Interference No. 103,197
As noted earlier, Count 5 reads as follows:
A method of monitoring the condition of living
tissue with a monitoring device comprising a radiation
emitter sensor area and a radiation sensor area, said
method comprising invasively sticking at least one sensor
area into said tissue, emitting radiation from said
radiation emitting [sic, emitter] sensor area to
transilluminate tissue between the sensor areas, and
monitoring the transillumination by means of said
radiation sensor area.
Count 5 is virtually identical to Buschmann's claim 29, which
the APJ held, and Buschmann does not dispute, is unpatentable
over Kapany. Specifically, the APJ held that because claim51
29 is not limited to oximetry (pulse or non-pulse) and does
not preclude two-dimensional imaging, it is unpatentable over
Kapany on two grounds: (1) anticipation when the dual-probe
apparatus of Kapany's Figure 7.16(b) is used in the intended
manner, i.e., for generating a two-dimensional image; and (2)
obviousness over the same apparatus when used to perform
Claim 29 reads as follows:51
29. A method for monitoring the condition of living
tissue with a monitoring device comprising a radiation emitter
sensor area and a radiation sensor sensor [sic] area, said
method comprising invasively sticking at least one sensor area
into said tissue, emitting radiation from said radiation
emitter sensor area to transilluminate tissue between the
sensor areas, and monitoring the transillumination by means of
said radiation sensor sensor [sic].
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