Ex Parte Sano et al

Patent Trial and Appeal Board

May 15, 2018

11812382 (P.T.A.B. May. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/812,382 06/18/2007
25227 7590 05/17/2018
MORRISON & FOERSTER LLP
1650 TYSONS BOULEVARD
SUITE400
MCLEAN, VA 22102
FIRST NAMED INVENTOR
Y oshihiko Sano
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.
245402010301 1733
EXAMINER
NATNITHITHADHA, NAVIN
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
05/17/2018 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):
EOfficeVA@mofo.com
PatentDocket@mofo.com
pair_mofo@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YOSHIHIKO SANO, TAKEFUMI NAKANISHI,
TAKAHIDE TANAKA, YUKIYA SAWANOI, KENJI EDA,
MINORU TANIGUCHI, HIROY A NAKANISHI, TOMONORI INOUE,
and TETSUY A NAKADA
Appeal2017-002125
Application 11/812,382
Technology Center 3700
Before DEMETRA J. MILLS, ERIC B. GRIMES, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 submit this appeal under 35 U.S.C. § 134(a) involving
claims to a blood pressure measurement device. The Examiner rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Omron Healthcare Co., Ltd.
App. Br. 2.
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Application 11/812,382
STATEMENT OF THE CASE
Appellants' "invention relates to a blood pressure measurement device
and, more specifically, to a blood pressure measurement device storing
measurement data in a removable portion mounted thereon." Spec. 1: 5-7.
As the Specification explains:
Conventionally, information associated with blood pressures
measured at home and blood pressure measurement is sometimes
recorded in a sphygmomanometer ( a blood pressure gauge) for
disclosure thereof in an external medical institution such as a
hospital to receive treatment or guidance. As a method of
disclosure of the information, a user writes on a sheet of paper
the information associated with the blood pressure measurement
recorded in the sphygmomanometer and then takes the paper, or
takes a main body of the sphygmomanometer recording the
information to the external medical institution such as a hospital
to show a doctor the recorded information to receive treatment or
guidance.
Id. at 1:9-17. According to the Specification, however, with the
conventional method, "incorrect information may be written by mistake,"
and "the main body of the sphygmomanometer recording the information is
heavy and bulky for carrying." Id. at 1:18-21. Appellants' invention aims
to address these problems. Cf Spec. 2-3.
Appellants' drawings are helpful in understanding the claimed
invention, and an embodiment of the invention is shown below.
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Application 11/812,382
· FIG.SA
. 1
FIG.5B
50
I
11
50
I
11
13
16
I#:_'" 13
;4 ~14 16
'
9
51
Spec. Figs. 5A, 5B. Fig. 5A shows a blood pressure measurement device
(50) having a cuff/arm band (1), main body (51), and main body operation
unit (11 ), with a display unit (18) mounted on the device's main body (11 );
Fig. 5B shows the same device, but the display unit (18) is detached from
the device's main body in the direction indicated by the arrow. Spec. 10: 15-
11 :9. The Specification explains that, "since the display unit including [a]
storage unit storing measurement data ... can be removed from the blood
pressure measurement device, one can easily go to an external medical
institution ... carrying only the display unit which is smaller and lighter
than the blood pressure measurement device." Id. at 3:7-11.
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Application 11/812,382
Claims 7-10 are on appeal. Independent claim 7 is illustrative:
7. A blood pressure measurement device, comprising:
a main body unit; and
a display unit detachably mounted on said main body unit,
wherein
said main body unit includes a cuff mounted on a region
for measurement of a living body, a first storage unit configured
to store data of blood pressure measurement, and a main body
operation unit operable by a user to externally provide an
instruction to measure a blood pressure of the living body,
said cuff is fixedly attached to said main body unit so that
relative positions of the cuff and the main body do not change,
and
said display unit includes a second storage unit configured
to automatically store data of blood pressure measurement as it
is measured by the main body unit, a display portion for
displaying measurement data from said first or second storage
unit, and a display operation unit operable by a user to externally
provide an instruction to display data of blood pressure
measurement stored in said second storage unit before operation
of said display operation unit by the user.
App. Br. 13 (Claims App.) (emphases added).
Claim 8, the other independent claim on appeal, is similar to claim 7
except that claim 8 requires only one "storage unit," which is included in the
detachably mounted "display unit." Id. at 13-14. In claim 8, the "display
unit" also includes "a main body operation unit" that provides instructions to
a "control unit." Id. at 14.
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Application 11/812,382
Claims 7-10 stand rejected under 35 U.S.C. § I03(a) over Ogura, 2
Inagaki, 3 and Shimazu. 4 Final Act. (Oct. 7, 2015) 6-17.
The Examiner objected to claims 7 and 8, and presaged a rejection
under 35 U.S.C. § 112, first paragraph, for lack of written description. Final
Act. 5. Objections and hypothetical rejections are not appealable matters
and the Examiner appears to have withdrawn them in any event. Ans. 14.
DISCUSSION
Issue
Has the Examiner established by a preponderance of the evidence that
claims 7-10 would have been obvious over Ogura, Inagaki, and Shimazu?
Findings of Fact (FF)
The Examiner's findings of fact and statement of the rejection are
provided at pages 6-17 of the Final Rejection dated October 7, 2015. See
also Adv. Act. (Jan. 22, 2016) 1-9; Ans. 2-14. The following findings are
provided for emphasis and convenient reference.
FF 1. Ogura teaches a blood pressure measuring apparatus for
measuring a subject's blood pressure. Ogura Abstract. An embodiment of
Ogura's apparatus is shown below.
2 Ogura et al., US 5,649,536, issued July 22, 1997.
3 Inagaki et al., US 6,344,025 Bl, issued Feb. 5, 2002.
4 Shimazu et al., US 5,961,467, issued Oct. 5, 1999.
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Application 11/812,382
FIG. 1
Id. Fig. 1. Figure 1 is a perspective view of a blood pressure measuring
apparatus (8). The apparatus includes, inter alia, a housing (10), an
inflatable cuff (16) for receiving a subject's arm (12), an operation panel
(20), and a display panel (30) that displays, for example, blood pressure
measurements. Id. at 18:33-54. The apparatus shown also includes a printer
(26). Id. at 18:46-47.
FF 2. Ogura teaches that the electronics of apparatus (8) include an
"arithmetic and control circuit 56 [that] is essentially constituted by a
microcomputer including a central processing unit (CPU) 62," along with
memory, input/output, and data bus elements. Id. at 19: 13-17; see also id.
Fig. 2. Ogura teaches that the CPU controls cuff pressure/inflation and
processes signals to calculate blood pressure values, which the CPU feeds to
the display. Id. at 19:17--40. The CPU also "stores the SAP [systolic] and
DAP [diastolic] values in a blood-pressure (BP) memory area 87 of a
memory device 86." Id. at 19:36-38; see also id. Fig. 2.
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FF 3. Ogura further teaches that the CPU controls a printer to print on
a recording sheet blood pressure values stored in memory. Id. at 19:62-
20:6; see also id. Fig. 5 (showing recording sheet 110), Fig. 10. Ogura
describes that the recording sheet may include, for example, blood pressure
values/images and "the subject can bring the recording sheet on which the
selected pictorial image is recorded. Thus, the subject is not required to
write down the measured BP values or keep them in mind." Id. at 6:61-7:2;
see also id. at 31 :25--40.
FF 4. Inagaki relates to a blood pressure monitor including an
inflatable cuff and "a main body detachably mounted on the cuff provided
with an electrical component, in which the main body is electrically
connected with the cuff by wire or wireless." Inagaki Abstract. An
embodiment of Inagaki's blood pressure monitor is shown below.
i
rn 31
FIG. 1
20
Id. Fig. 1. Figure 1 of Inagaki (above) is a perspective view of a blood
pressure monitor in a single-unit state wherein a cuff (10) and a main body
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(20) are in a united/mounted configuration. Id. at 2:46-48. As shown, main
body (20) also includes a display (21) and a manipulation portion (22) ( e.g.,
controls, etc.). Id. at 3:43---63. Inagaki teaches that main body (20) and its
display (21) are detachably mounted to the cuff (IO) and base (31). Id.; see
also id. Figs. 2 and 3; see also Fig. 8 (more detailed drawing of an
embodiment of the detachable display (21 )).
FF 5. Inagaki teaches advantages with a design having a detachably
mounted body/display. Inagaki teaches that the design "provide[s] a blood
pressure monitor having improved visualization and manipulation without
deteriorating the simplicity and portability of a single unification of a cuff
and main body." Id. at 1 :56-60. For subjects with presbyopia, for example,
Inagaki teaches the "detached state ... improv[ es] the visualization of the
display 21 and the operability of the manipulation portion 22 of the main
body 20, resulting in handy and easy use." Id. at 4:24--30.
FF 6. Shimazu relates to a cardiovascular system observation method
and apparatus. Shimazu Abstract. More specifically, Shimazu teaches an
"observation apparatus [that] is composed of a cuff 10, a blood pressure
measuring adaptor 50 connected to said cuff ... , and a personal computer
60 connected to said blood pressure adaptor 50 via a connection cable 61."
Id. at 9:30-34; see also id. Fig. 3, Figs. 36-37 (showing blood pressure data
on main screen display ( 40) on the display (70) of a personal computer ( 60)
while blood pressure measurements are being carried out); id. at 22:5-8;
Shimazu teaches the personal computer (PC) includes, inter alia, an
operating system, and that a program to control and receive data from the
blood pressure measuring adaptor "is installed in one of these operating
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systems." Id. at 9:35-50 ("The program is stored in one of various kinds of
memory devices which can be recognized by the central processing unit of
the personal computer."); see also id. Fig. 1 (hardware configuration of the
blood pressure measurement adaptor).
FF 7. Shimazu teaches that measurement data (e.g., blood pressure
values, pulse rates, reference pattern groups) "are able to be stored together
with the patient name, date of measurement and other descriptions," so that
"the data stored in the [personal computer] memory are able to be loaded on
the screen display by retrieval as necessary." Id. at 23: 18-26; see also id.
Fig. 39 (embodiment showing a patient history screen display). Shimazu
teaches "since it is possible to quickly confirm the past measurement data of
a specified patient and to easily grasp the transition of the measurement data,
the same is very convenient for a medical doctor to carry out a diagnosis of
the patient." Id. at 23:51-54.
Analysis
Claim 7
Appellants do not argue the claims on appeal separately. We choose
claim 7 as representative. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Ogura teaches a blood pressure measurement
device, including the cuff, main body unit, first storage unit, and main body
operation unit as recited in claim 7. Final Act. 7-9. But, the Examiner
finds, the display unit in Ogura differs from the claimed display unit because
it is not "detachably mounted on [the] main body unit." Id. at 9 ( emphasis
added). The Examiner turns to Inagaki. Id.
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The Examiner finds that Inagaki teaches a blood pressure measuring
device having a display unit that is detachably mounted to a body
portion/base of the measuring device. Id. at 10. The Examiner concludes it
would have been obvious to modify Ogura's device to include a display unit
that is detachably mounted to the housing of Ogura's device. Id. Consistent
with Inagaki's teachings, the Examiner reasons this modification would have
"provide[ d] a blood pressure monitor having improved visualization and
manipulation without deteriorating the simplicity and portability of a single
unification of a cuff and main body." Id. ( quoting Inagaki 1:56-60). The
Examiner finds, however, that the combination of Ogura and Inagaki does
not teach that the display unit includes "a second storage unit" and "display
operation unit" as recited in claim 7. Id. So, the Examiner cites Shimazu.
The Examiner finds that Shimazu's personal computer displays
measurement data from a storage unit (i.e., various kinds of memory), and
that Shimazu's computer also includes programming to store and selectively
display, for example, past blood pressure measurement from a memory. Id.
at 12-13; see also Adv. Act. 2--4. The Examiner reasons the skilled person
would have been motivated to modify Ogura and Inagaki "to use Shimazu's
'patient history screen display 60' over Ogura's display in order to provide a
more convenient display of information for a medical doctor to carry out
diagnosis of a patient," and that this "simple substitution" would "provid[ e]
the ability to evaluate past measurement data." Adv. Act. 7; Final Act. 14.
The preponderance of the evidence on this record supports the
Examiner's conclusion of obviousness. Ogura teaches all the limitations of
claim 7, except that its display is fixed to the main body/housing and does
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not include a separate storing unit and display operation unit. FF 1-2.
Ogura's device included a printer so that a subject's blood pressure
measurements shown on the fixed display could be provided on a slip of
paper and taken away by the user. FF 3. As evidenced by the combined
teachings of Inagaki and Shimazu, however, it was known in the art at the
time of the invention that blood pressure measurements taken with a blood
pressure cuff could also be displayed (and stored in a memory) on a
detachable and portable electronic device. FF 4--7. We agree with the
Examiner that a skilled artisan would have been motivated to modify Ogura
with a detachably mounted electronic display unit like taught in Inagaki for
at least the reason that it would provide improved visualization and ease of
use. Ans. 10; FF 5. We also agree with the Examiner that the skilled artisan
would have included a storage unit (i.e., memory) and display operation unit,
as suggested in Shimazu, in the detachable display so that measurement data
could be kept, and past measurement data recalled on the display -
providing a convenient way for the patient or the doctor to access that data.
See Adv. Act. 7.
We address Appellants' arguments below.
Appellants argue "none of the cited references discloses the claimed
distribution of the electronic components between the detachable display
unit and the main body." App. Br. 4. According to Appellants: (i) "Ogura
fails to disclose the claimed detachable display unit having a storage unit,"
(ii) "Inagaki fails to disclose the claimed main body unit that includes a
storage or control unit," and (iii) because "Shimazu's personal computer 60
is not detachably mounted on Shimazu's blood pressure adaptor 50 ...
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Shimazu fails to disclose the claimed detachable display unit having a
storage unit." Id. at 5-6 (emphasis added); Reply Br. 1-2.
Appellants' contentions are unpersuasive because they focus on what
each of Ogura, Inagaki, and Shimazu teach or suggest in isolation rather than
in combination. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
("Nonobviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references."). True, as Appellants point out, Ogura does not teach a
detachable display unit that includes a storage unit. App. Br. 5; Ans. 16.
Those limitations, however, are taught by Inagaki and Shimazu as explained
above. FF 4--7. Similarly, Appellants' contention that Inagaki does not
teach the main body unit with a storage or control unit as claimed is
unpersuasive because Ogura teaches those limitations. FF 1-2; Ans. 17-18.
As the Examiner noted, "Inagaki was used in the rejection merely to
illustrate that a display unit can be [advantageously] modified to be
detachable." Ans. 18; FF 5. Finally, Appellants' contentions about Shimazu
are unpersuasive because, although Shimazu's PC/laptop is not detachably
mounted to Shimazu's cuff or adaptor, Inagaki suggests the use of a
detachably mounted electronic display. FF 4. And, Shimazu's detachable
PC includes a storage unit/memory in order to store and display patient
history data and measurements. FF 6-7; Ans. 18-19; Adv. Act. 2--4.
Appellants argue "a person of ordinary skill in the art would not have
had a reason to arrive at the claimed invention based on the teachings of
Ogura, Inagaki and Shimazu." App. 6; Reply Br. 2--4. According to
Appellants, the reason for using Shimazu' s personal computer was to
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provide a "universal software platform" and, if anything, Shimazu would
have caused the skilled person to use Ogura's device with a PC rather than a
detachably mounted display unit as claimed. App. Br. 7-9 ("handling and
displaying more complicated [measurement] information ... would favor
use of a personal computer and not a detachable display unit."). Moreover,
Appellants contend, there would have been no reason to modify Ogura
further "in order to evaluate past measurement data," as suggested by the
Examiner (Final Act. 14), "because Ogura's device already has [that]
ability." App. Br. 8-9; Reply Br. 4--5.
We remain unpersuaded. The Examiner relied on Shimazu to show
that it was known in the art to include a storage unit/memory in a detachable
display unit for storing and displaying measurements of blood pressure and
other physiological values. Final Act. 11-14; Ans. 18-19. Shimazu shows a
PC/laptop as the detachable display unit, but Appellants provide no evidence
that the necessary memory, software, and functionality (e.g., storing and
displaying past measurement values) could not at the time of the invention
have been implemented in a detachably mounted electronic display as
proposed by the Examiner. At minimum, the convenience and ease of use of
a detachable handheld display as evidenced by Inagaki would have provided
a reason to use that smaller form factor as an alternative to the PC/laptop
shown in Shimazu. Dystar Textilfarben GmbH & Co. Deutsch/and KG v.
CH Patrick Co, 464 F.3d 1356, 1361 (Fed. Cir. 2006) (holding that implicit
motivation to combine may exist when the resulting product "is stronger,
cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient.").
Appellants provide no evidence to support their suggestion that the skilled
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person, having considered Ogura, Inagaki, and Shimazu "would favor use of
a personal computer." App. Br. 9.
We are also unpersuaded by Appellants' contention that there would
have been no reason to further modify Ogura in view of Shimazu to permit
evaluation of past measurement data. App. Br. 8-9. The Examiner's
combination of Ogura, Inagaki, and Shimazu would allow for the storage
and display of past measurement data on a portable electronic display unit
that is detachably mounted to the body of the measuring device. That is not
a feature or capability that exists in the unmodified Ogura device. The
portion of Ogura cited by Appellants relates to the ability of the Ogura
device to print records with current or past blood pressure measurements on
a recording sheet. App. Br. 9 ( citing Ogura 31: 18-24 ); see FF 3. But the
benefit of alternatively or additionally being able to store and display
measurement data on a portable electronic display unit - as opposed to
measurements printed on a piece of paper - would have been self-evident
absent persuasive evidence to the contrary.
Finally, Appellants contend the Examiner's conclusion of obviousness
is based on hindsight. App. Br. 9. According to Appellants, although
Shimazu's PC "may be separated from the rest of the device and carried to a
patient's doctor," it is still "heavy and bulky for carrying." Id. at 9-10.
Appellants contend "Ogura, Inagaki and Shimazu combined together are
silent on the 'heavy and bulky' problem for doctor consultation," which
Appellants assert is only found in Appellants' disclosure. Id. at 10.
This argument is unpersuasive for two reasons. First, Ogura, as
modified by the Examiner, does not physically require Shimazu's PC as
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already explained. The Examiner is proposing the use of Inagaki's relatively
small detachably mounted display, and the Examiner has provided reasons
for doing so (e.g., improved visualization, ease of manipulation, etc.). Final
Act. 10; FF 4--5. Second, Appellants contend they have "discussed" the
alleged "heavy and bulky" problem with the Examiner (App. Br. 10), yet the
Examiner does not appear to be specifically relying on that problem as a
reason for combining the cited art. As the Examiner explains, "[ t ]he
motivation to combine teachings were taken directly from Inagaki," and
Appellants have not persuaded us of error in the Examiner's findings and
reasoning. Ans. 25.
Conclusion of Law
The preponderance of the evidence supports the Examiner's
conclusion that claim 7 would have been obvious over Ogura, Inagaki, and
Shimazu. We also adopt the Examiner's findings, reasoning, and conclusion
of obviousness (Final Act. 14--1 7) related to claims 8-10, which claims have
not been argued separately and thus fall with claim 7.
SUMMARY
We affirm the rejection for obviousness on appeal.
TIME PERIOD FOR RESPONSE
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
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