Ex Parte Jampala et al

Patent Trial and Appeal Board

Mar 17, 2017

12124649 (P.T.A.B. Mar. 17, 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.
12/124,649 05/21/2008 Hemant Jampala END6066USNP 3081
27805 7590 03/21/2017
THOMPSON HTNF T T P
EXAMINER
10050 Innovation Drive THOMSON, WILLIAM D
Suite 400
DAYTON, OH 45342-4934 ART UNIT PAPER NUMBER
3769
NOTIFICATION DATE DELIVERY MODE
03/21/2017 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HEMANT JAMPALA, ROSS G. KROGH,
DAVID Q. FENG, DONN C. MUELLER, and
PAUL J. NIKLEWSKI
Appeal 2015-001056
Application 12/124,649
Technology Center 3700
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
AMANDA F. WIEKER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hemant Jampala et al. (Appellants)1 appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 2-4, 7—9, 11—13, 16—18, 20,
and 25—30.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Ethicon Endo-Surgery,
Inc. Appeal Br. 1.
2 Claims 1, 5, 6, 10, 14, 15, 19, and 21—24 have been cancelled. Id.
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Application 12/124,649
THE CLAIMED SUBJECT MATTER
Claim 2, reproduced below, is illustrative of the claimed subject
matter.
2. A medical system comprising:
a) a display monitor; and
b) a first medical unit which is adapted to measure a first
physiological parameter of a patient and which is adapted to
wirelessly connect to the display monitor, wherein the display
monitor is adapted to display the first physiological parameter;
wherein the first medical unit is adapted to automatically
wirelessly connect to the display monitor, and to automatically
wirelessly send measurements of the first physiological
parameter, when the first medical unit is brought into proximity
with the display monitor.
REJECTIONS
I. Claims 2, 8, 9, and 25—27 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Russ (US 2006/0242293 Al, pub. Oct. 26, 2006).
II. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Russ and Kuo (US 2008/0306348 Al, pub. Dec. 11, 2008).
III. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Russ, Kuo, and Reed (US 2005/0113721 Al, pub. May 26,
2005).
IV. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Russ and Reed.
V. Claims 11, 16, 28, and 29 stand rejected under 35 U.S.C. § 102(e)
as anticipated by Jollota (US 2007/0258395 Al, pub. Nov. 8,
2007).
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VI. Claims 12 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jollota and Campbell (US 2005/0137530 Al,
pub. June 23, 2005).
VII. Claims 13 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jollota, Campbell, and Moore
(US 2004/0267098 Al, pub. Dec. 30, 2004).
VIII. Claims 20 and 30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Jollota, Campbell, Moore, and Russ.
DISCUSSION
Rejection I
Appellants argue that the Examiner errs in reading the limitation of
claims 2 and 8 that “the first medical unit is adapted to automatically
wirelessly connect to the display monitor, and to automatically wirelessly
send measurements of the first physiological parameter, when the first
medical unit is brought into proximity with the display monitor” on Russ’s
disclosure in paragraphs 16, 22, and 23. Appeal Br. 4—5; see Ans. 3 (citing
Russ, paras. 16, 22, 23). More specifically, Appellants contend that
(1) these paragraphs disclose the display (high acuity monitor 8), and not the
first medical device (low acuity monitor 6), performing the act of connecting
and (2) the actions described in these paragraphs “are not automatic based
upon proximity” because they require “some form of case-by-case, manual
configuration in addition to mere proximity.” Appeal Br. 5; see also Ans. 2—
3 (reading the claimed “display monitor” on high acuity monitor 8 and the
claimed “first medical unit” on one of low acuity medical devices 2, 5, 6,
11). In particular, Appellants submit that upon proximity detection, a
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processor (either command processor 20 or identifier processor 38 of the
high acuity monitor) outside the control of the low acuity medical device
(one of low acuity medical devices 2, 5, 6, 11) compares the patient
identification information associated with the low acuity medical device to
determine if it matches the patient information associated with the high
acuity monitor, and then, only upon determining the occurrence of a match,
establishes communication in order to request and retrieve data from the low
acuity medical device. Appeal Br. 5—6.
Appellants’ argument is persuasive. As described in paragraphs 16—
18, 22, and 23 of Russ cited by the Examiner (Ans. 3, 15), the wireless
connection between the low acuity medical device and the high acuity
monitor (display monitor) is made by the high acuity monitor only after a
processor located either in the high acuity monitor (i.e., identifier processor
38) or in a separate component (i.e., command processor 20) distinct from
the high acuity monitor and from the low acuity medical devices determines
there is a match between the patient information associated with the low
acuity medical device and the patient information associated with the high
acuity monitor. In other words, as described in the paragraphs cited by the
Examiner, Russ’s low acuity medical device is not capable of connecting to
the high acuity monitor without action being taken by the high acuity
monitor, nor does the connection take place without satisfaction of at least
one other condition in addition to proximity. Thus, Russ’s low acuity
medical device is not adapted to automatically (either in the sense of acting
or operating in a manner essentially independent of external influence or
control, or in the sense of acting spontaneously or unconditionally)
wirelessly connect to the high acuity monitor when the low acuity medical
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device is brought into proximity with the high acuity monitor. See Reply Br.
3^4 (emphasizing that the argued limitation includes only a single
condition—proximity—and requires adaptation of the first medical unit to
automatically wirelessly connect and send when that condition is met).
For the above reasons, the Examiner does not establish by a
preponderance of the evidence that Russ anticipates the subject matter of
claims 2 and 8. Accordingly, we do not sustain the rejection of independent
claims 2 and 8, or their dependent claims 9 and 25—27, under 35 U.S.C.
§ 102(b) as anticipated by Russ.3
Rejections II—IV
The Examiner’s application of Kuo and Reed in rejecting claims 3, 4,
and 7 does not make up for the deficiency in the Examiner’s findings with
3 No inference should be made from our decision reversing this rejection that
other disclosures in Russ, not cited by the Examiner, do not teach or suggest
the subject matter of claims 2 and 8, including the limitation that “the first
medical unit is adapted to automatically wirelessly connect to the display
monitor, and to automatically wirelessly send measurements of the first
physiological parameter, when the first medical unit is brought into
proximity with the display monitor.” We make no determination, for
example, as to whether Russ’s disclosure of using Blue Tooth® technology
to accomplish the proximity function, along with the teaching of
implementing the RFID tag reader “to have a limited range in order to
prevent errors in associating multiple devices with a single patient” (Russ,
para. 25) might teach or suggest an embodiment of Russ’s invention wherein
the low acuity medical devices and high acuity monitor are both adapted to
automatically wirelessly connect to one another, without any prerequisite
patient identification matching or user confirmation, when the low acuity
medical device is brought into proximity with the high acuity monitor. See
Spec., para. 21 (disclosing, in one example of an implementation wherein
the first medical device is “adapted to automatically wirelessly connect to
the display monitor,” the use of “Blue Tooth® technology” for the automatic
wireless connection).
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respect to Russ vis-a-vis the limitation of claims 2 and 8 that “the first
medical unit is adapted to automatically wirelessly connect to the display
monitor, and to automatically wirelessly send measurements of the first
physiological parameter, when the first medical unit is brought into
proximity with the display monitor.” Ans. 9—11. Accordingly, for the
reasons set forth above, we do not sustain the rejections of claims 3, 4, and 7
under 35 U.S.C. § 103(a).
Rejection V
Claims 11 and 16:
Appellants argue for patentability of claims 11 and 16 subject to this
ground of rejection as a group. Appeal Br. 8—10. We select claim 11 as
representative of this group, and claim 16 stands or falls with claim 11. See
37C.F.R. §41.37(c)(l)(iv).
The Examiner finds that Jollota discloses all elements of claim 11.
Ans. 6—7. With respect to the limitation in claim 11 that “the first medical
unit is adapted to automatically wirelessly connect to the display monitor,
and to automatically wirelessly send flow rate data, when the first medical
unit is brought into proximity with the display monitor,” the Examiner cites
paragraphs 192 and 268—273. Id. at 6.
Appellants persuasively explain that the disclosure in paragraph 192
of Jollota is directed to a connection “scheme” in which the various medical
devices (physiological characteristic transmitters 1502) maybe connected
not to a display monitor, but to wireless telemetry router 1500, which
receives wireless communication signals including sensor identifiers and
sensor data from sensor transmitters 1502, extracts the sensor identifiers, and
processes the sensor data in a manner governed by the sensor identifiers.
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Appeal Br. 9. Wireless telemetry router 1500 may process, store, and/or
route the sensor data in an appropriate manner. Jollota, para. 192. As such,
paragraph 192 of Jollota does not disclose a first medical unit adapted to
automatically wirelessly connect to the display monitor, as required in claim
11.
Paragraphs 270 and 271 of Jollota, also cited by the Examiner,
describe a process for establishing a wireless communication session
between a first device and a new device detected within a reliable link mode
range (i.e., in proximity with the first device), wherein data is transmitted
from the new device to the first device. Appellants point out, correctly, that
paragraphs 270 and 271 do not address the actual mechanics of establishing
a reliable link or creating a new link when devices are in proximity to one
another. Reply Br. 8. Appellants direct our attention to Jollota’s discussion
of the use of keys and base identifiers in the connection process. Id. (citing
Jollota, para. 217). Appellants argue that “[s]uch key exchanges do not
disclose or suggest an automatic wireless connection and automatic wireless
sending based upon mere proximity.” Id.
Jollota discloses in more detail a wireless communication connection
process using keys. Jollota, paras. 230-232; Fig. 29. In this process, the
slave/transmitting device (infusion pump and/or BG meter) transmits a data
packet, which includes a quantity of data and the key for the
master/receiving device (bedside monitor 140) to the master/receiving
device. Id., paras. 230—231; see id., para. 262 (discussing contemplated
wireless communication between the infusion pump and bedside monitor
140). Thus, the first medical unit (transmitting device—infusion pump
and/or BG meter) is adapted to automatically wirelessly connect to the
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display monitor (bedside monitor 140), and to automatically wirelessly send
flow rate data, when the first medical unit is brought into proximity with the
display monitor, as called for in claim 11. The master/receiving device then
processes the received data packet to extract the key and determine whether
it matches the anticipated key (i.e., the key of the master/receiving device
maintained by the master/receiving device). Id., paras. 231—232. If the
received key does not match the anticipated key, the master/receiving device
determines that the data packet was not intended for it. Id., para. 232.
In light of the above, Appellants do not persuasively explain why the
use of keys in the connection process is inconsistent with the transmitting
device (infusion pump and/or BG meter) being adapted to automatically
wirelessly connect to the display monitor (bedside monitor 140), and to
automatically wirelessly send data, when the transmitting device is brought
into proximity with the display monitor, as required in claim 11. Indeed,
Jollota explains that the data and keys are transmitted automatically,
regardless of whether the key ultimately matches the anticipated key at the
master/receiving device. Appellants, therefore, fail to apprise us of error in
the rejection of claim 11. Accordingly, we sustain the rejection of claim 11
and claim 16, which falls with claim 11, under 35 U.S.C. § 102(e) as
anticipated by Jollota.
Claims 28 and 29:
Claims 28 and 29 depend from claims 11 and 16, respectively, and
further recite that “the first medical unit automatically wirelessly connects
by sending an identification portion which is recognized by the display
monitor as a signal from a first medical unit-type device, and the sent [flow
rate data or measurements of the first physiological parameter] are
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recognized as such by the display monitor for display upon the display
monitor.” Appeal Br. 24—25 (Claims App.). In addressing these limitations,
the Examiner points once again to paragraphs 192 and 268—273 of Jollota.
Ans. 8—9 (alluding to “automated established communications between
devices based on recognized data types including the recognizable signal of
the sensor itself’).
The disclosure in paragraph 192 of Jollota fails to satisfy the
limitation in question because, as discussed above, it is directed to wireless
connections between various medical devices (physiological characteristic
transmitters 1502) and wireless telemetry router 1500, and not wireless
connections between various medical devices and a display monitor. See
Appeal Br. 12 (pointing out same); Reply Br. 9—10 (submitting that
paragraph 192 of Jollota does not describe the originating sensor transmitter
sending an identifier portion to the display monitor as required in the
claims).
As Appellants remind us (Appeal Br. 11), establishing a connection
between a new device, such as an infusion pump or BG meter, brought into
proximity with an existing device, such as bedside monitor 140, as disclosed
in paragraphs 270 and 271 of Jollota, involves the use of keys. In particular,
the slave/transmitting device (infusion pump or BG meter) transmits a data
packet including at least the master key (i.e., the key for the master/receiving
device) and a quantity of data to the master/receiving device (bedside
monitor 140). Jollota, para. 231; Fig. 29, task 2106. On the basis of the data
packet sent, the master/receiving device is able to determine the key of the
slave/transmitting device. See id., para. 233 (disclosing the master device
generating and transmitting a response packet intended for the slave device
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and conveying the key of the slave device); Fig. 29, task 2114. The slave
key may include device type as a base identifier. Id., paras. 210-211; Fig.
24, task 1804). Thus, the data packet sent by the slave/transmitting device to
the master/receiving device includes an identifier portion from which the
master/receiving device recognizes the slave device key (and thus the slave
device type) to permit the master/receiving device to retrieve from its
memory the proper slave device key and incorporate it into its response
packet. See id., para. 231 (disclosing the master device maintaining all
device keys, including the master device key and all slave device keys).
Appellants do not adequately explain why this fails to satisfy the limitations
of claims 28 and 29.
In light of the above, Appellants fail to apprise us of error in the
rejection of claims 28 and 29. Accordingly, we sustain the rejection of
claims 28 and 29 under 35 U.S.C. § 102(e) as anticipated by Jollota.
Rejections VI and VII
In contesting the rejections of claims 12, 13, 17, and 18, Appellants
rely solely on the arguments asserted against claims 11 and 16, adding only
that Campbell and Moore do not cure the asserted deficiency in Jollota
vis-a-vis the subject matter of claims 11 and 16. Appeal Br. 15—16. For the
reasons discussed above, these arguments also fail to apprise us of error in
the rejections of claims 12, 13, 17, and 18. Accordingly, we sustain the
rejections of claims 12, 13, 17, and 18 under 35 U.S.C. § 103(a).
Rejection VIII
Claim 20:
In contesting the rejection of claim 20, Appellants argue that Russ
does not make up for the asserted deficiency in Jollota in regard to “the
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recited automatic wireless connection to a display monitor and automatic
wireless sending of flow rates when medical units are brought into proximity
with such a display monitor.” Appeal Br. 17. Having discerned no such
deficiency in Jollota, for the reasons set forth above, Appellants’ argument
does not apprise us of error in the rejection of claim 20 under 35 U.S.C.
§ 103(a), which we, thus, sustain.
Claim 30:
In contesting the rejection of claim 30, Appellants argue that the
combination of Jollota and Russ would change the principle of operation of
Jollota. Appeal Br. 19. This argument is predicated on Appellants’
contention that Jollota fails to disclose automatic wireless connection to a
display monitor and sending of flow rate data, when the medical unit is
brought into proximity with the display monitor. Id. For the reasons set
forth above in addressing claims 11 and 16, this contention is not accurate.
Thus, Appellants’ argument fails to apprise us of error in the rejection of
claim 30 under 35 U.S.C. § 103(a), which we, thus, sustain.
DECISION
The Examiner’s decision rejecting claims 11—13, 16—18, 20, and 28—
30 is AFFIRMED.
The Examiner’s decision rejecting claims 2—4, 7—9, and 25—27 is
REVERSED.
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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-IN-PART
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