General Electric Company

Patent Trials and Appeals Board

Aug 24, 2020

2019002034 (P.T.A.B. Aug. 24, 2020)

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.
15/703,633 09/13/2017 Stanislava Soro 284466-3 (5024-00753) 6619
73387 7590 08/24/2020
Andrus Intellectual Property Law, LLP
100 East Wisconsin Avenue
Suite 1100
Milwaukee, WI 53202-4178
EXAMINER
HAILE, BENYAM
ART UNIT PAPER NUMBER
2688
NOTIFICATION DATE DELIVERY MODE
08/24/2020 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):
patentdocketing@andruslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STANISLAVA SORO, ROBERT F. DONEHOO,
and OTTO VALTTERI PEKANDER
Appeal 2019-002034
Application 15/703,633
Technology Center 2600

Before ADAM J. PYONIN, DAVID J. CUTITTA II, and
PHILLIP A. BENNETT, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 21, 25, 30, and 39.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as General Electric
Company. Appeal Br. 1.
2 Claims 1–20 are cancelled. See page 3 of Preliminary Amendment filed
September 13, 2017.
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CLAIMED SUBJECT MATTER
Invention
Appellant’s claimed subject matter relates to a “patient monitoring
system [that] includes at least two wireless sensing devices, each wireless
sensing device configured to measure a different physiological parameter
from a patient.” Spec. ¶ 5.3 In the patent monitoring system, a monitoring
regulation module “assign[s] one of the at least two wireless sensing devices
as a dominant wireless sensing device and at least one of the remaining
wireless sensing devices as a subordinate wireless sensing device.” Id. The
subordinate wireless sensing device is then operated based on [a] stability
indicator for the key parameter.” Id. “[B]attery demand for each wireless
sensing device, and thus power requirements for the system as a whole, are
decreased by selectively and intelligently operating one or more of the
wireless sensing devices on an infrequent basis when the patient’s condition
is stable and continuous patient monitoring is unnecessary.” Id. at ¶ 15.
Exemplary Claim
Claims 21, 30, and 39 are independent. Claim 21, reproduced below
with limitations at issue italicized, exemplifies the claimed subject matter:
21. A patient monitoring system comprising:
at least two wireless sensing devices, each wireless
sensing device configured to measure a different physiological
parameter from a patient and wirelessly transmit a parameter
dataset;

3 We refer to: (1) the originally filed Specification filed September 13, 2017
(“Spec.”); (2) the Final Office Action mailed February 22, 2018 (“Final
Act.”); (3) the Appeal Brief filed September 17, 2018 (“Appeal Br.”); (4) the
Examiner’s Answer mailed November 2, 2018 (“Ans.”); and (3) the Reply
Brief filed December 28, 2018 (“Reply Br.”).
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a receiver that receives each parameter dataset from each
of the at least two wireless sensing devices;
a processor;
a monitoring regulation module executable on the
processor to:
assign one of the at least two wireless sensing
devices as a dominant wireless sensing device and at
least one of the remaining wireless sensing devices as a
subordinate wireless sensing device, wherein the
physiological parameter measured by the dominant
wireless sensing device is a key parameter and the
parameter dataset transmitted by the dominant wireless
sensing device is a key parameter dataset;
determine a stability indicator for the key
parameter based on the key parameter dataset from the
dominant wireless sensing device; and
control a measurement operation of the
subordinate wireless sensing device to selectively operate
based on the stability indicator for the key parameter.
Appeal Br. 17 (Claims Appendix).
REFERENCES AND REJECTIONS
The Examiner rejects claims 21, 30, and 39 under 35 U.S.C. § 103 as
unpatentable over the teachings of Burnes et al. (US 2014/0031787 A1,
published Jan. 30, 2014) (“Burnes”). Final Act. 3–8.
The Examiner rejects claim 254 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Burnes and Roberts et al. (US
6,163,723, issued Dec. 19, 2000) (“Roberts”). Final Act. 8–9.

4 The Examiner indicates that claims 22–24, 26–29, 31–38, and 40 contain
allowable subject matter. Final Act. 9.
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OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
We disagree with Appellant that the Examiner erred and adopt as our own
the findings and reasons set forth by the Examiner to the extent consistent
with our analysis herein. We add the following primarily for emphasis.
The Examiner relies on Burnes to teach or suggest all of the
limitations of claim 21 but finds that “Burn[e]s fails to [expressly] disclose
that the system assign[s] one of the at least two wireless sensing devices as a
dominant wireless sensing device and at least one of the remaining wireless
sensing devices as a subordinate wireless sensing device.” Final Act. 4
(emphasis omitted). The Examiner finds that “Burn[e]s teaches that the
system is implemented with a predetermined primary and secondary sensor
units,” and it is inherent in Burnes that “the secondary sensor [105] is
assigned to be ‘the dominant wireless sensor and the primary sensor [103] is
assigned to be ‘the subordinate sensor.’” Final Act. 4–5; Ans. 5.
Appellant argues:
It is nonsensical to say that Burnes inherently discloses that the
primary sensor 103 is assigned as a dominant sensing device,
and thus inherently discloses the assigning a dominant wireless
sensing device claim element, because the primary sensor 103 is
relied on in the remainder of the rejection as disclosing the
claimed subordinate sensing device. Likewise, it is nonsensical
to say that Burnes inherently discloses assigning the secondary
sensors 105 as subordinate sensing devices because the
substantive rejection cites the secondary sensors 105 as
disclosing the claimed dominant wireless sensing device.
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Appeal Br. 8.
The Examiner responds by noting that the findings are not “based on
the naming of the wireless sensing device in Burnes,” but instead are “based
on the naming used in the current application to represent the sensor that
provides the first parameter as the dominant sensor and the sensor that
provides a parameter based on the first ‘dominant’ parameter as the
subordinate sensors.” Ans. 4–5. The Examiner finds Burnes’ secondary
sensor 105 “provides a first parameter” and Burnes’ primary sensor 103
“provides a second parameter based on the value of the first parameter” and
that these sensors teach the dominant and subordinate wireless sensing
devices in claim 21 because the “term ‘dominant’ and ‘subordinate’ are just
names that represent the role of the sensors.” Ans. 5.
Appellant’s argument that Burnes does not teach a dominant and
subordinate wireless sensing device is unpersuasive. “The question under
[35 U.S.C. § 103] is not merely what the references expressly teach but what
they would have suggested to one of ordinary skill in the art at the time the
invention was made.” Merck & Co. v. Biocraft Laboratories, Inc., 874 F.2d
804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545
F.2d 747, 750 (Fed. Cir. 1976); see also MPEP § 2123. We agree with the
Examiner’s finding that “since Burnes takes the measurement of the primary
sensor 103 based on the data that results from the reading of the secondary
sensor 105, the secondary sensor is assigned to be ‘the dominant wireless
sensor and the primary sensor is assigned to be ‘the subordinate sensor.’”
Ans. 5 (emphasis added). Moreover, Appellant fails to demonstrate that the
primary and secondary sensors of Burnes’ diuretic administration system do
not necessarily or inherently possess the characteristics of the claimed
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dominant and subordinate wireless sensors. See In re Best, 562 F.2d 1252,
1255, (CCPA 1977) (“Whether the rejection is based on ‘inherency’” or “on
‘prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the
burden of proof is the same.”) (footnote and citation omitted); MPEP
§ 2112(V). Accordingly, Appellant fails to show error in the Examiner’s
finding that the sensors in Burnes act as dominant and subordinate sensors
and therefore teach or at least suggest assigning a dominant and subordinate
sensor, as recited in claim 21.
Next, Appellant argues “there is no discussion in Burnes regarding
reliance on one sensing device (either primary sensor 103 or secondary
sensor 105) as being dominant over the others for purposes of controlling the
measurement operations of other subordinate sensing devices.” Appeal
Br. 8. Instead, “Burnes discloses a system where all measurement devices
are controlled independently, regardless of physiological values measured by
the others.” Id.
Appellant’s argument fails to demonstrate error in the Examiner’s
finding that because “Burnes takes the measurement of the primary sensor
103 based on the data that results from the reading of the secondary sensor
105,” therefore “[t]he reading of the primary sensor 103 relies on the value
of the parameter from the secondary sensor 105.” Ans. 6 (citing Burnes
Fig. 10); Final Act. 4–5. In describing Figure 10, Burnes states, “[i]f the
patient’s blood pressure is below the threshold, then the control system 8
continues to step 908 where the creatinine of the patient is checked.” Burnes
¶ 179. Furthermore, Figure 10 of Burnes illustrates that blood pressure is
checked with a first sensor at step 906, and if the blood pressure is
determined to be low, then creatinine is checked with a second sensor at step
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908 based on the low blood pressure reading. We therefore agree with the
Examiner’s finding that “Burnes teaches a system and method wherein
based on a blood pressure reading from a first sensor [secondary sensor 105]
[fig. 10, step 906], secondary [sic] [recte primary ] sensor 103, check[s] a
creatinine of a patient [fig. 10, step 908] as described in [par. 179, 183].”
Ans. 4; see Burnes ¶ 140, 141. Moreover, because Burnes’ primary sensor
103 only checks creatinine levels based on a low blood pressure reading by
secondary sensor 105, we agree with the Examiner that Burnes’ secondary
sensor 105 teaches a dominant sensor and Burnes’ primary sensor 103
teaches a subordinate wireless sensor. Final Act 3; Ans. 4–5. As the
Examiner correctly notes (Ans. 6), this interpretation of dominant and
subordinate is consistent with Appellant’s Specification, which discloses that
“[t]he subordinate wireless sensing device is then operated based on the
stability indicator for the key parameter” obtained from the from the
dominant wireless sensing device. Spec. ¶ 5 (emphasis added). Similarly,
Burnes’ primary sensor 103 checks creatinine levels based on a low blood
pressure reading by secondary sensor 105. Burnes ¶ 179, Fig. 10.
Appellant’s argument (Appeal Br. 10) that “‘reading’ (in the sense of using
the physiological data within the control logic for administration of the
diuretic) is not the same as, and does not disclose, controlling the
measurement operation of the subordinate sensing device,” is unpersuasive
because it fails to address the Examiner’s finding that Burnes’ secondary
sensor 105 controls primary sensor 103 by causing primary sensor 103 to
check creatinine levels in response to a low blood pressure reading by
secondary sensor 105 (Ans. 4).
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Next, Appellant argues Burnes does not teach a sensor dominant over
other subordinate sensing devices for purposes of controlling the
measurement operations of the other devices because step 908 of Figure 10
does not teach using a device to check creatinine levels. Specifically,
Appellant argues the Examiner “misinterprets Figure 10 as disclosing a
wireless sensing device that performs the creatinine check because the
“‘creatinine check ( external reading)’ is referring to input of creatinine
levels from a blood test performed outside of the system.” Appeal Br. 11;
Reply Br. 2.
We find this argument unpersuasive because we agree with the
Examiner’s finding that Burnes teaches using a sensor device to determine
creatinine levels. Ans. 8. For example, Burnes discloses that “the primary
sensor 103 can be a device that can automatically determine urea or
creatinine concentrations and provide an estimate of GFR.” Burnes ¶ 140.
Accordingly, one skilled in the art would have understood based on the
combined teachings of Burnes that either sensor 103 or external data may be
used to check creatinine levels at step 908 of Figure 10 of Burnes.
Appellant’s argument (Appeal Br. 12) that Burnes “explain[s] that ‘[t]he
primary sensor data can be supplemented with additional data that provides
an indication of kidney function’” and that “‘[k]idney function parameters
. . . can be determined through standard laboratory tests and inputted
by a patient,’” does not address the Examiner’s finding that Burnes’
primary sensor 103 also may be used to measure creatinine levels. Ans. 8
(citing ¶ 140). As the Examiner notes, “[t]he office action is not relying on
the embodiment described in [par. 156] of Burnes” rather the “action is
relying on the teaching of [par. 140] which describes that ‘the primary
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sensor 103 can be a device that can automatically determine . . . creatinine
concentrations’” (Ans. 8).
Based on our analysis above, we agree with the Examiner that Burnes’
“primary sensor 103 relies on the value of the parameter from the secondary
sensor 105.” As a result, Burnes’ primary sensor 103 teaches or suggests the
claimed subordinate wireless sensor and secondary sensor 105 teaches the
claimed dominant wireless sensing device as recited in claim 21.
Appellant next argues that Burnes does not “disclose determining a
stability indicator based on the key parameter dataset, and instead
disclose[s], in relevant part, simply comparing the blood pressure value to a
threshold.” Appeal Br. 13 (citing Burnes ¶¶ 32, 45, 169, 179, Figs. 8, 9).
The Examiner responds
The office action is interpreting the blood pressure data in
relation to a threshold to read on the claimed “stability
indicator”, as is made apparent from claim 25 further restricting
what the claimed “stability indicator” as the reading of the
dominant wireless sensing device in relation to a predetermined
range. Based on the stability indicator, the system determines if
data from another sensor, primary sensor 103, needs to be
measured, which reads on the claimed “controls a subordinate
wireless sensing device based on a stability indicator.”
Ans. 9.
Appellant does not persuasively challenge the Examiner’s articulated
reasoning and findings found at page 9 of the Answer. We see no error in
the Examiner’s finding that a low blood pressure (“BP”) reading determined
by comparing the BP reading to a BP threshold in Burnes teaches or
suggests a stability indicator because low blood pressure can be an indicator
of patient stability or instability. See Burnes ¶ 162 (determining “if BP has
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reached a critically low level”). Moreover, Appellant fails to show that the
Examiner’s interpretation of a stability indicator as a threshold is
inconsistent with Appellant’s Specification. See, e.g., Spec. ¶ 28 (“For
example, if the stability indicator for the key parameter is within a range that
can be considered ‘stable’, then the patient condition is assumed to be
stable.”). We, therefore, find the argument unpersuasive.
For the reasons discussed, Appellant has not persuaded us of error in
the Examiner’s obviousness rejection of independent claim 21.
Accordingly, we sustain the Examiner’s rejection of that claim, as well as
the rejection of independent claims 30 and 39, and dependent claim 25,
which Appellant does not argue separately with particularity. Appeal
Br. 13–16.

CONCLUSION
We affirm the Examiner’s decision to reject claims 21, 25, 30, and 39
under 35 U.S.C. § 103.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21, 30, 39 103 Burnes 21, 30, 39
25 103 Burnes, Roberts 25
Overall
Outcome
21, 25, 30,
39

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TIME PERIOD 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED