Ex Parte Henning et alDownload PDFPatent Trial and Appeal BoardMar 14, 201713486188 (P.T.A.B. Mar. 14, 2017) Copy Citation 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. 13/486,188 06/01/2012 Andre Henning P12.0112 (26965-4783) 1697 26574 7590 03/16/2017 SCHIFF HARDIN, LLP PATENT DEPARTMENT 233 S. Wacker Drive-Suite 6600 CHICAGO, IL 60606-6473 EXAMINER BRUTUS, JOEL F ART UNIT PAPER NUMBER 3777 NOTIFICATION DATE DELIVERY MODE 03/16/2017 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 following e-mail address(es): patents-CH @ schiffhardin.com jbombien @ schiffhardin. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDRE HENNING and STEFAN POPESCU Appeal 2015-001063 Application 13/486,188 Technology Center 3700 Before JENNIFER D. BAHR, STEFAN STAICOVICI, and ARTHUR M. PESLAK, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Andre Henning and Stefan Popescu (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—3, 5, 7— 17, and 19.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Siemens Aktiengesellschaft, a German corporation. Appeal Br. 1. 2 Claim 6 has been cancelled. See Amendments filed July 22, 2014, and November 26, 2013. The identification of claims “1-19” as rejected on page 1 of the Final Action (Office Action Summary) notwithstanding, we find no pending rejections of claims 4 and 18. Ans. passim', Final Act. passim. Appeal 2015-001063 Application 13/486,188 THE CLAIMED SUBJECT MATTER Claim 16, reproduced below, is illustrative of the claimed subject matter. 16. A medical installation comprising a medical apparatus; a patient support device adapted to receive a clothed patient thereon in said medical apparatus, said patient support device comprising at least one electrical potential sensor integrated therein that interacts with the body of the patient, said at least one electrical potential sensor being comprised of at least three electrodes that are each capacitively coupled to the patient; a signal evaluation device configured to operate said at least one electrical potential sensor to generate a measurement signal relating to a physiological activity of the patient selected from the group consisting of breathing activity and cardiac activity by operating two of said electrodes as active electrodes and a third of said electrodes as a reference electrode with respect to said active electrodes, to sense a dynamic distance variation between a body surface of the patient and said active electrodes; said signal evaluation device being supplied with said measurement signal and being configured to evaluate said measurement signal to obtain an evaluation result and, from said evaluation result, generate trigger signals; and said signal evaluation device being configured to control operation of said medical apparatus based on said trigger signals. REJECTIONS I. Claims 1,2, 16, and 19 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chang (US 2003/0195414 Al, pub. Oct. 16, 2003), Brauers (US 2009/0178199 Al, pub. July 16, 2009), Alihanka (US 4,320,766, iss. Mar. 23, 1982), and Schenk (US 2010/0315206 Al, pub. Dec. 16, 2010). 2 Appeal 2015-001063 Application 13/486,188 II. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, and Kaufman (US 2003/0016851 Al, pub. Jan. 23, 2003). III. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, and Collins (US 6,519,316 Bl, iss. Feb. 11, 2003). IV. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, and Scarth (US 2009/0306495 Al, pub. Dec. 10, 2009). V. Claims 8, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, Scarth, and Salla (US 2004/0249314 Al, pub. Dec. 9, 2004).3 VI. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, Salla, and Felblinger (US 2010/0191095 Al, pub. July 29, 2010). VII. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, Scarth, Salla, and Oswald (US 2008/0204322 Al, pub. Aug. 28, 2008). VIII. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, and Todros (US 2006/0111635 Al, pub. May 25, 2006). 3 Although the Examiner omits claims 10 and 12 from the statement of the rejection (Final Act. 9; Ans. 9), the Examiner addresses these claims in the detailed explanation of the rejection (Final Act. 10; Ans. 10). 3 Appeal 2015-001063 Application 13/486,188 IX. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, Scarth, Salla, and MacFarlane (US 2007/0108978 Al, pub. May 17, 2007). X. Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Chang, Brauers, Alihanka, Schenk, Scarth, Salla, MacFarlane, and Lemelson (US 5,823,993, iss. Oct. 20, 1998). DISCUSSION Rejection I In contesting this rejection, Appellants group all of independent claims 1,16, and 19 together, and rely on the same arguments presented for patentability of these claims for dependent claim 2. Appeal Br. 14. Thus, we select claim 16 as representative of claims 1,2, 16, and 19, and claims 1, 2, and 19 stand or fall with claim 16. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Chang discloses all elements of claim 16, including, in pertinent part, “at least one electromechanical sensor (relied on as an electric potential sensor)” configured to generate, by interaction with the patient, a measurement signal related to a physiological activity of the patient selected from the group consisting of breathing activity and cardiac activity, except that Chang does not disclose the electromechanical sensor being integrated into the patient support device or generating the measurement signal by operating two active electrodes to sense a dynamic distance variation between a body surface of the patient and said active electrodes. Ans. 2-4. The Examiner also finds that Chang does not teach placing a clothed patient on a patient support. Id. at 3. Notably, claim 16 does not require placing a clothed patient on a patient support; rather, 4 Appeal 2015-001063 Application 13/486,188 claim 16 recites “a patient support device adapted to receive a clothed patient thereon in said medical apparatus.” Appeal Br. 21 (Claims App.). The Examiner relies on Brauers for its teaching of integrating a plurality of sensors into a patient placement (support) device for sensing breathing and heart rate. Id. at 3 (citing Brauers, paras. 18, 25). The Examiner relies on Alihanka for its teaching of placing a clothed patient on a patient support. Id. (citing Alihanka 3:63—65). The Examiner relies on Schenk for its teaching of using an electrode and its corresponding measurement electrode to measure the distance between that electrode and a human body, as well as for its disclosure of using a configuration of multiple active electrodes and at least some of the remaining electrodes as reference electrodes. Ans. 4 (citing Schenk, paras. 14, 44, 80, 83). In view of the combined teachings of these references, the Examiner determines that it would have been obvious to integrate sensors into Chang’s patient support device for sensing breathing and heart rate, for unobtrusive monitoring of these parameters, as taught by Brauers, and to operate two active electrodes to sense a dynamic distance between a patient’s body surface and the active electrodes for sensing these parameters in order to improve the manner in which the system operates with respect to the human body, as taught by Schenk, and because capacitive coupling of the electrodes to the human body is one of the parameters that determine signal strength, as taught by Schenk. Id. (citing Brauers, para. 15). The Examiner also determines that it would have been obvious to place a clothed patient on Chang’s patient support to minimize skin exposure in view of the teachings of Alihanka. Id. 5 Appeal 2015-001063 Application 13/486,188 Appellants argue that Chang’s disclosure that the placement of the sensor on the body part is critical for obtaining an accurate trigger signal teaches away from integrating the breathing or cardiac activity sensors into the patient support. Appeal Br. 5. According to Appellants, the bed- mounted sensors of Brauers are simply used to monitor breathing or cardiac activity, but are not disclosed for use in generating trigger signals. Id. Appellants submit that use of bed-mounted sensors would preclude selective placement of the sensors on the patient’s body, thus defeating the “purpose and goal of the entire Chang disclosure.” Id. at 6. Appellants acknowledge that Brauers generally discloses obtaining a signal indicative of heart rate and breathing, but submit that these signals would be considered by those skilled in the art “as being insufficiently precise for use as trigger signals.” Reply Br. 3. Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We do not agree with Appellants that Chang teaches away from using sensors integrated into the patient support to generate measurement signals used to generate trigger signals for controlling operation of the medical device. Chang discloses positioning of sensors on the patient to detect a physiological parameter, such as heartbeat or respiration, for use in generating sensor trigger signals to trigger or inhibit an MRI acquisition sequence. Chang, paras. 20, 25, 31. Chang emphasizes that proper placement of sensors on the patient’s body may be critical for use in proper triggering of MRI scans, and, thus, discloses a special sensor test mode for confirming that the sensor is 6 Appeal 2015-001063 Application 13/486,188 detecting properly the physiological parameter (e.g., heartbeat or breathing). Id., paras. 7, 32—33. However, Chang does not criticize, discredit, or otherwise discourage use of sensors that are integrated into a patient support device rather than placed on the patient, nor does Chang suggest that signals generated by such sensors would be insufficiently precise for use in proper triggering of MRI scans. Rather, Chang teaches providing a special sensor test mode to confirm, once the patient has been placed on the patient support device, that the sensors are properly detecting the physiological parameter (e.g., cardiac or breathing activity) used to trigger the MRI scans. Brauers discloses integrating sensors into the patient support for measuring breathing and heart rate. Brauers, para. 18. Appellants do not provide any evidence or persuasive technical reasoning to cast doubt on Brauers’s express disclosure of the use of such integrated sensors for measuring breathing and heart rate. Chang discloses using sensor signals from sensors detecting a patient’s heartbeat or respiration to trigger or inhibit an MRI acquisition sequence. Chang, para. 31. Aside from pointing to Chang’s disclosure regarding the criticality of proper placement of sensors on patients when used for triggering MRI scans, Appellants do not present any evidence or persuasive technical reasoning to support their assertion that the signals generated by bed-integrated sensors as taught by Brauers would be considered by those skilled in the art as insufficiently precise for use in generating trigger signals. As discussed above, Chang emphasizes the importance of correct placement of sensors for proper triggering of MRI scans. However, Appellants do not direct our attention to any disclosure in Chang that in any way suggests that sensors integrated into the patient support device, rather than placed on the patient, would be incapable of 7 Appeal 2015-001063 Application 13/486,188 generating sufficiently precise signals for proper triggering of MRI scans, if properly positioned relative to the patient’s body. Appellants argue that “the most logical conclusion” by a person having ordinary skill in the art upon reading the disclosures of Chang and Brauers would be to use Chang’s body-mounted sensor to produce trigger signals and to use Brauers’s bed-mounted sensors “to monitor physiological activity of the patient, rather than to generate trigger signals.” Appeal Br. 6. Appellants’ argument is not convincing. As the bed-mounted sensors of Brauers measure the same physiological parameters (breathing and cardiac activity) used by Chang to generate trigger signals, one of ordinary skill in the art would have envisaged the bed-mounted sensors as a viable and less obtrusive alternative to the body-mounted sensors disclosed by Chang, the wearing of which would be more cumbersome for the patient and has been known to cause psychological stress to patients. See, e.g., Alihanka 1:42— 43. Appellants acknowledge that Schenk “does disclose the general concept of using capacitive change to detect body motion,” but submit that Schenk does not teach using “that type of electrode arrangement for the purpose of generating a trigger signal for operating a medical data acquisition apparatus, much less to embody all of the electrodes in the bed on which a patient rests, ... in accordance with the Examiner’s reliance on . . . Brauers.” Appeal Br. 8. According to Appellants, Schenk’s purpose is to select, from among a number of electrodes located in proximity to the patient, the electrode “that produces the ‘best’ signal (presumably the strongest signal) for communication to the receiver.” Id. (citing Schenk, para. 14). 8 Appeal 2015-001063 Application 13/486,188 Appellants’ argument is unavailing because it attacks Schenk individually, rather than as combined with Chang, Brauers, and Alihanka. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Schenk discloses that the capacitance between a BCC (body-coupled communication) electrode and its corresponding measurement electrode is a measure of the distance between the electrode and a human body, and that the capacitance (and thus the distance) can be measured by applying a known signal to the electrode and measuring the amplitude of the resulting signal at the measurement electrode with a predetermined load. Schenk, para. 83; see also id., para. 79 (noting that the capacitance between a BCC electrode and the measurement electrode increases with increased proximity to the human body). Further, Appellants acknowledge that Schenk teaches using capacitive change to detect body motion. Appeal Br. 8. Schenk teaches that the positioning (proximity) and orientation of the electrode relative to the human body are critical to the reliability of the electrode in coupling capacitively with the body. Schenk, paras. 8—11. Thus, instead of using just two electrodes, Schenk teaches providing “[mjultiple or segmented electrodes with mutual orientation difference ... on or close to the body” and selecting the electrodes with better than average coupling to the human body as signal (i.e., active) electrodes and the electrodes with lower than average coupling to the human body as reference electrodes in order to reduce the orientation sensitivity of the system and improve its operation/reliability. Id., paras. 14, 44. This teaching of providing such 9 Appeal 2015-001063 Application 13/486,188 electrodes “on or close to the body” suggests that a body movement measuring system using capacitive change as taught by Schenk would work if integrated in an appropriate location in a patient support device. In light of the above teachings of Schenk, it would have been obvious to incorporate into Chang’s system a body movement measuring system using capacitive change to detect body motion as taught by Schenk to measure breathing or heartbeat as a substitution of one measurement technique for another known in the art. It would have been obvious to integrate this body movement measuring system into the patient support device for unobtrusive monitoring of these parameters, as taught by Brauers. Further, it would have been obvious to reduce the orientation sensitivity of the measuring system and improve its operation/reliability by providing the system with multiple electrodes at various orientations relative to the patient’s body for measuring the distance between the electrode and the patient’s body to measure body motion, such as breathing or heartbeat, and selecting the electrodes with better than average measured capacitance as signal (active) electrodes and the remaining electrodes as reference electrodes, as taught by Schenk. Appellants argue that Alihanka provides a teaching to acquire physiological signals from a clothed patient only in the narrow context of the particular type of antenna system disclosed therein, but does not provide a general teaching to do so in the context of other types of sensors. Appeal Br. 7; see also Reply Br. 4 (stating that Alihanka “does not stand for the proposition or teaching that it is always possible to acquire signals from a clothed patient, but only teaches that it is possible to do so in the specific manner disclosed in that reference, namely by the use of antenna sensors”). 10 Appeal 2015-001063 Application 13/486,188 Appellants add that introducing another antenna into Chang’s MRI apparatus would be counterproductive in view of the likely disruptions to quality images resulting therefrom. Appeal Br. 8. Appellants’ argument regarding adding another antenna, such as the antennas in Alihanka’s sensor system, to Chang’s MRI apparatus is not germane to the particular rejection articulated by the Examiner. The Examiner’s rejection does not propose to use Alihanka’s sensor system in Chang. Rather, the Examiner relies on Alihanka “simply to teach explicitly the well-known intuitive common knowledge that it’s possible to acquire signals through the clothes of a patient.” Ans. 19. Alihanka does not disclose that all types of sensors are capable of acquiring signals indicative of patient physiological parameters through the clothes of a patient. Thus, to the extent that Appellants argue this point, we agree with Appellants. However, Alihanka does teach monitoring the physiological parameters of a clothed patient on a patient support device where the type of sensing system used is capable of monitoring such parameters of a clothed patient. Appellants do not assert, much less provide any evidence or persuasive technical explanation to show, that the distance measuring technique of Schenk based on capacitance changes would not work on a clothed patient or that a person having ordinary skill in the art would not have expected the technique to work on a clothed patient. Appellants urge us to look for an explicit teaching, suggestion, or motivation in the prior art to support the conclusion of obviousness. Appeal Br. 11—13. Appellants argue that the Supreme Court’s decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), by no means approved ignoring, and certainly did not overrule, the precedent of our 11 Appeal 2015-001063 Application 13/486,188 reviewing court requiring a teaching, suggestion, or motivation to support a conclusion of obviousness. Id. at 11—12. The Supreme Court has stated that a rigid insistence on teaching, suggestion, or motivation is incompatible with its precedent concerning obviousness. KSR, 550 U.S. at 419. Examiners are not required to find an express and specific teaching, suggestion, or motivation for making a proposed combination, and instead are charged with presenting an apparent reason to combine teachings, as by, for example, articulating some reasoning supported by rational underpinnings. Id. at 418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). For the reasons discussed above, the Examiner has discharged that burden, and Appellants fail to apprise us of error in the Examiner’s findings and reasoning. Accordingly, we sustain the rejection of claim 16, as well as claims 1, 2, and 19, which fall with claim 16. Rejections II—X In contesting these rejections, Appellants rely solely on the aforementioned arguments asserted against the combination of Chang, Brauers, Alihanka, and Schenk. Appeal Br. 14—17. For the reasons set forth above, these arguments likewise fail to apprise us of error in the rejections of claims 3, 5, 7—15, and 17. Accordingly, we sustain these rejections. DECISION The Examiner’s decision rejecting claims 1—3, 5, 7—17, and 19 is AFFIRMED. 12 Appeal 2015-001063 Application 13/486,188 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)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation