Ex Parte Cook et alDownload PDFPatent Trial and Appeal BoardDec 15, 201411469645 (P.T.A.B. Dec. 15, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/469,645 09/01/2006 Mark E. Cook 00116/00002US 6771 41939 7590 12/15/2014 JEANNE E. LONGMUIR 2836 CORYDON ROAD CLEVELAND HEIGHTS, OH 44118 EXAMINER PAGE, EVAN RANDALL ART UNIT PAPER NUMBER 3715 MAIL DATE DELIVERY MODE 12/15/2014 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 MARK E. COOK, TIMOTHY E. LINT, CHRISTOPHER E. BRYNIARSKI, and JOHN J. PASTRICK ____________________ Appeal 2012-011252 Application 11/469,645 Technology Center 3700 ____________________ Before: LYNNE H. BROWNE, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mark E. Cook et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 3–16, and 18–23. Claims 2 and 17 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claims are directed to a medical training device. Claim 1, reproduced below, is illustrative of the claimed subject matter: Appeal 2012-011252 Application 11/469,645 2 1. An improved medical training device comprising, a) a torso portion having a compressible core section and a removable pliable cover section, which core and cover sections are interconnected; b) a head portion interconnected with said torso portion, and having a fixed, non-movable, back half section and a movable front half face section which are pivotably interconnected near simulated ear sections; c) attachment portions located on said front face section and projecting therefrom for attachment of a lung bag or a face shield; and d) a CPR rate indicator, integral with the device, for directly providing real time feed back to a person being trained on said device of the rate of CPR compressions being performed. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Laughlin Ingenito Brault US 4,802,857 US 4,828,501 US 6,500,009 B2 Feb. 7, 1989 May 9, 1989 Dec. 31, 2002 Stoianovici US 2005/0214727 A1 Sept. 29, 2005 REJECTIONS I. Claims 3 and 6–11 stand rejected under 35 U.S.C. §102(b) as anticipated by Brault. II. Claims 13–15 stand rejected under 35 U.S.C. §102(b) as anticipated by Ingenito. III. Claim 16 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Ingenito. IV. Claims 1, 4, 5, and 21–23 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Brault and Ingenito. Appeal 2012-011252 Application 11/469,645 3 V. Claim 12 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Brault and Stoianovici. VI. Claims 18–20 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Brault and Laughlin. OPINION Rejection I —Anticipation by Brault —Claims 3 and 6–11 Claim 3: The Examiner finds that Brault discloses each and every limitation of independent claim 3. In particular, the Examiner finds that Brault discloses “a torso portion having a core section comprising a continuous volume filled by a compressible material.” Ans. 4 (citing Brault, Fig. 2). Appellants argue that “[t]he Brault hollow body 12 full of air as shown in Figure 2 does not provide an element or limitation which anticipates Claim[] 3” because “[e]ven if the hollow air filled body of Brault were admitted to be a compressible, it is not compressible in the application of Brault, since the air is not contained to enable compression.” Br. 9. Appellants’ argument is not persuasive because, as correctly noted by the Examiner, “the chest cavity of Brault is filled with air, which is a compressible material, and the claim language only requires that the material be compressible, not a material that is compressed in the operation of the mannequin.” Ans. 13. For these reasons, we sustain the Examiner’s decision rejecting independent claim 3. Appeal 2012-011252 Application 11/469,645 4 Claim 6: The Examiner finds that Brault discloses each and every limitation of independent claim 6 including “a non-movable, fixed back half section” of a head portion, which the Examiner reads on the top of Brault’s clevis portion 124. Ans. 5 (citing Brault, Fig. 2). Appellants argue that “clevis 124 does not and cannot form the back of the head, when – as shown in Figure 11, it is clear that 124 is positioned well inside the head 20.” Br. 11. Brault states: Referring to FIG. 7 and to the head 20, it will be understood that the head 20 includes a hollow first head portion indicated by general numerical designation 71 and a second head portion indicated by general numerical designation 72; the first head portion 71 may be referred to generally as a head member, and the second head portion 72 may be referred to generally as a mouthpiece. . . . The first head portion 71 is generally spherical having an open bottom 73 shown in dashed outline in FIG. 7, also note FIG. 2 where the head bottom opening 73 is shown in solid outline . . . . Brault, col. 6, ll. 6–19 (emphasis added). Thus, as described in the Specification and shown in Figure 7,1 the back of Brault’s head is the back of generally spherical first head portion 71, which encloses clevis 124 (as best shown in Fig. 11). Accordingly, Appellants’ argument is persuasive. For these reasons, we do not sustain the Examiner’s decision rejecting independent claim 6. Claim 11: The Examiner finds that Brault discloses each and every limitation of independent claim 11 including “mouth [85] opening edges [that] simulat[e] 1 See also Brault, Figs. 8, 9, 11, 12. Appeal 2012-011252 Application 11/469,645 5 lips projecting from opposing sides of [the] mouth opening for attachment of [a] face shield.” Ans. 6 (emphasis omitted; citing Brault, Fig. 8). Appellants argue that “a review of Figure 8 and reference 85 indicates that while the nose 84 is a protrusion, reference 85 is in fact a circular opening simulating a mouth which receives a tube.” Br. 12 (citing Brault, col. 6, beginning at l. 29). Appellants further argue that “[n]othing at reference 85 in Brault projects outwardly from opposing sides of a face.” Id. Brault states: The second head portion, or mouthpiece, 72 may be considered to be a combination nose, mouth and jaw piece member and includes an outwardly extending protrusion simulating the human nose 84, circular opening simulating the human mouth 85 and from which a generally cylindrical hollow or tubular member 86 extends inwardly, a jaw or mandible 88 and an irregularly shaped mounting tab 89 extending outwardly and upwardly from the nose portion 84; the tubular member 86 includes a flat annular surface 87. Bault, col. 6, ll. 29–37 (emphasis added). Thus, as described in the Specification, element 85 is a circular opening. Accordingly, the Examiner’s finding that element 85 simulates projecting lips for attachment of a face shield, as discussed supra, is speculative and unsupported by a preponderance of the evidence. For this reason, we do not sustain the Examiner’s decision rejecting independent claim 11. Claims 7–10: Independent claim 7 requires “a torso portion having a core section comprising a continuous volume filled by a compressible material and a removable pliable cover section, each substantially surrounded by a rigid frame member.” Br. 29, Clms. App’x (emphasis added). The Examiner Appeal 2012-011252 Application 11/469,645 6 finds that Brault discloses each and every limitation of independent claim 7 including “surrounding edges [12, 16] of [the] torso and cover section[s].” Ans. 5 (citing Brault, Fig. 1). Independent claim 9 similarly requires “a torso portion having a compressible core section and a removable pliable cover section, each surrounded by a rigid frame member.”2 Br. 30, Clms. App’x. Appellants argue that “Brault fails to provide any rigid frame members substantially surrounding any core and cover sections.” Br. 13. In response to this argument, the Examiner finds that the core [12] and cover [16] sections of Brault are rigid. Ans. 13 (citing Brault, Fig. 1). Based on this finding, the Examiner concludes that the edges of the core and cover are a “rigid frame member substantially surrounding the core and cover sections.” Ans. 14. Brault describes torso 12 as being “made from suitable light weight and resilient plastic . . . for repeated chest compressions in the practice of CPR.” Brault, col. 3, ll. 59–61 (emphasis added). Brault describes chest plate 16 as being “made of a suitable light weight and flexible plastic.” Brault, col. 4, ll. 53–54 (emphasis added). Thus, the Examiner errs in finding that Brault’s torso and chest plate are rigid. Accordingly, the conclusion that the edges of these elements are rigid members is also in error. 2 Independent claim 9 is not explicitly rejected in the Grounds of Rejection Section of the Examiner’s Answer; however, claim 10, which depends from claim 9, is explicitly rejected. Accordingly, independent claim 9 stands implicitly rejected on the same ground as claim 10 and we treat it as such in the instant appeal. Appeal 2012-011252 Application 11/469,645 7 For these reasons, we do not sustain the Examiner’s decision rejecting independent claims 7 and 9, and claims 8 and 10 which depend therefrom. Rejection II — Anticipation by Ingenito — Claims 13–15 Appellants argue claims 13–15 together. See Appeal Br. 14–17. We select independent claim 13 as the representative claim and claims 14 and 15 stand or fall with claim 13. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Ingenito discloses each and every limitation of independent claim 13. In particular, the Examiner finds that Ingenito discloses “at least two indicators for providing real time feedback.” Ans. 6 (citing Ingenito, col. 31, ll. 50–66). As an initial matter, we note that in arguing the rejection of claims 13–15, Appellants refer to the Declaration of John Pastrick, filed concurrently with the instant Appeal Brief, as supporting a showing of commercial success. Br. 15, 17. However, the rejection at issue is an anticipation rejection. Secondary considerations, such as commercial success, are not germane to rejections based on 35 U.S.C. § 102.3 Appellants argue that: Ingenito does not provide any real time feedback to the student regarding their rate of compression during the training exercise. . . . [I]t is only AFTER fifteen compressions are completed that the student gets a summary of compressions, and is told about the rhythm of their fifteen chest compressions. 3 As we reverse the Examiner’s obviousness rejection under 35 U.S.C. § 103(a) on other grounds, as discussed infra, we need not reach the propriety of Appellants submission of the Pastrick Declaration with the instant Appeal Brief. Appeal 2012-011252 Application 11/469,645 8 Br. 15. Appellants further argue that “real time feedback . . . means that the student is provided with feedback as they are doing the compressions during that training session, not a performance evaluation after the training session is completed.” Id. Ingenito states: FIG. 17 shows a flow chart of an embodiment of the Chest Compression Rhythm (CCR) teaching routine for practicing fifteen successive chest compressions at about 80-100 compressions per minute. The student is forced to restart if during any compression he uses an incorrect hand position or fails to come all the way up from the compression. As each chest compression passes its maximum, the student gets a word of praise or criticism. As soon as the fifteen compressions are completed the student receives a voice summary of how many compressions were excellent, too shallow, or too deep. The student is also is told if the rhythm of his fifteen chest compressions was excellent, too fast or slow, or irregular. Ingenito, col. 31, ll. 52–66 (emphasis added). Appellants do not dispute that Ingenito describes a first “real time” indicator in the form of a word of praise or criticism after each chest compression. Br. 15. Thus, the question before us is whether Ingenito’s voice summary or rhythm report constitutes a second “real time” feedback as the Examiner finds. Appellants’ Specification does not define the claim term “real time.” When Appellants’ Specification does not assign or suggest a particular definition of a claim term or otherwise indicate that the term is used in a manner other than its ordinary and customary meaning, it is appropriate to consult a general dictionary definition of the term for guidance. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). An ordinary and Appeal 2012-011252 Application 11/469,645 9 customary meaning of the term “real time” is “the actual time during which something takes place.”4 In the context of Ingenito, the “something taking place” is a “Chest Compression Rhythm Routine” (see quote supra) that the Examiner equates to the claimed “training exercise.” See Ans. 6. As described by Ingenito, “[a]s soon as the fifteen compressions are completed the student receives” additional feedback. Ingenito, col. 31, ll. 60–61 (emphasis added). Thus, we understand Ingenito’s “voice summary of how many compressions were excellent, too shallow, or too deep” to be part of the “something that is taking place,” such that it constitutes a second “real time” feedback and Ingenito’s report on the student’s rhythm to also be part of the “something that is taking place,” such that is constitutes a third “real time feedback.” Ingenito, col. 31, ll. 62–67. Claim 13 refers to “real time feedback . . . during a training exercise,” not specifically during the compressions themselves. Br. 30, Clms. App’x. Accordingly, Appellants’ argument is not persuasive. Appellants further argue that “Ingenito also fails to provide the element of an automatic power On feature which is prompted to turn the device power On by an initial CPR compression.” Br. 16. Appellants state “[w]hile it is true that a first compression is starting something related to monitoring in this step, there is nothing in this passage, or anywhere in Ingenito, which indicates that an initial chest compression provides automatic power On of the device.” Id. 4 Merriam-Webster.com, © 2014, accessed at http://www.merriam- webster.com/dictionary/real%20time (last visited Dec. 4, 2014). Appeal 2012-011252 Application 11/469,645 10 In response to this argument, the Examiner correctly notes that “the claim language does not limit the scope to requiring that all power to the device is initiated after a first compression, only that a module is powered on.” Ans. 14. The Examiner finds that the compression timing monitoring module is activated after the first compression. Ans. 7 (citing Ingenito, col. 34, ll. 33–62). Appellants do not contest this finding, and thus, do not apprise us of error. For these reasons, we sustain the Examiner’s decision rejecting independent claim 13, and claims 14 and 15, which fall therewith. Rejection III — Obviousness in view of Ingenito — Claim 16 Claim 16 depends from claim 13. Appellants argue that “Ingenito does not teach or suggest a CPR rate monitor as previously described, providing real time feedback to a student of their rate of CPR compressions during a training session and with an automatic power On feature prompted to turn to On mode by an initial CPR compression.” Br. 17. As discussed supra, Ingenito describes these limitations as set forth in independent claim 13, from which claim 16 depends. Appellants further argue that “[c]laim 16 additionally features colored visual indicators.” Id. Appellants have not identified the alleged error in the Examiner’s finding regarding colored visual indicators. Appellants’ argument amounts to a recitation of the claim elements and a “naked assertion” that the elements are not found in the prior art. Such statements do not constitute a separate argument for patentability of claim 16 pursuant to 37 C.F.R. § 41.37(c)(1)(vii). See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably interpreted 37 C.F.R. Appeal 2012-011252 Application 11/469,645 11 § 41.37(c)(1)(vii) as requiring “more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”). For these reasons, we sustain the Examiner’s decision rejecting claim 16. Rejection IV — Obviousness in view of Brault and Ingenito Claims 1, 4, 5, and 21–23 Claims 1, 4/1, 5/1, and 21–23: 5 Appellants argue that Brault fails to disclose “a fixed non-movable back half section” of a head portion, as required by independent claims 1 and 21–23. See Br. 18. As discussed supra, Appellants’ argument is persuasive. Ingenito does not cure this deficiency. Accordingly, we do not sustain the Examiner’s decision rejecting independent claims 1 and 21–23. For the same reasons, we do not sustain the Examiner’s decision rejecting claims 4/1 and 5/1 which depend from independent claim 1. Claims 4/3 and 5/3: Appellants do not present separate arguments for the patentability of claims 4/3 and 5/3, which depend from claim 3. Br. 24. Accordingly, we sustain the Examiner’s decision rejecting claims 4/3 and 5/3 for the reasons discussed supra in connection with independent claim 3. 5 Claims 4 and 5 are multiple dependent claims. We use “4/1” to refer to the instance in which claim 4 depends from claim 1, and “5/1” to refer to the instance in which claim 5 depends from claim 1. Similarly, we use “4/3” to refer to the instance in which claim 4 depends from claim 3, and “5/3” to refer to the instance in which claim 5 depends from claim 3. Appeal 2012-011252 Application 11/469,645 12 Rejection V — Obviousness in view of Brault and Stoianovici — Claim 12 Claim 12 depends from independent claim 11. Stoianovici does not cure the deficiencies in Brault discussed supra. Accordingly, we do not sustain the Examiner’s decision rejecting claim 12. Rejection VI — Obviousness in view of Brault and Laughlin Claims 18–20 Independent claim 18 requires “at least two openings formed in the [lung] bag.” Br. 31, Clms. App’x. Independent claim 20 similarly requires a filter face “shield having at least two openings.” Id. at 32. The Examiner finds that Laughlin discloses holes 5 in material 2 surrounding protrusion 6. See Ans. 12 (citing Laughlin, Figs. 1 and 5). Appellants note that Laughlin describes element 5 as snaps, with element 7 being the male snap member. See Br. 25–26. Laughlin states “FIG. 5 provides a sectioned view of a snap 5 showing the male snap member 6 adhered to the face portion of dummy head 1 and the female snap member 7 adhered to hygienic mask 2.” Laughlin, col. 2, ll. 62–65. Thus, the Examiner’s finding is in error. For this reason, we do not sustain the Examiner’s decision rejecting independent claims 18 and 20. We likewise do not sustain the Examiner’s decision rejecting claim 19, which depends from claim 18. Appeal 2012-011252 Application 11/469,645 13 DECISION The Examiner’s rejections of claims 3, 4/3, 5/3, and 13–16 are AFFIRMED. The Examiner’s rejections of claims 1, 4/1, 5/1, 6–12, and 18–23 are REVERSED. 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-IN-PART rvb Copy with citationCopy as parenthetical citation