Ex Parte Lachenbruch et alDownload PDFPatent Trials and Appeals BoardMay 22, 201915040170 - (D) (P.T.A.B. May. 22, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 15/040,170 02/10/2016 63565 7590 05/22/2019 HILL-ROM SERVICES, INC. Legal Dept., Mail Code K04 1069 State Road 46 East BATESVILLE, IN 47006 FIRST NAMED INVENTOR Charles A. Lachenbruch 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. Nl-38561 4279 EXAMINER MORALES, JON ERIC C ART UNIT PAPER NUMBER 3792 MAIL DATE DELIVERY MODE 05/22/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES A. LACHENBRUCH and DAVID L. RIBBLE Appeal2018-006064 Application 15/040, 170 1 Technology Center 3700 Before LINDA E. HORNER, RICHARD H. MARSCHALL, and SEAN P. O'HANLON, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner's rejections of claims 1-3 and 6-14. Final Office Action (July 31, 2017, "Final Act."). 2 We have jurisdiction under 35 U.S.C. § 6(b). 1 Hill-Rom Services, Inc. ("Appellant") is the applicant under 37 C.F.R. § 1.46 and is the real party in interest. Appeal Brief (December 21, 201 7, "Br.") 1. 2 Claims 4, 5, and 15 are canceled. Appeal2018-006064 Application 15/040, 170 The Examiner rejected all of the claims as anticipated by Ribble et al. (US 2013/0310696 Al, published November 21, 2013) ("Ribble"). Final Act. 2-6. Appellant contests this rejection. Br. 6-17. For the reasons explained below, we agree with the Examiner's finding that Ribble anticipates claim 1, but we agree with Appellant that the Examiner has failed to show that Ribble discloses each and every element of the remaining independent claims. Thus, we AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claimed subject matter on appeal relates to early detection of pressure ulcers using a support surface assembly including a transparent window, a signal generator/receiver that conveys and receives radiation, and a controller that assesses tissue health based on a property of at least one of the outgoing and incoming radiation. Specification (February 10, 2016, "Spec.") ,r,r 2-3. Claims 1, 6, 12, and 14 are the independent claims. Claim 1 is illustrative of the subject matter on appeal and is reproduced below with the disputed limitation shown in italics for emphasis. 1. A pressure ulcer detection system comprising: a support surface assembly including a transparent window; a signal generator/receiver; an optical fiber embedded at least in part in the support surface assembly for conveying outgoing radiation from the signal generator/receiver to the window thereby illuminating a tissue site which overlies the window and for conveying incoming radiation reflected from the tissue site and through the window back to the generator/receiver; a controller in communication with the signal generator/ receiver, the controller comprising a processor adapted to assess health status of tissue at the tissue site based on the spectral 2 Appeal2018-006064 Application 15/040, 170 content of at least one of the outgoing radiation and the incoming radiation, and to communicate an outcome of the assessment to a destination. Br. 19 (Claims Appendix). Independent Claim 6 is directed to a pressure ulcer detection system similar to claim 1 except that the support surface assembly in claim 6 includes "multiple transparent windows" where "at least some of the windows are target windows which are positioned on the support surface assembly where parts of a patient's body that are most susceptible to pressure ulcers will be located when the patient is occupying the support surface assembly" and the processor in claim 6 is adapted to assess health status of tissue at the tissue site "based on a property of at least one of the outgoing radiation and the incoming radiation." Id. at 21. Independent claims 12 and 14 are directed to methods of pressure ulcer detection. Independent claim 12 includes the steps of illuminating a target site with incident radiation, detecting a property of radiation reflected from the target site, and "conducting an evaluation to identify whether a dissimilarity is present in the property of the source radiation relative to the property of the reflected radiation." Id. at 24. Independent claim 14 includes the steps of illuminating both a target site and a reference site with incident radiation, detecting a property of radiation reflected from each site, and "conducting an evaluation to identify whether a relationship between the property of the radiation reflected from the target site and the property of the radiation reflected from the reference site changes over time." Id. at 25. 3 Appeal2018-006064 Application 15/040, 170 Claims 1-3 ANALYSIS Appellant asserts the Examiner erred in finding Ribble discloses that the property of the radiation used to assess the health status of the tissue is based on the spectral content of the radiation, as recited in claim 1. Br. 6-8. Appellant asserts that "[ s ]pectral content means the relative contributions of energy at the various frequencies encompassed within the band." Id. at 7-8 (citing Spec., Fig. 6 (showing intensity versus wavelength)). The Examiner cited paragraphs 22 and 23 of Ribble as support for the contested finding. Final Act. 3; see also Examiner's Answer (March 21, 2018, "Ans.") 8. Claim 1 recites "a controller ... comprising a processor adapted to assess health status of tissue at the tissue site based on the spectral content of at least one of the outgoing radiation and the incoming radiation." Br. 19 (Claims Appendix) (emphasis added). We look to Appellant's Specification to determine how one having ordinary skill in the art would understand "based on the spectral content" in light of the Specification. Appellant's Specification describes that "'light' and 'radiation' are used as a convenient shorthand to refer to electromagnetic radiation at any wavelength "A, even outside the visible portion of the electromagnetic spectrum." Spec. 10: 15-18. The Specification describes methods 1-4, in which a dissimilarity in light intensity3 of the incident light and reflected light is used as the indicator of the presence of a pressure ulcer or its precursors. Id. at 28: 17-20. The Specification also describes methods 5-8, in which dissimilarities in spectral content rather than intensity are used as 3 The Specification defines "light intensity" as "the energy per unit time per unit area, i.e., power flux[]." Id. at 12:17-19. 4 Appeal2018-006064 Application 15/040, 170 an indicator of tissue health. Id. at 28:20-23. 4 The Specification explains that the difference between intensity and spectral content is a matter of perspective: Whether the method inspects for intensity (methods 1-4) or spectral content (methods 5-8) is, to some extent, a matter of perspective. Referring to FIG. 6, for example, the difference between the solid and dashed lines can be viewed as a difference in intensity. The difference can also be viewed as a difference in spectral content because B1 and B2 do not exhibit the same intensity distribution over a defined wavelength band, e.g. the band bounded by ALow and AHIGH. Id. at 29: 10-17. The Specification also describes that "' color' is used to refer to light/radiation at a specific wavelength or wavelengths even if the wavelengths are outside the visible portion of the electromagnetic spectrum." Id. at 10:18-21. Paragraphs 22 and 23 of Ribble describe the embodiment of Ribble' s system for detecting pressure ulcers as depicted in Figure 2. Ribble ,r 22. Ribble describes that Figure 2 shows at least one optical fiber 38 embedded in mattress topper 22 and one axial end of optical fiber 38 configured to emit "a portion of the electromagnetic spectrum" through transparent region 36 of mattress topper 22 on a person supported by the mattress topper. Id. This embodiment includes optical signal generator and receiver 34 which transmits "a portion of the electromagnetic spectrum" through optical fiber 4 Claim 1 appears to be broader than the method disclosed in the Specification because the Specification describes evaluating the dissimilarities in the spectral content of the outgoing (i.e., incident) light to the incoming (i.e., reflected) light (Spec. 28:23-28), but the claim broadly recites evaluating the spectral content of "at least one of the outgoing radiation and the incoming radiation." 5 Appeal2018-006064 Application 15/040, 170 38 and receives reflected light transmitted back via optical fiber 38. Id. The received signals are then multiplexed in MUX 40, and DEMUX 42 separates out the signal from each optical fiber 38 and supplies the individual signals to a processor in caregiver interface 24. Id. ,r 23. We understand that the processor in caregiver interface 24 contains the same functionality as the processor in the Figure 1 embodiment. Id. ,r 21 ( describing both Figures 1 and 2). Ribble describes that caregiver interface 24 is "configured to distinguish areas of the patient's skin which demonstrate a difference in color above a predetermined threshold relative to adjacent areas of the patient's skin." Id. Further, Ribble describes that caregiver interface 24 is configured to compare data pertaining to the current condition of a patient's skin with data taken over a period of time to determine the progression in terms of color change over time of an area of skin of interest. Id. Thus, Ribble discloses a system including a processor capable of determining, from the radiation reflected from the patient's skin and transmitted back through optical fiber 3 8 to optical signal generator and receiver 34, the color of the patient's skin in order to assess tissue health. As explained in Appellant's Specification, "color" refers to radiation at a specific wavelength or wavelengths. Spec. 10: 18-21. We understand that assessing health status of tissue based on the color of the incoming radiation is a disclosure of assessing health status based on the spectral content of the incoming radiation because color encompasses accounting for radiation at specific wavelengths within the spectral band. For this reason, Appellant has not demonstrated error in the Examiner's finding that Riddle anticipates claim 1. Thus, we sustain the rejection of claim 1. Appellant does not present any additional arguments 6 Appeal2018-006064 Application 15/040, 170 for claims 2 and 3, which depend from claim 1. These dependent claims fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). Claim 6 Appellant asserts the Examiner erred in finding that Ribble discloses at least some of the windows are positioned where parts of a patient's body that are most susceptible to pressure ulcers will be located when the patient is occupying the support surface assembly, as recited in claim 6. Br. 8-9. The Examiner cited paragraph 22 and Figures 2, 3A, and 3B of Ribble as support for finding that Ribble discloses a support surface assembly including multiple transparent windows. Final Act. 3. The Examiner cites these same disclosures in Ribble, and further cites paragraph 26 of Ribble, as support for finding that at least some of the windows are strategically positioned as claimed. Id. at 4; see also Ans. 8. As discussed above, paragraph 22 of Ribble describes the embodiment of Ribble's system for detecting pressure ulcers as depicted in Figure 2. Ribble ,r 22. Ribble is silent as to the specific positions of transparent regions 36 in mattress topper 22 vis-a-vis a patient occupying the mattress topper. Although the depiction of transparent regions 36 in Ribble's Figure 2 resembles closely the depiction of transparent windows 336 in Appellant's Figure 20, the Examiner does not appear to rely on this similarity as the basis for finding that Ribble's regions 36 are positioned as claimed; nor do we. These Figures appear to show the support surface assembly only schematically. Ribble's Figures 3A and 3B depict alternative constructions of optical fiber 38 and do not depict transparent regions 36. Id. ,r,r 12, 13. Thus, these 7 Appeal2018-006064 Application 15/040, 170 Figures do not provide support for the Examiner's finding that Ribble's transparent regions 36 are strategically positioned as claimed. Paragraph 26 of Ribble describes a different embodiment of a pressure ulcer detection system in which electrical potential is supplied to a dielectric material 50 configured to be in contact with a person, as depicted in Figures 4 and 5. This paragraph does not describe transparent regions 36 in mattress topper 22 of the Figure 2 embodiment. Thus, paragraph 26 does not provide support for the Examiner's finding that Ribble's transparent regions 36 are strategically positioned as claimed. For these reasons, the Examiner has not identified adequate disclosure in Ribble to anticipate independent claim 6. The anticipation rejection of claims 7-11, which depend from claim 6, suffers from the same deficiency as the rejection of claim 6. Thus, we do not sustain the rejection of claims 6-11. Claim 12 Appellant asserts the Examiner erred in finding that Ribble discloses conducting an evaluation to identify whether a dissimilarity is present in the property of the source radiation relative to the property of the reflected radiation. Br. 14-15. The Examiner cited paragraph 21 of Ribble as support for this finding. Final Act. 5; see also Ans. 10-11 ( explaining that paragraph 21 of Ribble discloses determining if certain areas of the patient's skin show a difference in coloration greater than a threshold or determining a difference in the color of the skin in terms of percentage or value). Paragraph 21 of Ribble describes, in relevant part, the embodiment of the pressure ulcer detection system as depicted in Figure 1. In this embodiment, a person rests on support surface 20 and image capture device 8 Appeal2018-006064 Application 15/040, 170 26, which is positioned above the support surface 20, captures images of the person (i.e., the near infra-red regions of the electromagnetic spectrum). Ribble describes that a caregiver can set a percentage difference in color to use as a threshold, and that the system will identify regions of the patient's skin in which the difference in color between that region and adjacent areas of the patient's skin exceeds the set threshold. Ribble ,r 21. Thus, Ribble discloses comparing detected coloration of one region of a patient's skin to detected coloration of another region of a patient's skin. This disclosure in Ribble does not take into account a property of the source radiation relative to a property of the reflected radiation. For this reason, the Examiner has not identified adequate disclosure in Ribble to anticipate independent claim 12. The anticipation rejection of claim 13, which depends from claim 12, suffers from the same deficiency as the rejection of claim 12. Thus, we do not sustain the rejection of claims 12 and 13. Claim 14 Appellant asserts the Examiner erred in finding that Ribble discloses conducting an evaluation to identify whether a relationship between the property of the radiation reflected from the target site and the property of the radiation reflected from the reference site changed over time. Br. 16-17. The Examiner cited paragraphs 20 and 21 of Ribble as support for this finding. Final Act. 6 (finding that Ribble's system checks to determine the progression in terms of reflected skin color change over time of an area of the skin identified to be of interest). Appellant argues that the disclosure at lines 33-35 of paragraph 21 of Ribble "involves radiation reflected from a single site at different times, whereas ... [claim 14] involves a change, over 9 Appeal2018-006064 Application 15/040, 170 time, in a relationship between the property of the radiation reflected from two different sites." Br. 1 7 ( emphasis added). 5 Paragraph 21 of Ribble describes caregiver interface (CI) 24 comprises memory 44 (referencing Figure 2) to store "location of areas of the patient's skin which are determined to have a color differing [relative to adjacent areas of the patient's skin] greater than the predetermined threshold." Ribble describes that CI 24 is "configured to compare similar areas of a patient's skin from images taken by image capture device 26 over a period of time" and "determine the progression in terms of color change over time of an area of the skin identified to be of interest." Ribble ,r 21. Ribble teaches that if the area of skin identified to be of interest does not show a color change over time, CI 24 assigns that area as a permanent area of discoloration. Id. Thus, Ribble discloses comparing detected coloration of one region of a patient's skin and detected coloration of another region of a patient's skin for a color difference to identify areas of interest on the patient's skin, and then, comparing various images of the identified area of interest (i.e., a single site) taken over time to determine if the color in the area of interest changes. Thus, we agree with Appellant's reading of this portion of paragraph 21 as disclosing an evaluation of radiation reflected from a single site at different times. This portion of Ribble does not describe evaluating whether a relationship between the property of the radiation reflected from 5 Appellant also argues that the disclosure at lines 4-5 and 13-15 of paragraph 21 of Ribble "involves only reflected radiation from different sites at the same time whereas [claim 14] involves a change[] over time." Br. 17 ( emphasis added). We do not understand the Examiner to have relied on this portion of paragraph 21 for the finding of anticipation of claim 14. 10 Appeal2018-006064 Application 15/040, 170 the target site and the property of the radiation reflected from the reference site changed over time. For this reason, the Examiner has not identified adequate disclosure in Ribble to anticipate independent claim 14. Thus, we do not sustain the rejection of claim 14. DECISION We affirm the decision of the Examiner rejecting claims 1-3. We reverse the decision of the Examiner rejecting claims 6-14. 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 11 Copy with citationCopy as parenthetical citation