Appeal 2007-2649
Application 10/235,998
Appellants argue that the Examiner has not provided motivation for
combining the disclosures of Schulze, Sarbach, and Dotan to arrive at the
claimed invention, “and fails to address obviousness at the time of
Appellants’ invention” (Br. 8). Appellants also argue that the Examiner
“fails to address the use of an ECG electrode as shielding for other sensors”
(id. at 9).
We are not persuaded by these arguments. The Supreme Court
recently reaffirmed “that when a patent ‘simply arranges old elements with
each performing the same function it had been known to perform’ and yields
no more than one would expect from such an arrangement, the combination
is obvious.” KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 1740 (2007) (quoting
Sakraida v. AG Pro, Inc., 425 U.S. 273, 282 (1976)). With respect to
hindsight reasoning, the Court advised that “[a] factfinder should be aware,
of course, of the distortion caused by hindsight bias and must be cautious of
arguments reliant upon ex post reasoning. Rigid preventative rules that deny
factfinders recourse to common sense, however, are neither necessary under
our case law nor consistent with it.” Id. at 1742 (citations omitted).
In the instant case, Dotan discloses “[a]s shown in FIG. 1, an ECG
apparatus 19, provided with electrode means 17/16 at the waist level and as
part of the earphone 16” (Dotan, col. 2, ll. 31-33). Dotan therefore discloses
an ECG-acquiring method using the waist- and ear-mounted electrodes
recited in claim 1. While Dotan may not disclose claim 1’s additional
sensors in the ear-mounted electrode, Schulze discloses that an ear-mounted
electrode capable of providing ECG data can also contain a “sensor . . . for
measuring body core temperature of the patient” (Schulze, col. 3, ll. 36-37),
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: September 9, 2013