Ex Parte Hebler et al

Patent Trial and Appeal Board

Feb 27, 2017

13550667 (P.T.A.B. Feb. 27, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/550,667 07/17/2012 Sebastian HEBLER 2011P00255US01 2287
24737 7590 03/01/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEBASTIAN HEBLER, GUENTER GEGNER,
WILHELM MEIER, GERHARD TIVIG, and
BERND STEFFEN HEINER GAERTNER
Appeal 2016-003338
Application 13/550,667
Technology Center 2600
Before CARLA M. KRIVAK, JON M. JURGOVAN, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1—3, 5—7, 9—12, and 14—20, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-003338
Application 13/550,667
STATEMENT OF THE CASE
Introduction
The Application is directed to a “patient monitoring system . . . that
displays .... the patient status as an icon on the display. The icon is color-
coded with the severity or deviation from normal of the patient status.”
Abstract. Claims 1,11, and 19 are independent. Claim 1 is reproduced
below for reference:
1. A patient monitoring device comprising:
a display that displays a plurality of sectors including one
or more icons;
a controller configured to display patient data received
from a patient monitoring device in a corresponding sector of the
display, the controller programmed to:
determine patient status with the patient data; and
display the patient status as an icon on the display;
wherein the controller is further programmed to color code
the patient status icon based on a severity of the patient status;
and
wherein the severity is determined by comparing the
received patient data against previously received patient data.
The following are prior art relied upon by the Examiner in rejecting
the claims on appeal:
Claims 1—3, 5,9, and 10 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Martin. Final Act. 5.
References and Rejections
Rothman
Colman
Martin
US 8,092,380 B2 Jan. 10,2012
US 8,412,655 B2 Apr. 2,2013
US 8,510,126 B2 Aug. 13,2013
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Claims 1,3,5, 9, and 10 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Colman. Final Act. 7.
Claims 6 and 19 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Colman. Final Act. 9.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Martin and Rothman. Final Act. 10.
Claims 11, 12, 15—18, and 20 stand rejected under 35 U.S.C. § 103(a)
as being obvious over Martin and Colman. Final Act. 11, 14.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Martin, Colman, and Rothman. Final Act. 9.
ISSUES
Appellants’ contentions present us with the following issues:
A. Did the Examiner err in finding the cited references disclose or
suggest a color coded patient status icon as claimed?
B. Did the Examiner err in finding the cited references disclose or
suggest determining a severity by comparing received patient data
against previously received patient data as claimed?
C. Did the Examiner err in finding the cited references teach or
suggest a color coded patient status deterioration arrow as
claimed?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments. We have considered in this Decision only those arguments
Appellants actually raised in the Briefs. Any other arguments Appellants
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could have made but chose not to make in the Briefs are deemed to be
waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are not persuaded the
Examiner erred; we adopt the Examiner’s findings and conclusions as our
own, and we add the following primarily for emphasis.
A. Patient Status Icon
Independent claim 1 recites a “patient status icon” that can be color
coded. Appellants argue the Examiner erred because neither Martin nor
Colman disclose or suggest such a color coded icon. See, e.g., Final Act. 6—
11. Regarding Martin, Appellants argue “the only mention of color coding
in Martin relates to color coding text fields for values that deviate from
normal (see, e.g., Figures 9a-9b[)].” App. Br. 6. Regarding Colman,
Appellants argue “Colman only discloses the color coding of values, which
one of skill in the art would not consider to be an icon.” Reply Br. 5.
We are not persuaded the Examiner erred. During prosecution, claims
are given their broadest reasonable interpretation consistent with the
Specification as they would be understood by one of ordinary skill in the art.
In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004).
Here, Appellants’ Specification describes an example of an icon is a “score
icon indicating . . . a numerical value (e.g. ‘7’) with a color coded severity
of the associated risk (e.g. ‘Urgent’ risk band is red colored).” Spec. 7:17—
19 (emphasis added); see also Fig. 3, Spec. 11:22—32.
We find the recited “icon,” in light of the Specification, reasonably
encompasses an indication of a numerical value (e.g., a score value). See id.
Thus, we are not persuaded the Examiner erred in finding the claim 1 patient
status icon limitation is shown by “Martin [which] describes ‘clinical labs
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icon 943 displays the patient’s clinical lab results . . . Lab results are color
coded into groups’” (Ans. 15); or “Colman [which] describes ‘The different
graphical signs may include, for example, different colors’” (Ans. 16). See
Martin Fig. 9a, 9b, 9:62—10:1; Colman 11:24—50.
Accordingly, we are not persuaded the Examiner erred in finding
Martin and Colman each disclose “the controller is further programmed to
color code the patient status icon,” as recited by independent claim 1. We
are similarly not persuaded by Appellants’ arguments with respect to the
similar limitations recited in independent claims 11 and 191, and dependent
claims 7 and 14. See, e.g., Reply Br. 7 (“Colman only discloses the color
coding of values, which one of skill in the art would not consider to be an
icon”), 8—10; see also Ans. 17—20.
B. Previously Received Patient Data
Independent claim 1 recites a controller programmed to color code the
patient status icon based on a severity of the patient status, “wherein the
severity is determined by comparing the received patient data against
1 We agree with the Examiner that Colman discloses “the patient status icon
is color coded” as recited by claim 19 for the reasons discussed above with
respect to claim 1. See Ans. 17 (“one of ordinary skill in the art would
consider the graphical sign of Colman to be the icon.”). The Examiner
further finds the limitation rendered obvious by Colman, because it would
not be beyond the knowledge of one of ordinary skill to modify Colman’s
arrow icons with Colman’s teaching of color coding. See Final Act. 9—10;
Advisory Act. 3; Colman 11:24—50. As discussed below with respect to
dependent claim 6, Appellants do not persuade us the Examiner erred in
finding the disputed limitations would have been obvious at the time the
invention was made to a person having ordinary skill in the art, in view of
the teachings of Colman.
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previously received patient data.” The Examiner finds Martin and Colman
separately disclose the recited severity determination, because each
reference color codes an icon by “comparing the received patient data
against a normal value.” Ans. 15, see also Ans. 16; Martin 9:62—10:1;
Colman 11:39-45. The Examiner further finds “[i]t is inherent that the
normal value was previously received, in order for the controller to be able
to compare the received patient data against the normal value. Thus, the
normal value is previously received patient data.” Ans. 15 (regarding
Martin); see also Ans. 16—17 (regarding Colman).
Appellants argue the Examiner erred in finding the claim 1 limitation
“previously received patient data” encompasses the “normal value” of
Martin, because:
there is no fair suggestion in Martin that the normal values are
previously received patient data. For example, the normal values
can be input by a user into the system of Martin, calculated from
values that are input into the system of Martin by the user, stored
in a look-up table, among other examples.
Reply Br. 4. Appellants present similar arguments with respect to Colman.
See id. 5.
We are not persuaded the Examiner erred. We agree with the
Examiner that both Martin and Colman necessarily compare the received
patient data to a “normal” value in order to determine the grouped ranges,
and thus color coding, of the related icon. See Martin 11:65—66 (“lab results
are color coded into groups”); Colman 11:36—37 (“the various sub-ranges of
the condition-index-value may be assigned different graphical signs”).2
2 Additionally, we note Colman further suggests comparing patient data to
previously received values, as Colman discloses the calculation used for
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Further, we do not find the Examiner erred in finding Martin and Colman
disclose comparisons against previously received patient data, as Appellants’
arguments are unpersuasive for focusing on the method of inputting the
normal values, and do not address the Examiner’s finding that such normal
values are based on previously received patient data.* * 3 See Reply Br. 4—5;
Ans. 15-17.
Accordingly, we are not persuaded the Examiner erred in finding
Martin and Colman both anticipate the patient status icon color code being
based on a comparison against previously received patient data, as required
by claim 1. Appellants present similar arguments for the similar limitations
recited by independent claims 11 and 19, which we also find unpersuasive.
See Reply Br. 5—10; Ans. 17—20
C. Patient Status Deterioration Arrow
Dependent claim 6 recites “wherein the controller is further
programmed to color code the patient status deterioration arrow based on the
severity of the patient status.” Appellants argue the Examiner’s rejection of
claim 6 is in error, for the same reasons presented for parent claim 1, and
because “Colman does not color code the arrow indicator. Rather, Colman
only discloses the color coding of values, which one of skill in the art would
not consider to be an icon.” Reply Br. 6.
color coding “may take into consideration one or more of the values or
derivatives of the values of the parameters that are being measured.” Colman
11:54—56 (emphasis added).
3 We note the recited “previously received patient data” is not limited to data
for a single patient, nor to data for the patient currently being monitored.
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Appellants do not persuade us the Examiner erred. We agree with the
Examiner that Colman discloses color coding icons, as discussed above.
Further, the Examiner rejects claim 6 under 35 U.S.C. § 103(a) as obvious
over Colman, and Appellants do not provide persuasive argument or
evidence that Colman does not teach—or at least suggest—the limitations of
claim 6. See Final Act. 9—10 (citing Colman 11:24—50). Nor do Appellants
persuasively show the Examiner erred in finding Colman teaches examples
of color coded icons and patient status deterioration arrows, and that “it
would be obvious to one of ordinary skill in the art that both of these
examples can be used so that the controller is further programmed to color
code the patient status deterioration arrow based on the severity of the
patient status.” Id.', see also Colman Figs. 6A—6B.
Accordingly, we are not persuaded the Examiner erred in finding
claim 6 obvious in view of Colman. See Ans. 17—18. We are also not
persuaded the Examiner erred in finding independent claim 19 obvious in
view of Colman, and dependent claim 16 obvious in view of the teachings of
Colman and Martin, for the same reasons discussed above. See id.', Final
Act. 10, 13; Ans. 8—9, 11; see also Reply Br. 8—9, 11.
CONCLUSION
Accordingly, we sustain the Examiner’s rejections of independent
claims 1,11, and 19, and dependent claims 6, 7, 14, and 16. Appellants
advance no further substantive arguments for dependent claims 2, 3, 5, 9—12,
15, 17, 18, and 20. See Reply Br. 4, 5, 10, 11. Therefore, we sustain the
Examiner’s rejections of these claims for the same reasons discussed above.
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DECISION
The Examiner’s rejection of claims 1—3, 5—7, 9—12, and 14—20 is
affirmed.
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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