Ex Parte Woerlee et al

Patent Trial and Appeal Board

Nov 23, 2016

12997897 (P.T.A.B. Nov. 23, 2016)

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.
12/997,897 12/14/2010 Pierre H. Woerlee 2008P00641WOUS 1037
24737 7590 11/28/2016
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue TSAI, MICHAEL JASPER
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
11/28/2016 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PIERRE H. WOERLEE, THOMAS J. DE HOOG,
IGOR W. F. PAULUSSEN, and SHERVIN AY ATI
Appeal 2015-000583
Application 12/997,897
Technology Center 3700
Before: CHARLES N. GREENHUT, JEFFREY A. STEPHENS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 7
and 10. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-000583
Application 12/997,897
CLAIMED SUBJECT MATTER
The claims are directed to a method for automated cardio pulmonary
resuscitation. Claim 7, reproduced below, with emphasis added, is
illustrative of the claimed subject matter:
7. Method for automated cardio pulmonary resuscitation,
comprising:
setting operating parameters that determine a dynamic
behavior of a system comprising a chest compression actuator of
an automated cardio pulmonary resuscitation apparatus adapted
to be applied to the chest of a patient, the setting comprising
setting the operating parameters to safe initial values, the
method further comprising iteratively performing at least one
chest compression by the cardio pulmonary resuscitation
apparatus based on the set operating parameters,
collecting a chest compression waveform resulting from
the chest compression,
evaluating the chest compression waveform with respect
to compliance with a desired waveform for chest compression,
and
modifying the operating parameters according to an
adaptive control scheme using the evaluation.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Geheb US 7,220,235 B2 May 22,2007
Nysaether US 8,333,720 B2 Dec. 18,2012
Halperin US 2002/0055694 A1 May 9, 2002
REJECTIONS
Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Halperin and Nysaether.
2
Appeal 2015-000583
Application 12/997,897
Claim 10 is rejected 35 U.S.C. § 103(a) as being unpatentable over
Halperin, Nysaether, and Geheb (7,220,235).
OPINION
The main point of contention concerning claim 7 relates to the
limitation “setting the operating parameters to safe initial values.” Br. 5—7.
Appellants also briefly comment that “the Halperin CPR compression
actuator is a chest constricting band, which interacts with the patient in a
completely different manner than the piston-type compression device
intended for use by Claim 7.” Br. 6. However, like the Examiner (Ans. 5),
we understand this argument to relate to disclosed but unclaimed subject
matter. “The invention disclosed in [Appellants’] written description may be
outstanding in its field, but the name of the game is the claim.” In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998).
The Examiner’s position regarding the recited “safe initial values” is
twofold: First, the Examiner reasons that although Halperin does not use
that precise terminology, one skilled in the art would understand Halperin’s
use of terms such as “desired”, “proper”, and “appropriate” to mean the
initially set values are safe. Ans. 4—5. Second, the Examiner concludes that
even if there is no literal or implicit disclosure of using safe initial values
when operating Halperin’s device, “it would have been obvious to one of
ordinary skill in the art that a desired chest displacement and frequency
would be a safe initial value as to not injure a patient during treatment.” Ans.
5. We agree with the Examiner under either rationale.
It is not controlling that the reference does not in haec verba disclose
“using safe initial values.” “This principle, of general legal application, is
3
Appeal 2015-000583
Application 12/997,897
[translating from Latin] [i]n the construction of words, not the mere words,
but the thing and the meaning, are to be inquired after.” Application of
Neugebauer, 330 F.2d 353, 356 n.4 (CCPA 1964). Further, patent
specifications are written for those skilled in the art; they need not spell out
every detail that “one skilled in the art would reasonably understand or infer
from [a prior-art] document’s teaching.” In re Baxter Travenol Labs 952
F.2d 388, 390-91 (Fed. Cir. 1991). Here, we agree with the Examiner that
one skilled in the art would reasonably understand or infer from Halperin’s
disclosure that “desired”, “proper”, or “appropriate” values are those that are
safe. After all, the aim is resuscitation. One skilled in the art would
understand that unsafe values would be undesirable, improper or
inappropriate. We find no language in the claim requiring this particular
step to consider safety based on a “particular patient.” See Br. 6.
Limitations not appearing in the claims cannot be relied upon for
patentability. In re Self 671 F.2d 1344, 1348 (CCPA 1982).
The Examiner has articulated reasoning with rationale underpinnings
(reproduced above) in support of the Examiner’s second position, that even
if Halperin does not expressly or implicitly disclose using safe initial values,
such a modification would have been obvious. The Examiner’s position in
this regard stands uncontroverted. Accordingly, we sustain the Examiner’s
rejection of claim 7 on either basis.
The only argument proffered by Appellants concerning claim 10,
other than that Geheb does not cure the perceived deficiencies addressed
above, is:
Although the Geheb equation appears similar in nature to the
equation of Claim 10, it is concerned with a completely different
problem of minimizing ECG artifacts induced by CPR chest
4
Appeal 2015-000583
Application 12/997,897
compressions, and not with the problem of iteratively adjusting
parameters that control CPR chest compressions to an optimal
level.
Br. 7-8.
We recognize that the Examiner initially made some findings that
appear to indicate that the Examiner may have been interpreting Geheb’s
disclosure beyond its reasonable scope. For example, the Examiner initially
stated (with emphasis added) that “Geheb teaches an equation where w(n+
1) is a control signal for the actuator during a subsequent time interval.”
Final Act. 4. Actuation is not automated in Geheb. The Examiner clarified
in the Advisory Action (p. 2) and the Answer (pp. 6-7) that Geheb is relied
on to demonstrate, much more generally, that iterative learning control was a
known technique in the art. Geheb employs iterative learning techniques to
determine filter coefficients.1 However, considered in light of the teachings
of Halperin and Nysaether regarding the need for reducing error created by
compression, we must agree that the Examiner correctly concluded that it
would have been obvious to employ iterative learning control techniques for
this purpose. Ans. 7. Simply pointing out that Geheb employs the iterative
learning control technique to solve a different problem (Br. 8) is an attack on
Geheb alone when obviousness must be judged based on a combination of
the prior art teachings. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Accordingly, we also sustain the rejection of claim 10.
DECISION
The Examiner’s rejections are affirmed.
1 There does not appear to be any dispute that, although Geheb uses different
terminology and expressions to represent gain and error, the equations in
column 13, line 5 of Geheb and Appellants’ claim 10 are the same.
5
Appeal 2015-000583
Application 12/997,897
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
6