Ex Parte Sobie

Patent Trial and Appeal Board

Aug 11, 2014

12327614 (P.T.A.B. Aug. 11, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT ANDREW SOBIE
____________________

Appeal 2012-004933
Application 12/327,6141
Technology Center 2400
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Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
BRADLEY B. BAYAT, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–4, 6–11, and 13–20. We have jurisdiction under
35 U.S.C. § 6(b).
STATEMENT OF THE DECISION
We AFFIRM2.

1 The real party in interest is CareFusion 303, Inc. (App. Br. 3).
2 Our decision will refer to Appellant’s Appeal Brief (“App. Br.,” filed
Sept. 15, 2011) and Reply Brief (“Reply Br.,” filed Jan. 30, 2012), and the
Examiner’s Answer (“Ans.,” mailed Nov. 30, 2011).
Appeal 2012-004933
Application 12/327,614

2

THE CLAIMED INVENTION
Appellant’s claimed invention relates to a method for providing a
medical device into a medical treatment area within a wireless range of a
medical facility network, transmitting an initialization signal from the
medical facility network to the medical device and automatically initializing
the medical device in response to the medical device receiving the
initialization signal (Spec., para. 12).
Claim 1 reproduced below, is illustrative of the subject matter on
appeal.
1. A method of initializing a medical device within a
medical treatment area, comprising:
providing the medical device into the
medical treatment area within a wireless range of
a medical facility network;
transmitting an initialization signal from the
medical facility network to the medical device,
wherein the initialization signal comprises
instructions to power up to an active power state;
and
automatically initializing the medical device
in response to the medical device receiving the
initialization signal, wherein initializing comprises
powering the medical device into an active power
state when the medical device is in a low-power,
sleep, or off state.

THE REJECTION
The following rejection is before us for review:
Claims 1–4, 6–11, and 13–20 are rejected under 35 U.S.C. § 102(e) as
anticipated by Wittenber (US 2008/0154503 A1, pub. Jun. 26, 2008).
Appeal 2012-004933
Application 12/327,614

3

FINDINGS OF FACT
We have determined the findings of fact in the Analysis section below
are supported at least by a preponderance of the evidence3.

ANALYSIS
Appellant stipulates “[c]laims 2–4, 6–12, and 14–204 stand or fall
together with representative Claim 1” (App. Br. 10).
We are not persuaded by Appellant’s argument that the Examiner
erred in rejecting claim 1 under 35 U.S.C. § 102(e) because the device of
“Wittenber is not brought from a low-power, sleep, or off state to an active
state by the receipt of an activation signal,” as recited in claim 1 (App. Br.
12). Instead, we agree with the Examiner that Wittenber discloses this
limitation (Ans. 9–10).
Wittenber clearly states “the present invention permits a wireless
medical device in a very low power state to resume normal operation after
being paged from a ‘standby’ mode” (Wittenber, para. 5). In fact, Wittenber
is directed to a method for paging/finding a wireless Patient-Wearable
Device (PWD), including the steps of determining the status of the device
from a plurality of meta-states such as standby, inactive, active, or sleep, and
after said determination, selecting the device for receipt of wireless
transmission of a signal adapted for changing the meta-state of the device to
a desired state (Abstract).

3 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
4 Appellant incorrectly listed the claims rejected in the Appeal Brief.
Claim 12 is canceled and claim 13 is pending.
Appeal 2012-004933
Application 12/327,614

4

Appellant points to Figure 2B, box 260 of Wittenber to distinguish it
from the claimed invention, alleging that “the PWD must be connected with
the PIC prior to the page/find signal activating the PWD” (App. Br. 13; see
also App. Br. 12, 14–15; Reply Br. 3–7). In addition, Appellant contends
“[w]hen the timer times out, the device is awakened and only then responds
to the page/find signal” (Id. at 12). We disagree.
Wittenber discloses that
[o]ne way the present invention can function is that an Internet
control directs the Access Point (AP) in a wireless network to
issue a DECT “call” to the wireless medical device [and] [u]pon
receipt of the DECT call, the device either resumes normal
operation from standby mode or makes audial indications that
facilitate clinicians to find the device in the event such device
was “misplaced” and or lost
(Wittenber, para. 6). Another way the invention can function, according to
Wittenber, is when the PWD goes into standby mode, with the RM state
locked in the sleep mode, “there can be, for example, a count-down timer so
that after a predetermined time the PWD device times out and may connect
to the PIC so that a page/find capability would activate the PWD”
(Wittenber, para. 31).
We agree with the Examiner that Wittenber does not require a timeout
mechanism (Ans. 10–11) for receiving wireless transmission of a signal to
change the meta-state of the device to a desired state. Actually, Wittenber
states “[w]hile in a standby mode, a power-conserving feature of some
devices permits a very low-power consumption mode (sleep mode) wherein
the device interface’s receptivity to message on the WLAN is effectively
limited to being ‘called’ by the AP to wake up” (Wittenber, para. 16). We
find the claim, as recited, is clearly anticipated by Wittenber.
Appeal 2012-004933
Application 12/327,614

5

In view of the foregoing, we sustain the Examiner’s rejection of
independent claim 1 under 35 U.S.C. § 102(e). We also sustain the rejection
of claims 2–4, 6–11, and 13–20, which stand or fall with claim 1.

DECISION
The Examiner’s rejection of claims 1–4, 6–11, and 13–20 under
35 U.S.C. § 102(e) is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
1.136(a)(1)(iv).

AFFIRMED

mls