Ex Parte Portnoy et al

Patent Trial and Appeal Board

Feb 3, 2016

12507113 (P.T.A.B. Feb. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/507, 113 0712212009
46169 7590 02/05/2016
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
Alan M. Portnoy
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.
CRNI.224498 5363
EXAMINER
RAJ,RAJIV J
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
02/05/2016 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
BPARKERSON@SHB.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALAN M. PORTNOY and DEBORAH A. SAEGER
Appeal2013-002577 1
Application 12/507,113
Technology Center 3600
Before: MICHAEL W. KIM, NINA L. MEDLOCK, and
JAMES A. WORTH Administrative Patent Judges.
KIM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
This is an appeal from the final rejection of claims 1-16. We have
jurisdiction to review the case under 35 U.S.C. §§ 134(a) and 6(b).
The invention relates generally to "monitoring rate of fluid infusion
and generating alert messages based on identifying divergence of rate of
administration of a dose of a particular infusion fluid to a patient on different
occasions." Spec. p. l, 11. 8-11.
1 The Appellants identify Siemens Medical Solutions Health Services
Corporation as the real party in interest. App. Br. 2.
Appeal2013-002577
Application 12/ 507, 113
Claim 1 is illustrative:
1. An infusion pump monitoring system, comprising:
an acquisition processor for acquiring fluid infusion
parameters comprising a patient identifier, infusion fluid
identifier and a rate of fluid infusion to be used for a patient, for
administration of an infusion fluid to a patient at a point of care
using an infusion pump;
a repository of patient medical record information;
a fluid infusion monitor for using acquired fluid infusion
parameters for automatically searching a patient medical record
in said repository for information concerning rate of fluid
infusion of a particular infusion fluid and determining if a rate of
a previously administered dose of said particular infusion fluid
was lower than a rate indicated in said fluid infusion parameters;
and
an interface processor for automatically initiating
generation of a message indicating a potential adverse reaction
to said particular infusion fluid in response to a determination of
a lower rate being employed for previously administering said
particular infusion fluid to said patient.
Claims 1-16 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Ireland (US 2007 /0293843 Al, pub. Dec. 20, 2007) in view of Steil
(US 7,402,153 B2, iss. July 22, 2008) and Rule (US 2010/0121170 Al, pub.
May 13, 2010).
We REVERSE.
ANALYSIS
Obviousness Rejection of Claims 1---8 and 16
We are persuaded the Examiner erred in asserting that a combination
of Ireland, Steil, and Rule discloses or suggests "determining if a rate of a
previously administered dose of said particular infusion fluid was lower than
a rate indicated in said fluid infusion parameters," as recited in each of
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Application 12/ 507, 113
independent claims 1 and 16. App. Br. 6-10. The Examiner cites to "at
least ... claims 1-9" of Rule as corresponding to the aforementioned claim
limitation. Ans. 2-3; Final Rejection 3--4, 11-12. Claims 1-9 of Rule recite
calculating a recommended treatment dosage based in part on a comparison
of information accessed from an "analyte history database" and a "dosage
history database." The aforementioned portion of Rule, however, does not
identify the specific recited comparison of "determining if a rate of a
previously administered dose of said particular infusion fluid was lower than
a rate indicated in said fluid infusion parameters." Specifically, Rule
discloses "comparing portions of the analyte history database to portions of
the dosage history database." Rule, p. 57 (claim 1). Presumably, "portions
of the dosage history database" may correspond to the recited "rate of a
previously administered dose of said particular infusion fluid," however, we
are unclear as to how the "portions of the analyte history database"
corresponds properly to the recited "rate indicated in said fluid infusion
parameters." The Examiner has not cited either Ireland or Steil for
remedying the aforementioned deficiency of Rule.
For these reasons, we do not sustain the rejection of independent
claims 1 and 16, or of dependent claims 2-8 that depend therefrom.
Obviousness Rejection of Claims 9-11
We are persuaded the Examiner erred in asserting that a combination
of Ireland, Steil, and Rule discloses or suggests "an acquisition processor for
using the communication interface for acquiring weaning data identifying a
fluid infusion medication is being discontinued over a time period to wean a
patient from said fluid infusion medication," as recited in independent
claim 9. App. Br. 12-14. The Examiner cites to the following portions of
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Appeal2013-002577
Application 12/ 507, 113
Steil as corresponding to the aforementioned claim limitation: Figures 1 and
24; column 2, lines 42-64; column 5, lines 58---61, column 46, lines 20-39
(claim 1 ). Merriam-Webster's Medical Dictionary defines "wean" as "to
detach usually gradually from a cause of dependence or form of treatment."
http://www.merriam-webster.com/medical/wean (accessed January 22,
2016). This definition of "wean" is consistent with the usage of that term in
the Specification. Spec. 5:9-16; 13:35-14:7.
We have reviewed the aforementioned portions of Steil, as well as
columns 11-12, which describe Fig. 24, and are unable to ascertain any
acquiring of data that would correspond to the aforementioned definition of
"wean." At best, column 2 of Steil discloses using particular sets of
controller gains depending on whether a glucose concentration is
higher/lower than a desired basal concentration and/or whether a glucose
concentration is increasing/decreasing, and claim 1 of Steil recites
implementing a first and second phase insulin response based on current
blood glucose concentrations. The Examiner has not articulated sufficiently,
however, how any of this is related to the recited "acquiring weaning data."
The Examiner has not cited either Ireland or Rule for remedying the
aforementioned deficiency of Steil.
For these reasons, we do not sustain the rejection of independent
claim 9, or of dependent claims 10 and 11 that depend therefrom.
Obviousness Rejection of Claims 12-15
We are persuaded the Examiner erred in asserting that a combination
of Ireland, Steil, and Rule discloses or suggests "automatically predicting a
time a patient receiving an administered infusion will be ready for a
treatment procedure in response to said start time of infusion administration
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Application 12/ 507, 113
or said end time of infusion administration and data identifying type of
infusion and a predetermined time for distribution of the type of infusion
through patient anatomy," as recited in independent claim 12. App. Br. 14--
15. The Examiner cites to the following portions of Ireland as
corresponding to the aforementioned claim limitation: i-fi-134--36, 51-55, 93-
97; Figure 1; pg. 10 (claims 1-5, 7-10).
We have reviewed the aforementioned portions of Ireland, and the
only mention of "time" we are able to ascertain is in claim 1 of Ireland,
which compares a determined first amount of time with a predetermined
amount of time. We are unclear as to how either of those times corresponds
properly to the recited "automatically predicting a time," as both times are
already determined, and thus would not appear to involve a prediction, as
claimed. The other cited portions of Ireland are directed toward calculation
and transmission of bolus amounts, and we are unable to determine their
relevance to this claim limitation. The Examiner has not cited either Steil or
Rule for remedying the aforementioned deficiency of Ireland.
For these reasons, we do not sustain the rejection of independent
claim 12, or of dependent claims 13-15 that depend therefrom.
DECISION
We REVERSE the rejections of claims 1-16.
REVERSED
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