Ex Parte Miller et al

Patent Trial and Appeal Board

Oct 11, 2016

12883134 (P.T.A.B. Oct. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/883, 134 09/15/2010
23464 7590 10/13/2016
BUCHANAN INGERSOLL & ROONEY PC
P.O. BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Charles G. Miller
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.
0087962-000005 4229
EXAMINER
EGLOFF, PETER RICHARD
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
10/13/2016 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES G. MILLER and CLIFFORD D. OLMSTEAD
Appeal2014-008446
Application 12/883, 134
Technology Center 3700
Before GEORGE R. HOSKINS, LEE L. STEPINA, and
SEAN P. O'HANLON, Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Charles G. Miller and Clifford D. Olmstead ("Appellants") 1 appeal
under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1-20
in this application. The Board has jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies KB Port, LLC as the real party in interest.
Appeal Br. 2.
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Application 12/883, 134
CLAIMED SUBJECT MATTER
Claims 1, 10, and 16 are independent. Claim 1 illustrates the subject
matter on appeal, and it recites:
1. A method for multiple medical simulator integration
during a training event comprising the steps of:
providing multiple medical simulators for a training event
with each medical simulator generating at least one electronic
data output throughout the event and an identification of the
specific medical simulator; and
simultaneously receiving each electronic data source
output and each medical simulator identification from each
medical simulator into a common digital memory buffer in a time
stamped manner for a given training event, wherein each
electronic data source output is a data record throughout the
event of a simulated parameter of the medical simulator or a
physical parameter of the medical simulator.
Appeal Br. 24 (Claims App.).
REJECTIONS ON i\.PPEi\L
Claims 1, 2, 6, and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller (US 2008/0124694 Al, pub. May 29, 2008) and
Eggert (US 2008/0138780 Al, pub. June 12, 2008).
Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Eggert, and Olsen (US 7,648,365 B2, iss. Jan. 19,
2010).
Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Miller, Eggert, and Fischell (US 2006/0212085 Al, pub. Sept. 21, 2006).
Claims 8-10, 14--18, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Miller, Eggert, and Hoster (US 2006/0292536 Al, pub.
Dec. 28, 2006).
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Application 12/883, 134
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Eggert, Hoster, and Olsen.
Claims 13 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Miller, Eggert, Hoster, and Fischell.
ANALYSIS
A. Obviousness over Miller and Eggert-claims 1, 2, 6, and 7
Claims 1 and 7
In rejecting claim 1, the Examiner finds Miller discloses providing a
single medical simulator, and receiving electronic data from the medical
simulator, along with audio feeds and video feeds, in a time stamped
manner. Final Act. 2-3 (citing Miller i-fi-1 42--45). The Examiner finds Miller
does not disclose "multiple medical simulator integration, where data is
received from each of a plurality of medical simulators." Id. at 3.
The Examiner finds Eggert discloses a medical simulator including
two simulators-maternal simulator 300 and fetal simulator 302-
connected to a common external controller. Id. (citing Eggert i-fi-1 69, 7 4--7 6).
The Examiner determines it would have been obvious to modify Miller to
incorporate multiple medical simulators, such as Eggert's maternal and fetal
simulators, "with the motivation of providing an accurate record of a user's
interaction with multiple simulators, such as during childbirth." Id.
The Examiner further finds Miller and Eggert do not disclose "each
medical simulator generating an identification of the specific medical
simulator" as claimed. Id. The Examiner then states:
However, the person of ordinary skill in the art would recognize
that Miller's system, which simultaneously receives inputs from
a plurality of devices associated with a single simulator into a
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common log tile, would be inoperable without each output
device providing unique data identifying the source of the output,
so that the memory buffer would be able to identify the source of
the data and store it accordingly. Therefore, this feature is
inherent in Miller with respect to the single medical simulator
system taught by Miller.
Id. at 3--4 (emphases added). Based on that analysis, the Examiner
determines a person of ordinary skill in the art, when combining Miller with
Eggert to monitor multiple medical simulators simultaneously, would have
found it obvious to include the claimed identification output from each
medical simulator "in order to similarly differentiate which outputs are being
provided by the [maternal] simulator and the fetal simulator and organize
and store the data for playback." Id. at 4.
Appellants argue Miller "teaches away from the claimed multiple
simulator integration configuration in a common log file." Appeal Br. 12;
Reply Br. 2. 2 Appellants also argue Eggert:
fails to teach or suggest each medical simulator generating at
least one electronic data output throughout the event together
with an identification of the specific medical simulator; and
simultaneously receiving each electronic data source output and
each medical simulator identification from each medical
simulator into a common digital memory buffer in a time
stamped manner for a given training event.
Appeal Br. 12. According to Appellants, even if Eggert's apparatus is
comprised of two separable simulators, the express teachings of Miller
"provide for distinct computers and associated common buffers for each
2 The Appeal Brief (page 12) sets forth an alleged quotation from Miller in
support of this argument, but the Reply Brief (page 2) acknowledges the
quotation comes from "separate literature." The Reply Brief does not
identify the correct source of the quotation.
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distinct simulator," so the combination of references would not lead to the
invention of claim 1. Id. Appellants further assert Miller and Eggert do not
teach "a medical simulator identification being generated by each simulator
AND recorded in the common buffer." Id. Appellants assert the Examiner
errs in determining this feature would have been an obvious requirement of
an operable system, because Miller is operable with mere "identification of
independent data streams (e.g. video 1, audio 1, simulated pulse rate 1, etc)."
Id. at 12-13.
In answer, the Examiner finds Miller's apparatus gathers data from
the medical simulator along with audio and video, and all of that data is sent
to a common log file on controller 14. Ans. 3--4 (citing Miller i-f 68). The
Examiner maintains a "person of ordinary skill in the art would recognize
that without identification data for each device and computer sending
simulation data to the controller 14, the incoming simulation data would be
incomprehensible to the controller." Id. at 4. Therefore, the Examiner's
position is that identification data is inherent in Miller, and it would have
been obvious to provide identification data for each simulator when
improving Miller to utilize multiple simulators as taught by Eggert. Id.
In reply, Appellants maintain Miller teaches away from a multiple
simulator integration configuration with a common log file. Reply Br. 2--4
(citing Miller i-fi-117, 21, 29, 43, 47, 48, 58, 59). Appellants contend Miller's
apparatus "simply cannot accommodate, as described, multiple simulators
integrated in a single log file," so "[t]he basics of the system and the
associated controls would need to be reconfigured." Id. at 4. For example,
Appellants assert attempts to commercialize Miller's apparatus in a multiple
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Application 12/883, 134
simulator context "install[ ed] separate systems 10 for each simulator 12 as
taught in" Miller. Id.
We sustain the rejection of claim 1. Miller's controller 14 gathers
three different data inputs into a common memory buffer in a time stamped
manner: (a) data inputs indicative of simulated physiologic parameters of
one medical simulator 12 during a simulation session; (b) video feeds from
cameras 20 recording the simulation session; and ( c) audio feeds from
camera 20 microphones or independent microphones 22 recording the
simulation session. Miller i-fi-142--46, Abstract. Miller's controller 14
"allows independent, simultaneous, synchronized, user controlled playback
of the individual inputs received within the common log file." Id. i169
(emphasis added); see also id. i-fi-123-24, 50-51 (further describing
independent, simultaneous playback of data inputs (a}-(c)). We agree with
the Examiner's finding that it is necessary for each of the three data
inputs (a}-( c) to be stored with its own identification, so controller 14 may
provide the independent, simultaneous, synchronized playback described in
Miller.
In light of that, it would have been obvious for a person of ordinary
skill in the art, when modifying Miller to include multiple medical
simulators in view of Eggert, to configure Miller's controller 14 to store
each medical simulator data input (a) with its own identification, to
differentiate the inputs from the different medical simulators. See Final
Act. 4. Appellants' assertion that Miller teaches away from such an
implementation is not persuasive because Miller does not "criticize,
discredit, or otherwise discourage" the implementation. See In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). In particular, Miller discloses an
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Application 12/883, 134
embodiment wherein controller 14 receives data inputs (a)----(c) directly from
medical simulator 12, video cameras 20, and microphones 22, without
intervening controllers 13, 21, or 23 for each component 12, 20, and 22. Cf
Miller Figs. 1 and 3; see also id. i-f 43 (simulator 12 "may have" external
controller 13).
Appellants' criticism of Eggert as failing to disclose each medical
simulator 300, 302 generating an identification to be received into a
common memory buffer is not responsive to the rejection. As discussed
above, the Examiner relies on Eggert simply for disclosing the use of
multiple medical simulators during a training event, and then relies on the
inherent disclosure of Miller for the obviousness of the claimed gathering of
data with simulator identifications during the training event.
Appellants further rely on the specific claim requirement for the
respective medical simulators (as opposed to a central controller) to
"generat[ e ]" their respective "identification[ s ]" to be "receiv[ ed]" into a
common memory buffer. 3 Appeal Br. 12-13. As discussed above, a person
of ordinary skill would have found it obvious to incorporate an identification
of each medical simulator when modifying Miller to use multiple medical
simulators. A person of ordinary skill in the art would further have
appreciated that such identifications in Miller could have been generated
either by each simulator 12, or by controller 14, with equal efficacy. We
determine that the choice of either option would have been an obvious
implementation in order to identify separately the data inputs received from
each simulator. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007)
3 Appellants' Specification correspondingly describes a "unique serial
number transmitted with the data" from each medical simulator. Spec. i-f 56.
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("A person of ordinary skill is also a person of ordinary creativity, not an
automaton.").
For the foregoing reasons, we sustain the rejection of claim 1 as
unpatentable over Miller and Eggert. Appellants assert claim 7 stand or falls
with claim 1 (Appeal Br. 13), so we likewise sustain the rejection of claim 7.
Claim 2
Claim 2 depends from claim 1 to add, inter alia, "user controlled
playback ... of a simulated parameter of specific medical simulators ... in a
plurality of user defined configurations." Appeal Br. 24 (Claims App.)
(emphasis added). The Examiner finds Miller and Eggert fail to disclose a
memory buffer that "allows playback of a simulated parameter of specific
medical simulators." Final Act. 3--4. The Examiner nonetheless finds
Miller allows playback of "a single simulated parameter such as audio or
video of the simulator." Id. at 4 (citing Miller i-f 69). Accordingly, the
Examiner determines a person of ordinary skill in the art would have found
it obvious to allow playback of "a single parameter from a specific simulator
of the two simulators taught by Eggert." Id. The Examiner determines this
would have involved applying a known technique to a known device, to
allow review of a trainee's performance with respect to Eggert's maternal
simulator 300 or fetal simulator 302, individually. Id.
Appellants argue claim 2 "defines the independent playback of
individual simulators," and neither Miller nor Eggert includes such a
disclosure. Appeal Br. 13 (emphasis added); Reply Br. 5---6. This argument
is not responsive to the rejection, and is therefore not persuasive of error.
The Examiner expressly finds neither Miller nor Eggert discloses
independent playback of individual simulators, but determines a person of
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Application 12/883, 134
ordinary skill in the art would have found it obvious to allow playback of a
single parameter from either of Eggert's maternal simulator 300 or fetal
simulator 302, to allow review of a trainee's performance. Final Act. 4. We
agree with that determination, so we sustain the rejection of claim 2 as
unpatentable over Miller and Eggert.
Claim 6
Claim 6 depends from claim 1 to add "wherein at least one medical
simulator is a birthing simulator." Appeal Br. 25 (Claims App.). The
Examiner correspondingly cites Eggert as disclosing "two simulators
(maternal simulator 300 and fetal simulator 302)." Final Act. 3. The
Examiner further states "maternal simulator 300 by itself could be regarded
as the birthing simulator, with the fetal simulator being another of the
multiple medical simulators." Ans. 4--5.
Appellants argue Eggert's maternal simulator 300 and fetal
simulator 302 together teach only one "birthing" simulator as recited in
claim 6, so simulators 300, 302 "no longer can be considered as 'multiple
medical simulators"' as recited in parent claim 1. Appeal Br. 13; Reply
Br. 6. Appellants do not cite any disclosure in their Specification, or any
other evidence, in support of their claim construction argument that the
claimed "birthing" simulator requires the combination of a maternal
simulator with a separate fetal simulator. Absent such evidence, we agree
with the Examiner's determination that, under a broadest reasonable
construction, Eggert's maternal simulator 300 by itself corresponds to a
"birthing" simulator as recited in claim 6. Therefore, we sustain the
rejection of claim 6 as unpatentable over Miller and Eggert.
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B. Obviousness over Miller, Eggert, and Olsen-claims 3 and 4
Claim 3 depends from claim 1 to add "wherein at least one medical
simulator is formed by a human patient actor having at least one data
output." Appeal Br. 24 (Claims App.) (emphasis added). The Examiner
correspondingly cites Olsen as disclosing "a human interaction system that
may be used for practicing medical treatment including triage . . . wherein a
human simulator is formed by a human patient actor." Final Act. 5 (citing
Olsen, 1:55-67, 4:27-51). The Examiner determines it would have been
obvious to modify the combination of Miller and Eggert "by using video and
audio of human patient actors, as taught by Olsen, with the motivation of
providing a more realistic simulation for the students." Id.
Appellants argue Olsen's object "is to create a computer simulated
person" (quoting Olsen, 2:6-11, with emphasis added) and Olsen's medical
simulator "is EXPRESSLY not a human patient actor." Appeal Br. 14.
Appellants particularly contend the "images of live actors" in Olsen are "not
the same as a medical simulator formed by a human patient actor" as
claimed. Reply Br. 7. Appellants further assert there is no basis for
combining the physical child birthing simulator of Eggert with the computer
simulated person of Olsen, and question how such a combination would be
implemented. Appeal Br. 14; Reply Br. 7-8.
Appellants do not persuasively establish why, under a broadest
reasonable construction, the claimed "medical simulator formed by a human
patient actor" would exclude Olsen's capturing the image of live actors
responding to questions in specific ways to practice triage. Olsen, 4:42-51,
1 : 61---63. We are further unpersuaded that it would have been beyond the
level of ordinary skill to incorporate such live actor recordings with a
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physical medical simulator, such as Miller's simulator 12 or Eggert's
maternal simulator 300. For example, a video monitor to display human
patient actor recordings could have been implemented within the head
portion of a physical medical simulator. We agree with the Examiner that
such a modification "would help the trainee practice conversing with
patients, and give the trainee a more realistic experience." Ans. 5---6.
For the foregoing reasons, we sustain the rejection of claim 3 as
unpatentable over Miller, Eggert, and Olsen. Appellants do not present
additional argument for the patentability of claim 4 (see Appeal Br. 14 ), so
we likewise sustain the rejection of claim 4.
C. Obviousness over Miller, Eggert, and Fischell-claim 5
Claim 5 depends from claim 1 to add "wherein at least one medical
simulator includes a GPS position sensor." Appeal Br. 25 (Claims App.).
The Examiner correspondingly cites Fischell as disclosing a real-life
emergency room triage system having GPS sensors to locate patients. Final
Act. 5 (citing Fischell i-f 58). The Examiner determines it would have been
obvious to modify the combination of Miller and Eggert to use
"GPS tracking for the medical simulators, with the motivation of creating a
more realistic experience." Id.
Appellants argue Fischell fails to teach or suggest a medical
simulator, as claimed, including a GPS position sensor. Appeal Br. 15.
Appellants point out Fischell uses a GPS sensor "carried by actual mobile
patients" to signal medical personnel when the patient experiences a cardiac
episode. Id.; see also Fischell i-f 58. Such a signal "facilitate[ s] the
summoning of emergency medical services" to aid the patient. Fischell i-f 58.
Appellants contend there is "no reason to incorporate" such a GPS sensor
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into a medical simulator, as it would have "no practical value." Appeal
Br. 15-16.
We are persuaded that the Examiner has not sufficiently articulated a
rational basis for adding a GPS sensor to a medical simulator such as
disclosed in Miller and Eggert. The Examiner states a GPS sensor would
create a more realistic triage experience, but fails to explain how knowing
the GPS position of the manikin would make providing simulated medical
treatment to the manikin more realistic. Final Act. 5; Ans. 6-7.
Accordingly, we do not sustain the rejection of claim 5 as unpatentable over
Miller, Eggert, and Fischell.
D. Obviousness over Miller, Eggert, and Hoster-
claims 8-10, 14-18, and 20
Claim 8
The Examiner's rejection of independent claim 8 is substantially
identical to the rejection of claim 1, except that the Examiner finds Miller
and Eggert fail to disclose the "triage training event" recited in claim 8
(emphasis added). Final Act. 6-8. The Examiner finds Hoster discloses
using multiple medical simulators (manikins) for triage event simulations.
Id. at 8 (citing Hoster, Fig. 6). The Examiner detennines it would have been
obvious to use the combined system of Miller and Eggert to simulate a triage
event to create an accurate record of the actions of a trainee during a
simulated triage event. Id.
Appellants argue Hoster teaches away from the invention of claim 8,
because Hoster discusses "less costly and less complicated" mass casualty
disaster training provided by "inflatable manikins" such that "indicia can be
inserted into a pocket formed on the manikin" to indicate conditions to be
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treated. Appeal Br. 16-17 (quoting Hoster ilil 7-10). Appellants also argue
there is no basis for combining the "blow up manikin mass casualty triage
training system" of Hoster with "the physical child birthing simulator" of
Eggert, "unless possibly one ... desires the medical staff to train for a
natural disaster at a 'Lamaze class."' Id. at 17-18.
We agree with the Examiner's position that a person of ordinary skill
in the art would see the advantage of using medical simulators such as taught
by Miller and Eggert in a triage situation to assess and record a trainee's
ability to perform medical assessments and operations in a large-scale
scenario requiring triage. Ans. 7-8. In particular, Hoster discloses
"manikins" may be used to train for mass casualty disasters in order to
"require[] fewer participants or actors" (Hoster i-fi-17-8), and in "a more
detailed aspect" the manikins may be inflated (id. i19). That disclosure
specifically contemplates using non-inflatable manikins to train for mass
casualty disasters, so there is no teaching away from using medical
simulators such as disclosed in Miller and Eggert, which would satisfy
Roster's goal to require fewer participants or actors. Further, it is possible
for a pregnant woman to be part of a mass casualty disaster, so Appellants'
assertion that there is no rational basis for using a birthing simulator within
the context of simulating a triage event is unavailing. Indeed, as the
Examiner points out, this is recited in claim 14, which depends from claim 8.
Ans. 8. For these reasons, we sustain the rejection of claim 8 as
unpatentable over Miller, Eggert, and Hoster.
Claim 9
Claim 9 depends from claim 8 to add "wherein the medical simulators
are mobile and travel from a simulated accident site to the triage location."
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Appeal Br. 25 (Claims App.) (emphasis added). Although presented in a
different section of the Appeal Brief, the arguments for claim 9 are
substantially identical to arguments already considered above in connection
with claim 8. Appeal Br. 18. We note, further, that Appellants do not cite
any evidence which would indicate the medical simulators of Miller and
Eggert are not "mobile" as recited in claim 9. Thus, we sustain the rejection
of claim 9 as unpatentable over Miller, Eggert, and Hoster.
Claims 10 and 17
Although presented in different sections of the Appeal Brief, the
arguments for claims 10 and 1 7 are substantially identical to arguments
already considered above in connection with claim 2. Appeal Br. 18, 19.
Thus, we sustain the rejection of claims 10 and 17 as unpatentable over
Miller, Eggert, and Hoster.
Claims 14-16, 18, and 20
Appellants do not present any additional arguments for the
patentability of claims 14--16, 18, and 20. Appeal Br. 18-19. Thus, we
sustain the rejection of these claims as unpatentable over Miller, Eggert, and
Hoster.
E. Obviousness over Miller, Eggert, Hoster, and Olsen-
claims 11 and 12
Although presented in a different section of the Appeal Brief, the
arguments for claims 11 and 12 are substantially identical to arguments
already considered above in connection with claim 3. Appeal Br. 20-21.
Thus, we sustain the rejection of claims 11 and 12 as unpatentable over
Miller, Eggert, Hoster, and Olsen.
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F. Obviousness over Miller, Eggert, Hoster, and Fischell-
claims 13 and 19
Appellants argue for the patentability of claims 13 and 19 on the same
bases as claim 5. Appeal Br. 21-22. Those arguments are persuasive for the
reasons provided above. Thus, we do not sustain the rejection of claims 13
and 19 as unpatentable over Miller, Eggert, Hoster, and Fischell.
DECISION
The Examiner's decision to reject claims 1-20 is affirmed as to
claims 1--4, 6-12, 14--18, and 2 0, and reversed as to claims 5, 13, and 19.
No time period for taking any subsequent action in connection with
this appeal may be extended, under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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