Appeal 2007-2649
Application 10/235,998
Thus, one of ordinary skill acquiring an ECG from devices such as
disclosed by Dotan or Sarbach would have reasoned from Birnbaum that
applying saline in the manner recited in claim 4 would allow an accurate
ECG reading from a shirt-wearing patient. We therefore agree with the
Examiner that claim 4 would have been obvious over Schulze, Sarbach,
Dotan, Ohtake, and Birnbaum.
Appellants argue that claim 4 is “allowable as depending on allowable
claim 1” (Br. 10). Appellants argue that because Birnbaum’s electrodes are
separate from the Birnbaum’s closest component analogous to a patient data
monitor, Birnbaum does not cure the other references’ failure to “to teach or
fairly suggest either i) that the electrode patch itself acts as the shield for
other sensors, or ii) the use of an electrode patch on a patient data monitor
surface” (id.).
These arguments are addressed above. We note, however, that the
Examiner did not mention Ohtake when rejecting claim 4. We therefore
designate the rejection of claim 4 over Schulze, Sarbach, Dotan, Ohtake, and
Birnbaum a new ground of rejection under 37 C.F.R. § 41.50(b).
6. OBVIOUSNESS -- CLAIM 11
Claim 11 stands rejected under 35 U.S.C. § 103 as obvious over
Schulze, Sarbach, Dotan, Ohtake,3 and Platt. Claim 11 recites “[t]he
apparatus of claim 7, wherein said first and second electrode patches are
3 Claim 11 depends from claim 7, which requires the ear-emplaceable
electrode patch to “form[] shielding.” We include Ohtake to meet claim
11’s shielding limitation.
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