Ex Parte Centen et al

Patent Trial and Appeal Board

Oct 10, 2014

11936184 (P.T.A.B. Oct. 10, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte COREY CENTEN and NILESH PATEL
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Appeal 2012-004322
Application 11/936,184
Technology Center 3700
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Before: JENNIFER D. BAHR, CHARLES N. GREENHUT, and
MICHAEL L. WOODS, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Corey Centen and Nilesh Patel (Appellants) appeal under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 50–81. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Claim 50, reproduced below, is illustrative of the claimed subject
matter.
50. A wearable cardiopulmonary resuscitation assist device,
comprising:
a wearable article to be worn by a cardiopulmonary
resuscitation performer or a patient, for assisting administration
of cardiopulmonary resuscitation by the performer;
a displacement measurer including an angle sensor, the
displacement measurer structured to measure a compensated
displacement of a chest compression;
a tilt sensor separate from the angle sensor and structured
to measure an angle of an arm of the resuscitation performer;
at least one feedback component on the article for
conveying feedback information based on the measured angle
of the arm of the performer for assisting the performer in
performing cardiopulmonary resuscitation; and
a processing unit on the article, the processing unit being
configured to receive the at least one parameter from the at least
one sensor and to send information based on the parameter to
the at least one feedback component.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Marx US 4,048,991 Sept. 20, 1977
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Gowing
Battaglia
Nakamura
D’Antonio
Myklebust
US 4,092,788
US 5,088,037
US 5,588,919
US 5,589,639
US 6,306,107 B1
June 6, 1978
Feb. 11, 1992
Dec. 31, 1996
Dec. 31, 1996
Oct. 23, 2001
Halperin
Olson
US 2002/0193711 A1
US 2007/0276300 A1
Dec. 19, 2002
Nov. 29, 2007

REJECTIONS
1. Claims 50–58, 60, 62–65, 67, 71–74, 77, and 79 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Halperin,
Gowing, and Nakamura.
2. Claims 59, 66, and 69 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Halperin, Gowing, Nakamura, and
Battaglia.
3. Claims 61, 75, 76, 78, and 80 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Halperin, Gowing, Nakamura,
and Myklebust.
4. Claim 68 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halperin, Gowing, Nakamura, and D’Antonio.
5. Claim 70 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halperin, Gowing, Nakamura, and Marx.
6. Claim 81 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halperin, Gowing, Nakamura, and Olson.

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OPINION
Rejection 1
The Examiner found, and Appellants do not contest, that Halperin
discloses a wearable cardiopulmonary resuscitation assist (CPR) device, as
called for in claim 50, and a system for assisting performance of CPR, as
called for in claim 73, with the exception of a tilt sensor structured to
measure (or for measuring) an angle of an arm of the resuscitation
performer. Answer 7, 13; Br. 11.
The Examiner found, and Appellants do not contest, that Gowing
discloses a CPR trainer “adapted to train the user to achieve the correct arm
angle before beginning to perform CPR.” Answer 7; Br. 12. The Examiner
acknowledged that neither Gowing nor Halperin discloses “an arm angle
sensor for providing feedback regarding the user’s arm angle.” Answer 7.
The Examiner found, and Appellants do not contest, that “Nakamura
discloses, in a golf swing training device, such an arm angle sensor
comprising a mechanical switch that provides feedback to a user regarding
the user’s arm angle before performing a golf swing.” Answer 7; Br. 12–13.
The Examiner determined it would have been obvious to one of
ordinary skill in the art to modify Halperin by incorporating the arm angle
sensor taught by Nakamura, to ensure “that the performer uses the proper
vertical compression technique.” Answer 7.
Appellants argue that “Nakamura is clearly non-analogous art” and,
thus, was improperly relied upon by the Examiner in the rejection. Br. 13.
According to Appellants, medical devices, such as a CPR assisting device,
and sporting equipment, such as the golf swing training device of Nakamura,
are in very different fields of endeavor. Id. at 14. Appellants also assert that
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the purpose of a CPR device (i.e., saving lives) is “clearly different” from
that of “practicing a recreational sport.” Id. at 15.
We do not agree with Appellants that Nakamura is non-analogous art.
As recognized by Appellants (Br. 14), our reviewing court uses two criteria
to determine whether prior art is analogous: (1) whether the prior art is
within the same field of endeavor as the claimed invention, and (2) if not
within the same field of endeavor as the claimed invention, whether the
reference is still reasonably pertinent to the particular problem with which
the inventor of the claimed invention was involved. In re Klein, 647 F.3d
1343, 1348 (Fed. Cir. 2011).
The Examiner concedes that Nakamura is not in the same field of
endeavor as Appellants’ invention, Halperin, and Gowing, but finds it is still
reasonably pertinent to the particular problem with which Appellants were
involved, and, thus, qualifies as analogous prior art under the second
criterion. Answer 13–14. As explained in Appellants’ Specification, one
problem addressed by Appellants was providing a tilt sensor that activates
when the CPR performer’s arm is lifted to a certain angle, in order to
determine whether the CPR performer’s arms are correctly positioned to
achieve the proper compression angle to help maximize transfer of force and
to reduce strain and exhaustion for the CPR performer. Spec. 22 ¶ 84.
Nakamura also addresses the same problem, that is, the problem of
providing an arm angle detecting means for detecting the reaching of a
predetermined angle of a performer’s arm and informing means for
informing the performer of the detection, albeit in the context of a golfer,
rather than a CPR performer. Nakamura, col. 4, ll. 56–60; col. 15, l. 48 to
col. 16, l. 9. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
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(“Common sense teaches . . . that familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of ordinary skill
will be able to fit the teachings of multiple patents together like pieces of a
puzzle.”). Accordingly, we determine that Nakamura is still reasonably
pertinent to the particular problem with which Appellants were involved,
and, thus, is analogous art.
Appellants also argue that “Gowing does not provide satisfactory
motivation to combine the Halperin CPR chest compression monitor and the
Nakamura golf swing training device,” because Gowing’s teaching aid is
nothing like Appellants’ CPR assist device, would be too cumbersome to use
in a real-life rescue situation, and would never be used during a rescue in an
emergency situation. Br. 16. Appellants’ argument is premised on what
appears to be a rigid insistence on a demonstration of a teaching, suggestion,
or motivation to support a conclusion of obviousness. However, the
Supreme Court has stated that a rigid insistence on teaching, suggestion, or
motivation is incompatible with its precedent concerning obviousness. KSR,
550 U.S. at 419.
Moreover, Appellants’ argument is not germane to the combination of
references proposed by the Examiner in the rejection. More specifically, the
Examiner did not propose to incorporate the structure of Gowing’s CPR
teaching aid into Halperin’s CPR device. Rather, the Examiner relied on
Gowing’s teachings with respect to the recognition in the art of the
importance of the performer’s arm position/angle when performing CPR.
Answer 15; see Gowing, col. 1, l. 36 to col. 2, l. 2 (discussing the
importance of proficient CPR administration, including proper body position
and movements, and proper arm position); col. 3, l. 67 to col. 4, l. 3
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(discussing proper shoulder and arm position for proficient CPR technique).
In view of Gowing’s teachings, the Examiner determined that a person of
ordinary skill in the art would have been prompted to incorporate an arm
angle sensor, as taught by Nakamura, to ensure that the performer uses the
proper vertical compression technique. The modification proposed by the
Examiner is nothing more than the mere application of a known technique
(an arm sensor for providing arm angle feedback to a performer to ensure
proper technique) to a piece of prior art ready for the improvement. See
KSR, 550 U.S. at 417.
In light of the above, Appellants do not apprise us of error in the
Examiner’s determination that the combined teachings of Halperin, Gowing,
and Nakamura render obvious the subject matter of claims 50 and 73. Thus,
we sustain the rejection of claims 50 and 73 and their dependent claims 51–
58, 60, 62–65, 67, 71, 72, 74, 77, and 79, for which Appellants do not assert
any separate arguments for patentability.
Rejections 2–6
In contesting these rejections, Appellants rely on their arguments
directed to independent claims 50 and 73, and assert that Battaglia,
Myklebust, D’Antonio, Marx, and Olson do not cure the purported
deficiencies in the combination of Halperin, Gowing, and Nakamura,
discussed above. Br. 18, 19, 20. For the reasons discussed above,
Appellants’ arguments fail to apprise us of deficiencies in the combination
of Halperin, Gowing, and Nakamura, and, thus, fail to apprise us of error in
the rejections of claims 59, 66, and 69 as being unpatentable over Halperin,
Gowing, Nakamura, and Battaglia; claims 61, 75, 76, 78, and 80 as being
unpatentable over Halperin, Gowing, Nakamura, and Myklebust; claim 68 as
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being unpatentable over Halperin, Gowing, Nakamura, and D’Antonio;
claim 70 as being unpatentable over Halperin, Gowing, Nakamura, and
Marx; and claim 81 as being unpatentable over Halperin, Gowing,
Nakamura, and Olson. Accordingly, we also sustain these rejections.

DECISION
The Examiner’s decision rejecting claims 50–81 is 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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