Ex Parte Henning et al

Patent Trial and Appeal Board

Mar 14, 2017

13486188 (P.T.A.B. Mar. 14, 2017)

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).
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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).
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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,
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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.
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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
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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
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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).
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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
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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”).
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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
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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.
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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
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