Ex Parte Hauck et al

Board of Patent Appeals and Interferences

Aug 10, 2010

11018660 (B.P.A.I. Aug. 10, 2010)

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.
11/018,660 12/21/2004 Arthur J. Hauck CRNI.115914 2069
46169 7590 08/10/2010
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
CLOW, LORI A
ART UNIT PAPER NUMBER
1631
MAIL DATE DELIVERY MODE
08/10/2010 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 ARTHUR J. HAUCK,
LORI N. CROSS, and JEFFREY D. FRY
__________

Appeal 2010-000596
Application 11/018,660
Technology Center 1600
__________

Before ERIC GRIMES, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 involving claims to a
computer system for safely transfusing blood. We have jurisdiction under
35 U.S.C. § 6(b). The claims are rejected as anticipated by Brodheim. We
affirm.

1 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, or for filing a request
for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from
the “MAIL DATE” (paper delivery mode) or the
“NOTIFICATION DATE” (electronic delivery mode) shown on
the PTOL-90A cover letter attached to this decision.
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Statement of the Case
The Claims
Claims 17, 19-32, and 34-36 are on appeal. Claims 17 and
32 are separately argued. The remaining claims have not been
argued separately and therefore stand or fall together. 37 C.F.R.
§ 41.37(c)(1)(vii). Accordingly we select claims 17 and 32 as
representative. Claims 17 and 32 read as follows:
17. A computer system for displaying a notification
that a blood product unit is safe to administer to a
patient at the patient’s location prior to the patient
receiving a blood transfusion, the system comprising:
a first receiving component for receiving
identification to identify the blood product to be
administered to a patient;
a second receiving component for receiving
identification to identify the patient;
an accessing component for accessing a
database containing a plurality of pre-determined
blood compatibility test results;
a determining component for determining
whether the database contains a pre-determined blood
compatibility test result for the identified blood
product for which the identification was received by
the first receiving component and the identified
patient for which the identification was received by
the second receiving component, and for the identified
blood product and the identified patient having the
pre-determined blood compatibility test result,
determining that the identified blood product is safe to
administer to the identified patient; and
a displaying component for displaying a
notification to a user at the patient’s location prior to
transfusion that the identified blood product is safe to
administer to the identified patient.
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32. A computer system for safely displaying a
notification that a blood product unit is safe to
administer to a patient at the patient’s location prior to
the patient receiving a blood transfusion, the system
comprising:
means for receiving identification to identify a
blood product to be administered to a patient;
means for receiving identification to identify
the patient;
means for accessing a database containing a
plurality of pre-determined blood compatibility test
results;
means for determining whether the database
contains a pre-determined blood compatibility test
result for the identified blood product for which the
identification was received and the identified patient
for which the identification was received, and for the
identified blood product and the identified patient
having a pre-determined blood compatibility test
result, determining that the identified blood product is
safe to administer to the identified patient; and
means for displaying a notification to a user at
the patient’s location prior to transfusion that the
identified blood product is safe to administer to the
identified patient.

The prior art
The Examiner relies on the following prior art reference to show
unpatentability:
Brodheim, Eric, Automated Systems in Blood Banking, 3 CLINICS IN
LABORATORY MEDICINE 111-132 (1983).

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35 U.S.C. § 102(b) over Brodheim
The Examiner rejected claims 17, 19-32, and 34-36 under 35 U.S.C.
§ 102(b) as anticipated by Brodheim (Ans. 3-4).
The Examiner finds that “Brodheim teaches automated systems in
blood banking which anticipate each of claims 17, 19-32, and 34-36” (Ans.
4).
Appellants contend that Brodheim “fails to discuss a computer system
for determining whether the database contains a pre-determined blood
compatibility test result for an identified blood product and an identified
patient, as well as a computer system for determining whether the identified
blood product is safe to administer to the identified patient” (App. Br. 9-10).
Appellants also contend that Brodheim “fails to disclose a computer system
for displaying a notification to a user at the patient's location prior to the
transfusion that indicates that the identified blood product is safe to
administer to the identified patient” (App. Br. 10). Appellants contend “that
testing donors and patients and simply storing blood compatibility tests in
patient records does not anticipate the determining components of the
computer system recited in claim 17” (App. Br. 10-11).
Appellants similarly contend regarding Claim 32 that Brodheim “fails
to discuss a computer system that provides a means for determining whether
the database contains a pre-determined blood compatibility test result for an
identified blood product and an identified patient, as well as a means for
determining whether the identified blood product is safe to administer to the
identified patient” (App. Br. 14). Appellants also contend that Brodheim
“fails to disclose a computer system having a means for notifying a user at
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the patient's location prior to the transfusion that indicates that the identified
blood product is safe to administer to the identified patient” (App. Br. 14).
The issue with respect to this rejection is: Does the evidence of record
support the Examiner’s conclusion that Brodheim anticipates claims 17 and
32?
Findings of Fact
1. The Specification teaches a medical information system as
shown in figure 1, reproduced below:

“FIG. 1 is a block diagram of a computing system environment suitable for
use in implementing the present invention” (Spec. 5 ¶ 0016).

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2. The Specification teaches a flow chart in Figure 7 showing a
method of ensuring blood compatibility, reproduced below:

“FIG. 7 is a flow diagram of a method for ensuring that a blood product is
compatible for a particular patient in accordance with an embodiment of the
present invention” (Spec 6 ¶ 0025).
3. The Specification teaches, with reference to figure 7, that at
“block 702, blood product identification data is received. This may be by
scanning or otherwise identifying the blood product unit to be transfused”
(Spec. 17 ¶ 0054).
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4. The Specification teaches that “patient identification data is
received. The patient may be identified by a medical number, financial
number or other identifier” (Spec. 17 ¶ 0055).
5. The Specification teaches that:
At block 226, the blood product’s compatibility for the
patient, as determined by laboratory compatibility testing, is
determined by directly querying and accessing the database
220. The database 220 may reside anywhere such as on a
network or may be downloaded to a handheld device. In the
event of a need to dispense a blood product unit for
emergency transfusion, blood product compatibility testing
may not have been completed. In this situation, the database
220 is accessed for emergency dispense validation rules.

(Spec. 14, ll. 9-14 ¶ 0045).
6. The Specification teaches that:
At decision block 706 it is determined whether the product
identified at block 702 has been tested for and is compatible
for the patient identified at block 704. This is done by
accessing a blood bank database via a network or from data
stored on a remote handheld or other type of computer. The
data includes results from compatibility testing completed
and stored previously for the patient. An exemplary
database/table of compatibility data and other data for blood
product units is shown in FIG. 4.

(Spec. 18, ll. 1-8 ¶ 0055).

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7. The Specification teaches a table of information as reproduced
in Figure 4 below:

“FIG. 4 is an exemplary table of information regarding blood product units”
(Spec. 5 ¶ 0021).
8. The Specification teaches “accessing a blood bank database via
a network or from data stored on a remote handheld or other type of
computer. The data includes results from compatibility testing completed
and stored previously for the patient” (Spec. 18 ¶ 0055).
9. Brodheim teaches that “[a]s blood units are labeled by the
laboratory or received from a regional blood center, they are added to ‘free’
inventory. . . . An inventory record is normally prepared for each blood unit
and maintained in a manner suitable for identifying the inventory status by
each of the eight blood types and the age of blood units” (Brodheim 113).
10. Brodheim teaches that a “patient record is created the first time
that a transfusion request is received for each person. . . The record will
include patient identifying information and the quantity and types of blood
components required. This record is often identified by a unique request
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number that is also recorded on the patient samples drawn for laboratory
testing and on the patient record” (Brodheim 112).
11. Brodheim teaches that “storing information on computer and
retrieving information through terminals located at work stations throughout
the blood bank becomes increasingly more attractive” (Brodheim 114).
12. Brodheim teaches that “[c]omputer-stored records can be filed
and efficiently retrieved at any terminal location by any one of many ways . .
. Computer files can conveniently link related information that is stored in
different data bases to permit efficient retrieval of related information”
(Brodheim 114).
13. Brodheim teaches that “[b]lood samples from donors and
patients are typed to characterize the antigens in the ABO and Rh systems . .
. These new test results are augmented and verified by prior test data
retrieved from the records maintained in the donor and patient subsystems
and are recorded on the pertinent donor and patient records” (Brodheim
112).
14. Brodheim teaches that as “each transfusable product is
separated from the donation of whole blood and labeled in the laboratory . . .
a product record is created in the product data base. The record is updated
as the status of units changes to reflect compatibility testing” (Brodheim
117).
15. Brodheim teaches that “[d]ecisions must also be continually
made as to whether the likelihood of transfusion is sufficiently high to
warrant advance confirmation of compatibility (as opposed to a rapid
confirmation of compatibility only upon the release of blood to the patient).
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Further, blood units that will soon be outdated are sometimes tested for
compatibility against several patients” (Brodheim 125).
16. Brodheim teaches that “[a]utomated systems of inventory
management can identify specific units to be selected for compatibility
testing, can identify situations when multiple cross-match should be
employed, and can otherwise improve blood bank management” (Brodheim
126).
Principles of Law
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987).
The Court recognizes the fairness of reading claims broadly “before a
patent is granted [since] the claims are readily amended as part of the
examination process.” Burlington Indus., Inc. v. Quigg, 822 F.2d 1581, 1583
(Fed. Cir. 1987). “Thus, a patent applicant has the opportunity and
responsibility to remove any ambiguity in claim term meaning by amending
the application.” In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004).
Applying the broadest reasonable interpretation to claims also “‘serves the
public interest by reducing the possibility that claims, finally allowed, will
be given broader scope than is justified.”’ In re Am. Acad. Of Sci. Tech. Ctr.,
367 F.3d 1359, 1364 (Fed. Cir. 2004).

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Analysis
Claim 17
There is no dispute that Brodheim teaches a first receiving component
to identify a blood product to be administered to a patient (FF 5), a second
receiving component for receiving identification to identify the patient (FF
6), and an access component for accessing a database (FF 7). Appellants
acknowledge that Brodheim teaches “a system of storing information, such
as patient information, blood unit information, and blood compatibility test
results, in a database” (App. Br. 9).
Appellants contend that Brodheim “fails to discuss a computer system
for determining whether the database contains a pre-determined blood
compatibility test result for an identified blood product and an identified
patient, as well as a computer system for determining whether the identified
blood product is safe to administer to the identified patient” (App. Br. 9-10).
Appellants’ argument rests on the absence of the “determining
component” required by claim 17. Appellants’ Specification does not define
what constitutes a “determining component”, nor does the Specification
provide any structure for this “determining component” (FF 1-4). In
particular, Appellants refer to the Specification at page 14, lines 9-14, page
18, lines 1-8, and Figures 4 and 7 for support of the determining component
(see App. Br. 4-5; FF 1, 2, 5-7).
The Specification teaches that:
At decision block 706 it is determined whether the product
identified at block 702 has been tested for and is compatible
for the patient identified at block 704. This is done by
accessing a blood bank database via a network or from data
stored on a remote handheld or other type of computer. The
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data includes results from compatibility testing completed
and stored previously for the patient. An exemplary
database/table of compatibility data and other data for blood
product units is shown in FIG. 4.

(Spec. 18, ll. 1-8 ¶ 0055; FF 6).
In interpreting the “determining component” required by claim 17 in
the context of a computer system, Appellants have not provided any specific
algorithm in either the claim or Specification, nor have Appellants identified
any structure other than a general purpose computer for performing this task
(see, e.g. Fig. 1; FF 1).
We therefore interpret the “determining component” broadly to
encompass a general purpose computer, consistent with Appellants’
Specification which provides no other structure. Although Appellants argue
that “that testing donors and patients and simply storing blood compatibility
tests in patient records does not anticipate the determining components of
the computer system recited in claim 17” (App. Br. 10-11), they have
pointed to no structural difference between the claimed and prior art
components. We find that Brodheim teaches the same structural
components as required by the claim, which are a computer and a database
(FF 11-12).
Brodheim teaches a general purpose computer, noting that “storing
information on computer and retrieving information through terminals
located at work stations throughout the blood bank becomes increasingly
more attractive” (Brodheim 114; FF 11). Brodheim expressly teaches
storage of the information in databases (FF 12).
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It is “well settled that the recitation of a new intended use for an old
product does not make a claim to that old product patentable.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). Thus, the functional
limitations directed to the intended use of a computer system do not serve to
distinguish the claimed product from prior art products inherently capable of
performing the claimed function. See id. at 1478-79 (holding that a prior art
apparatus meeting all claimed structural limitations was anticipatory because
it was inherently capable of performing the claimed function).
However, even if we give the functional recitation weight, Brodheim
also teaches that “[a]utomated systems of inventory management can
identify specific units to be selected for compatibility testing, can identify
situations when multiple cross-match should be employed, and can
otherwise improve blood bank management” (Brodheim 126; FF 16). This
is an express teaching to use computers to automate compatibility testing in
which situations with multiple cross-match represent “pre-determined blood
compatibility test results” which are stored on the computer (FF 15-16).
Appellants also contend that Brodheim “fails to disclose a computer
system for displaying a notification to a user at the patient's location prior to
the transfusion that indicates that the identified blood product is safe to
administer to the identified patient” (App. Br. 10).
We are not persuaded. The only structure disclosed by Appellants for
displaying a notification is a remote computer, identical in structure to the
terminals disclosed by Brodheim which can be used for data retrieval from
the database (see FF 12).

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Claim 32
Appellants acknowledge that Brodheim “describes a system of storing
information, such as patient information, blood unit information, and blood
compatibility test results, in a database” (App. Br. 14). Appellants contend
that “the Brodheim reference fails to discuss a computer system that
provides a means for determining whether the database contains a pre-
determined blood compatibility test result” (App. Br. 14).
We are not persuaded. We note that neither Appellants nor the
Examiner indicate whether the “means for” language in claim 32 invokes 35
U.S.C. § 112, ¶ 6. Nevertheless, we find that § 112, ¶ 6 has been invoked
with respect to claim 32. Appellants do not dispute that Brodheim teaches
“means for receiving” or “means for accessing”, but dispute whether
Brodheim teaches the “means for determining” (see App. Br. 14).
The only means identified by Appellants in the Specification which
functions as the “means for determining” is the computer itself (FF 1-8).
This is the same “means” as taught by Brodheim (FF 9-14). We therefore
conclude that Brodheim is reasonably interpreted as teaching a “means for
determining” which anticipates the corresponding structure found in
Appellants’ Specification.
We have already addressed Appellants’ remaining arguments in the
discussion of claim 17.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that
Brodheim anticipates claims 17 and 32.
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SUMMARY
In summary, we affirm the rejection of claims 17 and 32 under 35
U.S.C. § 102(b) as anticipated by Brodheim. Pursuant to 37 C.F.R. §
41.37(c)(1)(vii)(2006), we also affirm the rejection of claims 19-31 and 34-
36 as these claims were not argued separately.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).

AFFIRMED

alw

SHOOK, HARDY & BACON L.L.P.
(CERNER CORPORATION)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613