Ex Parte Van Der Heide et alDownload PDFPatent Trial and Appeal BoardApr 30, 201814348078 (P.T.A.B. Apr. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/348,078 03/28/2014 Esther Marjan Van Der Heide 24737 7590 05/02/2018 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2011P01809WOUS 7901 EXAMINER PHILIPPE, GIMS S ART UNIT PAPER NUMBER 2489 NOTIFICATION DATE DELIVERY MODE 05/02/2018 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): patti. demichele@Philips.com marianne.fox@philips.com katelyn.mulroy@philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ESTHER MARJAN VAN DER HEIDE, ADRIENNE HEINRICH, and THOMAS FALCK1 Appeal 2017-011414 Application 14/348,078 Technology Center 2400 Before THU A. DANG, JAMES R. HUGHES, and JAMES W. DEJMEK, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 1-20, which constitute all the claims pending in this application. Final Act. 1. 2 We have jurisdiction under 3 5 U.S.C. § 6(b ). 1 According to Appellants, the real party in interest is Koninklijke Philips N.V. App. Br. 1. 2 We refer to Appellants' Specification ("Spec.") filed Mar. 28, 2014 (claiming benefit of US 61/544,321, filed Oct. 7, 2011); Appeal Brief ("App. Br.") filed Mar. 1, 2017; andReplyBrief("ReplyBr.") filed Sept. 7, 2017. We also refer to the Examiner's Answer ("Ans.") mailed July 14, 2017; and Final Office Action (Final Rejection) ("Final Act.") mailed Sept. 9, 2016. Appeal 2017-011414 Application 14/348,078 We reverse. Appellants 'Invention The invention at issue on appeal generally concerns patient monitoring a patient and "detecting delirium of the patient" (Spec. 1 ), including processors, systems, storage media, and methods for automated monitoring of a patient and detecting delirium. Spec. 2---6; Abstract. Illustrative Claim Independent claim 1, reproduced below with key disputed limitations emphasized, further illustrates the invention: 1. A monitoring system for automated monitoring of a patient and detecting delirium of the patient, comprising: a monitoring unit for obtaining image data of the patient over time, an image analysis unit for detecting motion events of the patient from the obtained image data, an evaluation unit for classifying the detected motion events into delirium-typical motion events and non-delirium- typical motion events, wherein said evaluation unit is configured to determine high and/or low movement counts of detected motion events, and a delirium determination unit for determining a delirium score from the duration of high or low movement counts and/or the duration, intensity, type, location and/or occurrence of delirium-typical motion events, said delirium score indicating the likelihood and/or strength of delirium of the patient. 2 Appeal 2017-011414 Application 14/348,078 Rejections on Appeal 1. The Examiner rejects claims 1-7, 12-14, 16, and 173 under pre- AIA 35 U.S.C. § I02(b) as anticipated by Osterweil (US 6,049,281, issued Apr. 11, 2000). 2. The Examiner rejects claims 8-11 and 18-20 under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Osterweil and Brooks et al. (US 6,893,407 Bl, issued May 17, 2005) ("Brooks"). 3. The Examiner rejects claim 15 under 35 U.S.C. § I03(a) as being unpatentable over Osterweil and Jakovljevic (US 2011/0207098 Al, published Aug. 25, 2011 ). ISSUE Based upon our review of the record, Appellants' contentions, and the Examiner's findings and conclusions, the issue before us follows: Did the Examiner err in finding Osterweil discloses classifying the detected motion events into delirium-typical motion events ... determin[ing] high and/or low movement counts of detected motion events, and ... determining a delirium score from the duration of high or low movement counts . . . indicating the likelihood and/ or strength of delirium of the patient within the meaning of Appellants' claim 1 and the commensurate limitations of claims 12-14? 3 The Examiner does not list claims 5, 16, and 1 7 in the statement of the rejection (see Final Act. 6), but discusses these claims in the substantive rejection (see Final Act. 8-9). Appellants include claims 5, 16, and 17 in their statement of the rejection. See App. Br. 8. Accordingly, we find the Examiner's typographical error (omission) harmless and correct the statement of the rejection for clarity and consistency of the record. 3 Appeal 2017-011414 Application 14/348,078 ANALYSIS Anticipation Re} ection The Examiner rejects independent claim 1 as being anticipated by Osterweil. See Final Act. 14--21; Ans. 2-24. The Examiner finds that Osterweil describes patient monitoring utilizing image analysis and motion detection, classifying detected motion, determining if a patient is about to exit a bed, and triggering an alarm/determining risk based on a threshold. See Final Act. 6-8; Ans. 9-13 (citing Osterweil, col. 2, 11. 41--48; col. 5, 11. 17-34; col. 6, 1. 65---col. 7, 1. 7; col. 8, 11. 3-10; col. 9, 11. 40-48; col. 10, 11. 12-26; col. 14, 11. 57---61; Figs. 1, 2). The Examiner further explains that Osterweil' s description of using image analysis and motion detection: to determine relative position, velocity, and/or acceleration with respect to a structure (bed) (see col. 5, 11. 17-34); to determine the probability of a bed exit (see col. 8, 11. 3-1 O); to trigger an alarm when a motion exceeds a threshold (see col 9, 11. 40-48); and to determine that a patient is high risk (see col. 10, 11. 12-25), discloses "classifying the detected motion events into delirium-typical motion events," determining "high and/or low movement counts of detected motion events," and "determining a delirium score" as recited in claim 1. See Final Act. 6-8; Ans. 9-13. Appellants contend that Osterweil does not disclose the disputed features of claim 1. See App. Br. 8-9; Reply Br. 3-5. Specifically, Appellants contend, inter alia, that the Osterweil does not disclose "classifying the detected motion events into delirium-typical motion events" (App. Br. 8) or "determining a delirium score from the duration of high or low movement counts ... " (App. Br. 9). See App. Br. 8-9; Reply Br. 3-5. Appellants also contend that Osterweil, in general, "does not disclose 4 Appeal 2017-011414 Application 14/348,078 anything related to detecting delirium in a patient" (App. Br. 9). See App. Br. 8-9; Reply Br. 3-5. Instead, according to Appellants, Osterweil merely describes monitoring a patient (having physical and/or mental illness) to anticipate a patient exiting (or falling from) a bed. See Reply Br. 4--5. We agree with Appellants that the Examiner does not explain sufficiently how the cited portions of Osterweil describe the disputed features----classifying detected motion as (into) delirium-typical motion, determining high and/or low movement counts from the detected motion, and determining a delirium score based on the movement counts. Appellants' Specification defines "movement counts" as "the intensity of motions of the patient" (Spec. 4). Even ifwe concur with the Examiner and broadly interpret Osterweil' s detection of movement ( and movement velocity and/or acceleration) as motion intensity (i.e., movement counts), at best, Osterweil describes determining motion/movement intensity, comparing the intensity to a threshold, and triggering an alarm if the threshold is exceeded. Osterweil does not describe classifying the motion/movement as indicative of delirium ( delirium-typical motion) or determining a delirium score based on the motion (intensity and duration of the movement counts). Osterweil instead describes triggering an alarm when a patent exceeds a motion threshold (i.e., comparing motion to a predetermined value). Osterweil's disclosure of determining motion data and comparison of the motion data to a predetermined threshold value does not amount to an explicit disclosure of classifying motion (movement) and calculating a ( delirium) score based on the motion data (intensity and duration of the movement counts). Further, Osterweil provides no explanation of how a patient is determined to be high risk (see col. 10, 5 Appeal 2017-011414 Application 14/348,078 11. 12-25}-other than to define a "high risk" individual as an "individual that frequently attempts to exit their bed" (col. 10, 11. 16-18). The Examiner does not provide sufficient explanation supporting the finding that Osterweil discloses determining a delirium score. See Final Act. 7; see also Final Act. 8 (discussing claims 12-14); compare Osterweil, col. 9, 11. 40-48; col. 10, 11. 12-25. Consequently, we are constrained by the record before us to find that the Examiner erred in finding Osterweil anticipates Appellants' claim 1. Independent claims 12-14 include commensurate limitations, and dependent claims 2-7, 16, and 17 depend from and fall with claims 1 and 13. Accordingly, we do not sustain the Examiner's anticipation rejection of claims 1-7, 12-14, 16, and 17. Obviousness Rejections The Examiner rejects dependent claims 8-11 and 18-20 as being obvious in view of Osterweil and Brooks (see Final Act. 10-11; Ans. 13- 14), and rejects independent claim 15 as being obvious in view of Osterweil and Jakovljevic (see Final Act. 11-12). The Examiner relies on the same reasoning as claim 1 (supra) for rejecting claims 8-11, 15, and 18-20. See Final Act. 10-12. The Examiner does not suggest, and has not established on this record, that the additionally cited Brooks and Jakovljevic references overcome the aforementioned deficiencies of Osterweil. Consequently, we are constrained by the record before us to find that the Examiner erred in concluding that the combination of Osterweil and Brooks renders obvious Appellants' dependent claims 8-11 and 18-20, which depend from independent claims 1 and 13, respectively. We are also constrained by the record before us to find that the Examiner erred in 6 Appeal 2017-011414 Application 14/348,078 concluding that the combination of Osterweil and Jakovljevic renders obvious Appellants' independent claim 15. Accordingly, we do not sustain the Examiner's obviousness rejections of claims 8-11, 15, and 18-20. CONCLUSION Appellants have shown the Examiner erred in rejecting claims 1-7, 12-14, 16, and 17 under 35 U.S.C. § 102(b). Appellants have shown the Examiner erred in rejecting claims 8-11, 15, and 18-20 under 35 U.S.C. § 103(a). DECISION We reverse the Examiner's rejections of claims 1-20. REVERSED 7 Copy with citationCopy as parenthetical citation