Ex Parte KAESTLE et al

Patent Trial and Appeal Board

May 15, 2018

14093566 (P.T.A.B. May. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/093,566 12/02/2013 Siegfried Walter KAESTLE
24737 7590 05/17/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2012P01955 USOl 8732
EXAMINER
SUNWOO, NATE S
ART UNIT PAPER NUMBER
3737
NOTIFICATION DATE DELIVERY MODE
05/1712018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SIEGFRIED WALTER KAESTLE and CAIFENG SHAN
Appeal2017-006623
Application 14/093,566 1
Technology Center 3700
Before DONALD E. ADAMS, DEMETRA J. MILLS, and
DAVID COTTA, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This Appeal under 35 U.S.C. § 134(a) involves claims 1, 3-6, 8, and
10-13 (App. Br. 2). 2 Examiner entered rejections under 35 U.S.C. § l 12(b)
and 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify "Koninklijke Philips Electronics N.V." as the real party
in interest (October 25, 2016 Supplemental Appeal Brief (App. Br.) 2).
2 Pending claims 9 and 14--19 stand withdrawn from consideration (App. Br.
2).
Appeal2017-006623
Application 14/093,566
STATEMENT OF THE CASE
Appellants' disclosure "relates to a device and a corresponding
method for obtaining vital sign information of a living being" (Spec. 1: 3--4 ).
Appellants' claim 1 is representative and reproduced below:
1. A device for obtaining vital sign information of a
living being, comprising:
a detector that receives light in at least one
wavelength interval reflected from at least a region of interest
of a living being and that generates an input signal from the
received light,
an illuminator that illuminates at least said region
of interest with light, and
a processor that processes the input signal and
derives vital sign information of said living being from said
input signal by use of remote photoplethysmography and that
controls said illuminator based on said input signal and/or said
derived vital sign information,
wherein said control of said illuminator comprises one or
more changes to one or more parameters of the illuminator, the
one or more parameters of the illuminator comprising intensity,
wavelength, direction, and/or illumination angle of the light
emitted by said illuminator.
(App. Br. 18. 3)
3 The claims appendix, Appendix A, of Appellants' Appeal Brief is not
paginated. Therefore, we refer to page numbers of Appellants' claims
appendix, Appendix A, as if it were numbered consecutively following page
1 7 of Appellants' Brief.
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Application 14/093,566
Appellants' claims stand rejected as follows:
Claims 1, 3---6, 8, and 10-13 stand rejected under 35 U.S.C. § l 12(b ).
Claims 1, 3-5, 8, and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine4 and Corral. 5
Claims 6 and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine, Corral, and Veen. 6
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine, Corral, and Johnston. 7
Definiteness:
ISSUE
Does the preponderance of evidence support Examiner's conclusion
that Appellants' claims are indefinite?
ANALYSIS
Examiner finds the terms or phrases "an illumination unit" and "a
controller," as set forth in Appellants' claim 1; "illumination elements," as
set forth in Appellants' claim 3; "detection elements," as set forth in
Appellants' claim 10; "said control unit," as set forth in Appellants' claim 8;
and "the one or more predetermined parameters," as set forth in Appellants'
4 Fine, US 2009/0082642 Al, published Mar. 26, 2009.
5 Corral et al., Optimal wavelength selection for non-contact reflection
photoplethysmography, 8011 Proc. of SPIE 801191-1-7 (2011).
6 Veen et al., US 2011/0092824 Al, published Apr. 21, 2011.
7 Johnston et al., Extracting Breathing Rate Information from a Wearable
Reflectance Pulse Oximeter Sensor, Proc. of IEEE EMBS 5388-91 (2004).
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Application 14/093,566
claims 8 and 13, indefinite (see Final Act. 8 3-5; see also Ans. 2). We are
not persuaded.
Examiner's August 5, 2016 Advisory Action (Advisory Act.) states
that Appellants' "after-final amendment filed on 17 June 2016 [(After-Final
Amendment)] has been enterer!' and "[t]he amendments are sufficient to
overcome the rejections of claims 1 and 3 under 112(b) for reciting the terms
'illumination unit,' the 'controller,' and the 'illumination elements'.
Accordingly, these rejections are withdrawn in view of the proposed
amendments" (Advisory Act. 2 (emphasis added)).
Examiner's Advisory Action is silent with regard to the 35 U.S.C.
§ 112(b) rejection of claims 8, 10, and 13 (see id.). We note, however, that,
notwithstanding Examiner's assertion to the contrary, Appellants' claim 10
does not recite the term "detection elements" (see App. Br. 19; see also
After-Final Amendment 4). In addition, Appellants' After-Final
Amendment amended claim 8 to exclude the term "control unit" and claims
8 and 13 to exclude the term "predetermined" (see After-Final Amendment
4--5; see also App. Br. 19-20). Thus, Examiner's rejection of claims 8, 10,
and 13 as indefinite with respect to the terms or phrase "detection elements,"
"control unit," and "one or more predetermined parameters" is moot.
For the foregoing reasons, we are not persuaded that Examiner has
established an evidentiary basis on this record to support a rejection under
35 U.S.C. § 112(b) (cf Ans. 2).
8 Office Action mailed May 9, 2016.
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Application 14/093,566
CONCLUSION
The preponderance of evidence fails to support Examiner's conclusion
that Appellants' claims are indefinite. The rejection of claims 1, 3---6, 8, and
10-13 under 35 U.S.C. § 112(b) is reversed.
Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Fine "relates to a system and method capable of distant or non-
contact monitoring of the biological parameters of a subject" (Fine i-f 2).
FF 2. Fine's Figure 1 is reproduced below:
,-""
_ .. -
,fl
100-/
Fig. 1
Po!a.riz:ation Unit
--.... '"':"""""""""""""""""'
. I [----~~-!~-~!~E'.~--~-~!!_?_J
,) t '-~11
i -8 , ' . , ________________________ ]__ _______________________ _
i Control and ·
j Data Processing
Fine's FIG. 1 is a "schematic diagram[] of [a] ... distant measurement
system[]," within the scope of Fine's disclosure (Fine i-f 40).
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FF 3. Fine's
measurement system 100 is associated with a control unit 8 that
is configured to operate the light source unit 10. The control
unit 8 is typically a computer system including inter alia a data
acquisition utility responsive to data coming from said
detection system; a modulating utility associated with the
illumination unit; a data processing and analyzing utility for
analyzing data from said data acquisition utility and determine
said at least one parameter; and a memory utility for storing
coefficients required to perform predetermined calculation by
the data processing and analyzing utility; and preferably also an
external information exchange utility configured to enable
downloading of the processed information to an external user.
(Fine i-f 54 (emphasis omitted).)
FF 4. Fine's "light source unit [10 may] emit[] more than one wavelength"
(Fine i-f 76; see also id. at Abstract ("The system includes an illumination
unit including at least one light source of at least one pre-selected
wavelength band, to be applied to a selected region in the subject")).
FF 5. Examiner finds that
Fine does not explicitly teach that said control is based on said
input signal and/or said derived vital sign information, and that
said control of said illumination unit comprises one or more
changes to the one or more parameters of the illumination unit,
the one or more parameters of the illumination unit comprising
wavelength of the light emitted by said illumination unit.
(Final Act. 7 (citing Fine i-f 80).)
FF 6. Corral determined, using "a source of illumination that has a
broadband continuous spectrum instead of LEDs or lasers," "the optimal
wavelength bands for specific extraction of heart and respiratory rates at
long distances," wherein "the optimal wavelengths for extracting heart rates
are the bands from 480 to 610 nm and from 800 to 925 nm" and "the optimal
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Application 14/093,566
wavelengths for extracting the respiratory rates are the bands from 450 to
490 nm and from 600 to 980 [nm]" (Corral§ 5).
FF 7. Examiner found that the combination of "Fine and Corral do[es] not
teach that [the] controller is configured to individually control [the]
illumination elements" or that the
controller is configured, if changes of the monitored area, the
environment, or the living being are detected, to check one or
more predetermined parameters of [the] illumination unit and to
again change the one or more parameters of [the] illumination
unit based on [the] input signal or [the] derived vital sign
information.
(Final Act. 9.)
FF 8. Veen "relates to the field of light attenuation measurements, and
especially to a method of and a device for monitoring a vital parameter of a
patient by measuring attenuation of light emitted onto tissue of the patient"
(Veen i-f 1; see Final Act. 10).
FF 9. Veen discloses:
In many applications, including oximetry, simultaneous or
quasi-simultaneous attenuation measurements of an optical path
at different wavelengths, i.e. of different colours, are required.
To that end, typically multiple light sources are utilized which
are generally combined with a single photodetector. In order to
be able to distinguish between the signals from each of the
emitters at the photo-detector, in general, electrical
multiplexing methods are employed, such as time division
multiplexing (TDM), frequency division multiplexing (FDM),
or code division multiplexing (CDM).
(Veen i-f 4.)
FF 10. Veen describes
a typical setup for transmission pulse oximetry[,] [wherein,] [a]
red light source 1 and an infrared (IR) light source 2 are used
for irradiating red light of 660 nm and IR light of 940 nm[,
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respectively,] onto tissue of a patient, i.e. onto a finger []. The
part of the light which is transmitted through the finger [] is
then collected with a common light detector.
(Veen i-f 46 (emphasis omitted); see generally Final Act. 10.)
FF 11. Veen discloses a
system comprising a processing unit [] that adjusts the
parameters of a light modulator [] which acts [as] a pulse
controller and modulates the light sources 1, 2. The
configuration of the light modulator [] depends on the specific
multiplexing scheme applied, e.g., in case of TDM the light
sources 1, 2 are activated altematingly, whereas for FDM the
light sources 1, 2 radiate light simultaneously but with different
modulation frequencies. The reason for the multiplexing
scheme is that in this way the same light detector [] can be used
to estimate the attenuation of the light from both light sources
1, 2.
(Veen i-f 47 (emphasis omitted); see Final Act. 10.)
FF 12. Veen discloses
a device for monitoring a vital parameter of a patient by
measuring attenuation of light emitted onto tissue of the patient,
with
a light modulator adapted for modulating the light
according to a modulation mode;
a light emitter adapted for emitting the modulated light
onto the tissue of the patient;
a light detector adapted for light which is transmitted
through the tissue or/and which is reflected from the tissue and
unavoidably being adapted for collecting ambient light;
a light demodulator adapted for demodulating the
collected light according to the modulation mode;
an interference analyzer adapted for analyzing the
demodulated collected light with regard to the contribution of
the ambient light; and
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a processing unit adapted for determining a modulation
mode for which the contribution of the ambient light is
minimized or falls under a predefined threshold and for setting
the modulation mode for modulating the light according to the
determined modulation mode for which the contribution of the
ambient light is minimized or falls under a predefined
threshold.
(Veen i-fi-130-36; see Final Act. 10-11.)
FF 13. Examiner finds that the combination of "Fine and Corral do[ es] not
explicitly teach that said processor is configured to select the input signals
generated from light received by the detectors from which vital sign
information with the best quality are used for deriving the vital sign
information" or "a processing unit configured to select input signals with the
best illumination" (Final Act. 12).
FF 14. Examiner finds that Johnston discloses:
a device for obtaining vital sign information of a living being
(Abstract), comprising a detection unit with two or more
detection elements (Page 5391, left column, lines 36-38).
Johnston teaches that the two detection elements produced
accurate readings for almost every measurement, but some
inaccurate results were observed on occasion due to noise or
motion artifacts (Page 5391, left column, lines 39-43).
(Final Act. 12.)
ANALYSIS
The rejection over the combination of Fine and Corral:
Appellants' claim 1 is reproduced above. Appellants' claims 3-6, 8,
and 10-13 depend directly or indirectly from Appellants' claim 1.
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Based on the combination of Fine and Corral, Examiner concludes
that, at the time Appellants' invention was made, it would have been prima
facie
obvious to one of ordinary skill in the art ... to modify the
controller of Fine to control [the] illumination unit based on
[the] derived vital sign information, wherein [the] control of
[the] illumination unit comprises one or more changes to the
one or more parameters of the illumination unit, the one or
more parameters of the illumination unit comprising
wavelength of the light emitted by said illumination unit,
[because] Corral teaches different wavelengths for optimal
detection of different vital sign information.
(Final Act. 8.) We are not persuaded.
Fine discloses an apparatus that makes use of at least one wavelength
of light to monitor "biological parameters of a subject" (see FF 1--4). Corral,
as relied upon by Examiner, at best, discloses "optimal wavelength bands for
specific extraction of heart and respiratory rates at long distances" (FF 6).
Examiner recognizes, however, that Fine does not disclose a processor that
controls the illuminator (i.e., a device "that illuminates at least [a] region of
interest with light") based on an input signal generated from received light
(i.e. "light in at least one wavelength interval reflected from at least a region
of interest of a living being") and/or derived vital sign information (i.e.
information derived, by a processor, from the input signal) and that said
control comprises "changes to the one or more parameters of the
illuminator" (FF 5; cf App. Br. 18). Examiner failed to explain how
Corral's disclosure of "optimal wavelength bands for specific extraction of
heart and respiratory rates at long distances" makes up for the foregoing
deficiency in Fine (FF 6).
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In this regard, we are not persuaded by Examiner's unsupported
assertion that the pre-selection of at least one wavelength of light
necessarily, or inherently, constitutes a change in wavelength from one to
another (see Ans. 3). See In re Robertson, 169 F.3d 743, 745 (Fed. Cir.
1999) ("[i]nherency[] may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient") (citations and internal quotation marks
omitted). As Appellants explain, in contrast to Examiner's assertion, Fine
"teaches operating a light source to emit light at a plurality of different
wavelengths (e.g., at the same time) for measuring vital signs" (App. Br.
10). Similarly, Corral "operates a lamp that emits light throughout the
'visible and near infrared regions of the spectrum"' (id.; see also FF 6).
Thus, as Appellants explain, notwithstanding Examiner's unsupported
assertion to the contrary, "neither of [Fine or Corral, alone or in
combination,] ... describes actively changing one or more parameters of
an illuminator used to illuminate a target area," based on an input signal
generated from received light and/or derived vital sign information, as is
required by Appellants' claimed invention (App. Br. 10). We agree. Thus,
we are not persuaded by Examiner's unsupported assertion that
it would have been obvious to one of ordinary skill in the art at
the time of invention to modify the controller of Fine to [meet
the requirements of Appellants' claimed invention] ...
[because] one of ordinary skill in the art would have recognized
routine engineering techniques to modulate the wavelength of
the illumination unit to illuminate at the wavelengths taught by
Corral, as known in the art (e.g., laser or LED wavelength
modulation).
(Ans. 3--4; see generally id. at 5-7.) "[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
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Application 14/093,566
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006). Thus, we find that Examiner failed to establish an evidentiary basis
on this record to support a conclusion that the combination of Fine and
Corral suggests Appellants' claimed invention.
The rejection over the combination of Fine, Corral, and Veen:
Appellants' claim 6 depends ultimately from and further limits
Appellants' claim 1 to require that the illuminator comprises two or more
illuminators, wherein the illuminators are either: (a) arranged at different
locations and/or with different orientations or (b) have different parameters,
in particular different wavelengths, intensities, and/or illumination angles,
and the processor is configured to individually control the two or more
illuminators (see App. Br. 18-19).
Appellants' claim 13 depends from and further limits Appellants'
claim 1 to require that the
detector is configured to detect changes of a monitored area, the
environment, and/or the living being and wherein said
processor is configured, if changes of the monitored area, the
environment, and/or the living being are detected, to check the
one or more parameters of said illuminator and to again change
the one or more parameters of said illuminator based on said
input signal and/or said derived vital sign information.
(See id. at 19-20.)
With respect to Appellants' claim 6, Examiner concludes, based on
the combination of Fine, Corral, and Veen, that, at the time Appellants'
invention was made, it would have been prima facie obvious
to modify the controller made obvious by Fine and Corral to be
configured to individually control said illumination elements,
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since controlling two illumination elements individually was
well known in the art as taught by Veen, and the use of two
illumination elements was well known in the art as made
obvious by Fine and Corral.
(Final Act. 10; see generally Ans. 7-9.) With respect to Appellants' claim
13, Examiner concludes, based on the combination of Fine, Corral, and
Veen, that, at the time Appellants' invention was made, it would have been
prima facie obvious
to modify the device taught by Fine and Corral so that "[the]
controller is configured, if changes of the monitored area, the
environment, or the living being are detected, to check one or
more predetermined parameters of said illumination unit, and to
again change the one or more parameters of said illumination
unit based on said input signal or said derived vital sign
information," as claimed, [because] such a controller that
changes one or more parameters in response to a change was
well known in the art as taught by Veen, since the change of
one or more parameters in Veen include change in amplitude
(Paragraph 004 7, lines 7-8), and since a generic modulating unit
for controlling said illumination unit was well known in the art
as taught by Fine. One skilled in the art could have combined
the elements as claimed by known methods (e.g.
microprocessor programming), and the motivation would have
been to enable a versatile and reliable monitoring of vital sign
information of a living being with a high signal-to-interference
ratio (Veen: Abstract, lines 16-19).
(Final Act. 11; see generally Ans. 7-9.)
We are not persuaded. Although Veen's device may be capable of
"controlling" two separate illumination elements, Examiner failed to
establish that Veen makes up for the deficiency in the combination of Fine
and Corral, discussed above (see FF 8-12; cf App. Br. 13 (Veen "does not
remedy the deficiencies of [Fine] ... and Corral"); see generally App. Br. 5,
9, and 13-16).
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The rejection over the combination of Fine, Corral, and Johnston:
Appellants' claims 11 and 12 depend ultimately from and further limit
Appellants' claim 1 to require that the "detector comprises two or more
detectors" and the "processor is configured to select the input signals
generated from light received by [either] the[:]" (a) "detectors from which
vital sign information with the best quality are used for deriving the vital
sign information" (Appellants' claim 11) or (b) "detector which received
light from the region of interest with the best illumination" (Appellants'
claim 12) (see App. Br. 19).
With respect to Appellants' claim 11, Examiner concludes, based on
the combination of Fine, Corral, and Johnson, that, at the time Appellants'
invention was made, it would have been prima facie obvious based on the
combination of Fine, Corral, and Johnson,
to modify the device made obvious by Fine and Corral so that
said processor is configured to select the input signals generated
from light received by the detector from which vital sign
information with the best quality are used for deriving the vital
sign information, because using two or more detectors to obtain
two or more sets of data was well known in the art as taught by
Johnston, and choosing a signal from either one of the detection
elements that uses the vital sign information with the best
quality would have required only a routine skill in the art at the
time of invention.
(Final Act. 12.) In this regard, Examiner reasons that
[ o ]ne skilled in the art could have made the modification as
claimed by known methods (e.g. microprocessor programming)
with no change in their respective functions, and choosing one
of the two or more sets of data with the best quality would have
yielded nothing more than predictable results of improving the
quality of vital sign information.
(Id. at 12-13.)
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With respect to Appellants' claim 12, Examiner concludes, based on
the combination of Fine, Corral, and Johnson, that, at the time Appellants'
invention was made, it would have been prima facie obvious based on the
combination of Fine, Corral, and Johnson,
to modify the processing unit made obvious by Fine, Corral,
and Johnston to select the input signals generated from light
received by the detection element which received light from the
region of interest with the best illumination, because one skilled
in the art could have combined the elements as claimed by
known methods (e.g. microprocessor programming) with no
change in their respective functions, and the combination would
have yielded nothing more than predictable results to one of
ordinary skill in the art at the time of the invention.
(Final Act. 13.)
We are not persuaded. Examiner failed to establish that Johnson
makes up for the deficiency in the combination of Fine and Corral, discussed
above (see FF 14; see also App. Br. 13 ("[t]he cited sections of Johnston,
including the possibility of multiple sensors and of selecting the best signal
from among a multiple does not remedy the deficiencies of [Fine] ... and
Corral"); see generally App. Br. 5, 9, and 13-16; cf Ans. 9-10 ("Appellant
has not provided any arguments regarding the rejection of claims 11 and 12
under 35 U.S.C. [§] 103[(a)]")).
CONCLUSION
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1, 3-5, 8, and 10 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine and Corral is reversed.
The rejection of claims 6 and 13 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine, Corral, and Veen is reversed.
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The rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Fine, Corral, and Johnston is reversed.
REVERSED
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