Ex Parte Miller et alDownload PDFPatent Trial and Appeal BoardOct 11, 201612883134 (P.T.A.B. Oct. 11, 2016) Copy Citation 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. Appeal2014-008446 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). 2 Appeal2014-008446 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 3 Appeal2014-008446 Application 12/883, 134 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. 4 Appeal2014-008446 Application 12/883, 134 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 5 Appeal2014-008446 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 6 Appeal2014-008446 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. 7 Appeal2014-008446 Application 12/883, 134 ("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 8 Appeal2014-008446 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. 9 Appeal2014-008446 Application 12/883, 134 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 10 Appeal2014-008446 Application 12/883, 134 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 11 Appeal2014-008446 Application 12/883, 134 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 12 Appeal2014-008446 Application 12/883, 134 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." 13 Appeal2014-008446 Application 12/883, 134 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. 14 Appeal2014-008446 Application 12/883, 134 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 15 Copy with citationCopy as parenthetical citation