Ex Parte Banet et al

Patent Trial and Appeal Board

Mar 22, 2018

12762846 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121762,846 04/19/2010 Matt BANET
35938 7590 03/26/2018
Acuity Law Group, P.C.
12707 High Bluff Drive
Suite 200
San Diego, CA 92130-2037
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
TWI-40900-UT 4348
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3769
NOTIFICATION DATE DELIVERY MODE
03/26/2018 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):
docketing© acuity lg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATT BANET, TOM WATLINGTON, and JIM MOON
Appeal2016-004271
Application 12/762,846
Technology Center 3700
Before KENNETH G. SCHOPPER, BRADLEY B. BA YAT, and
AMEE A. SHAH, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1, 3, 5-8, 10, 14, and 16-22, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b ). 3
We AFFIRM.
1 Throughout this decision, we refer to the Appellants' Supplemental
Appeal Brief ("Appeal Br.," filed July 22, 2015), Reply Brief ("Reply Br.,"
filed Mar. 4, 2016), and Specification ("Spec.," filed Apr. 19, 2010), and to
the Examiner's Answer ("Ans.," mailed Jan. 4, 2016) and Final Office
Action ("Final Act.," mailed Apr. 30, 2014).
2 According to the Appellants, the real party of interest is Sotera Wireless,
Inc. Appeal Br. 4.
3 We note that the Appellants waived their oral hearing. See Waiver of
Hearing, Jan. 16, 2018.
Appeal 2016-004271
Application 12/762,846
STATEMENT OF THE CASE
The Appellants' invention generally "relates to medical devices for
monitoring vital signs, e.g., arterial blood pressure" (Spec. i-f 3), and
particularly to "methods to improve the safety of hospitalized patients,
particularly those in lower-acuity areas" (Appeal Br. 4).
Claims 1 and 3 are the independent claims on appeal. Claim 1
(Appeal Br. 13 (Claims App.)) is illustrative of the subject matter on appeal
and is reproduced below:
1. A method for monitoring a patient within a hospital,
comprising the following steps:
(a) measuring vital sign information with a vital sign
monitor worn on the patient's body, the vital sign monitor
comprising a wireless decoder configured to decode
information, a sensor comprising a portion attached to the
patient and measure the vital sign information, and a wireless
transmitter;
(b) decoding information with the wireless decoder, the
decoding yielding decoded information describing a medication
and the patient;
( c) transmitting vital sign information and the decoded
information with the wireless transmitter to a hospital patient
data server (PDS); and
( d) analyzing the vital sign information and the decoded
information with the hospital PDS by accessing the hospital
electronic medical record (EMR) corresponding to the patient
and determining if the medication is an acceptable medication
corresponding to the patient, and in response to the analyzing,
transmitting a packet to the vital sign monitor indicating if the
medication is an acceptable medication.
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Application 12/762,846
REJECTIONS
Claims 1, 5-8, 10, 14, and 16-19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bartfeld (US 2007/0260487 Al, pub.
Nov. 8, 2007) and Yarin (US 6,294,999 Bl, iss. Sept. 25, 2001).
Claims 3 and 20-22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bartfeld, Yarin, and Mault (US 6,790,178 Bl, iss.
Sept. 14, 2004).
ANALYSIS
Claims 1, 5---8, 10, 14, and 16-19
The Appellants contend that the Examiner's rejection is in error
because the prior art does not teach, alone or in combination, that the system
is implemented for a patient in the hospital and that both (1) vital sign
information and (2) patient and medication information with the hospital
server are analyzed by accessing a hospital electronic medical record
("EMR") to determine the suitability of a medication, as required by the
claims. See Appeal Br. 7-11; Reply Br. 3-5. After a careful review of the
arguments presented in the Appeal and Reply briefs, we are not persuaded of
Examiner error.
We find unpersuasive the Appellants' arguments that the prior art
does not teach the claims because they, alone or in combination, do not teach
that the patient is in the hospital. See Appeal Br. 7-8; Reply Br. 3--4.
Rather, we agree with the Examiner that the location of the patient does not
affect the structure or method claimed. See Ans. 12. Independent claim 1
requires measuring vital signs with a monitor, decoding information,
transmitting information, and analyzing information by accessing the
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Application 12/762,846
hospital EMR. See Appeal Br. 13 (Claims App.). The Appellants have not
adequately shown with technical reasoning how or why the functions of the
claims are performed differently or affected by the location of the patient.
The information is received, decoded, and transmitted wirelessly, and the
Appellants envisioned that the invention can apply in a hospital and in a
patient's home. Spec. i-f 11 (the invention has "number of features to
simplify and improve patient monitoring and safety in both the hospital and
home"). The Appellants further do not provide reasoning why Bartfeld's
system would not work on a patient in a hospital, as found by the Examiner.
Ans. 12.
We also find unpersuasive the Appellants' arguments that the prior art
does not teach that both vital sign information and patient and medication
information with the hospital server are analyzed by accessing a hospital
EMR to determine the suitability of a medication. See Appeal Br. 8-10;
Reply Br. 4--5. The Appellants argue against each reference individually
when the Examiner relies on the combination of the art for the cited
limitation. See Ans. 4--5. The test for obviousness is not what any one
reference would have suggested, but rather what the combined teachings of
the references would have suggested to those of ordinary skill in the art. See
In re Keller, 642 F.2d 413, 426 (CCPA 1981). "[O]ne cannot show non-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of the references." Id.
Here, the Examiner finds, in relevant part, that Bartfeld discloses a
method of monitoring a patient following a drug regimen wherein a
practitioner analyzes received vital sign information received from the Pod
server to adjust the patient's medication, and the Pod server analyzes
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decoded information with a hospital database/ data server by accessing the
patient's EMR, which can be at the hospital server, determines whether the
medication is acceptable for the patient, and transmits a packet to the Pod
monitor indicating if the medication is acceptable or not. See Ans. 4 (citing
Bartfeld i-fi-129, 64, 65, 82, 89, 91-94, 96, Figs. 3, 4). The Examiner
acknowledges "Bartfeld does not explicitly disclose the hospital server
(PDS) analyzing both the vital sign information and the decoded information
to determine if the medication is acceptable to the patient." Id. at 5.
However, the Examiner finds that Yarin discloses a server automatically
analyzing, as opposed to a practitioner manually analyzing, vital sign
information to determine if the medication is acceptable, i.e., looking at vital
signs in advance of the determination. Id. (citing Yarin col. 10, 11. 5-37,
col. 11, 1, 33---col. 12, 1. 38, Figs. 1-3, 9); cf Reply Br. 4. The Examiner
determines that one of ordinary skill in the art would modify Bartfeld with
Yarin because automating a manual activity to achieve the same results does
not distinguish over the prior art and because "a medication regimen is often
intended for disease management, therefore it is necessary [to] be able to
modify a dosage in response to the patient's actual physiological condition."
Id. (citing Yarin, col. 11, 1. 33---col. 12, 1. 20).
The Appellants' argument that Bartfeld does not "consider vital signs
in [its] method" (Appeal Br. 7) is unsupported. Bartfeld discloses that the
Pod may be connected wirelessly to sensors that measure a physical
property, i.e., physiological parameter, of the user, such as weight, blood
pressure, glucose, "and the like." Id. i174. The information of the automatic
readings of the parameters can be provided to the patient and physician to
determine whether to adjust medication. Id. As such, Bartfeld
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considers/envisions using vital signs to determine if the medication is
acceptable. See Ans. 12-13.
The Appellants' arguments that Y arin "never accesses both vital sign
information and the hospital EMR corresponding to the patient to determine
suitability of a medication" (Appeal Br. 8) and "does not address whether a
medication is acceptable to the patient" (id. at 9) are unpersuasive because
the Examiner relies on the combination of Bartfeld and Y arin to teach the
server analyzing both types of information to determine if the medicine is
acceptable, as claimed. See Ans. 4--5, 8-9, 12-13. As discussed above and
noted by the Examiner, Bartfeld is relied on to teach the server analyzing
decoded information with a hospital database/ data server by accessing the
patient's EMR and determining whether the medication is acceptable for the
patient. See Ans. 4, 8. Yarin is relied on to teach a computer system to
consider vital signs and patient data in a hospital database in determining the
suitability of medication. See Ans. 13. In other words, the Examiner relies
on Y arin to automate the manual process of Bartfeld and include the analysis
of vital signs in Bartfeld's server's analysis of data to determine suitability
of medication. See id. The Examiner's findings regarding Bartfeld and
Y arin are supported.
Bartfeld discloses a system and method for real time management of a
prescribed drug regimen for a user. Bartfeld, Title, Abstract. "The system
aims at eliminating errors associated with taking drugs, alerting users to
possible adverse drug interactions and reminding users to take their drugs,
thereby improving compliance with the drug regimen." Id. i-f 25. A user's
drug regimen is entered into and stored in the Pod (id. i-f 64) or retrieved
from a database existing with a hospital and/or an EMR (see id. i-f 81 ). The
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Pod can "perform a drug interaction analysis, to ensure that there are no
adverse effects from the combination of drugs in the proposed drug
regimen." Id. i-f 64. "[T]he Pod server performs an initial drug to drug
interaction analysis, in order to make sure there are no current conflicts
between drugs taken by a patient," by using external databases and safety
checks. Id. i-f 82. After the drug has been identified/analyzed, the user
and/or any caregivers the user authorizes are notified and informed that the
user may or should not take the drug for various reasons. Id. i-fi-165, 82.
Each time the user takes the drug, the Pod can acquire and store various
images of the pill, the bar code, or other identification elements, and can
perform image comparisons or extract features from the raw images to verify
the drug. Id. i-f 89. If the drug is identified, information is displayed and the
"Pod Server now performs in-depth analysis for drug-drug interaction,
step 410, compliance with the drug regimen for that user in accordance with
the user's clinical information, recommendations for more cost-effective
generic alternatives for subsequent purchases, and similar data." Id. i-f 92.
As such, we find supported the Examiner's findings (see Ans. 5) that
Bartfeld discloses the server analyzing decoded information by accessing a
database, which may be in a hospital, and/or an EMR to determine whether
the medication is an acceptable medication corresponding to the patient.
Cf Appeal Br. 10 (arguing that the claims require analyzing by accessing the
EMR).
Y arin discloses a Smart Tray that retrieves data from devices of third
parties (such as healthcare providers), appliances (such as scales), and health
monitoring devices (such as a blood pressure monitor that is used to measure
blood pressure), and uses that data to modify a medication regimen. See
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Yarin, col. 5, 11. 34--48, col. 11, 1. 34---col. 12, 1. 20. As such, we find
supported the Examiner's finding that Yarin teaches a server analyzing vital
signs information corresponding to the patient. See Ans. 5, 13.
We further find unpersuasive the Appellants' argument that "in the
context of the invention (monitoring a patient in a hospital), it is not
reasonable to interpret the claims to reach medication that is harmful to a
patient." Appeal Br. 9. The Appellants do not direct attention to, and we do
not see, where the Specification specifically defines what medication is an
"acceptable medication corresponding to the patient," as claimed. Appeal
Br. 13, 14 (Claims App.). The Specification provides some examples of
what may be acceptable. For example, "a patient with low blood pressure
should not receive medications that further lower their blood pressure."
Spec. i-f 34. Or, the system may "suggest changing a dosage level of the
medication in order to compensate for a high heart rate value." Id.
Medication "appropriate" for the patient may include ones to which the
patient is not allergic (id. i-f 109), has not previously exhibited detrimental
side effects (id.), or is otherwise "safe" (id. i-f 110). Bartfeld's analysis by
the doctor based on vital sign information (Bartfeld i-f 7 4 ), and analysis by
the server that "ensure[ s] that there are no adverse effects from the
combination of drugs in the proposed drug regimen" (Bartfeld i-f 64) and that
detects potential drug-drug interactions (id. i-f 94) meet the claimed
"acceptable medication," given its broadest reasonable interpretation in light
of the Specification.
Thus, we are not persuaded of error in the Examiner's rejection under
35 U.S.C. § 103 of independent claim 1 and dependent claims 5-8, 10, 14,
and 16-19, which were not argued separately.
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Claim 3
The Appellants do not argue against the Examiner's rejection under
35 U.S.C. § 103 of independent claim 3. 4 Thus, we summarily sustain the
rejection.
Claims 20-22
The Appellants' argument that the rejection of claims 20-22 is in
error because Mault does not cure the deficiencies in the rejection of claim 1
(Appeal Br. 11; Reply Br. 5---6) is unpersuasive of Examiner error for the
same reasons we discussed above as to claim 1.
We further find unpersuasive of error the Appellants' allegation that
the rejection of claims 20-22 is in error because "there is no articulated
reasoning, either in the cited art or in the general knowledge of the artisan, to
arrive at the invention as claimed." Appeal Br. 11. The Examiner
specifically determines that
It would have been obvious to one of ordinary skill in the art at
the time of invention to modify Bartfeld to include the
straps/belts and also the plurality of sensors in view of Mault
because it is common sense to provide a hands free means for
using a cellular phone to monitor physiology for a user's
convenience (Bartfeld: [0032, 84]; Mault: col.5, ll.57-col.6,
11.14 ), and also the addition of the sensors would provide a wide
variety of physiological information which could be interpreted
to track the user's physiological and health progress in response
to the medication regimen (Bartfeld: [0074]; Mault: col.21, 11.27-
34 drug reference and health management).
4 To the extent the Appellants argue the rejection of claim 3 in the Reply
Brief, pages 5---6, we find the arguments untimely and do not consider them
because they were not raised in the Supplemental or original Appeal Briefs,
are not responsive to an argument raised in the Answer, and good cause has
not been shown. 37 C.F.R. § 41.41(b)(2).
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Ans. 10-11 (emphases omitted). The Appellants' allegation does not
provide any reasoning or explanation as to why the Examiner's articulated
reasomng 1s m error.
Thus, we are not persuaded of error in the Examiner's rejection under
35 U.S.C. § 103 of claims 20-22.
DECISION
The Examiner's rejections of claims 1, 3, 5-8, 10, 14, and 16-22
under 35 U.S.C. § 103(a) are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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