Ex Parte 5771511 et al

Patent Trial and Appeal Board

Oct 20, 2014

90012399 (P.T.A.B. Oct. 20, 2014)

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.
90/012,399 07/20/2012 5771511 7175-222138 4288
69781 7590 10/21/2014
Barnes & Thornburg LLP (Hill-Rom)
11 S. Meridian Street
Indianapolis, IN 46204
EXAMINER
ESCALANTE, OVIDIO
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/21/2014 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
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex Parte HILL-ROM SERVICES, INC.
Patent Owner and Appellant
____________

Appeal 2014-007778
Reexamination Control 90/012,399
Patent U.S. 5,771,511
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
ANDREW J. DILLON, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal by the Patent Owner from the Patent
Examiner’s decision to reject pending claims 1, 4, 15, 16, and 18 in the ex
parte reexamination of US Patent 5,771,511. The Board’s jurisdiction for
this appeal is under 35 U.S.C. §§ 6(b). We affirm the Examiner’s rejections.

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I. STATEMENT OF CASE
The patent in dispute in this appeal is U.S. Patent No. 5,771,511, filed
August 4, 1995 and issued June 30, 1998 (“the ’511 patent”). The Patent
Owner and real party in interest is Hill-Rom Services, Inc. Appeal Br. 5,
dated February 18, 2014. A request for ex parte reexamination under 35
U.S.C. §§ 302-307 and 37 C.F.R. § 1.510 of claims 1, 4, 11, 15, 16, 18, and
45 of the ’511 patent was made on July 20, 2012 by third party requester
Stryker Corporation. Request for Reexamination (i) (“Request”). The
patentability of claim 45 has been confirmed by the Examiner. Appeal Br.
6. The rejection of claim 11 was withdrawn by the Examiner. Answer 2.
Patent Owner discloses there is a concurrent proceeding pending in
the United States District Court for the Southern District of Indiana, Case
No.1: 13-CV -00765-JMS-DKL, in which the Patent Owner has asserted the
’511 patent against the Third Party Requester. Appeal Br. 5. Patent Owner
also discloses that other related patents are under reexamination and that the
district court has stayed the concurrent district court proceeding pending the
outcome of all of the foregoing reexaminations, including the present
reexamination. Id.
Claims
Claims 1, 4, 15, 16, and 18 are pending and stand rejected by the
Examiner. Answer 2. Claims 1 and 15 are each independent claims that
comprise a bed and a peer-to-peer network. Claim 1 is representative and
reads as follows:
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1. A bed comprising:
a base frame;
a deck coupled to the base frame for supporting a body;
a peer-to-peer communication network having a plurality
of connection points;
a plurality of modules, each module being electrically
coupled to a selected connection point of the peer-to-peer
communication network, each module being configured to
perform a dedicated function during operation of the bed, and
each module being configured to communicate over the peer-to-
peer communication network with selected other modules, and
each module including a processor circuit configured to
transmit information to any other module and to receive
information from any other module over the peer-to-peer
communication network.

Summary of Rejections
The claims stand rejected by the Examiner as follows:
1. Claims 1, 4, 15, 16 and 18 under 35 U.S.C. § 103 (a) as obvious in
view of Travis
1
and Heins.
2

2. Claims 1, 4, 15, 16, and 18 under 35 U.S.C. § 103 (a) as obvious in
view of the Hill-Rom Manual
3
and Heins.

1
Stephen C. Travis, WO 94/27544 published December 8, 1994
2
Eric-Jurgen Heins, US 5,596,437 issued January 21, 1997.
3
Hill-ROM service manual for the Advance 1000/2000 Bed (copyright
1993).
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II. REJECTIONS
1. TRAVIS AND HEINS
Claim 1 is directed to a bed comprising a base frame, a deck, a peer-
to-peer communication network, and a plurality of modules. The claim
stands rejected over the combination of Travis and Heins, where Travis is
cited for describing a bed comprising a base frame, deck, and plurality of
modules. Final Rej’n 10 (incorporating by reference pages 415-443 of the
Request). Travis was also found to describe a communication network, a
master-slave network with a plurality of connection points, installed in the
bed, but not a “peer-to-peer communication network” as recited in the
claims. Request 417-419. For the latter limitation, Heins was relied upon
for its description of an X-ray device with a moveable patient table that uses
the CAN communication protocol, which was found to be a peer-to-peer
communication network as recited in the claims. Id. at 419. Based on these
teachings, the Examiner determined it would have been obvious to one of
ordinary skill in the art “to substitute the peer-to-peer communication
network, as taught by Heins ’437, for the master-slave network in Travis
'544 in order to provide greater processing speeds and reliable transmission
of data, as taught by Heins ’437, while maintaining the ability to add or
delete subsystems or modules, as taught by Travis ’544 and Heins ’437.”
Final Rej’n 10.

Peer-to-peer communication network
Patent Owner contends that Heins does not describe a “peer-to-peer
communication network” as recited in the claims. Appeal Br. 54. Rather,
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Patent Owner argues that Heins describes a master controller “in which there
is only one point of interaction with a user and the operation of all of the
disclosed components are responsive to those inputs.” Id.
We begin with claim interpretation, because before a claim can be
compared to the prior art it must be properly construed. In this case, the
Examiner found that Patent Owner in the related district court litigation,
which included the ’511 patent, had defined peer-to-peer communication
network to mean “[a] network of modules where each module can initiate
messages that are sent directly to other modules to which they are
connected.” Joint Claim Construction Statement 6 in Case 1:11CV01120,
U.S. District Court for So. District of Indiana, dated May 21, 2012 (in IDS
filed May 9, 2013). Answer 6. We adopt this definition for “peer-to-peer
communication network” as recited in all the rejected claims.
Patent Owner does not dispute this definition, but contends that “peer-
to-peer communication network” excludes a “master-slave communication
network.” Appeal Br. 16-20. Patent Owner bases this exclusion on
disclosure in the ’511 patent and the examiner’s comments during the
original prosecution of the ’511 patent. Id. at 18-20.
The ’511 contains the following disclosure pertinent to this issue:
The electronic system architecture for the hospital bed of the
present invention includes a plurality of electronically
controlled modules located on the bed which are interconnected
in a peer-to-peer configuration. This peer-to-peer
communication network configuration enables any of the
plurality of modules to communicate directly with another
module in the network without the need for a master controller.
’511 patent, col. 1, ll. 16-23.
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In conventional bed control systems which use a master
controller, the master controller must be initially designed or
subsequently redesigned to accommodate additional modules.
Since no master controller is required in the peer-to-peer
network configuration, the electronic control system of the
present invention does not have to be redesigned or
reprogrammed each time a module is added or removed from
the bed.
Id. at col. 1, ll. 32-39.
The patent does not state that a “master controller” cannot be a part of
the peer-to-peer communication network. Rather, the patent states that
communication is enabled between modules in the network “without the
need for a master controller.” ’511 patent, col. 1, ll. 16-23. The patent states
that because “no master controller is required,” the control system does not
have to be redesigned when modules are added or removed from the bed.
Id. at col. 1, ll. 32-39. However, consistent with the definition of “peer-to-
peer communication network,” the ’511 patent describes the network as
enabling communication directly between modules. ’511 patent, col. 1, ll.
16-23.
The issue is whether the above-quoted language in the specification of
the ’511 patent exclude a master controller from the system.
During reexamination of an unexpired patent, claims are given their
broadest reasonable interpretation consistent with the specification. Claim
language “should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Suitco Surface, Inc., 603
F.3d 1255, 1260 (Fed. Cir. 2011). Based on this canon of interpretation, the
court in In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1150 (Fed. Cir.
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2012), interpreted the term “electrochemical sensor” to mean “a discrete
electrochemical sensor devoid of external connection cables or wires to
connect to a sensor control unit” (emphasis added) because the specification
disparaged external cables or wires in the specification and all the disclosed
embodiments lacked such cables or wires. In reaching this interpretation,
the court rejected the argument that the “case law still requires an explicit
disclaimer of external cables or wires” for cables and wire to have been
excluded from the claim. Id.
In this case, the patent specification does not disparage a master
controller, but rather says that it is not needed or required. Patent Owner has
not pointed to embodiments in the ’511 patent that would guide a person of
ordinary skill in the art to read “peer-to-peer communication network” to
exclude a master controller as was the case in Abbott. Ordinarily, limitations
from the specification are not imported into the claims. Hill-Rom Servs.,
Inc. v. Stryker Corp., 755 F.3d 1367, 1372-73 (Fed. Cir. 2014). Thus, while
the patent describes a master controller as not being necessary, Patent
Owner has not provided sufficient evidence that one of ordinary skill in the
art would reasonably construe the claimed peer-to-peer network to exclude a
master controller.
Patent Owner also argues the claims are being read broader than they
were during the original prosecution of the ’511 patent. Appeal Br. 16. In
the Notice of Allowance for the ’511 patent, the Examiner stated:
The primary reason for allowance of the claims is the prior art
of record does not teach nor does any combination thereof fairly
suggest a bed having a deck coupled to a base frame with a
plurality of active modules having a processor circuit
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configured to communicate information to other modules
through a communication network which without the need of a
CPU perform [sic] dedicated functions during the operation of
the bed.
Notice of Allowance 2.
However, this statement, does not expressly say that the Examiner had
construed “a peer-to-peer communication network” to exclude a master
controller.
Patent Owner does not provide a definition of “master controller,” but
in describing the prosecution of the ’511 patent, Patent Owner stated that the
original examiner “made clear that the scope of the claims exclude an
arrangement where a master controller is responsible for controlling when
and whether messages are initiated on the network by any other modules.”
Appeal Br. 19.
Heins, however, describes an arrangement where different modules
can initiate message transmission. Consequently, even were we to interpret
the claims narrowly as Patent Owner contends, Heins still meets the claimed
limitation of a peer-to-peer communication network.
The following disclosures in Heins are pertinent to this determination:
The invention relates to an X-ray device including a number of
components to each of which is assigned a data transmission
node working by the CAN protocol whose data input and data
output are in mutual communication with other data
transmission nodes via transmitters and receivers, the data
transmission nodes being connected to the relevant associated
components through connection lines.
Heins, Abstract (emphasis added).
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According to the CAN protocol, each node can transmit data to
each of the other nodes at any time (Multimaster principle)
without having to wait for an authorization to transmit. The
exchange of information accordingly takes place very quickly,
which is essential for at least some components in an X-ray
device.
Heins, col. 1, ll. 30-35 (emphasis added).
The high access speed to other nodes provided by systems
according to the CAN protocol is maintained because each of
the nodes transmitting in the wireless manner can reach each
and any of the other nodes transmitting in the wireless manner
at any time.
Heins, col. 2, ll. 24-28 (emphasis added).
It is evident from these express disclosures in Heins that different
nodes or modules “communicate information to other modules through a
communication network . . . without the need of a CPU,” a teaching that the
Examiner found to be missing from the prior art at the time the’511 patent
was originally prosecuted. Notice of Allowance 2. Specifically, the
components described in Heins are “in mutual communication with other
data transmission nodes via transmitters and receivers,” “without having to
wait for an authorization to transmit,” and “can reach each and any of the
other nodes transmitting in the wireless manner at any time.” See above
quoted passages from Heins. Patent Owner’s statements about there being
“no disclosure that the other nodes operate without the authority of the
operating unit 102 . . . more importantly, there is no disclosure that they do
have unfettered access to initiate communications” (Appeal Br. 55) is
undermined by the disclosures in Heins quoted above, such as “each of the
nodes transmitting in the wireless manner can reach each and any of the
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other nodes transmitting in the wireless manner at any time.” Heins, col. 2,
ll. 24-28. Heins also specifically teaches:
During the patient table movement, the node may transmit a
message about the patient table position at regular time
intervals or, for example, when a particular position – for
example, the horizontal position – has been reached, which
message is transmitted by the transmitter of the infrared
converter 8, reaches in the same manner as described above
inter alia the receivers of the nodes 9 and 10, and causes the
node 9 to show the transmitted patient table position on the
display 92.
Heins, col. 4, ll. 59-67 (emphasis added).
Figure 1 of Heins is reproduced below to show this configuration
more clearly:

Figure 1 shows components 5, 6, and 7 for moving the tabletop of a
patient table. Heins, col. 3, ll. 41-55. Operating unit 102 controls the
movement of the table by transmitting information wirelessly to nodes 1, 2,
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and 3. Id. at col. 4, ll. 11-14. Heins explicitly discloses that node 1, to
which module 5 is connected, can initiate sending a message without
intervention of operating unit 102: “the node may transmit a message about
the patient table position at regular time intervals or, for example, when a
particular position – for example, the horizontal position – has been
reached.” Id. at col. 4, ll. 59-62. This information is transmitted to other
nodes – for example, node 9 which is connected to the display and node 10
which is the operating unit. Id. at col. 4, ll. 63-65. Thus, contrary to
statements made by Patent Owner (See Rebuttal Br. 6), module 5 can initiate
messages and communicate with a plurality of nodes in the system. The
operating unit 102 controls the movement of module 5, but module 5 has the
ability to initiate and send messages to other modules in the system,
specifically nodes 9 and 10, and thus meets the definition of a peer-to-peer
network “where each module can initiate messages that are sent directly to
other modules to which they are connected.”
Patent Owner refers to disclosure in Heins, and in CAN protocols
generally, that networks can be configured such that a dominant message
“squelches the remaining transmissions so that the dominant message is
given priority access to the bus or other physical layer.” Rebuttal Br. 7.
While this may be true and characteristic of the CAN protocol used in Heins,
it is commonsense that node 1, which is connected to module 5, would still
retain the ability to transmit messages about patient position at “regular time
intervals” or when a particular position has been reached so the operator is
aware of the patient’s position in the X-ray device. Heins, col. 4, ll. 59-67.
Patent Owner’s statement that the transmission by the nodes (1, 2, 3) could
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result from of a command from operating unit 102 (id. at 8) is inconsistent
with the disclosure that messages can be transmitted at regular intervals or
when a position is reached, since in each case it is the node 1/5 which is
deciding when to transmit a message. Patent Owner has failed to distinguish
this express disclosure in Heins from the claimed peer-to-peer
communication network.
Patent Owner has also not adequately explained how the presence of
an operating unit that controls movement of the patient table in Heins is a
“master controller” that is excluded by the claims. Patent Owner’s own
definition of the peer-to-peer networks involves initiation of message
transmission by nodes in the network, but does not preclude there being a
unit in the system that transmits messages to other nodes to initiate their
movement as described in Heins.
Patent Owner cites Dailey ’350 as “mak[ing it] clear that master/slave
and peer-to-peer are mutually exclusive networks as understood in the art.
Dailey ’350, cl. 2, 11. 15-18.” Rebuttal Br. 17. Dailey ’350 teaches at the
cited passage that “[i]n contrast to a master/slave architecture, a ‘peer-to-
peer network’ permits every device on the network to initiate as well as
receive messages from the other devices on the network.” As discussed,
Heins’s teaches that node 1/5 can initiate messages to the display and unit
102, as well as receive messages from unit 102 and thus is not strictly a
master/slave architecture as described in Dailey ’350.

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Rationale for the rejection
Patent Owner contends that the Examiner “relies on supposed
advantages of Heins to justify modification of Travis, without considering
what a person of ordinary skill in the art would find from reviewing the
references. This conclusory analysis lacks the explicit analysis required by
KSR.” Appeal Br. 57. Patent Owner further argues that the Examiner's
conclusion “that faster processing speeds would be achieved by
implementing the Heins structure in Travis assumes that the person of
ordinary skill in the art would be motivated to make such a combination.”
Id. Patent Owner states that the Examiner’s rationale is defective because
the Examiner “fails to identify why a person of ordinary skill in the art
would substitute the complicated structure of Heins for the completely
operational system of Travis, other than the conclusory analysis that such a
modification would make Travis process faster; a rationale that imputes a
need into Travis that the reference itself does not identify.” Id.
An explicit suggestion to modify the prior art is unnecessary to
establish obviousness. KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 415
(2007) made it clear that an obviousness “analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 418. The Court held that
“[o]ften, it will be necessary for a court to look to interrelated teachings of
multiple patents; the effects of demands known to the design community or
present in the marketplace; and the background knowledge possessed by a
person having ordinary skill in the art, all in order to determine whether
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there was an apparent reason to combine the known elements in the fashion
claimed by the patent at issue.” Id. Patent Owner’s contention that the
Examiner’s rationale was deficient because “the reference itself” did not
identify the need for the substitution of Heins’s network into Travis’s bed
(Appeal Br. 57) is therefore legally incorrect.
Patent Owner’s contention that the Examiner’s analysis is conclusory
is not supported by the record. The Examiner found the skilled worker
would have had reason to use Heins’s network in Travis “in order to provide
greater processing speeds and reliable transmission of data . . . while
maintaining the ability to add or delete subsystems or modules.” Final Rej’n
10. The Examiner’s statement regarding greater processing speeds is
supported by express disclosure in Heins. See, e.g., Heins, col. 1, ll. 52-54;
col. 2, ll. 10-11 and 24-28. Furthermore, as set forth in the Request:
it would have been obvious to include a peer to peer
communication network having multiple connection points with
the bed of Travis '544. See, e.g., MPEP § 2143(A) (combining
prior art elements according to known methods to yield
predictable results);
Request 419.
As held in KSR:
if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.
Sakraida and Anderson's–Black Rock are illustrative—a court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
KSR at 417.
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In this case, it appears from the record that the peer-to-peer
communication network described in Heins’s X-ray device is being used in
Travis’s hospital bed for its known and expected function in enabling
communication between modules in a medical device.
Patent Owner contends “that the modification suggested by the
Examiner is nonobvious as being beyond the level of ordinary skill art,”
citing as evidence a declaration by Michael Hayes,
4
filed in an inter partes
reexamination 95/002,054 of another patent. According to Patent Owner,
Mr. Hayes “admits that he was unable to substitute CAN into the
architecture of the Requester's hospital beds without assistance from a third-
party firm that ‘had extensive experience designing and implementing CAN
networks across numerous industries.’ Hayes Decl. ¶27.” Appeal Br. 34.
Patent Owner urges:
The inability of Mr. Hayes to implement CAN in the
Requester's hospital bed(s) without the assistance of subject
matter experts, far outside the skills of a person of ordinary skill
in the art, is strong objective evidence of the nonobviousness of
the implementation.
Id. (emphasis omitted).
We have reviewed paragraph 27 of Mr. Hayes declaration and it does
not contain an admission by Mr. Hayes that implementing CAN in a hospital
bed was beyond his skill. Rather, Mr. Hayes testified that engaging a third
party firm would save time and money.

4
Declaration by Michael J. Hayes, dated December 11, 2012, filed in
reexamination 95/002,055 of US 7,669,263. Mr. Hayes is a “Senior
Principal Electrical Engineer at Stryker Medical.” Hayes Decl. ¶2.
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Stryker worked with a third party design firm to assist in the
design and implementation of the CAN network on our hospital
beds. This design firm had extensive experience designing and
implementing CAN networks across numerous industries. The
firm presented examples of several designs they had done for
other customers, and said they could use the experience they
developed working with other customers when working for
Stryker, which would save us time and money.
Hayes Decl. ¶27.
Contrary to Patent Owner’s argument, Mr. Hayes testified:
CAN was well-known in the United States and had been widely
adopted in the automotive industry. Because CAN was well-
known, and because the similar network requirements between
hospital beds and other industries were well-known,
implementing CAN on a hospital bed would not have been, as
the Dixon Declaration states, "charting new waters."
Id. at ¶26.
Overall, selecting and implementing CAN on a hospital bed
was straightforward and did not provide any unexpected results.
It required the routine design choices that engineers, including
myself, were familiar with and made all the time.
Id. at ¶35.
Consequently, we do not consider Patent Owner’s argument
persuasive that Mr. Hayes testimony is evidence of the nonobviousness of
the claimed invention.

Summary
For the foregoing reasons, we conclude that the Examiner’s rejection
of claim 1 as obvious in view of Travis and Heins is supported by a
preponderance of the evidence. We have fully considered Patent Owner’s
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arguments, but do not find them supported by sufficient evidence or
reasoning to rebut the rejection. Claims 4, 15, 16, and 18 were not argued
by Patent Owner separately and thus fall with claim 1 for reasons set forth
by the Examiner.

2. HILL-ROM ADVANCE MANUAL AND HEINS
Patent Owner challenges this rejection for the same unpersuasive
reasons as for the rejection in view of Travis and Heins. Patent Owner also
argues that the bed described in the Hill-Rom Manual does not have a
communication network. Appeal Br. 44. For example, Patent Owner, citing
a Declaration by Paul R. Weil, contends that the Hill-Rom Manual describes
a system of logic control which does not transfer communications. Id.
This argument is not persuasive. Patent Owner did not identify
testimony by Mr. Weil that the bed in the Hill-Rom Manual does not
comprise a communication network. Arguments of counsel cannot take the
place of evidence lacking in the record. Estee Lauder Inc. v. L'Oreal, S.A.,
129 F.3d 588, 595 (Fed. Cir. 1997). Mr. Weil testified about numerous
examples in which user input was used to operate bed, which serves as
communication between the user and the bed. Weil Decl., e.g., 7-10 and 30.
Weil also states: “To the extent that any user input is transferred between
two locations, it is transferred as a discrete signal that is transferred directly
with no intervention by any components,” indicating communication of user
input within the network. Id. 46. While this transfer is explained to be like
light switches (id.), it is not inconsistent with a communication function.
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Nonetheless, even if the Hill-Rom Manual is determined not to be a
communication network, the bed still requires user input to be adjusted as
does the X-ray device in Heins. Thus, the Examiner’s determination that it
would have been obvious to implement Heins’s communication network in
the bed described in the Hill-Rom Manual for its known and expected
functions in controlling a medical device is still appropriate and rational.
For the foregoing reasons, we conclude that the Examiner’s rejection
of claim 1 as obvious in view of the Hill-Rom Manual and Heins is
supported by a preponderance of the evidence. We have fully considered
Patent Owner’s arguments, but do not find them supported sufficient
evidence or reasoning to rebut the rejection. Claims 4, 15, 16, and 18 were
not argued by Patent Owner separately and thus fall with claim 1 for reasons
set forth by the Examiner.

TIME PERIOD FOR RESPONSE
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

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For PATENT OWNER:

Barnes & Thornburg LLP (Hill-Rom)
11 S. Meridian Street
Indianapolis, IN 46204

For THIRD PARTY REQUESTER:

MCANDREWS HELD & MALLOY, LTD.
500 WEST MADISON STREET
SUITE 3400
CHICAGO, IL 60661