Fresenius Medical Care Holdings, Inc.Download PDFPatent Trials and Appeals BoardOct 29, 20212020005463 (P.T.A.B. Oct. 29, 2021) Copy Citation 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. 16/170,322 10/25/2018 Peter Christensen FMC-002USCON1 5623 54004 7590 10/29/2021 MUIRHEAD AND SATURNELLI, LLC 200 FRIBERG PARKWAY SUITE 1001 WESTBOROUGH, MA 01581 EXAMINER TRUONG, NGUYEN H ART UNIT PAPER NUMBER 2691 NOTIFICATION DATE DELIVERY MODE 10/29/2021 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): USPTO@WESTBORO-IP.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER CHRISTENSEN Appeal 2020-005463 Application 16/170,322 Technology Center 2600 Before BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and ADAM J. PYONIN, Administrative Patent Judges. PYONIN, Administrative Patent Judge. STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s rejection.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Fresenius Medical Care Holdings, Inc. as the real party in interest. Appeal Br. 2. Appeal 2020-005463 Application 16/170,322 2 STATEMENT OF THE CASE Introduction The Application is directed to a “wearable interface device, such as a head-mounted display, [that] provides an augmented reality and/or display system and may be used in accordance with medical devices and the performance of medical treatments, particularly a dialysis machine and a dialysis treatment.” Abstract. Claims 1–7, 9–15, and 17–44 are pending; claims 1, 9, and 17 are independent. Appeal Br. 18–25 (Claims App.). Claim 1 is reproduced below for reference: 1. A method of remotely interfacing with a medical device, comprising: providing a wearable interface device that enables remote interfacing with the medical device by a user wearing the wearable interface device; wirelessly exchanging signals between the wearable interface device and the medical device, wherein the signals correspond to a treatment performed using the medical device; processing at least one of the signals at the wearable interface device to generate information corresponding to the treatment performed using the medical device; displaying the information on a screen of the wearable interface device; and augmenting a real view either displayed on or viewed through the wearable interface device with information corresponding to the treatment performed using the medical device and with a visual alert when a first patient being treated requests a nurse call, wherein the screen displays identification information to ensure that the user is matching a second patient being treated with the information corresponding to the medical device, the second patient being different from the first patient. Appeal Br. 18 (Claims App.). Appeal 2020-005463 Application 16/170,322 3 References and Rejections The Examiner relies on the following prior art: Name Reference Date Kramer US 2002/0014951 Al Feb. 7, 2002 Wendt US 2002/0082498 Al June 27, 2002 Cobb US 2003/0055685 Al Mar. 20, 2003 Lemelson US 6,847,336 B1 Jan. 25, 2005 Kauthen US 2007/0112603 Al May 17, 2007 Biewer US 2009/0294339 Al Dec. 3, 2009 Ray Avalani US 2011/0043496 Al Feb. 24, 2011 Weaver US 2011/0163030 Al July 7, 2011 Gomez US 8,223,088 B1 July 17, 2012 Horseman US 2013/0009993 Al Jan. 10, 2013 DiMaio US 2013/0245375 Al Sept. 19, 2013 Claims 1, 3–5, 9, 11–13, 21, 25, 26, 30, 36, 38 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, and Horseman. Final Act. 2–11. Claims 2, 6, 10, and 14 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, Horseman, and Kauthen. Final Act. 11–12. Claims 7 and 15 are rejected under pre–AIA 35 U.S.C. § 103(a) as being unpatentable Lemelson, Cobb, Kramer, Horseman, Kauthen, and Weaver. Final Act. 12–13. Claims 17–20, 31, 34, 35 and 40 are rejected under pre–AIA 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Biewer, Cobb, Kramer, and Horseman. Final Act. 13–19. Claims 22, 23, 27, and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, Horseman, and Wendt. Final Act. 19–21. Appeal 2020-005463 Application 16/170,322 4 Claims 24 and 29 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, Horseman, and DiMaio. Final Act. 21–22. Claims 32 and 33 are rejected under pre–AIA 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Biewer, Cobb, Kramer, Horseman, and Wendt. Final Act. 22–23. Claims 37 and 39 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, Horseman, and Ray Avalani. Final Act. 23–24. Claim 41 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Biewer, Kramer, Cobb, Horseman, and Ray Avalani. Final Act. 24–25. Claims 42 and 43 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Cobb, Kramer, Horseman, and Gomez. Final Act. 25. Claim 44 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Lemelson, Biewer, Kramer, Cobb, Horseman, and Gomez. Final Act. 25–26. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments. Appellant does not separately argue the claims. See Appeal Br. 16. We select claim 1 as representative. See 37 C.F.R. §41.37(c)(1)(iv). Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Similarly, arguments raised for the first time in the reply brief, absent a showing of good cause, are forfeited. See 37 C.F.R. § 41.41(b)(2). Appeal 2020-005463 Application 16/170,322 5 We disagree with Appellant that the Examiner erred and adopt as our own the findings and reasons set forth by the Examiner, to the extent consistent with our analysis below. We add the following analysis primarily for emphasis. First and Second Patients Appellant argues the Examiner’s obviousness rejection is in error, first because “the purpose of Cobb is to ensure that the caregiver is physically present with a particular patient by positively identifying the patient receiving care.” Appeal Br. 14. Appellant contends, therefore, that the Examiner’s combination, which requires “[a]dding a second patient (or more) to the system taught by Cobb[,] would destroy the purpose of Cobb, which is to ensure a one-for-one correct match of the caregiver and the patient.” Id. We are not persuaded the Examiner’s combination is in error. We note that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Appellant’s generalized description of Cobb fails to show error in the Examiner’s finding (i.e., that one of ordinary skill would use Cobb’s determination of “whether the patient identifier and the intended patient identifier match,” in the medical method of Lemelson, Kramer, and Horseman). Final Act. 4; Ans. 3, 4; and Cobb ¶ 50 (“[T]he patient identifier may be compared with the intended patient identifier to determine whether the individual patient associated with the patient identifier is intended to receive the medical product within the delivery device.”). Appeal 2020-005463 Application 16/170,322 6 Particularly, we disagree with Appellant that— merely because Cobb describes in-person patient care—an ordinarily skilled artisan would hesitate to care for multiple patients using the teachings of Cobb. Contra Appeal Br. 14. Appellant presents no persuasive evidence or technical reasoning to explain why Cobb would not be used for multiple patients. For at least this reason, we are not persuaded the Examiner errs in relying on Cobb. Furthermore, Cobb teaches identifying the patient that is intended to receive a medical product, to avoid dispensing to a non-intended patient. See Cobb ¶¶ 7, 51, and Fig. 5. The need for determining the correct, intended patient for a given product strongly suggests an environment with more than one patient. For this additional reason, we do not find the Examiner’s reliance on Cobb is in error. See Final Act. 4. Visual Alert Appellant argues the Examiner’s obviousness rejection is in error, second, because Horseman does not teach visual alerts when a patient requests a nurse call: the messages of Horseman (e.g., “Do not lift heavy objects[,]” “Lifting heavy objects may result in a lower back injury[,]” corresponding icon) are not visual alerts provided to a user when a patient being treated requests a nurse call. Rather, they are warning messages to the user himself about something that the user is doing. There is no “patient” in Horseman and thus there is no “patient” requesting a nurse call in Horseman. The visual alert in Horseman is a warning to the user about something that the user is doing. In contrast, the recited visual alert is provided on a screen of a user to indicate that a patient has requested a nurse call. Thus, the recited visual alert Appeal 2020-005463 Application 16/170,322 7 provided to the user is about something the patient (not the user) is doing-calling a nurse. Appeal Br. 15. We find no error in the Examiner’s reliance on Horseman. Horseman, as correctly cited by the Examiner, teaches a “wearable interface device is augmented with a visual alert.” Final Act. 5; Horseman Fig. 2 (depicting an alert on an augmented display device). We agree with the Examiner that the use of Horseman’s visual alerts in various kinds of notification devices— such as providing patient alerts in the device of the combination of Lemelson, Cobb, and Kramer—would have been predictable to one of ordinary skill in the alert arts. See Final Act. 5; Ans. 4, 5. That is, Appellant does not show that combining Horseman’s visual alerts with the other cited references was “uniquely challenging or difficult for one of ordinary skill in the art” or “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418–19). Thus, we are not persuaded the Examiner’s rejection is in error. Reasoning Appellant argues the Examiner’s obviousness rejection is in error, third, because “there is no teaching in any of the references, alone or in any combination with each other, that the audible alarm of Kramer could or should be replaced by any sort of visual alert.” Appeal Br. 15. Appellant contends, “there is nothing in Horseman that would teach one of ordinary skill in the art to replace the audible alarm of Kramer with a visual alert . . . Appeal 2020-005463 Application 16/170,322 8 especially since the visual messages/icons in Horseman are about the user himself, not about a patient (or anyone else) making a nurse call.” Id. at 16. We disagree with Appellant. First, we note the Examiner’s reasoning was to augment Kramer with the visual alerts of Horseman, not to replace them. See Final Act. 5; Ans. 5. We agree with the Examiner that one of ordinary skill would utilize various types of alerts, such as the visual alerts of Horseman, in creating the medical method of the cited art. See Final Act. 5–6. Second, and more importantly, Appellant’s argument is unpersuasive because it presumes the reason to use Horseman must be found in the reference itself. We disagree. See, e.g., MPEP § 2143 (“[A]n explicit analysis does not require record evidence of an explicit teaching of a motivation to combine in the prior art.”). Appellant fails to show the Examiner’s combination reasoning is faulty. Accordingly, we are not persuaded the Examiner’s combination is in error. CONCLUSION We are not persuaded the Examiner’s rejection of independent claim 1 is in error. We sustain the rejections of claims 1–7, 9–15, 17–44. Appeal 2020-005463 Application 16/170,322 9 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–5, 9, 11–13, 21, 25, 26, 30, 36, 38 103(a) Lemelson, Cobb, Kramer, Horseman 1, 3–5, 9, 11–13, 21, 25, 26, 30, 36, 38 2, 6, 10, 14 103(a) Lemelson, Cobb, Kramer, Horseman, Kauthen 2, 6, 10, 14 7, 15 103(a) Lemelson, Cobb, Kramer, Horseman, Kauthen, Weaver 7, 15 17–20, 31, 34, 35, 40 103(a) Lemelson, Biewer, Cobb, Kramer, Horseman 17–20, 31, 34, 35, 40 22, 23, 27, 28 103(a) Lemelson, Cobb, Kramer, Horseman, Wendt 22, 23, 27, 28 24, 29 103(a) Lemelson, Cobb, Kramer, Horseman, DiMaio 24, 29 32, 33 103(a) Lemelson, Biewer, Cobb, Kramer, Horseman, Wendt 32, 33 37, 39 103(a) Lemelson, Cobb, Kramer, Horseman, Ray Avalani 37, 39 41 103(a) Lemelson, Biewer, Cobb, Kramer, Horseman, Ray Avalani 41 Appeal 2020-005463 Application 16/170,322 10 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 42, 43 103(a) Lemelson, Cobb, Kramer, Horseman, Gomez 42, 43 44 103(a) Lemelson, Biewer, Cobb, Kramer, Horseman, Gomez 44 Overall Outcome 1–7, 9–15, 17–44 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 Copy with citationCopy as parenthetical citation