Ex Parte Christensen

Patent Trial and Appeal Board

Aug 29, 2017

13804761 (P.T.A.B. Aug. 29, 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.
13/804,761 03/14/2013 Peter CHRISTENSEN FMC-002US 4515
54004 7590 08/29/2017
MUIRHEAD AND SATURNELLI, LLC
200 FRIBERG PARKWAY
SUITE 1001
WESTBOROUGH, MA 01581
EXAMINER
TRUONG, NGUYEN H
ART UNIT PAPER NUMBER
2622
MAIL DATE DELIVERY MODE
08/29/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte FRESENIUS MEDICAL CARE HOLDINGS, INC.1
Appeal 2017-005032
Application 13/804,761
Technology Center 2600
Before DENISE M. POTHIER, JASON J. CHUNG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 2, 4—10, 12—22, 24, and 26. Claims 3, 11, 23, 25, and
27 have been canceled. See App. Br. 2, 17, 20, 22—23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Peter Christensen is listed as the inventor.
2 Throughout this opinion, we refer to (1) the Final Action (Final Act.)
mailed April 28, 2016, (2) the Appeal Brief (App. Br.) filed October 25,
2016, (3) the Examiner’s Answer (Ans.) mailed November 30, 2016, and
(4) the Reply Brief (Reply Br.) filed January 25, 2017.
Appeal 2017-005032
Application 13/804,761
The Invention
Appellant’s invention relates to an “efficient and effective monitoring
and control of a dialysis treatment by a health care practitioner overseeing
the dialysis treatment, in particular, to enable remote monitoring and control
by the health care practitioner of the dialysis treatment and/or dialysis
machine.” See Spec. 3:18—21.
Independent claim 1 is reproduced below with emphasis:
1. A method of remotely interfacing with a medical device,
comprising:
providing a wearable interface device that enables remote
interfacing with the medical device by a user wearing the wearable
interface device, wherein the wearable interface device includes a
command recognition device that recognizes and interprets commands
in connection with operation of the wearable interface device;
providing a display on the medical device, wherein the display
includes touch screen features that accept commands for controlling
the medical device;
wirelessly exchanging signals between the wearable interface
device and the medical device, wherein the signals correspond to a
treatment performed using the medical device and wherein at least
one processing device of the medical device that is processing signals
received from the wearable interface device is given focus to enable
the wearable interface device to control the medical device via the at
least one processing device in a mode that excludes control of the
medical device by other devices different from the wearable interface
device while the signals are being processed;
processing at least one of the signals at the wearable interface
device to generate information corresponding to the treatment
performed using the medical device;
displaying the information on a screen of the wearable interface
device; and
recognizing, using the command recognition device, at least one
non-contact gesture input by the user, wherein control of treatment on
the screen of the wearable interface device is different from control of
treatment using the touch screen of the medical device.
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Application 13/804,761
The Examiner relies on the following as evidence of unpatentability:
Music US 2008/0114226 A1 May 15,2008
Curtis US 2012/0138533 A1 June 7, 2012
Stewart US 2012/0218187 A1 Aug. 30, 2012
Gurevich US 2012/0224060 A1 Sept. 6, 2012
Ota US 2013/0050069 A1 Feb. 28, 2013
Mount US 2013/0141421 A1 June 6, 2013
(filed Dec. 6, 2011)
Wieder US 8,508,472 B1 Aug. 13,2013
(filed Jan. 2, 2012)
The Rejections
Claims 1, 4, 9, 12, 17, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Music, Stewart, and Gurevich. Final Act. 2—9.
Claims 2, 6—8, 10, 14—16, and 21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Music, Stewart, Gurevich, and Curtis. Final
Act. 10-12.
Claims 5 and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Music, Stewart, Gurevich, Curtis, and Wieder. Final Act. 12—13.
Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Music, Stewart, Gurevich, and Ota. Final Act. 14.
Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Music, Stewart, Gurevich, and Wieder. Final Act. 14.
Claims 22, 24, and 26 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Music, Stewart, Gurevich, and Mount. Final Act. 15—16.
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Application 13/804,761
THE OBVIOUSNESS REJECTION OVER MUSIC, STEWART,
and GUREVICH
Regarding representative claim l,3 the Examiner finds that Music
teaches many of its limitations, including the step of “providing a wearable
interface device” and “recognizing, using the command recognition device,
at least one non-contact gesture input by the user.” Final Act. 2—3 (citing
Music 38-45, 64, Figs. 2—3). The Examiner turns to Stewart in
combination with Music to teach the step of
at least one processing device of the medical device that is
processing signals received from the wearable interface device is
given focus to enable the wearable interface device to control the
medical device via the at least one processing device in a mode
that excludes control of the medical device by other devices
different from the wearable interface device while the signals are
being processed.
Id. at 3^4 (citing Music H 68—81 and Stewart 128). The Examiner also
turns to Gurevich, in combination with Music and Stewart, to teach the
“control of treatment on the screen of the wearable interface device is
different from control of treatment using the touch screen of the medical
device.” Id. at 4 (citing Music, Fig. 10 and Gurevich 149, Figs. 2, 8A—D).
Appellant argues the references alone or in combination fail to teach
the recited “control of treatment on the screen of the wearable interface
device is different from control of treatment using the touch screen of the
medical device.” App. Br. 13. Specifically, Appellant alleges Gurevich’s
3 Appellant presents the same arguments for independent claims 9 and 17 as
well as their dependent claims. App. Br. 15. We group all the claims for
this rejection together and select independent claim 1 as representative.
37 C.F.R. §41.37(c)(l)(iv).
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Application 13/804,761
windshield is relied upon to teach the display of the “wearable interface
device” feature in claim 1. Id. at 14; Reply Br. 4. Appellant asserts this
mapping “can in no way be fairly characterized as a wearable device as
recited.” App. Br. 14; see Reply Br. 5.
Appellant further contends the references in combination “would be
inoperative” and the system fails to teach “how to operate the vehicle
exclusively with the HUD (to be consistent] with the recitation in the
claims).” App. Br. 15. Additionally, Appellant argues that operating the
system with the HUD (heads-up display) and conventional vehicle controls
together “would be inconsistent with Stewart” and the claim limitation, “at
least one processing device of the medical device that is processing signals
received from the wearable interface device is given focus to enable the
wearable interface device to control the medical device.” Id.', Reply Br. 5—6.
ISSUES
Under § 103, has the Examiner erred in rejecting claim 1 by finding
Music, Stewart, and Gurevich collectively would have taught or suggested:
I. “providing a wearable interface device,”
II. “at least one processing device of the medical device that is
processing signals received from the wearable interface device is given
focus to enable the wearable interface device to control the medical
device ... in a mode that excludes control of the medical device by other
devices different from the wearable interface device,”
III. “wherein control of treatment on the screen of the wearable
interface device is different from control of treatment using the touch screen
of the medical device”?
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ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of representative claim 1.
I.
Appellant argues that “[t]he windshield and/or the vehicle/windshield
combination of Gurevich can in no way be fairly characterized as a wearable
device as recited in the present claims.” App. Br. 14. This argument is
unavailing, because, as indicated by the Examiner, the rejection does not
propose “to insert a windshield of Gurevich [injto the system of Music.”
Ans. 3. Instead, the rejection relies on Music to teach “providing a wearable
interface device.” Final Act. 2.
In particular, the cited portions of Music relied upon by the Examiner
teach providing an interface device that is wearable by a user that includes a
command recognition device for recognizing and interpreting commands in
connection with the wearable interface device’s operation. See Music Tflf
38-45, 64, Figs. 2—3, cited in Final Act. 2. For example, Music teaches a
tracking glove or finger sensor worn by a health care provider and gestures
made by the provider are recorded, transmitted, processed, identified as an
associated command, and executed as the associated command. Music Tflf
42-45, Figs. 2—3. Music further teaches the system may include eyewear
wearable by caregiver 62 having personal display 142 and microphone 148
to enable voice control of medical device 140. Music 64, 66, Figs. 10-
11; see also Final Act. 2—\.
Moreover, Gurevich is cited to teach various, known techniques to
control an interface, including using gestures or a touch screen. Final Act. 4
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(citing Gurevich 149, Fig. 2); Ans. 3. The rejection proposes to combine
this specific teaching in Gurevich with Music and Stewart. Final Act. 4;
Ans. 3.
As such, the rejection does not map Gurevich’s windshield to the
recited wearable device, and any argument that this mapping is unreasonable
(see App. Br. 14) does not appreciate fully the rejection as proposed.
Accordingly, the proposed combination of Music, Stewart, and Gurevich
teaches the recited “providing a wearable interface device.”
II.
Next, Appellant asserts that the combination fails to teach
at least one processing device of the medical device that is
processing signals received from the wearable interface device is
given focus to enable the wearable interface device to control the
medical device ... in a mode that excludes control of the medical
device by other devices different from the wearable interface
device,
as recited in claim 1. See App. Br. 14—15. Some of this argument assumes
that the proposed combination results in Gurevich’s HUD or heads-up
display as the claimed wearable device and is given the focus to enable
control of the medical device over other devices. See id. However, as stated
above, the rejection as proposed does not include Gurevich’s HUD into
Music and Stewart. We refer to the discussion above for details.
As such, further arguments related to how Gurevich’s HUD would
operate in such a purported environment, its purported inoperability, and
how a vehicle with only such a purported windshield would operate are not
persuasive. See id. at 15. Moreover,
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
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Application 13/804,761
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in
the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981).
We further adopt as our own the Examiner’s findings concerning
Stewart and combining Stewart’s teachings with Music to teach or suggest
at least one processing device of the medical device that is
processing signals received from the wearable interface device is
given focus[4] to enable the wearable interface device to control
the medical device ... in a mode that excludes control of the
medical device by other devices different from the wearable
interface device,
as recited in claim 1. Final Act. 3^4 (citing Stewart 128 and Music
Tflf 68—81). Notably, these findings and conclusions are essentially
undisputed on the record. See generally App. Br. 11—15.
Accordingly, the proposed combination of Music, Stewart, and
Gurevich teaches the recited “at least one processing device ... is given
focus to enable the wearable interface device to control the medical device
... in a mode that excludes control of the medical device by other devices”
as recited in claim 1.
III.
Finally, Appellant asserts the references alone or in combination fail
to teach or suggest “wherein control of treatment on the screen of the
4 The disclosure explains a processing device “may be said to have focus
when the processing device has control of, and/or is controlled by, one or
more user interface devices connected to, or communicating with, the
processing device (e.g., via one or more user interface processing devices).”
Spec. 13:21-14:2.
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Application 13/804,761
wearable interface device is different from control of treatment using the
touch screen of the medical device.” App. Br. 13—14.
This assertion by Appellant, which amounts merely to pointing out
what claim 1 recites and then asserting that the references fail to teach the
limitation, is not considered a separate argument for patentability. See In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Stated differently,
Appellant fails to make an adequate argument on the merits pertaining to
issue III.
It is also well-settled that counsel’s arguments cannot take the place of
factually supported objective evidence. See, e.g., In re Huang, 100 F.3d
135, 139-40 (Fed. Cir. 1996). In this case, Appellant has not provided
factually supported, objective evidence to rebut the above-noted Examiner’s
findings and conclusions, which we determine are reasonable. As noted
above, the Examiner turns to Gurevich, in combination with Music and
Stewart, to teach this limitation. Final Act. 4 (citing Music, Fig. 10;
Gurevich 149, Figs. 2, 8A—D).
Any remaining argument connected to this disputed limitation (see
App. Br. 14—15) have been addressed previously. We refer to the discussion
above for details.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 1 and claims 4, 9, 12, 17, and 20 not
separately argued.
THE REMAINING OBVIOUSNESS REJECTIONS
Appellant relies on the arguments presented for independent claims 1,
9, and 17 concerning the remaining claims rejected based on Music, Stewart,
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Gurevich, and at least one other reference. App. Br. 15. We are not
persuaded for the reasons previously discussed. Accordingly, Appellant has
not persuaded us of error in the rejections of dependent claims 2, 5—8, 10,
13-16, 18, 19,21,22, 24, and 26.
DECISION
We affirm the Examiner’s rejection of claims 1, 2, 4—10, 12—22, 24,
and 26 under § 103.
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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