Ex Parte Baudino et al

Patent Trials and Appeals Board

May 8, 2019

12677351 - (D) (P.T.A.B. May. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/677,351 05/30/2010 Franck Baudino
52835 7590 05/10/2019
HAMRE, SCHUMANN, MUELLER & LARSON, P.C.
45 South Seventh Street
Suite 2700
MINNEAPOLIS, MN 55402-1683
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.
20010.0088USWO 9939
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
05/10/2019 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):
PTOMail@hsml.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCK BAUDINO and LAURENT BAUDINO
Appeal2018-008508
Application 12/677,351 1
Technology Center 3700
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 7, 8, 10, and 15-32. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 "The real party in interest is H 4 D." Appeal Br. 3.
Appeal2018-008508
Application 12/677,351
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' invention relates to a health booth, i.e., "any space
defined by a shell in which users can themselves make a number of
measurements relating to their health without the presence of medical
personnel being necessary, even at a remote location." Spec. 2:25-30; see
also id. at 1:3-2:11, Fig. 1.
Claims 7, 31, and 3 2 are the independent claims on appeal. Claim 7,
reproduced below with minor formatting changes, is illustrative of the
claimed subject matter.
7. A health booth configured to allow a patient to conduct
self-measurement of health data of the patient, the health booth
compnsmg:
a shell;
a chair arranged inside the shell and configured to support
the patient in a seated position;
a first measurement device, arranged inside the shell,
configured for the patient to measure by him/herself the health
data;
a second measurement device, arranged on the inside or
outside of the shell, configured to measure, at the time of
measurement of the health data, environmental condition data
that affects the measured health data and interpretation of the
measured-health data;
a data storage that stores the health data and the
environmental condition data together in a computer file; and
a transmission system configured to send the computer file
to a remote center for evaluation,
wherein the second measurement device comprises a
patient position sensor configured to measure a portion of the
environmental condition data, the patient position sensor further
configured to detect a standing position of the patient associated
with measurement of health data that requires the patient to be
standing during measurement of the health data.
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Application 12/677,351
Rejections
I. Claims 7, 8, 10, 18, 20, 24, and 26-30 are rejected under
35 U.S.C. § 103(a) as unpatentable over Peltz (US 6,205,716 Bl, iss.
Mar. 27, 2001), Lecompte et al. (US 2005/0154264 Al, pub. July 14, 2005)
("Lecompte"), and Yeo et al. (US 2005/0171451 Al, pub. Aug. 4, 2005)
("Yeo").
II. Claims 15-17 and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Peltz, Lecompte, Yeo, and David et al.
(US 2004/0260156 Al, pub. Dec. 23, 2004) ("David").
III. Claims 21-23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Peltz, Lecompte, Yeo, and Muchow et al.
(US 7,230,819 B2, iss. June 12, 2007).
IV. Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Peltz, Lecompte, Yeo, and Moyer et al. (US 2007/0167837 Al, pub.
July 19, 2007) ("Moyer").
V. Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Peltz and Lecompte.
VI. Claim 32 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Peltz, Lecompte, and Moroney, III et al. (US 2010/0179389 Al, pub.
July 15, 2010) ("Moroney").
ANALYSIS
Rejections I-IV
For the rejection of claim 7, the Examiner relies on the combined
teachings of Peltz, Lecompte, and Yeo. Final Act. 3-6. The Examiner finds
that Peltz teaches a health booth including a first measurement device
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configured for a patient to measure by him/herself health data, as required by
claim 7. Id. at 4 (citing Peltz, col. 15, 1. 53 - col. 16, 1. 8).
Peltz teaches an interactive two-way tele-collaborative video
conferencing and imaging enclosure "equipped for remote monitoring of
physiological attributes of one or more users by medical specialists and
remote interaction between users and medical specialists." Peltz, Abstract.
Peltz's enclosure may include medical sensors, e.g., blood pressure
monitors, electrocardiography systems (ECGs), pulse oximeters, as well as
other medical equipment. See id. at col. 15, 1. 64 - col. 16, 1. 8.
The Examiner finds that "Peltz does not disclose a second
measurement device that acquires environmental data relevant to the
interpretation of the measured health data." Final Act. 4. In other words,
Peltz fails to teach the following recitation of claim 7, with minor formatting
changes:
a second measurement device ... configured to measure,
at the time of measurement of the health data, environmental
condition data that affects the measured health data and
interpretation of the measured-health data;
wherein the second measurement device comprises a
patient position sensor configured to measure a portion of the
environmental condition data, the patient position sensor further
configured to detect a standing position of the patient associated
with measurement of health data that requires the patient to be
standing during measurement of the health data.
Appeal Br., Claims App.; see also Final Act. 4. To remedy this deficiency,
the Examiner turns to the teachings of Lecompte and Yeo. Final Act. 4-6.
The Examiner relies on Lecompte' s teaching that ambient temperature
may affect the interpretation of certain physiological indicators ( e.g., skin
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conductivity) commonly associated with elevated stress levels. See id. at 4-
5 (citing Lecompte ,i 14). The Examiner determines that it would have been
obvious to modify Peltz's health booth in view of Lecompte's teaching to
include an environmental sensor because environmental influences may
interfere with the interpretation of physiological data. See id. at 5.
The Examiner finds that Yeo teaches "a system for measuring a
plurality of biological information including weight[,] height[,] and ECG,"
which includes "a scale having position sensors (foot electrodes as shown as
shown in Fig. 4) for determining whether the user is standing in the correct
position for [a] biological information measurement." Id. ( emphasis
omitted). The Examiner concludes:
[i]t would have been obvious to one of ordinary skill in the art
... to further modify Peltz and Lecompte further in view of Yeo
so as to include the specific patient position sensor for
determining the proper positioning of biological information,
e.g.[,] ECG measurement, in view of Yeo. The motivation for
doing so is because Peltz discloses an ECG monitoring system
without teaching how to ensure proper measurement and
Lecompte provides that environmental influence interferes with
the interpretation of physiological data and patient's position is
understandably an environmental influence that could interfere
with the interpretation of physiological data.
Id. at 6 ( emphasis and internal citations omitted).
The Appellants argue that the combined teachings of Peltz, Lecompte,
and Yeo fail to teach "that patient position is pertinent to [an] ECG
measurement" such that "a person of ordinary skill in the art would not have
found it obvious to modify Peltz/Lecompte's shelter to specifically add a
'patient position sensor'." Appeal Br. 14; see Reply Br. 4. The Appellants'
argument is persuasive.
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We understand the Examiner's reasoning to result in a scenario
whereby an electrocardiography system (ECG) measurement corresponds to
patient position (i.e., environmental condition data), as taught by Yeo, which
affects an ECG measurement (i.e., health data), as taught by Peltz. See Final
Act. 3-6. This reasoning lacks rational underpinning as it uses the same
type of data in a circular manner such that ECG data somehow affects itself.
To the extent the Examiner relies on other types of sensing, such as foot
contact and height, as taught by Yeo (see Ans. 17), or ambient temperature,
as taught by Lecompte, the Examiner fails to adequately explain on the
record how these teachings would be used to modify Peltz's enclosure to
remedy the deficiency in the Examiner's reasoning. Therefore, we
determine that the Examiner's rejection fails to articulate reasoning with
some rational underpinning to support the legal conclusion of obviousness.
See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections on
obviousness grounds ... [require] some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.")
(cited with approval inKSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418
(2007)).
Thus, we do not sustain the Examiner's rejection of independent
claim 7 and dependent claims 8, 10, 18, 20, 24, and 26-30 as unpatentable
over Peltz, Lecompte, and Yeo. The remaining rejections based on the
combination of Peltz, Lecompte, and Yeo in combination with David,
Muchow, or Moyer rely on the same deficiency as discussed above. This
deficiency is not cured by the additional findings and reasoning of the
remaining rejections. Thus, we do not sustain the Examiner's rejection of:
claims 15-17 and 19 as unpatentable over Peltz, Lecompte, Yeo, and David;
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claims 21-23 as unpatentable over Peltz, Lecompte, Yeo, and Muchow; and
claim 25 as unpatentable over Peltz, Lecompte, Yeo, and Moyer.
Rejection V
For the rejection of method claim 31, the Examiner relies on the
combined teachings of Peltz and Lecompte, specifically finding that Peltz' s
enclosure includes medical sensors which are accessible by a patient. Final
Act. 11 ( citing Peltz, col. 15, 1. 53 - col. 16, 1. 8). The Examiner finds that
"measuring, by [a] first measurement device, health data of the patient, said
measuring being performed at the direction and control of the patient,
without guidance from a third party at the time of measurement," as recited
in claim 31, reads on Peltz' s medical sensors, which are accessible by a
patient and enables the patient to perform a self-measurement without
guidance from another third party. Id.
The Appellants argue that "measuring ... health data ... without
guidance from a third party at the time of measurement" is "an affirmative
step," which Peltz fails to disclose either explicitly or implicitly. Appeal
Br. 20; see Reply Br. 5. The Appellants' argument is persuasive.
The phrase "without guidance" is not defined by claim 31 or the
Specification. Yet, an ordinary meaning of the term "guidance" is
"supervised care or assistance, especially therapeutic help in the treatment of
minor emotional disturbances." Guidance Definition 3,
DICTIONARY.COM, https://www.dictionary.com/browse/guidance (last
visited May 6, 2019). But see Ans. 21 (the Examiner determines that the
claimed phrase "without guidance" is ambiguous.). Hence, applying a
broadest reasonable interpretation, we construe the term "without guidance"
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as including lacking supervised care or assistance, especially therapeutic
help in the treatment of minor emotional disturbances. This is consistent
with the Specification - as understood by one of ordinary skill in the art -
which describes, a "health booth" as "any space defined by a shell in which
users can themselves make a number of measurements relating to their
health without the presence of medical personnel being necessary, even at a
remote location." Spec. 2 :25-3 0 ( emphasis added).
Peltz fails to disclose the use of a medical sensor ( e.g., a blood
pressure monitor, ECG system, or pulse oximeter, as discussed above)
without guidance from a third party. Actually, in the Summary of the
Invention, Peltz describes the opposite, that "[u]pon entering the unit(s)
representatives[, e.g., a clinician,] would conduct an initial screening, or
health assessment interactively over video conferencing, audio conferencing,
or by computer." Peltz, col. 4, 11. 58-61. Moreover, the Examiner fails to
point to any portion of Peltz that teaches that the use of medical sensors is
performed without guidance from a third party. Therefore, the Examiner's
finding that Peltz discloses "measuring, by [a] first measurement device,
health data of the patient, said measuring being performed at the direction
and control of the patient, without guidance from a third party at the time of
measurement," as recited in claim 31, is inadequately supported.
Additionally, we note that the Examiner's reliance on the teachings of
Lecompte does not cure the deficiency in the Examiner's finding.
Thus, we do not sustain the Examiner's rejection of claim 31 as
unpatentable over Peltz and Lecompte.
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Rejection VI
For the rejection of claim 32, the Examiner relies on the combined
teachings of Peltz, Lecompte, and Moroney. Final Act. 13-15.
Claim 32 is directed to "[a] health booth configured to allow a patient
to conduct self-measurement of health data of the patient" and recites:
a first measurement device ... configured for the patient
to measure the health data ... [ and]
[a] second measurement device compris[ing] a patient
position sensor . . . configured, when the health data being
measured [ from the first measurement device] requires the
patient to be seated in [a] chair, to detect a seated position of the
patient and determine whether the detected seated position is
appropriate for measurement of the health data.
Appeal Br., Claims App. ( emphasis added).
The Examiner finds that the "second measurement device," as recited
in claim 32, reads on Moroney' s teaching of "a second measurement device
for detecting patient position ([002 7]) wherein relative to blood pressure
measurement, the patient's position of sitting upright, or lying in a supine
position is determined and appropriate correction is made ([0046])." Id.
at 15. In this regard, the Examiner finds that Moroney teaches using a
patient position sensor to detect a seated position to determine "whether a
correction parameter is needed and/or which to use relative to the detected
seated[] position." Ans. 20.
The Appellants argue that Moroney teaches detecting a seated
position to "error-correct data measured by biometric sensors," rather than
determining whether a detected seated position is appropriate for
measurement of health data, as required by claim 32. Appeal Br. 18. The
Appellants' argument is persuasive.
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Moroney describes the use of motion sensor 26 and position sensor 28
to detect position and ambulating activity of a patient. Moroney ,-J,-J 27, 46.
Moroney's Figure 11 shows the breakdown of different positions and
activity that may be detected. After detecting a patient's position and
activity, a parameter correction for position 634 may automatically correct a
parameter calculation. Id. ,-i 46 ("[T]he noninvasive arterial blood pressure
parameter can automatically correct itself by knowing whether the patient is
sitting upright, sitting in one of the Fowler positions, or is lying in a supine
position."). Here, Moroney teaches automatically correcting a previously
calculated health parameter using detected position information from a
position sensor. In other words, Moroney teaches that any blood pressure
measurement taken would be appropriate regardless of position. For
example, if a blood pressure measure was taken in a seated position, the
blood pressure measurement would be appropriate, but may need a
correction due to the patient being in a seated position.
Therefore, the Examiner's finding that Moroney teaches a patient
position sensor configured to determine whether the detected seated position
is appropriate for measurement of the health data, as required by claim 32, is
inadequately supported. Additionally, we note that the Examiner's reliance
on the teachings of Peltz and Lecompte does not cure the deficiency in the
Examiner's finding.
Thus, we do not sustain the Examiner's rejection of claim 32 as
unpatentable over Peltz, Lecompte, and Moroney.
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DECISION
We REVERSE the Examiner's decision rejecting claims 7, 8, 10, and
15-32.
REVERSED
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