Patient Comfort, Inc.

Trademark Trial and Appeal Board

Mar 2, 1999

No. 75055648re (T.T.A.B. Mar. 2, 1999)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MARCH 3, 99
Paper No. 9
DEB
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Patient Comfort, Inc.
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Serial No. 75/055,648
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Request for Reconsideration
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Bernhard Kreten for Patient Comfort, Inc.
Fred Mandir, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
_______
Before Cissel, Hanak and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant, Patient Comfort, Inc., has requested
reconsideration of the Board’s December 18, 1998 decision
affirming the Trademark Examining Attorney’s refusal to
register the term "FACE" because it is merely descriptive
Ser No. 75/055,648
2
of a characteristic or feature of its "anesthesia
monitoring apparatus."1
Applicant points to four “facts” in its request for
reconsideration. The Board alluded to each of these
“facts” in its earlier opinion:
(1) The instant goods measure the level and depth of
anesthesia. (see cursory review of applicant’s
biomedical instrumentation on page 2 of December
1998 opinion);
(2) Anesthesia depth and quality is measured by
comparing relative tension in discrete muscle
groups of the anesthetized patient (see
discussion of sensors and physiological
measurements on pages 2 and 3 of December 1998
opinion);
(3) The electrical readings are introduced into a
computational device (see brief discussion of
data reduction on pages 2 and 3 of December 1998
opinion); and
(4) Output is provided to inform the anesthesiologist
as to the patient’s depth of anesthesia (note
relationship of facial measurements to issues of
safety and comfort discussed on pages 2 and 3 of
December 1998 opinion).
Applicant also attempts to dismiss the significance of
the facial sensors to its patented anesthesia monitoring
apparatus. Applicant minimizes this feature as nothing
more than a statutorily-required “preferred embodiment of
its invention” -- “…a preferred orientation of one
component of the diagnostic equipment on a particular
portion of person’s anatomy…”

1 Serial No. 75/055,648, filed February 9, 1996, alleging
Ser No. 75/055,648
3
The Board’s conclusions in our earlier opinion are
supported by the abstract of Patent No. 5,195,531:
The anesthesia adequacy monitor measures the
level of consciousness of a patient as
distinguished from merely the physical paralysis
of the patient. Sensors attached to the
patient’s face measure the micro-expression the
patient is exhibiting which is normally
undetectable by even a trained observer. This
device amplifies the patient’s expression and
thereby provides both a quantitative and a
qualitative measure of the patient’s reactions to
various stimuli during apparent unconsciousness…
[emphasis supplied]
The ‘531 patent contains no fewer than 39 claims. The
words “face” and “facial muscles” are used dozens of times
in the patent, and can be found within most all of the
individual claims. Given the length of the patent, only a
few examples are extracted herein:
…1. A device for monitoring the consciousness of
a patient under anesthesia comprising, in
combination:
Πan array of facial muscle sensors adapted to
be strategically located on the patient to
generate signals representing the activity of
at least two facial muscles, said muscles
being responsible for eliciting distinctive
patterns of facial expressions,
Πa processor for interpreting the patient's
awareness from comparison of measurements made
by said sensors and operatively coupled to
said sensors, wherein said processor includes
a means for determining the facial expression
of the patient by interpreting a signal
created by said sensors…
…17. The unconsciousness maintenance method of
claim 16 wherein said configuring step includes:

dates of use as early as June 1993.
Ser No. 75/055,648
4
Πselecting appropriate facial muscle sensors,
Πattaching the sensors to appropriate muscles
on the patient’s face, and
Πsending the signal created by the sensors to a
signal processor…
35. The monitor of claim 33 wherein at least one
of said sensors from each said group is a facial
muscle sensor, whereby muscle activity related to
facial micro-expressions may be monitored…
[emphasis supplied]
The following excerpts come after the claims, in later
sections of the ‘531 patent, providing the background,
summary and objectives of the invention:
BACKGROUND OF THE INVENTION
…a device using a surface electromyogram
attached to the Frontalis muscle of a
patient's face has had some success at
measuring patient awareness. However,
because this device only senses one facial
muscle group, the information received is
neither as accurate nor as reliable as the
device of this application. …The applicant's
device provides a consciousness monitor
which substantially advances the prior art
in a new and useful way by analyzing the
micro-expressions of the anesthetized
patient…
… The Patent to Rantala teaches the use of a
device for measuring the depth of anesthesia
which combines a surface electromyogram attached
to a facial muscle with an electroencephalogram
and an electromyogram attached to a patient's
hand. While this application does sense the
facial muscle activity, it interprets the
activity directly rather than using surface
electromyogram readings to determine a facial
expression corresponding to the consciousness of
the patient, as does the applicant's device.
Furthermore, the applicant's device uses an array
of surface electromyograms providing a more
accurate representation of a patient's facial
expression, and hence a more accurate
Ser No. 75/055,648
5
representation of the patient’s consciousness
state…
…The article by Edmonds describes a device which
attaches a surface electromyogam to a single
facial muscle for the purpose of determining a
patient's consciousness.
The device of this application more effectively
achieves this purpose by sensing plural facial
muscle groups simultaneously providing a more
accurate and reliable indication of the patient's
consciousness through sensing the facial
expression of the patient…
SUMMARY OF THE INVENTION
The applicant's device senses patient awareness
essentially by measuring the micro-expression
which exists on the patient's face even when the
patient appears to be unconscious. An array of
surface electromyograms are used to quantify the
magnitude of the facial micro-expression and
qualify the nature of the expression (i.e.
solitude, distress, pain, etc.). Each surface
electromyogram has an electrode attached to the
face of the patient where it can measure the
activity of a single facial muscle group.
Experiment has shown that four surface
electromyograms attached to the Corrugater,
Zygomatic, Frontalis and Masseter muscle groups
provide the best indication of the patient's
expression.
Once the four surface electromyograms have
created electronic signals representing each
facial muscle group, the signals are analyzed by
a computer algorithm. The algorithm is tailored
to determine the quantity and quality of the
facial expression from the relative voltage
levels among the separate signals sent from the
different facial muscle groups. The algorithm
outputs a signal which represents the composite
facial expression which the patient is currently
experiencing. This combined signal representing
the patient's facial expression is then sent to a
display device.
In one version of the invention, the display
graphically represents the magnitude of the
facial expression. An operator of the equipment
can monitor the magnitude of the facial
Ser No. 75/055,648
6
expression and use it as an indicator of the
tonus level of facial muscle activity, and thus
the adequacy of the anesthesia. In another
version, the display may be in the form of an
illustrated face with the expression sensed by
the surface electromyograms represented on the
display. The display may be magnified to allow
the user to determine the patient’s expression
and analyze it both qualitatively and
quantitatively.
An artifact detector and signal filter may be
interposed between the facial muscle sensors and
the computer algorithm. During surgery, a
surgeon often uses an electrical cauterizing
device. This device causes stimulation of the
patient’s facial muscles regardless of the level
of patient consciousness. Use of this
cauterizing device contaminates the output of
this invention by causing anomalies in the data
measured by the surface electromyograms. These
artifacts may be detected by a device attached to
the electrical cauterizer itself and also
connected to the surface electromyogram signal
before it enters the computer algorithm. The
artifact detector can then quantify the magnitude
of the disturbance caused by the artifact and
activate the filter to filter out the unwanted
portion of the signal representing the artifact.
In this way, the signal is purified, improving
the accuracy of the output.
The applicant’s device may be incorporated into a
method of monitoring patient awareness during
surgery. The anesthesiologist may monitor the
facial expression display for indications of
patient consciousness. When the anesthesiologist
detects an undesirable consciousness level, the
anesthesiologist may adjust the level of
anesthesia dosage to adjust the patient’s
sensitivity to external stimulus. The
anesthesiologist may monitor the facial
expression display to determine the response the
patient is having to this altered dose of
anesthesia and make appropriate further
adjustments. As a result, the patient is more
likely to not only have no memory of the events
taking place during surgery, but also a smoother
less distressful recovery from surgery…
OBJECTS OF THE INVENTION
Ser No. 75/055,648
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Accordingly, it is a primary object of the
present invention to provide a device which
accurately detects patient’s consciousness during
surgery…
…Another object of the present invention is to
accurately measure the patient's facial
expression through surface electromyography of
facial muscles…
…Another object of the present invention is to
provide a device which can measure the facial
expression of a patient under anesthesia and
amplify it for observation by physicians during
surgery…
… Viewed from a first vantage point it is an
object of the present invention to provide a
device for monitoring the consciousness of a
patient under anesthesia including a sensor of
facial muscle activity in the patient, a micro
computer for interpreting the patient's awareness
from said sensor, and a display for accurately
communicating to an anesthesiologist the level of
patient awareness.
Viewed from a second vantage point it is an
object of the present invention to provide a
device for informing an anesthesiologist of the
level of consciousness of a patient under
anesthesia through detection of the patient's
facial expression including an array of facial
muscle sensors strategically located on the
patient, a signal processing system capable of
converting a first signal representing raw sensor
output from the sensors into a second signal
representing the patient's facial expression and
an output device driven by said second signal.
Viewed from a third vantage point it is an object
of the present invention to provide a method for
maintaining an appropriate level of patient
consciousness under anesthesia including the
steps of configuring an array of sensors on a
patient's face, creating a signal with the
sensors, processing the signal created by the
sensors, displaying the signal for viewing by an
anesthesiologist, anesthetizing the patient with
an initial dosage of anesthetic to create muscle
relaxation and a desired level of consciousness,
and controlling the patient's level of
consciousness.
Ser No. 75/055,648
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Viewed from a fourth vantage point it is an
object of the present invention to provide a
method for monitoring a patient’s level of
consciousness through detection of the patient’s
facial expression including the steps of
attaching facial muscle sensors to the patient’s
face, forming an electronic signal from the
facial muscle sensor’s input, transforming the
electric signal into a pictorial display of a
face with the facial expression of the patient
superimposed thereon, and magnifying said signal
such that the facial expression experienced by
the patient is easily noticeable by an operator…
[emphasis supplied]
The newly filed declaration attached to the request
for reconsideration is untimely in this proceeding and will
be not be considered. See 37 CFR §2.142(d), TBMP §1207.01.
Additionally, it is not clear what it is intended to
demonstrate. Clearly, nowhere is there a claim of acquired
distinctiveness under Section 2(f) of the Act.
Finally, applicant claims that the final substantive
paragraph of the Board’s December 18, 1998 opinion contains
“a faulty premise.”2 Specifically, applicant claims that--

2 “Physicians and engineers within the field of biomedical
engineering will continue to invent around applicant’s anesthetic
depth assessment device. In the search for innovative monitoring
modalities for determining with greater accuracy the depth of
anesthesia, EMG sensors on the face should continue to be key
methods of monitoring the patient. Competitors need to be able
freely to use the word “face” as a significant feature of such
goods. Even at present, an anesthesiologist might well refer to
such a device as simply a “face monitor” when trying to
distinguish this type of monitor from various other anesthesia
monitoring devices (e.g., like a “heart monitor,” a device for
measuring electric activity of the brain, etc.). [Emphasis
supplied herein to highlight parts that seem most objectionable
to applicant.] p. 5 of Board’s December 18, 1998 opinion.
Ser No. 75/055,648
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“…FACE in and of itself (or even FACE
MONITOR) does not unequivocally link to an
anesthesia monitoring apparatus. What is it
about the face that is being monitored and
why? These are questions that cannot be
answered by merely referring to the word
“Face.”
The Board panel assumed it had anticipated this
criticism when it said --
The question of whether a mark is merely
descriptive is not determined in the
abstract –- i.e., the Trademark Examining
Attorney does not need to be able to guess,
based solely upon the mark itself, what the
goods might be. Rather, we ask in relation
to specific goods for which registration is
sought whether the mark immediately conveys
information about the nature of the goods.
See p. 4 of Board’s December 18, 1998 opinion.
As Judge Rich noted in In re Abcor Development Corp.,
588 F.2d 811, 200 USPQ 215 (CCPA 1978), we all have a
tendency to shorten a wordy term like “chemically treated
badge to determine and to monitor the amount of personal
exposure of an individual to gaseous pollutants” to simply
“GASBADGE.” While concurring with this very sentiment,
applicant then argues that it is not analogous to worry
that “an anesthesia monitoring device having multiple
sensors attached to the patient’s face” would ever be
shortened to “face monitor.” We disagree.
Furthermore, while arguably the facts in GASBADGE and
“FACE” (or FACE monitor) are analogous, the section of the
GASBADGE decision quoted by applicant was a discussion of
Ser No. 75/055,648
10
whether this was the generic name of the product. Herein,
of course, the refusal is based on mere descriptiveness
under Section 2(e)(1) of the Act. The burden on the
Trademark Examining Attorney is to demonstrate that FACE is
merely descriptive of a characteristic or feature of
applicant’s apparatus –- not that it is the generic name of
the goods. We found this to have been sufficiently proven,
and applicant has demonstrated no error in this regard.
Decision: Applicant’s request for reconsideration is
denied.
R. F. Cissel
E. W. Hanak
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board