Ex Parte Rey et al

Patent Trial and Appeal Board

Apr 18, 2018

13810903 (P.T.A.B. Apr. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/810,903 01/18/2013 Eduardo Rey
24737 7590 04/20/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
201 OP0061 OWOUS 5508
EXAMINER
MEHL, PATRICK M
ART UNIT PAPER NUMBER
3777
NOTIFICATION DATE DELIVERY MODE
04/20/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDUARDO REY and HAROLD CATES 1
Appeal2017-003305
Application 13/810,903
Technology Center 3700
Before ERIC B. GRIMES, RICHARD M. LEBOVITZ, and
RYAN H. FLAX, Administrative Patent Judges.
FLAX, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) involving
claims to minimizing interference generated during a magnetic resonance
(MR) scan by a magnetic resonance (MR) system. 2 The Examiner's
rejections of claims 1-17, 19, and 21-23 under 35 U.S.C. § 103(a) are
appealed. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the Real Party in Interest as "Koninklijke Philips
Electronics N.V." Appeal Br. 1.
2 We refer herein to the Specification filed on Jan. 18, 2013 ("Spec."); Final
Office Action mailed Aug. 11, 2015 ("Final Action"); Appeal Brief filed
Feb. 4, 2016 ("Appeal Br."); and Examiner's Answer mailed Oct. 21, 2016
("Answer"); and have also considered the Reply Brief filed Dec. 19, 2016
("Reply Br.").
Appeal2017-003305
Application 13/810,903
STATEMENT OF THE CASE
The Specification states:
When a patient is undergoing a magnetic resonance imaging
(MRI) scan procedure, the patient is position[ ed] in a static
magnetic field (Bo), e.g., inside the bore of the MRI scanner.
Radiofrequency fields (B1), and gradient magnetic field pulses
(Gx, Gy, Gz) are applied and directed at the patient to induce
resonance, spatially localize resonance signals, and the like.
Electro medical devices inside or near the MRI bore, such as
patient monitors and life support devices, are exposed to these
types of fields.
Spec. 1:6-11.
Independent claim 1, reproduced below, is representative:
1. A pressure sensing device for sensing a physiological
status of a patient and minimizing an amount of interference
generated during a magnetic resonance (MR) scan by a magnetic
resonance (MR) system, the device comprising:
a first, active sensor configured to be located to sense the
physiological status and experience MR scan related interference
during an MRI scan and configured to output a first signal during
the MRI scan having a physiological status component and an
interference component;
a second, non-active sensor located closely adjacent to the
first sensor such that it will experience substantially the same MR
scan related interference as the first sensor during the MRI scan
and configured to output a second signal during the MRI scan
having the interference component;
a circuit configured to subtractively operate on the first
and second signals to cancel the interference component;
a wireless transmitter;
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Application 13/810,903
a common sensor module on which the first sensor, the
second sensor, the circuit, and the wireless transmitter are
mounted; and
one or more wires each having a length of less than 5 cm
connecting the first sensor and the second sensor with the
wireless transmitter;
wherein the first, active sensor includes a first pressure
transducer configured to sense a pressure related to the
physiological status and the second, non-active sensor includes a
second pressure transducer configured to be prevented from
sensmg pressure.
Appeal Br. 31 (Claims App 'x, supplemental filing June 6, 2016).
The following rejections are appealed:
Rejection 1-Claims 1, 9, and 12-16 stand rejected under 35 U.S.C.
§ 103(a) over Dunseath 523,3 Dunseath 473, 4 Abraham-Fuchs, 5 Salem, 6 and
Feinstein. 7 Final Act. 3 .
Rejection 2- Claim 2 stands rejected under 35 U.S.C. § 103(a) over
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein, and
Brooks. 8 Id. at 8.
3 US 2008/0312523 Al (pub. Dec. 18, 2008) ("Dunseath 523").
4 US 2009/0099473 Al (pub. Apr. 16, 2009) ("Dunseath 473").
5 US 5,871,627 (issued Feb. 16, 1999) ("Abraham-Fuchs").
6 US 4,889,131 (issued Dec. 26, 1989) ("Salem").
7 US 2006/0241392 Al (pub. Oct. 26, 2006) ("Feinstein").
8 US 2008/0234594 Al (pub. Sept. 25, 2008) ("Brooks").
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Application 13/810,903
Rejection 3 - Claim 6 stands rejected under 35 U.S.C. § 103(a) over
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein, All about
circuits, 9 and Williams. 10 Id. at 9.
Rejection 4- Claims 10, 11, and 17 stand rejected under 35 U.S.C.
§ 103(a) over Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem,
Feinstein, and Amoore. 11 Id. at 12.
Rejection 5- Claims 3-5 stand rejected under 35 U.S.C. § 103(a)
over Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein,
Brooks, and Peura. 12 Id. at 13-14.
Rejection 6- Claim 7 stands rejected under 35 U.S.C. § 103(a) over
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein, Brooks,
Peura, and Hosterman. 13 Id. at 17.
9 All about circuits.com, Averager and summer circuits,
http://www.allaboutcircuits.com/vol_3/chpt_8/8.html (2003), visited July 2,
2014 ("All about circuits").
10 Jim Williams, Bridge Circuits Marrying Gain and Balance, LINEAR
TECHNOLOGY APPLICATION NOTE 43 (1990), available at
http://www.analog.com/media/en/technical-documentation/application-
notes/an43f.pdf ("Williams").
11 John N. Amoore & John P. Ridgway, A system for cardiac and
respiratory gating of a magnetic resonance imager, 10(3) CLIN. PHYS.
PHYSIOL. MEAS. 283-86 (1989) ("Amoore").
12 Robert A. Peura & John G. Webster, Basic Sensors and Principles, in
JOHN W. CLARK, JR. ET AL., MEDICAL INSTRUMENTATION APPLICATION AND
DESIGN 44--53 (John G. Webster ed., 3rd ed. 1998) ("Peura").
13 US 5,277,194 (issued Jan. 11, 1994) ("Hosterman").
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Appeal2017-003305
Application 13/810,903
Rejection 7- Claim 8 stands rejected under 35 U.S.C. § 103(a) over
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein, Brooks,
Peura, and Millar. 14 Id at 19.
Rejection 8-Claims 19, 21, and 22 rejected under 35 U.S.C.
§ 103(a) over Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem,
Feinstein, and Clifford. 15 Final Act. 3.
Rejection 9- Claim 23 stands rejected under 35 U.S.C. § 103(a) over
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, Feinstein, Brooks,
Peura, and Clifford. Id. at 23.
DISCUSSION
"[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting aprimafacie case ofunpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant." In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "[T]he analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." Id. at
418. "In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
14 US 3,748,623 (issued July 24, 1973) ("Millar").
15 US 6,581,468 B2 (issued June 24, 2003) ("Clifford").
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Application 13/810,903
patentee controls. What matters is the objective reach of the claim. If the
claim extends to what is obvious, it is invalid under§ 103." Id. at 419.
We adopt the Examiner's findings of fact as set forth in the Final
Action and Answer. Final Action 2-24; Answer 2-21. The Examiner
determined the claims would have been obvious over the combination of
Dunseath 523, Dunseath 473, Abraham-Fuchs, Salem, and Feinstein and, in
some instances, also adding one or more of Brooks, All about circuits,
Williams, Amoore, Peura, Hosterman, Millar, and Clifford, per Rejections
1-9, identified supra. Only the Dunseath 523, Dunseath 473, Abraham-
Fuchs, and Feinstein disclosures and the related determinations by the
Examiner are contested by Appellants. We discern no error in the
Examiner's determinations. We address Appellants' arguments below.
Regarding independent claims 1, 4, and 12, most specifically,
Appellants argue the combined prior art does not teach the claimed "one or
more wires each having a length of less than 5 cm connecting the first sensor
and the second sensor with the wireless transmitter," where this claimed
element minimizes the potential for RF (B 1) fields, because Feinstein does
not show its disclosed sensors as connected to a wireless transmitter with
wires (i.e., there are several circuitry features therebetween) that are shorter
than 5 cm. Appeal Br. 10-11, 13-14, 22-24. Appellants argue the meaning
of the claim term "connecting" (Appellants use the term "connected" in the
Brief) does not include mere electrical communication, e.g., as between the
sensors 22 and wireless transmitter 34 of Feinstein. Id. at 10-11; see also
Reply Br. 3. While not explicit, we understand Appellants to argue that the
claim term "connecting" (as in "connecting the first sensor and the second
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Application 13/810,903
sensor with the wireless transmitter") must mean directly, physically
connected.
The Examiner responds that Feinstein's disclosure of sensors as a part
of the wireless monitor, which is or contains a wireless transmitter, teaches
and suggests the contested claim limitation. Answer 16 (understanding the
components are connected as a circuit, i.e., wires). As for the electrical
circuit elements between Feinstein's sensors and wireless transmitter, the
Examiner interprets the claim term "connecting" more broadly than meaning
only directly connected (as argued by Appellants) and, rather, as meaning
"'join together so as to provide access and communication' or 'having a
continuous path between any two points' according to various dictionaries."
Id. (not citing any specific dictionaries). 16 The Examiner explains that the
skilled artisan would have understood the claim term in this way because
some other minimal circuitry would be needed between an electrode and
transmitter to send a signal from a sensor wirelessly. Id. at 17. Under such
an interpretation, the Examiner determined that the intervening components
between the sensors and wireless transmitter in Feinstein would be
understood to be the minimum possible components (wiring) for such a
device and are similar to the invention described in Appellants'
Specification. See, e.g., Spec. Figs. 2--4.
16 See MERRIAM-WEBSTER DICTIONARY, connect, https://www.merriam-
webster.com/dictionary/connect, accessed Apr. 18, 2018, which defines
"connect," in relevant part, as "to establish a communications connection•
connect to the Internet"; see also OXFORD DICTIONARY, connecting,
https:// en.oxforddictionaries.com/ definition/ connecting, accessed Apr. 18,
2018, which defines "connecting" as "Li]oining or linking things together,
especially so as to provide access and communication."
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Application 13/810,903
The Examiner's position is supported by a preponderance of the
evidence before us. The claim limitation "one or more wires each having a
length of less than 5 cm connecting the first sensor and the second sensor
with the wireless transmitter," would have been obvious over the disclosure
of Feinstein.
The Examiner's interpretation of the claim term "connecting," in the
context of connecting sensors to a wireless transmitter, is reasonable and
comports with the ordinary meaning of the term. See supra n.16.
Appellants' Specification does not provide an explicit definition of the term
"connecting" that would require an interpretation different from its ordinary
meaning, which would not require direct, physical connection and would
accommodate intervening electrical components or circuitry so long as an
electrical connection is provided. See, e.g., Spec. 7-8, Figs. 2 and 3
(describing and illustrating such electrical connection between sensors 64,
70 and wireless transmitter 68).
Feinstein is directed to a purpose very similar to the claimed
invention, which is providing a physiological sensor that can function in an
MRI without being hindered by the interference from the MRI. Feinstein
Abstract. Feinstein discloses sensors connected to a wireless transmitter as a
part of a singular device intended to be strapped to a rat, while permitting the
rat to move about substantially freely and naturally. Id. i-f 34, Fig. 1. Such
an objective requires that the wireless monitoring system of Feinstein be
small.
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Application 13/810,903
Figure 1 of Feinstein is reproduced, in relevant part, below:
,'
·'
'
11
/
16 -\_
--:
WlRELESS :
lN!ER.FAC.= .. .J
As shown in Feinstein's Figure 1, the entirety of the wireless monitor device
12, which includes a wireless transmitter 34 and sensors 22 (see, e.g.,
Feinstein Fig. 2), is smaller than a rat 14 subject. To achieve the Feinstein
objective of allowing the rat to move naturally while such a device is
strapped to it, it would have been obvious to make the wireless monitor
smaller than the representation shown in Figure 1, above. Considering the
size of a rat subject and the need for it to be able to move naturally, a 5 cm
or smaller overall device would have been obvious, and making the wiring
inside such a device less than 5 cm would also have been obvious. Feinstein
suggests connecting its sensors to its wireless transmitter with "substantially
non-ferromagnetic" materials, "such as aluminum and copper," and these
components must be in electrical communication with one another, e.g., by
wiring in a circuit. Feinstein, inter alia, i-f 36, Fig. 2; see also Abraham-
Fuchs 2:28-28, 3:7-12, 4:20-38 (teaching providing the sensors and
associated circuitry in the same housing and monolithically on a chip).
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Application 13/810,903
Therefore, the Examiner's determination that such an embodiment renders
obvious the claim limitation "one or more wires each having a length of less
than 5 cm connecting the first sensor and the second sensor with the wireless
transmitter," is reasonable based on the evidence. Appellants' arguments to
the contrary are not persuasive.
Regarding claim 13, Appellants argue that the prior art, specifically
Dunseath 523, does not teach the claimed "mounting the first and second
sensors to the patient closely adjacent each other and with a common
orientation such that both sensors sense the same noise component." Appeal
Br. 16 (also arguing that Dunseath 473 's two carbon rings are a single
electrode, not two separate electrodes). Appellants contend Abraham-
Fuchs' disclosure does not remedy this issue because its two sensors are in
different (flipped) orientations, are not used in an MR field, and do not
output differential-mode voltages. Id. at 17.
The Examiner points to Dunseath 523 's disclosure as having the two
sensors in close proximity to one another. And, the Examiner determines
that the independent rings of Dunseath 473 are each electrodes (sensors)
because they convey independent signals.
We conclude the Examiner's position is supported by the
preponderance of evidence in the record before us. Dunseath 523 teaches
and suggests providing sensors in close proximity to one another and teaches
doing so for the same reasons as disclosed in Appellants' Specification-to
have the two sensors experience the same interference so that one serves as a
reference for the other when determining the sensed physiological
measurements, minus the interference. Dunseath 523 Abstract; cf Spec. 2.
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Application 13/810,903
Further, both Dunseath 473 and Abraham-Fuchs disclose similar sensor
configurations and applications. Dunseath 4 73 discloses an electrode with
two concentric sensor rings, the interior ring being a physiological sensor
and the outer ring being a reference sensor so that interference signals
common to the two rings can be factored out. Dunseath 4 73 Fig. 2, i-fi-f 11-
12, 20-21, 101-108. Abraham-Fuchs discloses a blood pressure sensor
having a pressure sensor electrode for sensing blood pressure and an
adjacent reference electrode that experiences the same interfering signals as
the first electrode so that the disturbing influences can be cancelled out when
performing pressure measuring. Abraham-Fuchs Abstract, Fig. 1, cols. 2--4.
Figures 1 and 4 of Abraham-Fuchs (or any other portion thereof) do not
show that the electrodes are flipped, as alleged by Appellants. Therefore,
the prior art combination teaches and suggests the claimed "mounting the
first and second sensors to the patient closely adjacent each other and with a
common orientation such that both sensors sense the same noise
component."
Independent claim 19 requires:
the first active sensor and the second inactive sensor are
mounted on a common sensor module and configured to be
located inside the bore with the first active sensor and the second
inactive sensor adjacent to one another in a same direction and a
same axis so that the first active sensor and the second inactive
sensor are exposed to the same MR interference.
Appeal Br. 26 (emphasis added). Appellants contend that this limitation is
not taught by Dunseath 523. Id. Appellants argue Dunseath 472 cannot
remedy this because it discloses two carbon rings as a single electrode rather
than two sensors. Id. at 28. Again, Appellants argue Abraham-Fuchs also
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Application 13/810,903
cannot remedy this because its relevant electrodes are in inverted
orientations, not in an MR field, and do not generate differential-mode
voltage outputs. Id.
As discussed above, Dunseath 4 73 teaches and suggests the contested
claim limitation. We reproduce Dunseath 473 's Figure 2, annotated, below:
51
____ j
39 f47'l 37 //'--------l
/ /35
l
5 31
29 }-2s ..
-------~l
27 33 57 rssi 41 49 43 45 13 59 : ~
~ .......... ..._...._...._...._...._..i;
Dunseath 4 73 's Figure 2 shows a device comprising an electrode having
(highlighted with red outline) a first ring 47 that senses both physiological
information and interference signals and a second, concentric ring 55 around
the first that senses only the interference signals, and each ring has a
respective electrical connection 51, 53 to transmit its sensed data. See
Dunseath 473 i-fi-f 101-108. For clarity, an illustration of the relationship
between these two rings 47, 55 is also provided in an overhead view in the
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Application 13/810,903
annotation added above and right ofDunseath 473's Figure 2. Viewed from
either vantage, it is apparent that the two sensors are mounted on the same
module and are adjacent one another and share a common axis.
Further, both Dunseath 473 and Abraham-Fuchs teach and suggest
that their sensors generate differential-mode voltage outputs-it is integral to
the objective of each reference, which is to provide a sensed interference
signal to be subtracted from a combined data and interference signal.
Dunseath 473 i-fi-f 10-12, 38; Abraham-Fuchs 4:65-5: 12; see also Dunseath
523 i-f 103-106.
Because we find the weight of the evidence supports the Examiner's
case for the obviousness of the claims and are not persuaded by Appellants'
arguments, as discussed above, we affirm all of the rejections.
SUMMARY
The obviousness rejections are each affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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