Ex Parte Becker Antley et al

Patent Trial and Appeal Board

Feb 27, 2017

13830998 (P.T.A.B. Feb. 27, 2017)

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.
13/830,998 03/14/2013 Jennifer G. Becker Antley CAM920120110USl_8150-0334 8266
73109 7590 03/01/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, EL 33498
EXAMINER
MULLEN, THOMAS J
ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JENNIFER G. BECKER ANTLEY,
VENKATRAMANAN JEYARAMAN,
MARK D. REINHARDT, and BENJAMIN I. RUBINGER
Appeal 2016-006568
Application 13/830,998
Technology Center 2600
Before JAMES R. HUGHES, JUSTIN BUSCH, and
LINZY T. McCARTNEY, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
8—20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-006568
Application 13/830,998
STATEMENT OF THE CASE
The present patent application concerns “alert notification trigger
thresholds associated with a metric.” Spec. 11. Claim 8 illustrates the
claimed subject matter:
8. A system for automatically adjusting an alert trigger
threshold associated with a metric comprising:
a processor programmed to initiate executable operations
comprising:
responsive to a determination that a predetermined
alert trigger threshold associated with a metric is met, sending an
alert notification to a plurality of users associated with the metric;
receiving feedback on the alert notification from
one or more of the plurality of users; and
adjusting the alert trigger threshold based on the
received feedback.
REJECTIONS
Claims 8—11, 13, and 14 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Muhsin et al. (US 2011/0169644 Al; July 14, 2011).
Claims 15—18 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Muhsin.
Claims 8—20 stand provisionally rejected on the ground of non-
statutory double patenting as unpatentable over claims 1—7 of co-pending
Application No. 14/523,197.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments and the evidence of record. Appellants have not persuaded us the
Examiner erred. We address each of Appellants’ arguments in turn below.
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Appellants have waived arguments Appellants failed to timely raise or
properly develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); In reLovin,
652 F.3d 1349 (Fed. Cir. 2011).
Provisional Non-Statutory Double Patenting Rejection
Appellants do not contest the Examiner’s provisional non-statutory
double patenting rejection. See App. Br. 3 n.l. We therefore summarily
affirm this rejection.
Prior Art Rejections
Appellants contend the Examiner erroneously found Muhsin discloses
“responsive to a determination that a predetermined alert trigger threshold
associated with a metric is met, sending an alert notification to a plurality of
users associated with the metric'1'’ as recited in claim 1. See id. at 9—12;
Reply Br. 3—6. Appellants assert the Examiner found Muhsin teaches that
nurses and clinicians (“a plurality of users”) are “associated with” patient
physiological parameters (“the metric”). See App. Br. 9—12; Reply Br. 3—6.
According to Appellants, the Examiner did not provide any evidence or
reasoning to support the finding that Mushin’s nurses and clinicians are
“associated with” these physiological parameters and instead improperly
relied on inherency. See Reply Br. 4—6. In Appellants’ view, Muhsin’s
nurses and clinicians are associated with patients, not metrics. See App. Br.
11; Reply Br. 4—5.
As explained in the Answer, the Examiner did not find Muhsin
inherently discloses “a plurality of users associated with the metric.” See
Ans. 5. Rather, the Examiner found the broadest reasonable interpretation of
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“a plurality of users associated with the metric” encompasses the
relationship between Muhsin’s nurses and clinicians and their respective
patients’ physiological parameters. See id. at 4—5. In particular, the
Examiner found that one of ordinary skill in the art would have understood
Muhsin’s nurses and clinicians are “associated with” not only the patients
they are responsible for but also the physiological parameters and signals
measured by the machines attached to their patients. See Ans. 4 (citing
Muhsin Fig. 11). The Examiner explained that “the doctors (clinicians) and
nurses are linked to (‘associated with’) the patient metrics via nurses’
stations 130 and clinician devices 150 that communicate over a network with
patient monitors 140 and may receive” physiological information. Id. at 4—5
(citing Muhsin || 25—26).
Appellants have not persuasively challenged the Examiner’s
construction of “associated with” as encompassing “linked to,” and Muhsin
provides adequate support for the Examiner’s finding that Muhsin discloses
“a plurality of users associated with the metric” under this construction. For
instance, Muhsin’s Figure 11 shows a graphical user interface that displays
information concerning “a patient’s overall health or wellness,” which
Muhsin’s system determines “based upon the combined effect of each of the
monitored physiological parameters.” Muhsin | 120. The interface can
“activate an audible tone, send a page or make a telephone call to a clinician
(or other function) if a physiological alarm is activated.” Id. 1125
(emphasis added). The interface also includes an “Assignments control” that
allows Muhsin’s system “to assign the monitored patients to particular
nurses within a healthcare facility. For example, in some embodiments,
when an alarm is activated an assigned nurse is informed of the alarm via a
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page, phone call, or other message.'1'’ Id. 1127 (emphasis added); Fig. 11,
item 755.
These disclosures, among others, indicate that Mushin’s system
assigns (i.e., “links”) medical personnel to both a patient and the patient’s
physiological metrics. These disclosures are substantially similar to
Appellants’ disclosure concerning users “associated with” a metric. For
example, the written description discloses “one or more users can be
associated with the metric to receive the alert notification. For instance, key
personnel of the business who can influence the particular metric can be
selected as recipients of the alert notification.” Spec. 1 32. Accordingly,
Appellants’ arguments have not persuaded us the Examiner erred.
Appellants also contend the Examiner erroneously found Muhsin
discloses “receiving feedback on the alert notification from one or more of
the plurality of users” and “adjusting, using a processor, the alert trigger
threshold based on the received feedback,” as recited in claim 1. See App.
Br. 12—14. Appellants assert the Examiner divided Muhsin’s alarm
adjustment into a “feedback” step and an “adjustment” step. See Reply Br.
6—8; App. Br. 12—14. Appellants argue this division is improper because the
“proposed ‘control signal or command” is inextricably linked to the
adjustment since the adjustment cannot happen without the control signal or
command. Reply Br. 8. Moreover, Appellants contend the “[t]he
Examiner’s interpretation ... is inconsistent with how the terms ‘feedback’
and ‘adjusting’ are used” in the written description. Id. In Appellants’ view,
several adjustment scenarios described in the written description would be
impossible under the Examiner’s construction of “feedback” and
“adjusting.” Id. at 8—9.
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Appellants have not persuasively disputed the Examiner’s finding that
Muhsin discloses (1) a nurse or clinician “remotely modifies device alarm
limits” in response to receiving an alert notification and (2) the process of
“remotely modifying] device alarm limits” includes sending a control signal
or command to a machine attached to a patient, which in turn adjusts the
relevant alarm threshold accordingly. See Ans. 5—6. Even assuming
Appellants are correct that Mushin’s alarm adjustment cannot happen
without the control signal, that does not mean the alarm adjustment
performed by the machine and control signal or command transmitted by the
medical personnel are the same. And although Appellants’ written
description describes examples in which “adjusting” requires various
amounts and types of feedback, see Spec. Tflf 49-50, claim 1 does not limit or
specify the amount or type of the recited “feedback.” We decline
Appellants’ invitation to import these examples from the written description
into the claims. See SuperGuide Corp. v. DirecTV Enterprises, Inc., 358
F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding the claim language
may be aided by the explanations contained in the written description, it is
important not to import into a claim limitations that are not a part of the
claim.”). We therefore find Appellants’ arguments unpersuasive.
For the above reasons, we sustain the Examiner’s rejection of claim 8.
Because Appellants argued claims 9—11, 13—18, and 20 together with claim
8, App. Br. 9, 14, we also sustain the Examiner’s rejection of these claims.
DECISION
For the above reasons, we affirm the rejections of claims 8—20.
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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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