Ex Parte Muehsteff et al

Board of Patent Appeals and Interferences

Apr 25, 2012

12091330 (B.P.A.I. Apr. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JENS MUEHSTEFF, GERD LANFERMANN,
XAVIER AUBERT, and OLAF SUCH
____________

Appeal 2011-000421
Application 12/091,330
Technology Center 3700
____________

Before TONI R. SCHEINER, DONALD E. ADAMS, and DEMETRA J.
MILLS, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 1-20 (App. Br. 3).
We have jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
The claims are directed to a system for determining blood pressure of
a patient (claims 1-16); a method of determining blood pressure of a patient
(claims 17-19); and a computer-readable medium (claim 20). Claims 1, 17,
Appeal 2011-000421
Application 12/091,330

2
and 20 are representative and are reproduced in the “CLAIMS APPENDIX”
of Appellants’ Brief (App. Br. 10-13).
Claims 1 and 2 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Honeyager.
1

Claims 1, 2, 6, 7, 10, 12, 13, and 15-20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Modai
2
and Honeyager.
Claims 3-5 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Modai, Honeyager, and Claxton.
3

Claims 9 and 14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Modai, Honeyager, and Varshneya.
4

Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Modai, Honeyager, and Sjönell.
5

We reverse.

Anticipation:
ISSUE
Does the preponderance of evidence on this record support
Examiner’s finding that Honeyager teaches Appellants’ claimed invention?
FACTUAL FINDINGS (FF)
FF 1. Honeyager teaches “a method and apparatus for continuous
noninvasive measurement of blood pressure” (Honeyager, col. 1, ll. 7-9; see
generally Ans. 3).

1
Honeyager, US 4,924,871, issued May 15, 1990.
2
Modai, et al., WO 02/41771 A1, published May 30, 2002.
3
Claxton, III et al., US 4,998,534, issued March 12, 1991.
4
Varshneya et al., US 6,498,652 B1, issued December 24, 2002.
55
Sjönell, US 5,042,496, issued August 27, 1991.
Appeal 2011-000421
Application 12/091,330

3
FF 2. Honeyager teaches that “[p]hysical disturbances, such as the
movement of the patient’s arm can lead to erroneous pressure signals being
detected by the pressure sensing elements” (id. at col. 6, ll. 3-6).
FF 3. In Honeyager’s method motion is continuously monitored and
“[w]hen motion is detected, data collection from the force sensing element is
temporarily delayed to avoid an erroneous indication of blood pressure” (id.
at col. 2, ll. 35-41; see generally Ans. 3-4).
FF 4. Honeyager teaches that movement tends
[T]o move the transducer from optimum contact pressure with
the patient’s arm, and, therefore, such motion can be detected as
a change in the pressure in the pressurizable chamber . . . of the
transducer assembly. . . . The output of the pressure transducer
can, therefore, be used as an indirect indication of motion. . . .
In the method of the present invention, data collection is
interrupted temporarily during the time that the output signal of
the pressure transducer . . . indicates a pressurization change of
more than a predetermined limit, e.g., 10 mm of Hg, in the
pressurizable bellows of the transducer assembly.

(Id. at col. 6, ll. 3-23.)
FF 5. Examiner finds that Honeyager teaches a look up table by teaching
that “a value of 10 mmHg is stored in the system and when that value is
reached or exceeded blood pressure measurements are not collected” (Ans.
4)
ANALYSIS
Each of Appellants’ independent claims 1, 17, and 20 require that a
determination be made as to “whether the blood pressure value is reliable
based on whether the motor activity information is at or below a predefined
level stored in a look-up table” (Claims 1, 17, and 20; see also App. Br. 6).
In contrast, Honeyager’s motor activity information is “used to determine
Appeal 2011-000421
Application 12/091,330

4
whether blood pressure data is measured or not” (App. Br. 6; FF 3-4).
“[E]xaminer maintains”, however,
[T]hat the term “reliability” in its broadest reasonable definition
is met by Honeyager because the motion sensing done by
sensing a pressure change in the control source causes blood
pressure measurements to be halted when patient motion is
detected and therefore only blood pressure measurements are
recorded when motion is not detected. This can be considered a
reliability assessment because the monitor assesses when blood
pressure measurements coincide with a motion which causes
errors in the data and further provides a measuring result based
on this assessment because data relating to blood pressure is
only recorded during periods when motion is not detected.

(Ans. 14; see also FF 2-5.) We are not persuaded.
As Appellants’ explain, Honeyager’s method and device utilize
“output of the pressure transducer . . . as an indirect indication of motion”
(Reply Br. 2; FF 4). Therefore, “movement of the pressure transducer in the
absence of movement of the arm . . . would . . . result in a pressure change,
but such a pressure change would not indicate motor activity” (id.).
Similarly, “movement of the arm . . . that does not cause the pressure
transducer to move and a change in pressure is not reflected as a pressure
change in the output of the pressure transducer . . . a change in the output
pressure of the pressure transducer is an indication of movement of the
pressure transducer” (id.). “Inherency . . . may not be established by
probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” In re Robertson, 169
F.3d 743, 745 (Fed. Cir. 1999) (citations and internal quotation marks
omitted).

Appeal 2011-000421
Application 12/091,330

5
CONCLUSION OF LAW
The preponderance of evidence on this record fails to support
Examiner’s finding that Honeyager teaches Appellants’ claimed invention.
The rejection of claims 1 and 2 under 35 U.S.C. § 102(b) as being
anticipated by Honeyager is reversed.

Obviousness:
Does the preponderance of evidence on this record support a
conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 6. Examiner finds that Modai suggests a blood pressure measuring
device “but fails to specifically disclose assessing the blood pressure based
on the motor activity and providing a reliability of the blood pressure
measurement based upon whether the motor activity is at or below a defined
level in a look up table” (Ans. 5).
FF 7. Examiner relies on Honeyager to make up for the foregoing
deficiency in Modai (id. at 5).
FF 8. Examiner relies on Claxton to suggest “a corrected blood pressure
value . . . in order to account for the height of the patient”, to provide a blood
pressure “value having a confidence interval”, and “to provide a signal for
requesting a repeat pressure measurement” (Ans. 10).
FF 9. Examiner relies on Varshneya to suggest “a microphone for
monitoring an ambient sound intensity in addition to a patient’s silence”
(Ans. 11).
FF 10. Examiner relies on Sjönell to suggest “measuring a patient’s sex or
age” (Ans. 11).
Appeal 2011-000421
Application 12/091,330

6
ANALYSIS
Examiner finds that Modai “fails to specifically disclose assessing the
blood pressure based on the motor activity and providing a reliability of the
blood pressure measurement based upon whether the motor activity is at or
below a defined level in a look up table” (FF 6). For the reasons set forth
above, with respect to the anticipation rejection, Examiner failed to establish
that Honeyager suggests “determining the reliability of measured blood
pressure values… based on a level of measured motor activity (App. Br. 8;
Cf. FF 7). Examiner further failed to establish that any one of Claxton,
Varshneya, or Sjönell make up for the deficiency in the combination of
Modai and Honeyager (see FF 8-10).
CONCLUSION OF LAW
The preponderance of evidence on this record fails to support a
conclusion of obviousness.
The rejection of claims 1, 2, 6, 7, 10, 12, 13, and 15-20 under 35
U.S.C. § 103(a) as unpatentable over the combination of Modai and
Honeyager is reversed.
The rejection of claims 3-5 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Modai, Honeyager, and Claxton is reversed.
The rejection of claims 9 and 14 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Modai, Honeyager, and Varshneya is
reversed.
The rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Modai, Honeyager, and Sjönell is reversed.

Appeal 2011-000421
Application 12/091,330

7
REVERSED

alw