Ex Parte Vinarov

Patent Trial and Appeal BoardJan 15, 2013

11396846 (P.T.A.B. Jan. 15, 2013)

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. 11/396,846 04/03/2006 Valery Vinarov 8080/9 3908 7590 01/16/2013 CARDINAL LAW GROUP Suite 2000 1603 Orrington Avenue Evanston, IL 60201 EXAMINER LE, LINH GIANG ART UNIT PAPER NUMBER 3686 MAIL DATE DELIVERY MODE 01/16/2013 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 1 ___________ 2 3 BEFORE THE PATENT TRIAL AND APPEAL BOARD 4 ___________ 5 6 Ex parte VALERY VINAROV 7 ___________ 8 9 Appeal 2011-003440 10 Application 11/396,846 11 Technology Center 3600 12 ___________ 13 14 15 Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 16 BIBHU R. MOHANTY, Administrative Patent Judges. 17 18 FETTING, Administrative Patent Judge. 19 20 21 DECISION ON APPEAL22 Appeal 2011-003440 Application 11/396,846 2 STATEMENT OF THE CASE1 1 Valery Vinarov (Appellant) seeks review under 35 U.S.C. § 134 of a 2 final rejection of claims 1-17, the only claims pending in the application on 3 appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 4 The Appellant invented a way of providing medical services (Spec., 5 para. 0002). 6 An understanding of the invention can be derived from a reading of 7 exemplary claim 1, which is reproduced below [bracketed matter and some 8 paragraphing added]. 9 1. A patient care and billing integrated system, comprising 10 [1] a front-end interface 11 for a real-time simultaneous collection 12 of patient information; 13 [2] an IP application core network 14 operably connected to the front-end interface 15 for simultaneously storing 16 all the patient information collected; 17 and 18 [3] a back-end interface 19 operably connected to the IP application core network 20 for a real-time simultaneous distribution 21 of the patient information 22 for OSS purposes. 23 24 The Examiner relies upon the following prior art: 25 Teshima US 6,272,470 B1 Aug. 7, 2001 Rosenfeld US 6,804,656 B1 Oct. 12, 2004 1 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed May 10, 2010) and Reply Brief (“Reply Br.,” filed September 20, 2010), and the Examiner’s Answer (“Ans.,” mailed July 20, 2010). Appeal 2011-003440 Application 11/396,846 3 Claims 1-17 stand rejected under 35 U.S.C. § 103(a) as unpatentable 1 over Teshima and Rosenfeld. 2 ISSUES 3 The issues of obviousness turn primarily on whether the art describes 4 a back-end interface operably connected to the IP application core network 5 for a real-time simultaneous distribution of the patient information, and 6 whether the characterization as being for OSS purposes is limiting or 7 otherwise deserving of patentable weight. 8 9 FACTS PERTINENT TO THE ISSUES 10 The following enumerated Findings of Fact (FF) are believed to be 11 supported by a preponderance of the evidence. 12 Facts Related to the Prior Art 13 Teshima 14 01. Teshima is directed to a medical information system utilizing a 15 portable storage unit represented by an IC card as a health care, 16 medical care, or welfare card. Teshima 1:7-9. 17 02. An external equipment control unit for controlling external 18 equipment is incorporated in the electronic clinical recording 19 system. The external equipment to be controlled by the computer 20 body includes an image information input apparatus, a patient card 21 input/output apparatus that is an integral part of the patient card 22 reading/writing means, an operator card input apparatus that is an 23 integral part of the operator specifying means, a biomedical 24 information input apparatus, and a printer. As the patient card 25 input/output apparatus, an IC card input/output apparatus, optical 26 Appeal 2011-003440 Application 11/396,846 4 card input/output apparatus, magnetic card input/output apparatus, 1 RAM card input/output apparatus, magneto-optical disk 2 input/output apparatus, mini-disk (MD) input/output apparatus, 3 portable disk input/output apparatus, floppy disk (FDD) 4 input/output apparatus, cassette streamer input/output apparatus, 5 digital video disk input/output apparatus, or CD-ROM 6 input/output apparatus is used in combination with an associated 7 interface card. Teshima 7:43-67. 8 Rosenfeld 9 03. Rosenfeld is directed to the care of patients in Intensive Care 10 Units (ICUs) that combines a real-time, multi-node telemedicine 11 network and an integrated, computerized patient care management 12 system to enable 24-hour/7-day-per-week patient monitoring and 13 management to multiple, geographically dispersed ICUs from 14 both on-site and remote locations. Rosenfeld 1:13-21. 15 04. An integrated video/voice/data network application enables 16 continuous real-time management of ICU patients from a remote 17 setting. A client-server database application integrated to the 18 remote care network provides the data analysis, data presentation, 19 productivity tools and expert knowledge base that enables a single 20 Intensivist to manage the care of up to 40 patients simultaneously. 21 The combination of these two thrusts raise the standard of care in 22 their ICUs to one of 24/7 continuous Intensivist oversight. 23 Rosenfeld 4:4-18. 24 25 26 Appeal 2011-003440 Application 11/396,846 5 ANALYSIS 1 We are not persuaded by the Appellant’s argument that 2 the Teshima patent and the Rosenfeld patent fail to disclose a 3 back-end interface operably connected to the IP application 4 core network for a real-time simultaneous distribution of the 5 patient information for OSS purposes as claimed. Exemplary 6 OSS functions include, but are not limited to, a patient billing, 7 an inventory control update, a provisioning and a procurement. 8 Appeal Br. 10. 9 Initially, we find no lexicographic definition of OSS in the disclosure, 10 and we are unable to find any indication of what the acronym OSS stands for 11 in the record. 12 The independent claims recite either structure or step of distributing 13 information. This information is “for OSS purposes.” Thus the structure 14 and step simply distributes the patient information collected by the recited 15 front end. How data are narrowed for OSS purposes is unspecified. The 16 specific data is neither positively recited nor defined in the claim. There is 17 no lexicographic definition of OSS data in the disclosure. The claims do not 18 functionally use the data. Thus, not only is the characterization of “for OSS 19 purposes” unrestrictive, it is deserving of no patentable weight. See In re 20 Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004). 21 We are not persuaded by the Appellant’s argument that Teshima fails 22 to describe a foldable display as in claim 10. Teshima describes a notebook 23 computer, known to be of clam shell design, and thus foldable. The display 24 is within the fold when shut. Appellant’s referral to an exemplary figure in 25 the disclosure is irrelevant as limitations from the Specification are not 26 imported into the claims. 27 Appeal 2011-003440 Application 11/396,846 6 Though understanding the claim language may be aided by 1 explanations contained in the written description, it is important 2 not to import into a claim limitations that are not part of the 3 claim. For example, a particular embodiment appearing in the 4 written description may not be read into a claim when the claim 5 language is broader than the embodiment. 6 Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 7 2004). 8 We are not persuaded by the Appellant’s argument that Rosenfeld 9 fails to describe an inventory control system, a procurement system, a billing 10 system, and a lab system as in claim 13. We agree with Examiner that these 11 limitations simply characterize the nature of data being used, and as in Ngai, 12 supra, that nature cannot distinguish the claimed invention over the art. 13 Certainly anyone of ordinary skill in the medical data fields would find the 14 inclusion of such data and system predictable. 15 We are not persuaded by the Appellant’s argument that the art fails to 16 describe all of the limitations of claims 14-17. We agree with the Examiner 17 that claims 14-16 simply recite various inputs and outputs that could be 18 attached to the claim 1 system. Thus, the only issue is whether the structure 19 recited in claim 1 and described by the combination of Teshima and 20 Rosenfeld is sufficiently generic that all of those inputs and outputs could be 21 attached. Certainly all such inputs and outputs are known to one of ordinary 22 skill to be used in the medical field. As claim 1 only recites a structure that 23 collects and distributes data, such a structure is sufficiently generic as to be 24 capable of being attached to virtually any form of input and output including 25 those recited in the claims. As to claim 17, again, the purpose for which 26 OSS data is used adds no more to the phrase “for OSS purposes” in limiting 27 the data, as the acronym OSS is itself undefined. 28 Appeal 2011-003440 Application 11/396,846 7 CONCLUSIONS OF LAW 1 The rejection of claims 1-17 under 35 U.S.C. § 103(a) as unpatentable 2 over Teshima and Rosenfeld is proper. 3 4 DECISION 5 The rejection of claims 1-17 is affirmed. 6 No time period for taking any subsequent action in connection with 7 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 8 § 1.136(a)(1)(iv) (2011). 9 AFFIRMED 10 11 12 13 JRG 14 15 16 17 18 19 20 21 22