Ex Parte Couronne et al

Patent Trial and Appeal Board

Dec 20, 2016

13081186 (P.T.A.B. Dec. 20, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/081,186 04/06/2011 Robert Couronne 110971-8716.US01 3394
22862 7590 12/22/2016
FNN PATFNT TtROTTP
EXAMINER
c/o Perkins Coie LLP WINAKUR, ERIC FRANK
P.O. Box 1247
Seattle, WA 98111-1247 ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
12/22/2016 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT COURONNE, FABIO CIANCITTO,
SERGEY ERSHOV, CHRISTIAN WEIGAND,
HANS-JOSEF GASSMANN, and RAINER HAVESCHER
Appeal 2015-000938
Application 13/081,186
Technology Center 3700
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
LEE L. STEPINA, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert Couronne et al. (“Appellants”)1 appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1—3 and 5—8 under 35 U.S.C.
§ 103(a) as unpatentable over Isaacson (US 5,792,052, iss. Aug. 11, 1998)
and Swedlow (US 5,746,697, iss. May 5, 1998). The Board has jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies Fraunhofer-Gesellschaft zur Foerderung der
angewandten Forschung e.V. as the real party in interest. Appeal Br. 3.
Appeal 2015-000938
Application 13/081,186
CLAIMED SUBJECT MATTER
Claims 1 and 7 are independent. Claim 1 illustrates the subject matter
on appeal, and it recites:
1. A device for detecting a vital parameter, comprising:
an optoelectronic sensor arrangement for detecting the
vital parameter by means of light remission at a finger, wherein
the optoelectronic sensor arrangement comprises a first light
source for generating light in a visible wavelength range, a
second light source for generating light in a non-visible
wavelength range and a light sensitive element; and
a controller which is implemented to switch on the second
light source in temporal intervals, execute an evaluation of the
light received from the light-sensitive element in the invisible
wavelength range of the second light source with respect to
whether a finger is applied to the optoelectronic sensor
arrangement and to switch on the first light source as soon as the
evaluation indicates that a finger is applied to the optoelectronic
sensor arrangement;
wherein the controller is implemented to execute an
evaluation over a temporal course of the light received from the
light sensitive element in the invisible wavelength range of the
second light source to detect a pulse parameter when a finger is
applied to the optoelectronic sensor arrangement and to switch
on the first light source when a pulse wave is detected.
Appeal Br. 24 (Claims App.).
ANALYSIS
In rejecting claim 1, the Examiner finds Isaacson discloses most of the
claimed subject matter, including the recited (with emphasis added)
“controller [to] execute an evaluation of the light received ... in the
invisible wavelength range . . . with respect to whether a finger is applied to
the [sensor] and to switch on the [visible wavelength range] light source as
soon as the evaluation indicates that a finger is applied.” Final Act. (mailed
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Application 13/081,186
July 18, 2013), at 2 (incorporating prior Non-Final Action); Non-Final Act.
(mailed Dec. 24, 2012), at 3 (citing Isaacson, Figs. 14, 18, and 19, and 5:33—
6:27). The Examiner finds Isaacson’s finger detection is not, as recited in
claim 1 (with emphasis added), based on “detect[ing] a pulse parameter”
such that the visible light source is switched on “when a pulse wave is
detected.” Non-Final Act. 3. That is because Isaacson’s finger detection is
based on variations in light level, i.e., intensity, that result from a finger
being present or not present. See Isaacson, 5:33—67.
The Examiner finds Swedlow discloses an oximeter that “evaluates]
a signal to establish that a measured pulse signal is present as part of
returning the device to a normal operating regime'1'’ from a sleep mode.
Non-Final Act. 3 (citing Swedlow, 5:17—32) (emphasis added). The
Examiner determines it would have been obvious to modify Isaacson “to
determine the presence of a pulse signal, as an alternative to recognizing the
presence [or] absence of a finger, as taught by Swedlow [] since this
provides an alternate manner to confirm that the correct portion is applied
to the sensor.'''’ Id. (emphasis added). The Examiner also determines
“Swedlow searches for the presence of a pulse as an indication that the
oximetry measurement cycle may begin by finding a response or repeating
pattern indicative of physiological data,” which is analogous to Isaacson’s
detecting the presence of a finger based on light level to begin an oximetry
measurement cycle. Final Act. 3 (emphasis added).
Appellants object that the Examiner’s stated rationale for modifying
Isaacson to detect the presence of a finger based on pulse wave detection is
in error (Appeal Br. 16—17) because Swedlow discloses pulse wave
detection “so that the oximeter readings can be made at the same position in
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Appeal 2015-000938
Application 13/081,186
subsequent pulses” (id. at 19). Thus, in Appellants’ view, Swedlow “fails to
teach the added functionality of the controller” as recited in the final,
“wherein” limitation of claim 1. Id. at 20.2
We are persuaded of Examiner error. The Examiner’s reasoning for
why it would have been obvious to modify Isaacson to detect the presence of
a finger based on detecting a pulse wave parameter rests upon finding that
Swedlow’s pulse wave parameter detection is in an analogous context to
detection of a finger triggering the start of a measurement. See Non-Final
Act. 3 (citing Swedlow, 5:17—32); Final Act. 3. That finding is not
supported by a preponderance of the evidence.
Swedlow discloses a method of conserving power in a pulse oximeter
by entering a sleep mode after monitored physiological parameters such as
heart rate and blood oxygen concentration remain stable for a predetermined
period of time. Swedlow, 2:56—3:5, 4:3—7. The device is programmed to
wake up from sleep mode after the passage of another predetermined period
of time, of between 20 and 60 seconds. Id. at 3:23—25, 5:61—6:4. If the
physiological parameters have remained stable versus data acquired before
entry into sleep mode, the device re-enters sleep mode; if the physiological
parameters have not remained stable, the sleep mode is discontinued and the
device continuously monitors the parameters until they return to stability.
Id. at 3:25-36, 6:5-14.
2 Appellant’s reference here to “as present in amended Claim 1” refers to
claim 1 having been amended to include the final, “wherein” limitation,
which was previously present in the contemporaneously canceled dependent
claim 4. See Non-Final Act. 2—3; Amendment (filed May 24, 2013), at 2, 4.
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Appeal 2015-000938
Application 13/081,186
More specifically, Swedlow “first determines whether a sensor is
attached to the oximeter.” Swedlow, 5:6—8, Fig. 2 (step B). Once the pulse
oximeter determines a sensor is attached, it “searches for a detectable pulse
pattern to lock onto or ‘acquire.’” Id. at 5:17—18, Fig. 2 (step D). Swedlow
does not indicate that any particular action is taken if a pulse pattern is not
acquired, other than the device continues to search for a pulse pattern. Id. at
5:17—32, Fig. 2 (step D). Swedlow indicates the purpose of acquiring the
pulse pattern is “so that the oximeter readings can be made at the same
position in subsequent pulses,” to ensure consistent measurement readings in
determining ongoing stability. Id. at 5:18—32, Fig. 2 (steps E—F).
Thus, Swedlow discloses detecting a pulse pattern for the sole purpose
of consistent measurement readings, once a measurement mode is already
begun. Swedlow does not disclose, as the Examiner suggests, detecting a
pulse pattern as the trigger event for exiting sleep mode, to confirm that the
correct portion is applied to the sensor, or as an indication that the
measurement cycle may begin. Non-Final Act. 3; Final Act. 3. We,
therefore, determine that the rejection of claim 1 as having been obvious
over Isaacson and Swedlow is not supported by a preponderance of the
evidence.
For the foregoing reasons, we do not sustain the rejection of claim 1
as unpatentable over Isaacson and Swedlow. Independent claim 7 is a
method claim containing similar limitations to claim 1, in particular
evaluating invisible light “to detect a pulse parameter when a finger is
applied . . . and to switch on the [visible] light source when a pulse wave is
detected.” Appeal Br. 25—26 (Claims App.). The Examiner’s consideration
of claim 7 and dependent claims 2, 3, 5, 6, and 8 does not cure the above-
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Application 13/081,186
noted deficiency as to the common subject matter of claims 1 and 7.
See Non-Final Act. 3; Final Act. 2—3. Thus, we do not sustain the rejection
of those claims.
DECISION
The Examiner’s decision to reject claims 1—3 and 5—8 is reversed.
REVERSED
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