Ex Parte Chantz

Board of Patent Appeals and Interferences

Jul 10, 2012

12014842 (B.P.A.I. Jul. 10, 2012)

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.
12/014,842 01/16/2008 Hyman D. Chantz END920070352US1 1289
30449 7590 07/11/2012
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
EXAMINER
DANEGA, RENEE A
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
07/11/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte HYMAN D. CHANTZ
__________

Appeal 2011-004483
Application 12/014,842
Technology Center 3700
__________

Before MELANIE L. McCOLLUM, STEPHEN WALSH, and ERICA A.
FRANKLIN, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a pose
determining method and a palpation method. The Examiner has rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-
in-part.
STATEMENT OF THE CASE
Claims 1-10, 12-15, and 21-24 are on appeal and are set forth in
Appendix A to Appellant‟s Brief (App. Br. 5 & 33-39). We will focus on
independent claims 1 and 12, which read as follows:
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1. A subject pose determining method comprising:
placing a subject onto a surface of a platform, said platform having a
first radio-frequency transceiver located at a first location on said surface
and a second radio-frequency transceiver located at a second location on said
surface, wherein said subject is a human being;
placing a first radio-frequency transponder onto an upper extremity of
said subject;
placing a second radio-frequency transponder onto a lower extremity
of said subject;
transmitting a first radio-frequency signal from said first radio-
frequency transceiver to said first radio-frequency transponder on said upper
extremity of said subject, resulting in said first radio-frequency transponder
sending a second radio-frequency signal to said first radio-frequency
transceiver;
transmitting a third radio-frequency signal from said second radio-
frequency transceiver to said second radio-frequency transponder on said
lower extremity of said subject, resulting in said second radio-frequency
transponder sending a fourth radio-frequency signal to said second radio-
frequency transceiver;
receiving by said first radio-frequency transceiver said second radio-
frequency signal;
receiving by said second radio-frequency transceiver said fourth
radio-frequency signal; and
determining a pose of said subject based on said receiving said second
radio-frequency signal and said receiving said fourth radio-frequency signal.
12. A palpation method, comprising:
placing a subject horizontally onto a transducer array disposed on a
surface of a support device, said transducer array disposed between said
support device and said subject, said transducer array comprising a plurality
of piezoelectric transducers, wherein said subject is a human being;
sending a first signal to at least one piezoelectric transducer of said
plurality of piezoelectric transducers, each piezoelectric transducer of said at
least one piezoelectric transducer in direct contact with a portion of external
tissue of said subject, resulting in said each piezoelectric transducer
actuating and exerting a first force against said portion of external tissue;
and
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Application 12/014,842

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receiving from said each piezoelectric transducer a second signal in
response to said exerting said first force against said portion of external
tissue, said second signal resulting from a second force exerted by said
portion of external tissue against said each piezoelectric transducer in
response to said each piezoelectric transducer exerting said first force;
analyzing said first signal and said second signal;
determining, based on said analyzing, a hardness of said portion of
external tissue and a magnitude of said second force exerted by said portion
of external tissue.
Claims 1-4 and 21 stand rejected under 35 U.S.C. § 103(a) as obvious
over Russ
1
in view of Rodgers
2
(Ans. 3).
Claims 5-8 stand rejected under 35 U.S.C. § 103(a) as obvious over
Russ in view of Rodgers and Loc
3
(id.).
Claim 9 stands rejected under 35 U.S.C. § 103(a) as obvious over
Russ in view of Rodgers and Woodward
4
(id. at 4).
Claim 10 stands rejected under 35 U.S.C. § 103(a) as obvious over
Russ in view of Rodgers and Scanlon
5
(id.).
Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as obvious
over Russ in view of Rodgers and Miller
6
(id.).
Claims 12-15 and 24 stand rejected under 35 U.S.C. § 103(a) as
obvious over Sliwa
7
in view of Sullivan
8
(id.).

1
Russ, US 2006/0246921 A1, Nov. 2, 2006.
2
Rodgers, US 2007/0132597 A1, Jun. 14, 2007.
3
Loc Ho et al., A Prototype on RFID and Sensor Networks for Elder
Healthcare: Progress Report, SIGCOMM‟05 WORKSHOPS 70-75 (2005).
4
Woodward, US 6,485,441 B2, Nov. 26, 2002.
5
Scanlon, US 5,853,005, Dec. 29, 1998.
6
Miller et al., US 2006/0226957 A1, Oct. 12, 2006.
7
Sliwa, Jr. et al., US 6,511,427 B1, Jan. 28, 2003.
8
Sullivan et al., US 2006/0063982 A1, Mar. 23, 2006.
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I
The Examiner relies on Russ for teaching a “method wherein RFID
tag transponders operate by receiving a signal and sending one back in
response to a transceiver as seen in Figure 2” (Ans. 4-5). The Examiner
relies on Rodgers for teaching
a method of monitoring position comprising placing a subject
on a surface of a bed platform (204), placing a first radio-
frequency transponder onto the upper extremity of the
subject (206E) and a second radio-frequency transponder on the
lower extremity (206C), and receiving second and fourth radio
frequency signals in first and second radio-frequency
transceivers (284) to determine the pose of the subject based on
these signals.
(Ans. 5.) The Examiner concludes that it “would have been obvious in view
of Rodgers to provide platform transceivers on a bed in the patient care
system of Russ in order to ensure that a patient is lying in bed” (id.).
Findings of Fact
1. Russ discloses “a medical data telemetry management system
for managing acquisition of patient medical data derived from a plurality of
patient connected devices [PCDs]” (Russ, ¶ [0015]).
2. Referring to FIG. 2, Russ discloses “coupling a PCD to the
RMD [remote monitoring device] 150, and establishing a communication
channel between them” as follows:
The PCD detector 108 wirelessly detects when a PCD is
brought in proximity to the RMD 150. One skilled in the art
understands that detection of proximity of a particular PCD to
the wireless PCD detector 108 may be accomplished by . . .
RFID compatible proximity detection. . . . In general, an RFID
tag reader radiates a radio signal. . . . When an RFID tag comes
within proximity of the RFID tag reader radio signal, it
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generates a radio signal in response, which is detected by the
RFID tag reader. This signal carries data fabricated into the
RFID tag. The data may include a physical identifier of the
particular RFID tag which has been activated. In FIG. 2, the
PCD detector 108 includes an RFID tag reader, and RFID tags
are attached to the respective PCDs.
(Id. at ¶¶ [0034]-[0035].)
3. Rodgers discloses “automated methods and systems for
selectively monitoring a patient on a support . . . and detecting movements
or behaviors that are predictive of support exiting that may lead to a patient
fall” (Rodgers, ¶ [0014]).
4. Referring to FIG. 2D, Rodgers discloses an “embodiment for
detecting patient support exiting behavior comprising a small zone RFID
grid system 203, which may be used . . . to determine patient position and/or
movements” (id. at ¶ [0091]).
5. In particular, Rodgers discloses:
Exemplary RFID grid system 203 includes a patient 202 resting
on a bed 204 or other support. The patient‟s body may be
equipped with any appropriate number of RFID devices that are
located so as to detect patient positions and/or movements
associated with support exiting (e.g., right RFID wrist
device 206A, left RFID wrist device 206B, right RFID ankle
device 206C, left RFID ankle device 206D, and neck RFID
device 206E). Each RFID device can be separately encoded to
represent a specific body part of the patient to distinguish
between positions and movements of the different body parts.
(Id.)
6. Rodgers also discloses that the “RFID grid system 203 includes
a three-dimensional grid of small, cube-like RFID zones defined by a
plurality of RFID detectors positioned along lateral zone boundaries 280,
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longitudinal zone boundaries 282, and elevation zone boundaries 284” (id. at
¶ [0092]).
Analysis
Rodgers discloses a method for determining the position of a patient
on a platform having first and second RFID detectors, the patient having a
first RFID device on an upper extremity and a second RFID device on a
lower extremity (Findings of Fact (FF) 4-6). Russ discloses “a medical data
telemetry management system” in which “an RFID tag reader radiates a
radio signal” and, when an RFID tag of a patient connected device (PCD)
“comes within proximity of the RFID tag reader radio signal, it generates a
radio signal in response, which is detected by the RFID tag reader” (FF 1-2).
We agree with the Examiner that it would have been obvious to use the
signal transmission system of Russ in the pose determining method of
Rodgers (Ans. 5).
Appellant argues, however, that “the second and fourth radio-
frequency (RF) signals received from the first and second RF responders
(i.e., RFID tags), respectively, in Russ do not comprise data that would
enable the pose of the subject to be determined” (App. Br. 8). However,
Rodgers discloses the use of radio-frequency signals from RFID devices
comprising data that would enable the pose of the subject to be determined
(FF 4-5). Thus, we are not persuaded by Appellant‟s argument that Russ
fails to disclose this.
Appellant also argues “that there is no motivation to modify Russ to
include both the first and second RF transceiver in Russ‟ apparatus” (App.
Br. 10). We are not persuaded. Instead, we agree with the Examiner that
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Rodgers provides the reason to include first and second RF transceivers,
specifically to allow the apparatus to “monitor[] a patient on a support . . .
and detect[] movements or behaviors that are predictive of support exiting
that may lead to a patient fall” (FF 3).
With regard to claims 2 and 3, Appellant argues that the “Examiner
alleges that Rodgers discloses the [features of these claims], but has not
provided a reason as to why it is allegedly obvious to modify Russ by the[se
features]” (App. Br. 12). We are not persuaded by these arguments for the
reasons discussed above.
With regard to claim 4, Appellant argues that “there is no motivation
to modify Russ by providing the transponders on the upper and lower
extremities in order to monitor the entire body of a patient” (App. Br. 14).
However, we agree with the Examiner that Rodgers provides the reason to
include transponders on the upper and lower extremities, specifically to
allow the apparatus to “monitor[] a patient on a support . . . and detect[]
movements or behaviors that are predictive of support exiting that may lead
to a patient fall” (FF 3).
With regard to claim 21, Appellant argues that the “Examiner has not
addressed the . . . feature of claim 21” (App. Br. 14). While making no
comment on the patentability of this claim over Russ and Rodgers, we agree
with Appellant that the Examiner has not addressed the feature recited in
claim 21. Therefore, we agree with Appellant that the Examiner has not set
forth a prima facie case that claim 21 would have been obvious.
With regard to claims 5 and 6, for which the Examiner additionally
relies on Loc, Appellant argues that the “reason provided by the Examiner to
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modify Rodgers to have the said second frequency . . . differ from the fourth
frequency” and “to modify Rodgers to have the said first frequency . . .
differ from the third frequency . . . [are] not persuasive” (App. Br. 15-17).
We do not agree. Instead, we agree with the Examiner that it “would have
been obvious . . . to one of ordinary skill in the art to provide the RFIDs of
Rodgers modified by Russ to operate at different frequencies so that the first
and second transceivers are receiving data corresponding only to their
corresponding upper or lower transponder” (Ans. 6). In particular, we agree
with the Examiner that “operating frequency or time coding would be an
obvious way to distinguish the RFIDs in view of Loc” (id. at 11).
With regard to claim 9, for which the Examiner additionally relies on
Woodward, and claim 10, for which the Examiner additionally relies on
Scanlon, Appellant argues that “there is no motivation to modify Russ to
monitor head movement” (claim 9) or “torso position” (claim 10) (App.
Br. 20 & 22). However, we agree with the Examiner that Rodgers provides
the reason to combine each of Woodward and Scanlon with Russ,
specifically to allow Russ‟s apparatus to “monitor[] a patient on a support
. . . and detect[] movements or behaviors that are predictive of support
exiting that may lead to a patient fall” (FF 3).
With regard to claim 22, for which the Examiner additionally relies on
Miller, Appellant argues:
the Examiner does not allege, and has not cited any prior art
disclosing, that the stored data in the first radio-frequency
transponder includes information about the first radio-frequency
transponder, a location of the first radio-frequency transponder,
an address of the subject, a government issued identification
number of the subject, and a medical condition of the subject.
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(App. Br. 29.) While making no comment on the patentability of claim 22
over Russ, Rodgers, and Miller, we agree with Appellant that the Examiner
failed to address all of the types of data listed in claim 22. Therefore, we
agree with Appellant that the Examiner has not set forth a prima facie case
that claim 22, as well as claim 23, which depends from claim 22, would have
been obvious.
Conclusion
The evidence supports the Examiner‟s conclusion that claims 1-6, 9,
and 10 would have been obvious. Claims 7 and 8 are not separately argued
and therefore fall with claims 5 and 6. 37 C.F.R. § 41.37(c)(1)(vii). We
therefore affirm the obviousness rejections of claims 1-10.
However, the Examiner has not set forth a prima facie case that
claims 21-23 would have been obvious. We are therefore compelled to
reverse the obviousness rejections of claims 21-23.
II
The Examiner relies on Sliwa for teaching
a method of palpation of a human in which a first signal [is
sent] to at least one piezoelectric transducer of an array, the
transducer in direct contact with a portion of the external tissue
of the subject resulting in each transducer activating and
exerting a force against a portion of the external tissue and
receiving from each transducer a second signal activating to the
exerted force, the second signal resulting from a second force
exerted by the portion of external tissue against each transducer
in response to the exerted first force; analyzing the first and
second signals and determining a hardness of the portion of
external tissue and magnitude of the second force resistive force
exerted by the external tissue portion.
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(Ans. 8.) The Examiner relies on Sullivan for teaching “a device with
piezoelectric transducers for measuring forces exerted by humans in which
the person lays horizontally” (id. at 8-9). The Examiner concludes that it
“would have been obvious in view of Sliwa, Jr. to provide the patient
lay[ing] horizontally in order to allow analysis of the entire body” (id. at 9).
Findings of Fact
7. Sliwa discloses an “[u]ltrasound imaging probe 103 includ[ing]
pressure-sensing or pressure applying mechanisms 101” (Sliwa, col. 4,
ll. 19-22).
8. Sliwa also discloses that the “pressure-sensing (or application)
mechanisms 101 . . . may be fabricated from any force-transducing material
commonly known in the art (e.g., Polyvinyldienefluoride piezofilms, PZT,
or other piezoelectric or piezoactive materials)” (id. at col. 5, ll. 47-52).
9. In addition, Sliwa discloses that “system computations may
quantify the observed body-tissue displacements . . . , and observed body-
tissue loading (pressure) map and colorize regions of the ultrasound image in
relation to computed stiffness or computed dynamic deformability” (id. at
col. 5, ll. 27-32).
10. Sliwa also discloses: “The device of FIG. 1 may be used to
provide an ultrasound image as well as a passive pressure map of the tissue
surface correlated spatially with the image. In such an example, for
example, the tumor 112 would show up as a hard (higher contact pressure)
spot.” (Id. at col. 4, ll. 46-50.)
11. In addition, Sliwa discloses “[p]robe configuration 400 [that]
includes an active body-tissue palpation system, comprised of two
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exciters 408 and 410, which can be piezoelectric films, piezoelectric
crystals, or other vibration driving means” (id. at col. 8, ll. 44-48).
12. Sullivan discloses Passive Physiological Monitoring (P2M),
which uses piezoelectric films to monitor a subject (Sullivan, ¶¶ [0014]-
[0015]).
13. Sullivan also disclose: “The piezoelectric material 1 used is the
polymer polyvinylidene fluoride (PVDF). . . . The PVDF film is
incorporated into a fluid-filled vinyl pad. . . . This is placed on/under/above
various locations of the patient.” (Id. at ¶ [0068].)
14. In particular, Sullivan “FIG. 14 shows a schematic of the P2M
using a passive sensor array and microelectronics incorporated into a
MEDEVAC litter. . . . Position dependent physiological signals are used to
determine patient position, heart rate, respiration, blood pressure, pulse
strength distribution, and potentially some measure of cardiac output.” (Id.
at ¶ [0100].)
Analysis
Sullivan discloses physiologically monitoring a subject by
horizontally placing the subject on a piezoelectric sensor array (FF 12-14).
Sliwa discloses that piezoelectric films can be used as pressure-application,
as well as pressure-sensing, mechanisms (FF 7-8). In particular, Sliwa
discloses the use of piezoelectric films in a palpation method (FF 11). In
view of the teachings in Sliwa, we conclude that the Examiner has set forth a
prima facie case that it would have been obvious to use Sullivan‟s
piezoelectric sensor array in a palpation method by horizontally placing the
subject on the sensor array (Ans. 9).
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Appellant argues, however, “that Sliwa in view of Sullivan does not
teach or suggest the feature: „determining, based on said analyzing, a
hardness of said portion of external tissue and a magnitude of said second
force exerted by said portion of external tissue‟” (App. Br. 23). We are not
persuaded.
As noted by Appellant (App. Br. 23), Sliwa discloses determining
tissue “stiffness” (FF 9). Although we agree with Appellant that “stiffness”
and “hardness” are not equivalent, we do not agree that they are unrelated.
In fact, as noted by the Examiner, the Wikipedia page referred to by
Appellant states that “Hardness in the elastic range is known as stiffness”
(Ans. 13). Moreover, Sliwa states that, using its device, a tumor, for
example, “would show up as a hard (higher contact pressure) spot” (FF 10
(emphasis added)). Thus, even if we assume that Sliwa did not intend the
term “stiffness” to mean “hardness,”
9
we do not agree that Sliwa fails to
disclose determining “hardness.”
Appellant also argues that Sullivan does not disclose that its array of
“sensors function as transducers that actuate and exert a force against a
portion of external tissue” (App. Br. 25). We are not persuaded.
Although Sullivan may not disclose that its array can be used in this
way, Sliwa discloses that piezoelectric films can be used as pressure-
application mechanisms (FF 7-8). Thus, we do not agree with Appellant that
the combination of Sullivan with Sliwa fails to suggest this.

9
As noted by Appellants, “[s]cientists and journalists often confuse stiffness
for hardness” (App. Br. 24 (emphasis removed)).
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Conclusion
The evidence supports the Examiner‟s conclusion that claim 12 would
have been obvious. Claims 13-15 and 24 are not separately argued
10
and
therefore fall with claim 12. 37 C.F.R. § 41.37(c)(1)(vii). We therefore
affirm the obviousness rejection of claims 12-15 and 24.
SUMMARY
We affirm the obviousness rejections of claims 1-10, 12-15, and 24.
However, we reverse the obviousness rejections of claims 21-23.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

cdc

10
As noted by the Examiner, a “statement which merely points out what a
claim recites will not be considered an argument for patentability of the
claim” (Ans. 13).