KONINKLIJKE PHILIPS N.V

Patent Trials and Appeals Board

Apr 14, 2021

2020002677 (P.T.A.B. Apr. 14, 2021)

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.
15/535,784 06/14/2017 Hendrik Jan van Ooijen 2014P01420WOUS 4203
24737 7590 04/14/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
JARRETT, LORE RAMILLANO
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
04/14/2021 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HENDRIK JAN VAN OOIJEN, BART JACOB BAKKER, and
RENÉ VAN DEN HAM
Appeal 2020-002677
Application 15/535,784
Technology Center 1700
Before JEFFREY T. SMITH, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–15. (Final Act. 1.) We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 The term “Appellant” to refers to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant’s Briefs failed to identify the real party in interest for the
present application. However, according to the Bibliographic Data Sheet
submitted January 25, 2019, KONINKLIJKE PHILIPS N.V, EINDHOVEN,
NETHERLANDS is the Applicant.
Appeal 2020-002677
Application 15/535,784

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CLAIMED SUBJECT MATTER
The claims are directed to a device, system and method for
determining a fibrinogen level in a blood sample. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A device for determining a fibrinogen level in a sample
comprising:
a first input for obtaining an attenuance signal over time
indicative of a fibrin polymerization of said sample;
a second input for obtaining a reactant concentration
signal over time indicative of a concentration of a reactant in
said sample, wherein the reactant is any substance leading to
the cleavage of fibrinogen to fibrin;
a simulation unit running a model using the reactant
concentration signal as an input to provide a simulated
attenuance signal over time, wherein the model uses an average
mass/length ratio of simulated fibrin molecules; and
an evaluation unit configured to infer the fibrinogen level
of said sample by comparing the attenuance signal over time
with the simulated attenuance signal over time.
REJECTIONS2
I. Claims 1–15 are rejected under 35 U.S.C. § 102(a)(1) as anticipated
by Bakker (WO 2012/172497 A1, published Dec. 20, 2012). (Final Act. 3–
5.)
II. Claims 1–15 are rejected under 35 U.S.C. § 103 as obvious over
Yamamoto (US 2011/0014640 A1, published Jan. 20, 2011) in view of
Bakker. (Final Act. 6–7.)

2 The Examiner has withdrawn the provisional rejection of claims 1–15 on
the ground of nonstatutory double patenting as being unpatentable over
claims 1–11 and 13–15 of copending Application No. 14/126,580. (Ans. 3.)
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Application 15/535,784

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OPINION
After review of the respective positions Appellant and the Examiner
provide, we determine that Appellant has identified reversible error in the
Examiner’s rejections under 35 U.S.C. §§ 102(a)(1) and 103. Our discussion
is applicable to independent claims 1, 14, and 15.
Anticipation Rejection
The Examiner finds Bakker discloses a device for determining a
fibrinogen level in a sample comprising first and second inputs, a simulation
unit, and an evaluation unit, which anticipates the subject matter of the
independent claims. (Final Act. 3–4.)
Appellant argues the anticipation rejection is in error because Bakker
fails to disclose using an attenuance signal as claimed. Appellant argues the
independent claims 1, 14, and 15 require (1) a simulation unit running a
model using the reactant concentration signal as an input to provide a
simulated attenuance signal over time, wherein the model uses an average
mass/length ratio of simulated fibrin molecules and (2) an evaluation unit
configured to infer the fibrinogen level of said sample by comparing the
attenuance signal over time with the simulated attenuance signal over time.
(Appeal Br. 7.)
The dispositive issue for this rejection is:
Did the Examiner err in determining that Bakker teaches or describes
a simulation unit running: a model using the reactant concentration signal as
an input to provide a simulated attenuance signal over time as required by
claims 1, 14, and 15?
We answer this question in the affirmative.

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“Anticipation requires that every limitation of the claim in issue be
disclosed, either expressly or under principles of inherency, in a single prior
art reference.” Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868
F.2d 1251, 1255–56 (Fed. Cir. 1989).
The Examiner asserts that the scope of the claimed “simulated
attenuance signal” includes a digital signal representative of data pertaining
to fibrin formation that is modified and transmitted. (Ans. 4.) The Examiner
specifically states:
Appellant’s specification does not provide a special definition
of “simulated attenuance signal,” but describes at paragraphs 38
and 40 of Appellant’s published application that the attenuance
signal 24 may be an analog or digital signal indicative of an
intensity attenuation of transmitted light, which is obtained by
the first input 12, and is representative of the formation of a
fibrin network taking place during blood coagulation. Under the
broadest reasonable interpretation standard, consistent with
Appellant’s specification, the scope of the claimed “simulated
attenuance signal” includes a digital signal representative of
data pertaining to fibrin formation that is modified and
transmitted. Bakker clearly discloses the claimed “simulation
unit” and “simulated attenuance signal” because Bakker's
calculation arrangement 105, which reads on the claimed
“simulation unit”, is a type of program element or computer
readable medium that is configured to perform a “simulated
attenuance signal” by (1) collecting digital data signal(s)
(calculation arrangement performs a simulation on data
collected pertaining to the numerical model and measured
coagulation data), (2) modifying the signals (calculation
arrangement calculates and then translates the calculated values
of the human blood protein concentrations into a risk value,
which pertains to clotting elements, such as fibrin), and (3)
transmitting the signals to another component (the risk value,
which is representative of data pertaining to fibrin formation, is
then transmitted to the display arrangement). See pages 3, 9, 13,
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Application 15/535,784

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and 35 (claim 35) of Bakker. Thus, Bakker clearly discloses the
claimed “simulation unit” and “simulated attenuance signal”.
(Ans. 4–5.)
Appellant argues the Examiner’s interpretation is not consistent with
the ordinary and customary meaning of “simulated attenuance.” Appellant
argues the Examiner has ignored the use of the claim term in the
Specification and drawings. Appellant further argues the Examiner’s
interpretation is not consistent with the interpretation that those skilled in the
art would reach because the Examiner has not given any patentable weight
to the “simulated attenuance.” (Reply Br. 2.)
We first note that Appellant has not directed us to evidence that
establishes the ordinary and customary meaning of “simulated attenuance.”
Appellant in the Appeal Brief refers to the Specification page 9, line 25 and
Figure 1 element 34 as describing “a simulated attenuance signal.” (Appeal
Br. 2.) These identified portions of the record are insufficient to establish the
ordinary and customary meaning of “simulated attenuance.” Appellant has
not identified other portions of the Specification or provided technical
reasoning that, coupled with the information known in the art at the time of
the invention, without undue experimentation would have enabled one of
ordinary skill to practice the full scope of the “simulated attenuance signal.”
It must be remembered that the burden of establishing a prima facie
case of unpatentability rests upon the Examiner. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir.
1984). It is therefore incumbent on the Examiner to provide a factual basis
for the determination that the scope of the claimed “simulated attenuance
signal” includes a digital signal representative of data pertaining to fibrin
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formation that is modified and transmitted. In the present case, the Examiner
has not discharged that burden. The Examiner has not adequately explained
how the determination that the simulation on data collected pertaining to the
numerical model and measured coagulation data and modifying the signals
performed by Bakker is necessarily the same as the “simulated attenuance
signal” as required by the claimed invention. The Examiner has not
identified the portions of the Specification that support the proposed
interpretation of “simulated attenuance signal.”3
For the above reasons we do not sustain the anticipation rejection.
Obviousness Rejection
The Examiner finds Yamamoto describes a device for determining the
fibrinogen level in samples that differs from the claimed invention by failing
to specifically disclose a model that uses an average mass/length ratio of
simulated fibrin molecules. Addressing this difference, the Examiner cites
Bakker for describing a model using an average mass/length ratio of
simulated fibrin molecules. The Examiner concludes, based on the teachings
of Bakker, it would have been obvious to use a model with an average
mass/length ratio of simulated fibrin molecules in the device of Yamamoto.
(Final Act. 6–7.)
Appellant argues the Examiner’s rejection fails to address the
provision of a simulated attenuance signal over time required by the claimed
invention. Appellant argues Bakker cannot remedy the deficiencies of

3 It is incumbent upon the Examiner and Appellant to ensure the
Specification does not require undue or unreasonable experimentation to
practice the claimed invention.
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Yamamoto because Bakker also lacks the simulated attenuance signal.
(Appeal Br. 15.)
As we discussed above, the Examiner has not adequately explained
how the determination that the simulation on data collected pertaining to the
numerical model and measured coagulation data and modifying the signals
performed by Bakker is necessarily the same as the “simulated attenuance
signal” as required by the claimed invention. Consequently, the obviousness
rejection over the combination of Yamamoto and Bakker fails for the same
reason discussed above.
CONCLUSION

The Examiner’s decision to reject claims 1–15 is REVERSED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 102(a)(1) Bakker 1–15
1–15 103 Bakker, Yamamoto 1–15
Overall
Outcome
1–15

REVERSED