Ex Parte Kurzenberger

Patent Trial and Appeal Board

Feb 27, 2019

13977927 (P.T.A.B. Feb. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/977,927 07/02/2013 Heinz Otto Kurzenberger
24737 7590 03/01/2019
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.
2011P00057WOUS 1013
EXAMINER
CWERN, JONATHAN
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
03/01/2019 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 HEINZ OTTO KURZENBERGER
Appeal2018-004334
Application 13/977 ,927 1
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant appeals from the
Examiner's decision rejecting claims 1, 4--7, 10-12, 14--19, and 21-26. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We REVERSE.
1 "The real party in interest for this appeal and the present application is
KONINKLUKE PHILIPS N.V." Appeal Br. 1.
Appeal2018-004334
Application 13/977,927
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellant's "invention relates to a barcode scanning device
configured for [ and a method of] determining a physiological quantity of a
patient," for example a respiratory frequency or a pulse frequency of the
patient. Spec. 1, 11. 2-5, 9-10; see id. at 3, 11. 1--4.
Claims 1, 14, and 16 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the appealed subject matter.
1. A barcode scanning device configured both for reading a
barcode attached to a patient and for determining a physiological
quantity of the patient wherein the physiological quantity of the
patient comprises at least one of a respiratory frequency of the
patient or a pulse frequency of the patient, the barcode scanning
device comprising:
a light emitting unit configured for emitting light towards
a surface to be sensed of the patient, wherein a wavelength of the
emitted light comprises visible light or infrared light, and
wherein the emitted light comprises a light pattern of at least one
of a rectangular shape, a rectangular framed shape, a grid shape,
and a spot shape,
a light receiving unit configured for:
(i) receiving light reflected from a surface to be
sensed of the patient, and
(ii) acquiring images based on the received light,
and
a signal processing unit configured for: (i) reading a
barcode, and (ii) determining the physiological quantity of the
patient based on the received light, wherein the signal processing
unit comprises:
(i) a change signal determining unit configured for
determining a signal indicative of a change between the
images acquired based on the received light, and
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Application 13/977,927
(ii) a peak detector configured for determining a
peak of the signal indicative of the change between the
acquired images.
Rejections
I. Claims 1, 4---6, 10-12, 14--17, 19, 21, 22, and 25 are rejected
under (pre-AIA) 35 U.S.C. § I03(a) as unpatentable over Wood et al.
(US 2008/0045818 Al, pub. Feb. 21, 2008) (hereinafter "Wood") and
Greenwald et al. (US 2004/0015091 Al, pub. Jan. 22, 2004) (hereinafter
"Greenwald").
II. Claims 7, 18, and 26 are rejected under (pre-AIA) 35 U.S.C.
§ I03(a) as unpatentable over Wood, Greenwald, and either Whitestone et
al. (US 2012/0078088 Al, pub. Mar. 29, 2012) (hereinafter "Whitestone"),
Lu (US 2008/0130015 Al, pub. June 5, 2008), or Schlagheck et al.
(US 2009/0048523 Al, pub. Feb. 19, 2009) (hereinafter "Schlagheck").
III. Claims 23 and 24 are rejected under (pre-AIA) 35 U.S.C.
§ I03(a) as unpatentable over Wood, Greenwald, and Thomsen et al.
(US 2013/0060098 Al, pub. Mar. 7, 2013) (hereinafter "Thomsen").
ANALYSIS
Independent claim 1 calls for a barcode scanning device with a signal
processing unit including "a peak detector configured for determining a peak
of the signal indicative of the change between the acquired images." Appeal
Br., Claims App. Similarly, independent claim 14 calls for a method having
a step of "determining a peak of the signal indicative of the change between
the images," and independent claim 16 calls for a scanning device with a
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Application 13/977,927
signal processor configured to "determine a peak of a signal indicative of a
change between the acquired images." Id.
The Examiner's rejection of claims 1, 14, and 16 includes a finding
that Wood teaches a light emitting unit (i.e., a laser), a light receiving unit
(i.e., a camera), and a signal processing unit including a change signal
determining unit. 2 Final Act. 5. The Examiner also finds that "Wood does
not explicitly refer to a peak detector for determining a peak of the signal
indicative of the change between the acquired images." Id. at 6 ( citing
Wood ,r,r 122, 124). To remedy this deficiency, the Examiner turns to
Greenwald and finds:
Greenwald discloses a PPG monitoring system.
Greenwald teaches determining changes in reflected light by
measuring a PPG signal for each cardiac cycle, analyzing each
of the plurality of signals by determining the timing of the pulse
by detecting the peak using a threshold, and outputting the
resulting information to the user.
Id. at 6 (citing Greenwald ,r,r 22-24). The Examiner concludes:
It would have been obvious to one of ordinary skill in the
art ... to have modified the invention of Wood to evaluate the
received signal using known signal processing techniques, such
as by determining the timing of the pulse by detecting the peak
using a threshold as taught by Greenwald, in order to accurately
determine the pulse rate of the patient, and provide diagnostic
information to the user of the system. Wood refers to the use of
signal processing techniques well known in the art ([0122],
[0124]). Furthermore, as Wood acquires images, in the
combined invention, the peak which represents a change in
2 The Examiner finds that "Wood fails to explicitly state that both the pulse
rate detection and barcode detection embodiments may be utilized in a single
embodiment," and determines that "[i]t would have been obvious to one of
ordinary skill in the art ... to have combined the embodiments of the pulse
rate detection and barcode detection." Final Act. 5, 6.
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Application 13/977,927
pulsation will necessarily be indicative of a change between the
acquired images, the change being caused by the pulsation.
Id. at 6-7.
The Appellant argues that Greenwald "does not suggest using its ECG
and PPG signals to indicate a change between acquired images." Appeal
Br. 9; Reply Br. 2. The Appellant points out that the cited paragraphs of
Greenwald teach "analyzing an electrocardiogram (ECG) waveform and a
photoplethysmography (PPG) waveform in order to identify pulse onsets and
arrival times." Appeal Br. 8; Reply Br. 2. Also, the Appellant points out
that the Examiner does not find that Wood teaches "a peak detector
configured for determining a peak of the signal indicative of the change
between the acquired images." Reply Br. 2-3. The Appellant's argument is
persuasive.
Although the Examiner's position is based on applying Greenwald' s
peak detection technique as a signal processing technique in the image
comparison for determining a PPG signal of Wood (Ans. 2-3), there is a gap
between the teachings of the references and the claimed subject matter.
Most notably, the Examiner does not find that Wood or Greenwald teaches
"a peak detector configured for determining a peak of the signal indicative
of the change between the acquired images," as recited in claim 1. Rather,
the Examiner relies on Greenwald to teach a peak detector configured for
determining a peak of a signal, but does not find that Greenwald's signal is
indicative of the change between the acquired images. And, to the extent
that the Examiner relies on applying a well-known signal processing
technique for PPG signals, we determine that the Examiner does not
adequately support, on the record, why one of ordinary skill in the art would
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use Greenwald's peak detection technique for determining a peak of Wood's
signal indicative of the change between the acquired images.
Thus, we do not sustain the Examiner's rejection of independent
claims 1, 14, and 16, and dependent claims 4---6, 10-12, 15, 17, 19, 21, 22,
and 25, as unpatentable over Wood and Greenwald (Rejection I).
Additionally, the Examiner's rejections of dependent claims 7, 18, 23,
24, and 26 do not include findings and/or reasoning that cure the
inadequately supported rejection of the independent claims. Thus, we do not
sustain the Examiner's rejections of dependent claims 7, 18, 23, 24, and 26
(Rejections II-III).
DECISION
We REVERSE the Examiner's decision rejecting claims 1, 4--7,
10-12, 14--19, and 21-26.
REVERSED
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