4A--4C; see also Ans. 4.) Figures 4A--4C show that "to put
the device 40 in operation, the ring 48 is mounted onto the finger P, and
moved along the finger from the fingertip, thereby stretching the cover 4"
(Finarov i-f 50; see also Ans. 4).
Analysis
We have considered, but do not find persuasive Appellants'
arguments that the Examiner erred in concluding that the claimed glove is
obvious over Banet, Branigan, and Finarov. We address Appellants'
arguments below.
Appellants contend that Banet teaches away from the present
invention (App. Br. 4; Reply Br. 2). Appellants argue that Appellant's
invention continuously measures vital signs while a person is in motion but
"Banet teaches that such readings coming from a[ n] apparatus attached to a
person's hand in an ambulatory setting are impliedly useless stating that
such monitoring can be 'difficult' and that such readings are 'skewed'" such
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Appeal2014-001890
Application 12/497,849
that Ranet uses an accelerometer to detect when the hand is at rest to make
measurements (App. Br. 5; Reply Br. 2). Appellants argue that therefore,
Banet's invention works when the user's hand is at rest, which is in contrast
to Appellants' invention (App. Br. 5; Reply Br. 2).
Appellants contend that as an example,
Banet teaches " ... the motion sensor 1 7 is used to detect when a
user's hand is at rest, and is therefore in an optimal state to
measure the user's vital signs with the vital sign monitor 16. In
this manner, the motion senor 17 reduces artifacts related to
movement from the vital sign measurement."
(App. Br. 6; citing Banet 4:41--48.) Appellants argue that while Banet's
glove is similar to a biking glove, it does not mean that Banet's glove is
being worn during biking, and that there is no evidence that Banet's
measurements are taken when the hand is in motion (App. Br. 6; Reply
Br. 3).
We are not persuaded. As an initial matter, as the Examiner notes, the
claims are drawn to a glove instead of a method of using a glove (Ans. 5).
Therefore, the claims do not require that measurements are taken when the
glove and hand are moving. "[L ]imitations are not to be read into the claims
from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993). See also In re Self, 671F.2d1344, 1348 (CCPA 1982)
("[A]ppellant's arguments fail from the outset because ... they are not based
on limitations appearing in the claims."). Moreover, we agree with the
Examiner that Banet teaches use of the disclosed glove during biking and
while the body is in motion (Ans. 5). In particular, Banet teaches displaying
"information relating to the athlete's vital signs and motion," that the glove
can "measure a user's heart rate during periods of rest or exercise," that "the
monitoring device [] can be used to dynamically track and characterize vital
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Appeal2014-001890
Application 12/497,849
signs along with hand and arm motions in a range of different competitive
and training activities," and that "[t]rends in the athlete's performance" such
as heart rate and pulse oximetry can be tracked (FF 4 (emphasis added); see
also Ans. 5).
Further, although Appellants are correct that Banet teaches "an
optimal state to measure the user's vital signs" in when the motion sensor is
used to detect when the user's hand is at rest (App. Br. 6 (emphasis added))
and that monitoring blood pressure can be difficult when the patient's limb
is in motion (App. Br. 5 (citing Banet 2:26-39)), these teachings merely
state a preference that the body and glove be at rest for certain
measurements, such as blood pressure. Nowhere does Banet state a
requirement that the hand and glove be at rest to make measurements such as
heart rate (FF 4). See W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d
1540, 1550 (Fed. Cir. 1983) (A prior art reference must be considered in its
entirety, i.e., as a whole, including portions that would lead away from the
claimed invention). Therefore, we are not persuaded by Appellants'
contention that Banet teaches away from the present invention.
Appellants argues that Branigan' s teachings would render Banet' s
glove inoperable because there is no way to unroll Branigan's cot into
Banet's glove and there is no access to unroll Branigan's cot inside the glove
(App. Br. 6-7; Reply Br. 3). Appellants also argue that Appellants'
invention does not have a sensor taped on as described for Branigan's
Figures 1-3 (App. Br. 7).
These arguments are unavailing because they fail to account for
Finarov's contribution to the combination of Banet, Branigan, and Finarov,
in which Finarov teaches placing an elastic cover over the finger by
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Appeal2014-001890
Application 12/497,849
stretching the cover (FF 7). As the Examiner explains, "Finarov et al.
discloses that the finger exerts force to stretch the elastic cover for attaching
the device to the patient's finger (Figures 4A-4C and the description thereof)
as an alternate equivalent to the cover being unrolled so as to wrap the finger
(Figures lA-lB and the description thereof)" (Ans. 4). "Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references[]. [The
reference] must be read, not in isolation, but for what it fairly teaches in
combination with the prior art as a whole." In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Further, it is proper to "take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). See also
id. at 421 ("A person of ordinary skill is also a person of ordinary creativity,
not an automaton.").
Appellants lastly contend that Finarov teaches away from the present
invention because Finarov teaches applying homogenous, even pressure to
the finger (App. Br. 7; citing Finarov i-f 9), but Appellants' invention "does
not pressurize the user's finger to any substantial degree" (id.; Reply Br. 3).
We agree with the Examiner, however, that Appellants' argument is
unpersuasive because the instant claims are agnostic regarding "the fit of the
glove to the user," as well as the pressurization of the user's finger, and thus
"do not serve to distinguish from the prior art applied" (Ans. 6). See In re
Van Geuns, 988 F.2d at 1184, and see also In re Self, 671 F.2d at 1348.
SUMMARY
We affirm the rejection of claim 21under35 U.S.C. § 103(a) based on
Banet, Branigan, and Finarov. Claims 6-9 and 22 fall with claim 21.
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Appeal2014-001890
Application 12/497,849
TIME PERron FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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