Ex Parte Meyer et al

Patent Trial and Appeal Board

Jun 21, 2013

11529650 (P.T.A.B. Jun. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte PETER F. MEYER and ELIOT ZAIKEN
__________

Appeal 2012-003426
Application 11/529,650
Technology Center 3700
__________

Before MELANIE L. McCOLLUM, ERICA A. FRANKLIN, and
SHERIDAN K. SNEDDEN, Administrative Patent Judges.

SNEDDEN, Administrative Patent Judge.

DECISION ON APPEAL
This appeal1 under 35 U.S.C. § 134 involves claims 1-9, 12-18, 21 and
33. The Examiner entered rejections under 35 U.S.C. § 102(e) and 35
U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellants identify the Real Party in Interest as Tyco Healthcare Group
LP. (App. Br. 3.)
Appeal 2012-003426
Application 11/529,650

2
STATEMENT OF THE CASE
Claims 1, 3, 4 and 33 are representative and read as follows (emphasis
added):
1. An apparatus for replicating a medical signal, which
comprises:
an input adapted to receive a plurality of medical signals
transmitted via a first medical device coupled to the body of a
patient;
signal processing circuitry adapted to generate at least
two replicated signals from said plurality of medical signals,
said at least two replicated signals indicative of being
transmitted via a second medical device and a third medical
device, the second and third medical devices different than the
first medical device; and
a first output and a second output each adapted to deliver
one of said at least two replicated signals to an external device
configured to receive signals from said second medical device
and said third medical device
wherein the at least two replicated signals include a
replicated maternal signal and a replicated fetal signal.

3. The medical apparatus according to Claim 1, wherein
the signal processing circuitry comprises:
an analog to digital converter for converting said
plurality of medical signals to a digital format;
a signal processor for processing said plurality of medical
signals in the digital format wherein data is extracted from the
plurality of medical signals;
a signal generator for receiving said data extracted by
said signal processor and generating therefrom said at least two
replicated signals; and
a digital to analog converter for converting said at least
two replicated signals to an analog format.

4. The medical apparatus according to Claim 3, wherein
said signal processor is adapted to extract data related to each of
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said at least two replicated signals from said plurality of
medical signals.

33. An apparatus for replicating a medical signal, which
comprises:
an input adapted to receive a plurality of medical signals
transmitted via a first medical device coupled to the body of a
patient;
signal processing circuitry adapted to generate at least
one replicated signal from said plurality of medical signals,
said at least one replicated signal indicative of being transmitted
via a second medical device different than the first medical
device; and
an output adapted to deliver said at least one replicated
signal to an external device configured to receive signals from
said second medical device.

The claims stand rejected as follows:
I. Claims 1, 2, 6-9, 12, 13, 18, 21, and 33 under 35 U.S.C. § 102(e)
as being anticipated by Shennib.2
II. Claims 3-5 under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Shennib and Heitzmann.3
III. Claim 14 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Shennib and Secker.4
IV. Claims 15 and 16 under 35 U.S.C. § 103(a) as being unpatentable
over Shennib.

2 Shennib, US 2007/0191728 A1, published Aug. 16, 2007.
3 Heitzmann et al., US 2007/0112274 A1, published May 17, 2007.
4 Secker et al., US 5,442,940, issued Aug. 22, 1995.
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FF2. Shennib discloses as follows:
EMG signals detected during contractions can be
displayed by a standard fetal-maternal monitor 65 using
standard toco input 67', IUP input (not shown), and ultrasound
input 68', as shown in FIGS. 11 and 12. This is partially
accomplished by providing an interface device 70 that produces
an electrical signal 77 which is compatible with the signal
produced by a toco transducer or an IUP transducer. The
interface device 70 comprises a wireless antenna 71, a wireless
receiver/decoder 72, an amplifier 72, and a signal conditioner
76 for producing an electrical signal 77 having a format and
levels that emulate signals produced by standard toco or IUP
sensors. The contraction signal 77 is delivered through a
standard toco plug 67 which feeds into the toco input 67' of the
external monitor 65, resulting in a standard contraction display
66 and printout 69. The interface device 70 translates and
correlates EMG activity, which is electrical in nature, to
pressure signals (typically mm Hg), which are widely used and
accepted.
(Id. at 4, ¶ [0058]; emphasis added.)
FF3. Shennib discloses as follows:
Similarly, fetal heart rate (FHR) information can be sent by the
wireless patch 60 for receiving by the wireless receiver/decoder
72 and for processing by the FHR amplifier 73 and the FHR
signal conditioner 74. The interface device 70 produces an FHR
signal 78 that is compatible with the signal produced by an
ultrasound transducer. The FHR signal 78 is delivered via an
ultrasound plug 68 to ultrasound input 68' of the external
monitor instrument 65.
(Id. at 4, ¶ [0058].)
FF4. Shennib discloses as follows:
The patch assembly 10 may comprise as few as two
electrodes or as many as seven or more electrodes, depending
on the desired application. Two to three electrodes are sufficient
for basic monitoring applications in a small package for long
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term home monitoring applications. Additional electrodes
(discussed below) and sensors (not shown) can be incorporated
to determine additional vital signs, such as temperature and
oxygen saturation levels.
(Id. at 4, ¶ [0049].)
Principles of Law
Anticipation requires that every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
claim. Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001).
Analysis
Appellants place special emphasis on the idea that Shennib’s
disclosure of conditioning two medical signals followed by outputting the
conditioned medical signals to an external monitor is different from the
recited language of an apparatus having “signal processing circuitry adapted
to generate at least two replicated signals from said plurality of medical
signals” (see e.g., App. Br. 14-17). Specifically, Appellants contend as
follows:
Appellants’ apparatus replicates signals from said plurality of
medical signals while Shennib receives two separate medical
signals and independently conditions each signal to the desired
form. In other words, in Shennib the plurality of medical
signals (EMG and FHR signals) are separated by the wireless
receiver / decoder 72 and individually conditioned. Shennib
does not disclose, teach or suggest using the EMG and FHR
signals (plurality of medical signals) to generate the individual
EMG signal or the FHR signal, therefore Shennib does not
disclose, teach or suggest signal processing circuitry adapted to
generate at least two replicated signals from said plurality of
medical signals as recited in Claim 1.
(Id. at 15-16.)
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We are not persuaded. Claim 1 recites signal processing circuitry
adapted to generate at least two replicated signals from said plurality of
(read “two”) medical signals. For the reasons explained by the Examiner,
we agree that Shennib’s conditioning and outputting/generating of EMG and
FHR signals (i.e., a plurality of medical signals (see, e.g., FF2-FF4)) reads
on this element of the claims (Ans. 11-13). Specifically, we agree with the
Examiner’s finding that:
The device of Shennib functions in the same manner as
Appellant's disclosed invention. As described in paragraphs
[0049] and [0057]-[0059], Shennib’s invention operates as
follows: an electrode array is placed on the patient's abdomen
that sends a plurality of input signals including data related to
maternal and fetal activity (e.g. fetal heart rate and maternal
uterine contractions) to the interface device; signal processing
circuitry within the interface device uses at least a portion of the
data from the input signals to produce output signals that are
representative of output signals from medical devices that are
compatible with the monitoring device, specifically an
intrauterine pressure catheter or a tocodynamometer measuring
uterine contractions and an ultrasound transducer measuring the
fetal heart rate.
(Id. at 12-13.)
We have fully considered Appellants’ argument that conditioning of
electrical signals disclosed in Shennib is different from replication of
electrical signals (see, App. Br. at paragraph spanning pages 15 and 16).
However, while the conditioned output signals from Shennib’s interface 70
may not be identical or mirrored signals to the input signals received from
the patch 60, the output signals “emulate” the input signals (FF2).
We further agree with the Examiner that the record does not support a
rigid interpretation of the term “replicated” that excludes the emulation
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process disclosed by Shennib. Accordingly, we find that the Examiner’s
interpretation of the claims to be reasonable in view of the evidence on this
record.
Claim 33 is argued separately, however, the arguments provided by
Appellants are substantially the same as the argument presented with regard
to claim 1 (App. Br. 18-19). Thus, for the same reasons discussed above, we
are not persuaded by Appellants’ arguments regarding claim 33.
Conclusion of Law
The preponderance of evidence of record supports the Examiner’s
finding that Shennib anticipates representative claims 1 and 33. Claims 2, 6-
9, 12, 13, 18, and 21 fall with representative claims 1 and 33. 37 C.F.R.
§ 41.37(c)(1)(vii).

II. OBVIOUSNESS: SHENNIB AND HEITZMANN
The Examiner rejects claims 3-5 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Shennib and Heitzmann. Claims 3 and
4 are argued separately (App. Br. 20-23).
Claim 3
The Examiner finds that “Shennib does not teach that the signal
processing circuitry comprises an analog to digital converter or a digital to
analog converter for processing the received signals digitally” (Ans. 7-8).
For this element, the Examiner relies on Heitzmann and states as follows:
Heitzmann et al. teaches an apparatus for replicating a medical
signal, which comprises: signal processing circuitry for
generating a replicated medical signal (Figure 3, simulated
transducer signal, 150) from an input medical signal from a
medical device (Figure 2, transducer, 106) ([0015]; [0028]);
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the signal processing circuitry further comprising: an analog to
digital converter (Figure 2, analog to digital converter, 122) for
converting said at least one medical signal to a digital format
(Portable unit 102 receives analog pressure signal from
transducer 106, then converts the analog signal to a digital
signal for further processing and emulation, [0031], [0034]-
[0035], [0055]); a signal processor (Figure 3, microcontroller,
148) for processing said at least one medical signal in a digital
format wherein data is extracted from said at least one medical
signal (Microcontroller 148 of interface unit 104 receives and
extracts relevant pressure data, [0036], [0039], [0056]); a signal
generator (Figure 3, pressure transducer emulation circuitry,
184) for receiving said data extracted by said signal processor
(148) and generating therefrom said at least one replicated
signal (Emulation circuitry 184 receives digital pressure data
from the microcontroller 148 and produces emulation signal
150, [0042], [0056]), wherein data relayed by said at least one
replicated signal (150) replicates data potentially outputted by
said medical device (106); and a digital to analog converter
(Figure 3, digital to analog converter, 180) for converting said
at least one replicated signal (150) to an analog format ([0042],
[0045], and [0056]).
(Id. at 8.)
The Examiner concludes that “[i]t would have been obvious to one of
ordinary skill in the art at the time of the invention to modify the signal
processing circuitry of Shennib such that the input signals are processed
digitally via an analog to digital converter, digital signal processor, and
digital to analog converter as taught in the interface device of Heitzmann et
al., because digitally processing an input analog signal for filtering and
replication is desirable as the input voltage signal(s) may be cleaned and
filtered more efficiently prior to replication versus strictly analog processing
(Heitzmann et al., [0035])” (id. at 8-9).
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Appellants argue that “there is no motivation for Shennib to combine
and/or incorporate the teachings of Heitzmann into the interface device 70
since Shennib already digitizes the signals in the patch 60” (App. Br. 21).
We are not persuaded.
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference.... Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). After reviewing the record before
us, we find Appellants have failed to traverse the Examiner’s specific
findings noted above. The Examiner has provided a rational basis for the
proposed modifications (see Ans. 8-9 and 14). The fact that Shennib may
digitize the signals in the patch does not persuade us that a person of
ordinary skill in the art would not have been motivated to modify the
teachings of Shennib with the teachings of Heitzmann as set forth by the
Examiner.
Appellants further argue that “Heitzmann, like Shennib, does not
disclose, teach or suggest using a plurality of medical signals to generate at
least two replicated signals, as recited in Claim 1, therefore, Heitzmann does
not cure the deficiencies of Shennib with respect to Claim 1” (id.). We are
not persuaded by this argument for the same reasons set forth above with
regard to claim 1.
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Claim 4
Appellants argue “that Shennib and Heitzmann do not extract data
related to each of the two replicated signals from the plurality of medical
signals” (id. at 22).
We are not persuaded. As explained by the Examiner, Shennib
discloses a signal processor that is adapted to extract (generate) at least two
replicated signals (Shennib 4, ¶ [0057], elements 77 and 78) from a plurality
of medical signals (see Ans. 9). See also, Shennib at Abstract (“[T]he patch
also incorporates a processor for extracting labor activity and fetal heart
activity after filtering out maternal ECG from the composite biopotential
signal present on the abdomen of the pregnant woman.”).
Conclusion of Law
The preponderance of evidence of record supports the Examiner’s
finding that Shennib and Heitzmann renders claims 3 and 4 obvious. Claim
5 falls with claims 3 and 4. 37 C.F.R. § 41.37(c)(1)(vii).

III. -IV. OBVIOUSNESS: CLAIMS 14, 15 AND 16
Regarding the rejections of dependent claims 14-16, Appellants argue
that these claims are allowable without providing additional argument or
evidence (App. Br. 19). Thus, for the same reasons discussed above, we
sustain the Examiner’s rejections of dependent claims 14-16.

SUMMARY
We affirm all rejections on appeal.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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