10331034 (B.P.A.I. Mar. 15, 2010)

Ex Parte Schlotterbeck et al

Board of Patent Appeals and InterferencesMar 15, 2010

10331034 (B.P.A.I. Mar. 15, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE 1 ____________________ 2 3 BEFORE THE BOARD OF PATENT APPEALS 4 AND INTERFERENCES 5 ____________________ 6 7 Ex parte DAVID L. SCHLOTTERBECK, STUART E. RICKERSON, 8 DAMON J. COFFMAN, TIMOTHY W. VANDERVEEN, and 9 BRADFORD A. LEE 10 ____________________ 11 12 Appeal 2009-006530 13 Application 10/331,034 14 Technology Center 3600 15 ____________________ 16 17 Decided: March 16, 2010 18 ____________________ 19 20 21 Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and BIBHU R. 22 MOHANTY, Administrative Patent Judges. 23 24 CRAWFORD, Administrative Patent Judge. 25 26 27 DECISION ON APPEAL28 Appeal 2009-006530 Application 10/331,034 2 STATEMENT OF THE CASE 1 Appellants appeal under 35 U.S.C. § 134 (2002) from a final rejection 2 of claims 1-10 and 15-241. We have jurisdiction under 35 U.S.C. § 6(b) 3 (2002). 4 Appellants invented systems and methods for integrating and 5 managing information with respect to medical care, medication delivery, 6 asset identification, and a verification of drug delivery (Spec. 1:3-6). 7 Claim 1 under appeal is further illustrative of the claimed invention as 8 follows: 9 1. A system for use with an infusion 10 pump for reducing the possibility of medication 11 errors, the infusion pump being capable of being 12 programmed with pumping parameters, the system 13 comprising: 14 a first program configured to accept user 15 inputs related to pump operating parameter limits 16 and to generate a data base from those user inputs; 17 and 18 a second program located in an infusion 19 pump configured to: 20 receive the pump parameter data base 21 generated by the first program; 22 compare pumping parameters programmed 23 into the infusion pump by an operator with the data 24 base; and 25 monitor the comparison and if the 26 comparison exceeds the limits established in the 27 data base, provide an indication to a pump operator 28 that the programmed pumping parameter is outside 29 the limits in the data base. 30 1 Claims 11-14 and 25-28 have been withdrawn from consideration. Appeal 2009-006530 Application 10/331,034 3 The prior art relied upon by the Examiner in rejecting the claims on 1 appeal is: 2 Epstein US 4,696,671 Sep. 29, 1987 3 Muller US 4,950,246 Aug. 21, 1990 4 Ford US 5,681,285 Oct. 28, 1997 5 The Examiner rejected claims 1-4, 6-9, 15-18, 20-22, and 24 under 35 6 U.S.C. § 103(a) as being unpatentable over Muller in view of Ford; and 7 rejected claims 5, 10, 19, and 23 under 35 U.S.C. § 103(a) as being 8 unpatentable over Muller in view of Ford and Epstein. 9 We REVERSE. 10 11 ISSUE 12 Did the Examiner err in asserting that Muller discloses comparing 13 pumping parameters programmed into an infusion pump by an operator with 14 a data base, as recited in independent claims 1 and 15? 15 16 FINDINGS OF FACT 17 Specification 18 Appellants invented systems and methods for integrating and 19 managing information with respect to medical care, medication delivery, 20 asset identification, and a verification of drug delivery (1:3-6). 21 22 Definitions 23 The verb program, as used with computers, is defined as “to insert or 24 encode specific operating instructions into (a machine or apparatus)” or “to 25 insert (instructions) into a machine or apparatus.” Dictionary.com, 26 Appeal 2009-006530 Application 10/331,034 4 Dictionary.com Unabridged, Random House, Inc., 1 http://dictionary.reference.com/browse/programming (last visited Mar. 02, 2 2010). 3 A database is defined as “[a] collection of data arranged for ease and 4 speed of search and retrieval by a computer.” Dictionary.com, The 5 American Heritage® Science Dictionary, Houghton Mifflin Co. 6 http://dictionary.reference.com/browse/database (last visited Mar. 02, 2010). 7 8 Muller 9 Muller discloses an injection pen comprising a magazine for receiving 10 an injection fluid reservoir or cartridge of a variable content, a pump rod to 11 be biased against the reservoir for altering the content of the reservoir and a 12 drive mechanism for moving the pump rod (col. 1, ll. 4-9). 13 The injection pen includes a control unit that can comprise memory 14 means, part of which has been assigned as first dose memory means for 15 storing a data corresponding with a certain number of dose units of injection 16 fluid (col. 1, l. 66 through col. 2, l. 2). 17 The injection pen is equipped with a measuring unit for measuring the 18 stock in the reservoir. The measuring unit comprises a sensor for 19 determining the position of the pump rod (col. 2, ll. 27-31). 20 If the patient wishes to alter the number of dose units shown on 21 display 13, he can do so by pushing the plus or minus button of the dose set 22 unit 15. Via the up/down counter circuit 16 the data in the first dose 23 memory 12 is then adjusted and so is the number of dose units shown on 24 display 13 (col. 4, ll. 51-56). 25 Appeal 2009-006530 Application 10/331,034 5 After the desired number of dose units has been set and the dose set 1 unit 15 has been delivered, the set value is compared, with the aid of the 2 comparator 20, with the insulin stock in the reservoir, stored as data in the 3 reservoir stock memory 19 (col. 4, l. 63-67). 4 5 PRINCIPLES OF LAW 6 Claim Construction 7 Dictionaries and technical treatises may be consulted to better 8 understand the underlying technology and dictionaries may be relied on for 9 definitions when construing claim terms, so long as the dictionary definition 10 does not contradict any definition found in or ascertained by a reading of the 11 patent documents. Phillips v. AWH Corp., 415 F.3d 1303, 1322-23 (Fed. 12 Cir. 2005) (en banc). 13 14 Obviousness 15 During examination, the examiner bears the initial burden of 16 establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 17 1443, 1445 (Fed. Cir. 1992). 18 19 ANALYSIS 20 We are persuaded the Examiner erred in asserting that Muller 21 discloses comparing pumping parameters programmed into an infusion 22 pump by an operator with a data base, as recited in independent claims 1 and 23 15 (App. Br. 9-10). The Examiner asserts that Muller’s disclosure of a user 24 placing insulin stock in the pen, the measurement of which is taken by a 25 sensor and placed in reservoir stock memory 19, corresponds to “pumping 26 Appeal 2009-006530 Application 10/331,034 6 parameters programmed into the infusion pump by an operator” (Ex. Ans. 4, 1 11). However, the physical act of placing insulin stock in a pen does not 2 correspond to programming of any kind, as programming requires 3 instructions. See programming, Dictionary.com, Dictionary.com 4 Unabridged, Random House, Inc., 5 http://dictionary.reference.com/browse/programming (last visited Mar. 02, 6 2010). See Phillips v. AWH Corp., 415 F.3d at 1322–23. 7 Moreover, the Examiner asserts that first dose memory 12 of Muller 8 corresponds to the recited database (Ex. Ans. 4-5, 10). However, first dose 9 memory 12 only holds a single unit of data: the number of dose units as 10 adjusted by the patient using up/down counter circuit 16. A single unit of 11 data is not a collection of data, and thus first dose memory 12 cannot 12 correspond to the recited database. See database, Dictionary.com, The 13 American Heritage® Science Dictionary, Houghton Mifflin Company. 14 http://dictionary.reference.com/browse/database (last visited Mar. 02, 2010). 15 See Phillips v. AWH Corp., 415 F.3d at 1322-23. 16 Accordingly, because the Examiner has not met the initial burden of 17 setting forth a proper case of obviousness, we will not sustain the rejections 18 of independent claims 1 and 15, and their respective dependent claims 2-10 19 and 16-24. See In re Oetiker, 977 F.2d at 1445. 20 21 CONCLUSION 22 The Appellants have shown that the Examiner erred in rejecting 23 claims 1-10 and 15-24. 24 Appeal 2009-006530 Application 10/331,034 7 DECISION 1 The decision of the Examiner to reject claims 1-10 and 15-24 is 2 reversed. 3 4 REVERSED 5 6 7 8 9 10 11 12 hh 13 14 15 16 McDermott Will & Emery LLP 17 11682 EL CAMINO REAL 18 SUITE 400 19 SAN DIEGO, CA 92130-2047 20