12345212 (P.T.A.B. Nov. 17, 2014)

Ex Parte Moubayed et al

Patent Trial and Appeal BoardNov 17, 2014

12345212 (P.T.A.B. Nov. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/345,212 12/29/2008 Ahmad-Maher Moubayed 031407.00369 7437 26712 7590 11/17/2014 HODGSON RUSS LLP THE GUARANTY BUILDING 140 PEARL STREET SUITE 100 BUFFALO, NY 14202-4040 EXAMINER LE, LINH GIANG ART UNIT PAPER NUMBER 3686 MAIL DATE DELIVERY MODE 11/17/2014 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 AHMAD-MAHER MOUBAYED, DAVID WHITE, LINDA THOMAS, CHUCK GREY, and MEHRYAR MICHAEL PARSEE ____________ Appeal 2012-005798 Application 12/345,212 Technology Center 3600 ____________ Before HUBERT C. LORIN, BIBHU R. MOHANTY, and BRADLEY B. BAYAT Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 25–28 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. Appeal 2012-005798 Application 12/345,212 2 THE INVENTION The Appellants’ claimed invention is directed to a method for remotely controlling a peristaltic pump (Spec., para. 4). Claim 25, reproduced below, is representative of the subject matter on appeal. 25. A method for remotely operating an infusion pump from a remote computing device in communication with the pump, the method comprising the steps of: displaying, on the remote computing device, a list of stored prescriptions; displaying, on the remote computing device, information in a chosen one of the stored prescriptions, the information including precautions associated with the chosen prescription; receiving a send prescription command inputted at the remote computing device, wherein the send prescription command indicates an intention to send the chosen prescription to the pump; displaying the precautions associated with the chosen prescription in a precautions window in response to the send prescription command, the precautions window including a first button for entering a confirming command indicating the precautions have been reviewed and a second button for entering a cancel command canceling the send prescription command; receiving a confirming command inputted at the remote computing device by pressing the first button; and sending only the chosen prescription to the pump. THE REJECTIONS The following rejections are before us for review: Claims 25–28 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ford (US 5,681,285, iss. Oct. 28, 1997), Bui (US 2003/010928 A1, pub. July 31, 2003), and Wise (US 2004/0098269 A1, pub. May 20, 2004). Appeal 2012-005798 Application 12/345,212 3 FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence1. ANALYSIS The Appellants argue that the rejection of claim 25 is improper because the cited prior art fails to disclose the claim limitations for receiving “a send prescription command inputted at the remote computing device” and “displaying the precautions associated with the chosen prescription in a precautions window” (App. Br. 4-5, Reply Br. 2-3). The Appellants also argue that the combination is improper (App. Br. 5-6). In contrast, the Examiner has determined that the rejection of record is proper and that the cited claim limitations are shown in Ford at col. 4:50–65, col. 10:63–11:15 and Fig. 5 as well as Bui at paras. 39–41 (Ans. 4-5, 8). We agree with the Examiner. The Appellants argue that the cited prior art fails to disclose the “‘send prescription command’ inputted at the remote computing device” and that Ford instead, teaches sending an entire drug library to the computing device, not “a chosen prescription” (App. Br. 2, 4–5). The cited claim limitation argued for the “send prescription command inputted at the remote computing device” is broad enough in scope to not exclude the entire list or library from being sent as well. The Examiner cites to this claim limitation as being shown in the prior art by Ford at col. 4:50–65, col. 10:63–11:15 and Fig. 5 (Ans. 4). At these portions of Ford it is disclosed that a remote computer 80 holds a drug library that is 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2012-005798 Application 12/345,212 4 connected to drug infusion pump 80 for the transfer of the drug library meeting the cited claim limitation as the “chosen prescription” would be included in that library. In Ford the description of Figure 8 (col. 12:33–40) shows that a particular drug entry may be made which would serve as a “chosen one” for a prescription in the library as well. The Appellants have further argued that the prior art fails to show “displaying the precautions associated with the chosen prescription in a precautions window,” but we agree this is shown in the prior art by the combination of Bui at para. 39 disclosing adverse reactions and Ford at col. 22:3–46 where a display window is disclosed. The Appellants have also argued that the cited combination is improper. Here, the modification of Ford by Bui to include displaying drug precautions at the pump and to further include a confirmation button as known in the art would have been an obvious, predictable combination of familiar elements for the advantage of having the system display drug precautions and require a confirmation before final delivery. Further, while the cited prior art of Ford does show the chosen and selected prescription sent with the library to the pump, it would have been obvious to send the delivery of the single prescription alone from the remote computing device if desired, as that single prescription can be sent from a finite number of locations (either the remote computer or the pump) each providing benefits. Here, sending the prescription from the remote computer would serve as a quality control function by having a single location for prescription disbursements from the remote computer if desired. For these reasons the rejection of claim 25 is sustained. Appeal 2012-005798 Application 12/345,212 5 The Appellants argue that the rejection of claim 26 is improper because the prior art fails to show the display window on the remote computing device. In the cited combination, a display window is present in the Ford reference on the computer (PC 80) of Fig. 5 and the placement of a precautions window there would allow the operator to read the precautions as well, and would have been an obvious, predictable combination to one of ordinary skill in the art for that advantage. For these reasons the rejection of claim 26 is sustained as well. The Appellants have provided the same arguments for the remaining claims and the rejection of these claims is sustained as well. CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting the claims as listed in the Rejection section above. DECISION The Examiner’s rejection of claims 25–28 is sustained. AFFIRMED pgc