Ex Parte Treacy

Patent Trial and Appeal Board

Dec 26, 2017

14788891 (P.T.A.B. Dec. 26, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/788,891 07/01/2015 Stephen Thomas Treacy 254861 (5024-00636) 3998
73387 7590 12/28/2017
Andrus Intellectual Property Law, LLP
100 East Wisconsin Avenue
Suite 1100
Milwaukee, WI53202-4178
EXAMINER
HAILE, BENYAM
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
12/28/2017 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):
patentdocketing @ andruslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN THOMAS TREACY
Appeal 2017-006579
Application 14/788,8911
Technology Center 2600
Before MARC S. HOFF, ERIC S. FRAHM, and LARRY J. HUME,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 21, 23—25, and 27—36, which are all claims pending in
the application. Appellant has canceled claims 1—20, 22, and 26. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is General Electric
Company. App. Br. 1.
Appeal 2017-006579
Application 14/788,891
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed embodiments and claimed invention relate to a
system and method for monitoring clinician responsiveness to alarms.
Spec., Title.
Exemplary Claim
Claim 21, reproduced below, is representative of the subject matter on
appeal (emphasis added to contested limitations):
21. A method of monitoring clinician desensitization
to alarms generated by patient monitors, the method
comprising:
receiving a plurality of alarm events from one or more
patient monitors at a central monitor;
determining an alarm initiation time for each of the alarm
events;
receiving at the central monitor an acknowledgement
from the clinician of each of the alarm events;
calculating an event response time for each of the
plurality of alarm events as the time between the alarm
initiation time and the acknowledgement of the alarm event by
the clinician;
determining an allowable response period for each of the
alarm events received at the central monitor;
computing a responsiveness score based on a
comparison between the event response time and the allowable
2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed
Nov. 7, 2016); Reply Brief ("Reply Br.," filed Mar. 17, 2017); Examiner's
Answer ("Ans.," mailed Jan. 18, 2017); Final Office Action ("Final Act.,"
mailed Feb. 9, 2016; and the original Specification ("Spec.," filed
July 1, 2015).
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Application 14/788,891
response time for each of the plurality of alarm events, wherein
the responsiveness score is computed over the plurality of
alarm events and is indicative of a level of alarm fatigue
experienced by the clinician over the plurality of alarm events',
and
generating an alarm fatigue alert when the
responsiveness score drops below a threshold value.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
LaPlante et al. ("LaPlante") US 2008/0010093 A1 Jan. 10, 2008
Muhsin et al. ("Muhsin") US 2011/0169644 Al July 14, 2011
Rejection on Appeal
Claims 21, 23—25, and 21—36 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Muhsin and LaPlante. Final
Act. 2.
CLAIM GROUPING
Based on Appellant's arguments (App. Br. 7—13), we decide the
appeal of the obviousness rejection of claims 21, 23—25, and 27—36 on the
basis of representative claim l.3 We note Appellant sets forth what appears
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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Application 14/788,891
to be a separate argument against the rejection of independent claim 36.
However, closer analysis reveals the arguments merely rely upon arguments
against the rejection of claim 21 and 33, i.e., "[sjince claim 36 was rejected
based upon the same combination of the Muhsin and LaPlante references,
the same analysis described above with respect to claims 21 and 33 applies
equally to the system required by independent claim 36. For these reasons,
independent claim 36 is believed to be in condition for allowance over the
combination of references cited by the Examiner." App. Br. 13.
ISSUE
Appellant argues (App. Br. 7—13; Reply Br. 2—3) the Examiner's
rejection of claim 21 under 35 U.S.C. § 103(a) as being obvious over the
combination of Muhsin and LaPlante is in error. These contentions present
us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] method of monitoring clinician desensitization to alarms
generated by patient monitors" that includes, inter alia, the steps of
"computing a responsiveness score based on a comparison between the event
response time and the allowable response time for each of the plurality of
alarm events, wherein the responsiveness score is computed over the
plurality of alarm events and is indicative of a level of alarm fatigue
experienced by the clinician over the plurality of alarm events," and
"generating an alarm fatigue alert when the responsiveness score drops
below a threshold value," as recited in claim 21?
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ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to claims 21,
23—25, and 27—36 and, unless otherwise noted, we incorporate by reference
herein and adopt as our own: (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
and rebuttals set forth in the Examiner's Answer in response to Appellant's
arguments. We highlight and address specific findings and arguments
regarding claim 21 for emphasis as follows.
Appellant contends:
Although the Mushin reference discloses generating a
"report card" for the hospital or clinicians, this report card is not
indicative of a level of alarm fatigue experienced by the
clinician over a plurality of alarm events and the Mushin
reference does not disclose generating an alarm fatigue alert
based upon the responsiveness score falling below a threshold
value.
The Examiner has taken the incorrect position that a
person of ordinary skill in the art would understand that if a
system generates a performance metric for a clinician, such
performance metric could be used to generate an alarm based
upon a level of fatigue. Nothing in Mushin would lead a person
of ordinary skill in the art to this conclusion.
App. Br. 10.
Appellant alleges the Examiner erred because Mushin only teaches
generating historical reports useful in evaluating hospital or clinician
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performance, and purportedly does not teach or suggest generating a fatigue
alert when a responsiveness score drops below a threshold value. Id. (citing
Spec. 116, 29).
However, as acknowledged by Appellant, we note the Examiner relies
upon LaPlante as teaching or suggesting calculating a responsiveness score
based upon comparison between an event response time and an allowable
response time, and generating an alarm fatigue alert. App. Br. 11.
With respect to LaPlante, the Examiner is alleged to have erred by
mischaracterizing the reference "as sending an alert for the non­
responsiveness of the medical practitioner when a calculated score drops
below a threshold value." Id. Appellant further contends Examiner error
because "[t]he LaPlante reference [ ] discloses a method and system for
determining the efficiency of an emergency room in dealing with individual
patients. The efficiency rating for each of the plurality of patients is used
[to] generate an overall emergency room efficiency rating as a function of
efficiency ratings for each of the plurality of patients." App. Br. 12.
We disagree with Appellant's allegations, and agree with the
Examiner's findings that "Mushin teaches that the system uses clinician
responses for alarm events to drive medical event statistics which includes
determining response time of clinicians to alarms,"4 and "the system further
4 The Examiner cites Mushin 133 for this limitation, i.e., "MMS 120 may
analyze the medical event information stored in the journal database 124 to
derive metrics, measurement, and/or statistics about the medical events. For
example, the MMS 120 can analyze alarm events and alarm deactivation
events to determine clinician response times to alarms" (emphasis added).
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Application 14/788,891
uses the medical event statistics to assign scores to clinicians."5 Ans. 2
(citing Mushm || 33, 98).
As for Appellant's arguments against the Examiner's reliance upon
LaPlante, the Examiner finds:
LaPlante teaches generating a rating based on the
response time of a medical practitioner, [par. 62]; wherein based
on the response time, if no response is received with in a set
period of time, an alarm is generated, [par. 62], Low
responsiveness of a clinician, which is indicated through the
generated rating, is interpreted to be the same as appellant's
claimed "fatigue" experienced by the clinician. The generated
alarm indicates that the medical practitioner has a low response
time with respect to a predetermined standard, as indicated in
[fig. 14, 16] high response time is given a low score an alarm is
generated when a score drops below a threshold score. The
generated alarm can be named according to the intended use of
the alarm.
Ans. 3 (citing LaPlante 1 62, Figs. 14, 16).
We agree with the Examiner because in a rejection under § 103, the
test for obviousness is what the combined teachings of the prior art would
have suggested to the hypothetical person of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425 (CCPA 1981). We further agree because the
relevant inquiry is whether the Examiner has set forth "some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval in KSRInt'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)).
5 The Examiner cites Mushin 198 for this limitation, i.e., "[a] report is
generated at block 606 regarding the medical event statistics . . . [and] can
be a 'monitoring report card' that assigns scores to the hospital or clinicians
of the hospital based on their performance."
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In this case, the Examiner finds "[i]t would have been obvious to one
of ordinary skill in the art at the time of the invention to combine the
teachings of Mushin with that of LaPlante so that by determining
responsiveness of a medical practitioner based on a set amount of time for an
event to be acknowledged, the system can assign emergency events if an
assigned medical practitioner did not acknowledge the event." Final Act. 4.
We find this articulated reasoning meets the requirements of KSR cited
above.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 21, nor do
we find error in the Examiner's resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner's obviousness rejection of independent
claim 21, and grouped claims 23—25 and 27—36 which fall therewith. See
Claim Grouping, supra.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2—3) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellant has not shown.
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CONCLUSION
The Examiner did not err with respect to the obviousness rejection of
claims 21, 23—25, and 27—36 under 35 U.S.C. § 103(a) over the cited prior
art combination of record, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 21, 23—25,
and 27—36.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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