Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`
`Paper 37
`Entered: July 27, 2018
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INFOBIONIC, INC.,
`Petitioner,
`
`v.
`
`BRAEMAR MANUFACTURING, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00796
`Patent RE43,767 E
`____________
`
`
`
`Before PHILLIP J. KAUFFMAN, KEVIN W. CHERRY, and
`MICHAEL L. WOODS, Administrative Patent Judges.
`
`WOODS, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`571.272.7822
`
`
`
`
`
`
`Paper 37
`Entered: July 27, 2018
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INFOBIONIC, INC.,
`Petitioner,
`
`v.
`
`BRAEMAR MANUFACTURING, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00796
`Patent RE43,767 E
`____________
`
`
`
`Before PHILLIP J. KAUFFMAN, KEVIN W. CHERRY, and
`MICHAEL L. WOODS, Administrative Patent Judges.
`
`WOODS, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`IPR2017-00796
`Patent RE43,767 E
`
`
`I.
`
`INTRODUCTION
`
`InfoBionic, Inc. (“Petitioner”), filed a Petition (Paper 1, “Pet.”)
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`requesting inter partes review of all claims, namely, claims 1–9 and 11–26
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`of U.S. Patent No. RE43,767 E (Ex. 1001, “the ’767 patent”). Pet. 1, 3; see
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`also Ex. 1001, 8:31–33 (indicating that claim 10 has been cancelled).
`
`Braemar Manufacturing, LLC (“Patent Owner”), filed a Preliminary
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`Response (Paper 10, “Prelim. Resp.”) to the Petition. We instituted an inter
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`partes review of claims 1–9 and 11–26 of the ’767 patent as unpatentable
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`under § 103. Paper 11, 2 (“Decision to Institute” or “Dec.”); see also Paper
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`34, 2 (issuing order to institute on all grounds).
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`After institution of trial, Patent Owner filed a Response (Paper 14,
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`“PO Resp.”), to which Petitioner replied (Paper 18, “Pet. Reply”). With our
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`authorization, Patent Owner also filed a Sur-Reply (Paper 24, “PO Sur-
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`Reply”) to address arguments made by Petitioner in its Reply, and Petitioner
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`filed a Sur-Sur-Reply (Paper 28, “Pet. Sur-Sur-Reply”) in response to Patent
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`Owner’s Sur-Reply.
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`Oral argument was conducted on May 1, 2018, and a transcript of the
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`hearing is entered in the record. Paper 36 (“Tr.”).
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`We have jurisdiction under 35 U.S.C. § 318(a). After considering the
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`evidence and arguments of both parties, and for the reasons set forth below,
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`we determine that Petitioner met its burden of showing, by a preponderance
`
`of the evidence, that claims 1–9 and 11–26 of the ’767 patent are
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`unpatentable.
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`IPR2017-00796
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`II.
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`BACKGROUND
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`A.
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`The ’767 patent (Ex. 1001)
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`The ’767 patent is a reissue of U.S. Patent No. 6,694,177, and is titled
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`CONTROL OF DATA TRANSMISSION BETWEEN A REMOTE
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`MONITORING UNIT AND A CENTRAL UNIT. Ex. 1001, (54), (64).
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`The ’767 patent describes a method for remotely monitoring a patient’s
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`physiological condition. See id. at 1:12–15, 56–57; 2:1–3. In particular, the
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`’767 patent purports to improve the efficiency of communication between a
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`remote monitoring unit and a central monitoring unit (see id. at 1:66–2:37)
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`and improve upon prior art systems that continuously monitor physiological
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`characteristics of the patient (id. at 1:18–48). In doing so, the ’767 patent
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`seeks to conserve battery power, reduce cellular data transfer and its
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`associated charges, and reduce inefficient usage of medical personnel. Id.
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`To illustrate the ’767 patent’s monitoring apparatus, we reproduce
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`Figure 2, below:
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`Figure 2 is a simplified schematic block diagram depicting monitoring
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`apparatus 50 with remote monitoring unit (“RMU”) 52 (which is carried by
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`a patient), central unit (“CU”) 54, and sensor 56. Ex. 1001, 3:33–35, 48–56.
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`Sensor 56 communicates with RMU 52 (id. at 4:1–3) and measures a
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`physiological characteristic of a patient (id. at 3:55–56), such as heart rate,
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`blood pressure, and respiration (see id. at 3:60–62). RMU 52 has central
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`processing unit (“CPU”) 58 and transceiver 62, while CU 54 has CPU 60
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`and transceiver 64. Id. at 4:1–17. CU 54 may also be provided with an
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`interface for human (e.g., physician) review 66 of the action recommended
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`by the CU’s CPU 60. Id. at 4:38–41. RMU 52 and CU 54 are placed in
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`two-way communication with each other through transceivers 62, 64. Id. at
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`4:13–17.
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`As mentioned above, the ’767 patent purports to improve upon prior
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`art systems and methods by reducing unnecessary data transfers. See id. at
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`2:20–26. We reproduce Figure 1 of the ’767 patent, below
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`Figure 1 is a block flow diagram that describes the “method for
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`practicing the present invention.” Id. at 3:31–32. At step 22, RMU 52 uses
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`sensor 56 to monitor a patient’s physiological data, the “monitored data set.”
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`Id. at 4:42–47. At step 24, RMU 52 then analyzes the monitored data set to
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`obtain a “derived data set,” which is typically smaller than the monitored
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`data set. Id. at 4:48–65. At steps 26, 28, and 30, if RMU 52 (via CPU 58)
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`determines that the derived data set indicates a possible emergency (e.g., the
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`patient’s heart rate exceeds a limit), RMU 52 transmits “initially transmitted
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`data set” to CU 54 immediately. Id. at 4:65–5:25. This initially transmitted
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`data set may be the same or different from the derived data set. Id. at 5:29–
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`30. At step 32, CU 54 then analyzes this initially transmitted data set to
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`determine if more information is needed, and whether that information is
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`needed immediately or not. See id. at 5:39–6:14. If more information is
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`needed urgently, at steps 36, 38, CU 54 instructs RMU 52 to provide an
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`“additional transmitted data set” immediately. Id. at 5:55–6:7. If CU 54
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`determines that the additional transmitted data set is not needed urgently,
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`and RMU 52 sends the additional transmitted data set at a later, delayed time
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`(step 40). Id. at 5:55–6:14.
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`In summary, the ’767 patent describes the following sets of
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`information: (1) a monitored data set; (2) a derived data set; (3) an initially
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`transmitted data set; and (4) an additional transmitted data set. By delaying
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`non-urgent “additional transmitted data sets,” the ’767 patent purports to
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`conserve battery power, reduce cellular data transfer—including its
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`associated charges—and reduce inefficient usage of medical personnel. See
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`id. at 1:44–48; see also id. at 2:65–3:4 (“[T]he central monitoring unit may
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`instruct the remote monitoring unit to store and then transmit the additional
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`transmitted data set at a later time over the land-line telephone terminal
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`when such a connection is available or the radio frequency telephone
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`connection when transmission costs are lower (i.e., off-peak hours).”)
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`
`
`B.
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`Related Matters
`
`Petitioner is a defendant in a lawsuit involving the ’767 patent. Pet. 2
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`(referencing CardioNet, LLC et al. v. InfoBionic, Inc., No. 1:15-cv-11803
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`(D. Mass.)); Paper 9, 2.
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`
`
`C.
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`Illustrative Claims
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`Claims 1, 9, 16, 17, and 18 are independent. Ex. 1001, 7:1–10:63.
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`Claim 17, reproduced below, illustrates the claimed subject matter (with
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`emphases added to particular limitations discussed in this Decision):
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`17. A method of monitoring a patient, comprising the
`steps of providing a monitoring apparatus including
`a remote monitoring unit associated with the patient, the
`remote monitoring unit including a sensor that measures a
`physiological characteristic of the patient,
`a central unit, and
`a communications device which selectively establishes a
`communications link between the remote monitoring unit and the
`central unit based on a condition sensed;
`the remote monitoring unit obtaining a monitored data set
`for the patient;
`the remote monitoring unit analyzing the monitored data
`set to obtain a derived data set from the monitored data set;
`the remote monitoring unit determining from the derived
`data set that communication with the central unit is required;
`establishing a communications link with the central unit;
`the remote monitoring unit transmitting to the central unit
`an initially transmitted data set related to the monitored data set;
`the central unit analyzing the initially transmitted data set
`to determine whether an additional data set related to the
`monitored data set is required to be transmitted by the remote
`monitoring unit; and
`the central unit instructing the remote monitoring unit that
`the additional data set related to the monitored data set is to be
`transmitted from the remote monitoring unit to the central unit
`and as to a time at which the additional data set is to be
`transmitted based on the condition sensed.
`
`Id. at 9:22–51 (original emphases and bracketed portions omitted, new
`emphases added).
`
`
`
`
`
`Petitioner relies on the following references:
`
`D.
`
`References
`
`Name
`Ferguson
`Kehr
`Yasushi
`Surwit
`
`Reference
`US 6,454,708 B1, issued Sept. 24, 2002
`WO 98/38909, published Sept. 11, 1998
`US 6,485,418 B2, issued Nov. 26, 2002
`US 6,980,958 B1, issued Dec. 27, 2005
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`Ex. No.
`1004
`1005
`1006
`1007
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`7
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`IPR2017-00796
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`Name
`Walker
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`
`Reference
`WO 98/50873, published Nov. 12, 1998
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`Ex. No.
`1008
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`E. Grounds Asserted
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`Petitioner contends that claims 1–9 and 11–26 of the ’767 patent are
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`unpatentable under the following grounds:
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`Prior Art
`Ground
`Ferguson and Kehr
`1
`Ferguson, Kehr, and Yasushi
`2
`Ferguson, Kehr, and Surwit
`3
`4 Walker and Kehr
`5 Walker, Kehr, and Yasushi
`
`Claim(s)
`1–6, 9, 11–14, 16–20, 22, 24, and 26
`7, 15, 21, 23, and 25
`8
`1–6, 9, 11–14, 16–20, 22, 24, and 26
`7, 15, 21, 23, and 25
`
`Pet. 3.
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`Petitioner also submits the declaration testimony of Dr. Robert T.
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`Stone (Ex. 1002) in support of the grounds. Pet. vi.
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`
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`F. Decision to Institute
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`On July 31, 2017, we instituted review of all challenged claims under
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`Grounds 1–3. Paper 11 (“DI”), 2. As explained in our DI, however, we did
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`not find persuasive Petitioner’s challenges under Grounds 4 and 5. See id. at
`
`35 (“Petitioner has not demonstrated a reasonable likelihood that it will
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`prevail with regards to its challenge . . . under Ground 4 or . . . under Ground
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`5.”). Rather, we found persuasive Patent Owner’s arguments in response to
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`those grounds. See id. at 32 (citing Prelim. Resp. 35–36 (“Patent Owner’s
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`argument is persuasive”)); see also id. at 27–34.
`
`On May 3, 2018, in response to the Supreme Court’s decision in SAS,
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`we issued an order (“Order”) modifying our institution decision to institute
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`on all of the grounds presented in the Petition, including Grounds 4 and 5.
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`Paper 34, 2 (citing SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018)).
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`On May 11, 2018, we held a conference call with the parties to
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`discuss the impact of the Order in this proceeding, specifically, to discuss
`
`whether additional briefing would be necessary to respond to newly-
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`instituted Grounds 4 and 5. See Paper 35, 2. During the conference call,
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`Patent Owner expressed concern that its arguments presented in its
`
`Preliminary Response were not similarly presented in its Patent Owner
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`Response, and even though we determined that those arguments were
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`persuasive in our DI, those same arguments were waived as not being
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`presented in its Patent Owner Response. See id. at 2–3 (citing Paper 12, 3).
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`To address Patent Owner’s concerns, while keeping the proceeding
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`on-schedule and without the need for additional briefing, we issued a second
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`order. Id. In this second order, we established that the Board would
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`consider Patent Owner’s arguments presented in its Preliminary Response
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`(responding to Grounds 4 and 5, only) as if they had been similarly
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`presented in its Patent Owner Response, and that those arguments would be
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`considered by the Board in this Final Written Decision. See id. at 3
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`
`
`III. ANALYSIS
`
`A.
`
`Claim Construction
`
`We determine that no claim term requires express construction for the
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`purposes of this Decision. See Wellman, Inc. v. Eastman Chem. Co., 642
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`F.3d 1355, 1361 (Fed. Cir. 2011) (“[C]laim terms need only be construed ‘to
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`the extent necessary to resolve the controversy.’”) (quoting Vivid Techs.,
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`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
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`B. Obviousness
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`A claim is unpatentable under 35 U.S.C. § 103 if the differences
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`between the claimed subject matter and the prior art are “such that the
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`subject matter as a whole would have been obvious at the time the invention
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`was made to a person having ordinary skill in the art to which such subject
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`matter pertains.” 35 U.S.C. § 103(a). The question of obviousness under 35
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`U.S.C. § 103 is resolved on the basis of underlying factual determinations,
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`including: (1) the scope and content of the prior art; (2) any differences
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`between the claimed subject matter and the prior art; (3) the level of skill in
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`the art; and (4) objective evidence of nonobviousness, i.e., secondary
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`considerations. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`
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`C.
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`Person of Ordinary Skill in the Art
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`In determining whether an invention would have been obvious at the
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`time it was made, we consider the level of ordinary skill in the pertinent art
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`at the time of the invention. Graham, 383 U.S. at 17.
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`Petitioner proposes that a person of ordinary skill in the art
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`(“POSITA”) “would have at least a bachelor’s degree in a suitable
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`engineering field . . . or equivalent proficiency, and at least two to three
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`years of experience in the research and/or development of remote patient
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`monitoring systems . . . where more education may substitute for relevant
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`experience and vice versa.” Pet. 6–7 (citing Ex. 1002 ¶¶ 13–14).
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`Patent Owner, on the other hand, proposes that a POSITA
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`would have been a skilled individual with an electrical
`engineering undergraduate degree (or its equivalent) with at least
`two years of experience in the design and development of ECG
`telemetry devices or similar remote monitoring and telemetry
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`
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`devices and/or an undergraduate degree in engineering (or its
`equivalent) with at least four years of experience in the design
`and development of ECG telemetry devices or similar remote
`monitoring and telemetry devices.
`
`PO Resp. 10–11. Patent Owner also acknowledges that for “purposes of [its
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`Patent Owner Response,] the differences between Petitioner’s and Patent
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`Owner’s position do not appear to be material.” Id.
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`Based on our review of the ’767 patent, the types of problems and
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`solutions described in the ’767 patent and applied prior art, and the
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`testimony of Dr. Stone and Dr. Fernald, we adopt Petitioner’s asserted level
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`of ordinary skill and find that a POSITA
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`at the time of the alleged invention would have at least a
`bachelor’s degree
`in a suitable engineering field (e.g.,
`mechanical or electrical), or equivalent proficiency, and at least
`two to three years of experience in the research and/or
`development of remote patient monitoring systems, such as
`cardiac remote patient monitoring systems, where more
`education may substitute for relevant experience and vice versa.
`Stone Decl. ¶¶ 13-14. This education and experience would
`include a solid familiarity with the communication between
`components of a patient monitoring system.
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`Pet. 6–7 (citing Ex. 1002 ¶¶ 13–14). We also agree with Patent Owner that
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`any differences in the parties’ proposed level of ordinary skill does not
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`impact our analysis. See PO Resp. 8.
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`
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`D. Ground 1: Ferguson and Kehr
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`Petitioner contends that claims 1–6, 9, 11–14, 16–20, 22, 24, and 26
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`are unpatentable over Ferguson and Kehr. Pet. 14. Our Decision begins
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`with a summary of the cited art and a summary of Petitioner’s challenge,
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`followed by our analysis including consideration of Patent Owner’s
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`arguments.
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`
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`1.
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`Ferguson (Ex. 1004)
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`Ferguson describes a patient monitoring system. Ex. 1004, 8:27–28.
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`To illustrate Ferguson’s system, we reproduce Figure 1, below:
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`
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`As depicted in Figure 1, Ferguson’s system includes disposable sensor
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`band 10 for measuring a patient’s vital signs, and memory card 20 for
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`storing the associated data. Id. at 7:13–15; 8:29–33. The data may also be
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`transmitted to base station unit 30. Id. at 8:35–37. Base station 30 is
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`powered by a selectable 110/230V power supply and includes a modem
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`connection (either a land telephone line or cellular link 40) for transmitted
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`information. Id. at 11:10–15. Base station 30 may also contain software
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`algorithms to enable the calculation of heart rate and respiration rate from
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`the data signals. Id. at 12:19–22; 15:41–45. Base station unit 30 may then
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`transmit the data over telecommunications link 40 to remote monitoring
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`
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`12
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`station 50. Id. at 8:36–40. Once a connection has been established, both
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`ends of communications link 40 will listen for commands. Id. at 16:10–13.
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`At station 50, an operator (e.g., physician or nurse) reviews the patient data
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`and can request base station 30 to send more detailed data, and if the
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`requested data is available, the base station will respond. Id. at 13:5–10, 29–
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`31; 14:38–42. Remote monitoring station 50 may request an immediate data
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`upload. Id. at 13:5–10. Remote monitoring station 50 may also set certain
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`threshold events (e.g., high heart rate) to be flagged by base station 30, as
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`well (id. at 22:5–21) and when such event is detected by base station 30, a
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`recording session that records monitored parameters may occur. Id. at
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`14:21–25.
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`
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`2.
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`Kehr (Ex. 1005)1
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`Kehr describes a device, system, and method for “managing and
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`monitoring the administration of medical treatment regimens.” Ex. 1005, 6.
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`To illustrate Kehr’s system, we reproduce Figure 24 of Kehr, below:
`
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`1 Our citations to Exhibit 1005 will be to the reference’s native page
`numbers.
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`13
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`In the particular embodiment of Figure 24, Kehr describes a system
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`with medical monitoring device 5, which interfaces with sensors 107 (e.g., a
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`heart monitor or glucose monitor) associated with a patient. Id. at 44–45.
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`Central monitor 105 functions as a command and control center and may
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`wirelessly obtain monitored data from sensors 107. See id. at 46. In the
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`example where sensor 107 is a glucose level sensor, and if the patient’s
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`glucose level presents a danger, central monitor 105 may activate an
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`implanted insulin pump to release insulin into the patient’s bloodstream. Id.
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`Kehr also discloses that the “timing of the transmission depends on
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`the disease being treated and the treatment regimen being administered” (id.
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`at 36) and further describes, as an example, “if the disease being treated is a
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`congestive heart failure condition, and a single response data point indicates
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`that the patient is suffering moderate or severe chest pain, then the device
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`will immediately transmit the response data to the healthcare provider” (id.
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`at 35).
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`3.
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`Independent Claim 1
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`a)
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`Apparatus with RMU, CU, and Communication Device
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`In addressing the monitoring apparatus, Petitioner relies on Ferguson
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`and submits an annotated copy of Ferguson’s Figure 1, which we reproduce
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`below (Pet. 18–20):
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`
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`As annotated by Petitioner in Figure 1, Ferguson’s sensor band 10,
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`auxiliary sensors, and base station 30 collectively correspond to the claimed
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`“remote monitoring unit,” or RMU. Id. at 18 (citing Ex. 1002 ¶¶ 120–122).
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`Petitioner also relies on Ferguson’s remote monitoring station 50 as
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`corresponding to the claimed “central unit” (or CU), and relies on
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`Ferguson’s modems as corresponding to the claimed “communications
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`device.” Id. at 20–21.
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`In addressing the claimed “sensor that measures a physiological
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`characteristic of the patient,” Petitioner relies on Ferguson’s disclosure that
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`sensor band 10 is preferably worn on a patient’s chest for measuring vital
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`signs, and transmits the measured vital signs to base station unit 30. Id. at
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`18–20 (citing Ex. 1004, 8:29–40).
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`
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`b) Monitored Data Set
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`In addressing the claimed “[RMU] obtaining a monitored data set,”
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`Petitioner relies on Ferguson’s disclosure that its sensor—sensor band 10—
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`measures, for example, ECG and respiration data, and it is this data that
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`corresponds to the claimed “monitored data set.” See Pet. 22 (citing in part
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`Ex. 1004, 8:44–49).
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`
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`c)
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`Derived Data Set
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`In addressing the claimed RMU “analyzing the monitored data set to
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`obtain a derived data set,” Petitioner cites to Ferguson’s disclosure that
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`RMU calculates heart rate and respiration rate from the ECG and respiration
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`signals, and it is this calculated heart rate and respiration rate that correspond
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`to the claimed “derived data set.” Id. at 22 (citing Ex. 1004, 12:19–28,
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`15:41–45).
`
`In addressing the limitation that the “[RMU determines] from the
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`derived data set that communication with the [CU] is required,” Petitioner
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`relies on the testimony of Dr. Stone and asserts that when Ferguson’s RMU
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`flags an event for download, it determines that communication is required.
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`Id. at 23 (citing Ex. 1002 ¶ 143). Petitioner cites to Ferguson’s disclosure
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`that upon detection of a threshold event (or threshold violation, such as a
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`low heart rate), its RMU determines that the event and its related data “need
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`to be communicated to the CU.” Id. at 23–24 (citations omitted). Ferguson
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`discloses that flagging events “will be stored on the base station unit 30, and
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`new events will be downloaded whenever the remote monitoring unit 50 and
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`base station unit 30 connect.” Ex. 1004, 22:19–21 (emphasis omitted).
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`In addition to asserting that Ferguson discloses this limitation (see
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`Pet. 23–24; Ex. 1002 ¶ 147), Petitioner asserts in the alternative that “even if
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`Ferguson did not teach or suggest that its base station (RMU) determines
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`from the derived data set (e.g., heart rate) that communication with the CU is
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`required, that well-known capability would have been an obvious
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`modification” (id. at 24). Petitioner reasons that a POSITA “would have
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`been motivated to modify Ferguson’s base station so that it ‘initiate[s] a dial-
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`up’ when an event is detected (rather than waiting for the next scheduled
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`transmission) in order to promptly notify medical personnel that the patient
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`has suffered an event that may warrant immediate care.” Id. at 25 (citing
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`Ex. 1002 ¶ 147).
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`
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`d)
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`Establishing a Communications Link
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`In addressing the claimed “establishing a communications link with
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`the [CU],” Petitioner asserts that Ferguson teaches this step and cites to
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`Ferguson’s disclosure that “the base station unit 30 could initiate the dial-up
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`for uploading the stored data.” Pet. 25 (citing Ex. 1004, 13:16–18).
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`Petitioner also submits an annotated copy of Ferguson’s Figure 5A, which
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`we reproduce below:
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`17
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`Figure 5A is a block diagram of Ferguson’s system, with annotations
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`by Petitioner in support of the contention that Ferguson’s “communications
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`device” “selectively establishes a communication,” as its “RMU” initiates a
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`dial up connection with “CU” in order to establish a network connection. Id.
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`at 21 (citing Ex. 1004, 13:16–18, 16:7–13); Ex. 1004, 7:34–36. Ferguson
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`explicitly discloses that “data is uploaded over communications link 40
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`using modem 74 of the base station unit 30 and modem 76 of the remote
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`monitoring station 50.” Ex. 1004, 15:45–50.
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`
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`e)
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`Initially Transmitted Data Set
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`In addressing the claimed “[RMU] transmitting to the [CU] an
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`initially transmitted data set related to the monitored data set,” Petitioner
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`asserts that Ferguson teaches this step, as its RMU “creates a summary of
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`the collected data for transmission” and transmits this summary to the CU.
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`Pet. 26 (citing Ex. 1004, 12:28–31). In support of this assertion, Dr. Stone
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`testifies that “[t]he summary of collected data and event flags are related to
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`the monitored data set (i.e., collected data) and therefore correspond to the
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`claimed initially transmitted data set.” Ex. 1002 ¶ 155.
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`18
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`f)
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`Additional Data Set
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`In addressing the claimed “[CU] analyzing the initially transmitted
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`data set to determine whether an additional data set” is required, Petitioner
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`asserts that Ferguson teaches this step, and cites to Ferguson’s disclosure of
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`CU’s interface to allow human review. Pet. 26–27 (citing Ex. 1001, 4:38–
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`41, 5:39–54). Petitioner points out that the operator may then determine if
`
`more detailed information is necessary (id. at 27 (citing Ex. 1001, 14:38–
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`40)) and, if so, Ferguson’s “remote monitoring station 50 could initiate a
`
`data upload of the designated data from the base station unit 30.” Id. at 27
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`(citing Ex. 1004, 14:38–42). Petitioner cites to the testimony of Dr. Stone
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`and asserts that Ferguson’s more detailed information corresponds to the
`
`claimed “additional data set.” Id. (citing Ex. 1002 ¶ 162).
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`
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`g)
`
`Time at Which the Additional Data Set is to be Transmitted
`
`In addressing the claimed “[CU], when the additional data set related
`
`to the monitored data set is required, instructing the [RMU] . . . as to a time
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`at which the additional data set is to be transmitted,” Petitioner relies on a
`
`combination of Ferguson and Kehr. See Pet. 28 (emphasis added). In
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`particular, Petitioner asserts that “[a]lthough Ferguson teaches scheduling
`
`such data transfers, it does not expressly teach requesting the additional
`
`information to be sent at a time other than immediately[, b]ut Kehr does.”
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`Id. at 29. In support of its assertion that Kehr teaches this limitation,
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`Petitioner cites to the following disclosure within Kehr:
`
`In the case where the treatment information comprises
`patient query data, once the patient query data is transmitted to
`the medical monitoring device, the device either promptly
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`executes the Patient Query mode, or stores the patient query data
`for subsequent execution of the Patient Query mode, depending
`on the status of an execution command.
`
`Ex. 1005, 34 (emphases added).
`
`Petitioner asserts that Kehr’s “execution command is based on
`
`medical urgency and determines the transmission timing of the additional
`
`data.” Pet. 29 (citing Ex. 1005, 34–35 (“execution command . . . depends
`
`upon the urgency of receiving responses to the particular queries transmitted
`
`to the device”)). Kehr further discloses that “[t]he timing associated with the
`
`execution command is based on the disease being treated and the treatment
`
`regimen being administered.” Ex. 1005, 35.
`
`Based on the teachings of Kehr and the testimony of Dr. Stone,
`
`Petitioner reasons that a person of ordinary skill in the art “would have been
`
`motivated to modify Ferguson with Kehr’s transmission timing scheme to
`
`efficiently allocate bandwidth and other resources while still ensuring patient
`
`safety.” Pet. 30 (citing Ex. 1002 ¶¶ 109–114, 169–172). In particular,
`
`Petitioner reasons that the proposed combination would: (1) avoid
`
`needlessly tying-up communication lines; (2) conserve battery power, if the
`
`remote unit is battery-powered; and (3) would result in a more-efficient,
`
`less-expensive system that does not needlessly utilize more-expensive
`
`(immediate) bandwidth transmission. See id. at 15–18 (citations omitted).
`
`Petitioner argues that “Kehr’s teaching reflects common sense: urgent or
`
`high priority information takes precedence over less important information.”
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`Id. at 30.
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`4.
`
`Dependent Claims 2 and 11
`
`Claims 2 and 11 depend from claims 1 and 9, respectively, and further
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`recite, “wherein the monitored data set comprises a cardiogram of the
`
`patient.” Ex. 1001, 7:37–38, 8:34–35.
`
`To address this limitation, Petitioner asserts that Ferguson’s
`
`monitored data set includes a patient’s cardiogram and refers to the same
`
`analysis presented under claim 1. See Pet. 30–31 (citing Ex. 1002 ¶¶ 174–
`
`76; Ex. 1004, 1:14–22, 14:42–49); see also id. at 36.
`
`
`
`5.
`
`Dependent Claim 3
`
`Claim 3 depends from claim 1 and further recites, “wherein the step of
`
`the remote monitoring unit analyzing the monitored data set includes the
`
`step of comparing at least one element of the derived data set to a warning
`
`limit.” Ex. 1001, 7:39–43.
`
`To address this limitation, Petitioner asserts that Ferguson discloses
`
`this step with each threshold corresponding to the claimed “warning limit.”
`
`Pet. 31 (citing Ex. 1002 ¶¶ 178–80).
`
`
`
`6.
`
`Dependent Claims 4 and 12
`
`Claims 4 and 12 depend from claims 1 and 9, respectively, and further
`
`recite, “wherein the step of the central unit instructing the remote monitoring
`
`unit as to a time includes the step of the central unit instructing the remote
`
`monitoring unit to transmit the additional data set substantially
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`immediately.” Ex. 1001, 7:44–49, 8:36–41.
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`To address this limitation, Petitioner asserts that Ferguson and Kehr
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`each teach instructing its remote monitoring unit to transmit the additional
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`21
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`data set “substantially immediately.” Pet. 31–32 (citing Ex. 1002 ¶¶ 182–
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`86); see also id. at 36.
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`
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`7.
`
`Dependent Claims 5 and 13
`
`Claims 5 and 13 depend from claims 1 and 9, respectively, and further
`
`recite, “wherein the step of the central unit instructing the remote monitoring
`
`unit as to a time includes the step of the central unit instructing the remote
`
`monitoring unit to transmit the additional data set at a delayed time.” Ex.
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`1001, 7:50–55, 8:42–47.
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`To address this limitation, Petitioner asserts that the proposed
`
`combination satisfy the claimed step as the data is transmitted immediately
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`or at some other time based on urgency. See Pet. 32 (citing Ex. 1002 ¶ 188);
`
`see also id. at 36.
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`
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`8.
`
`Dependent Claims 6 and 14
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`Claims 6 and 14 depend from claims 1 and 9, respectively, and further
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`recite, “wherein the additional data set and the monitored data set are not the
`
`same.” Ex. 1001, 7:56–57; 8:48–49.
`
`To address this limitation, Petitioner asserts that Ferguson’s
`
`“additional data set” is at most a subset of the larger “monitored data set,”
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`and are thus “not the same.” See Pet. 32–33 (citing Ex. 1002 ¶¶ 190–91,
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`193; Ex. 1004, 14:21–25, 24:9–10).
`
`
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`9.
`
`Independent Claim 9
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`As with claim 1, independent claim 9 recites a “method of monitoring
`
`a patient” with a “monitoring apparatus” including a “remote monitoring
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`unit,” “central unit,” and “communications device.” Ex. 1001, 8:1–30.
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`Unlike claim 1, however, claim 9 is broader as it does not recite its “remote
`
`monitoring unit” to include a “sensor,” “obtain a derived data set,” or
`
`“determin[e] from the derived data set that communication with the central
`
`unit is required.” Compare id. at 7:1–36, with id. at 8:1–30.
`
`To address the claim 9, Petitioner relies on the same findings and
`
`reasoning presented in its claim 1 challenge. See Pet. 34–36.
`
`
`
`10.
`
`Independent Claim 16
`
`Claim 16 is nearly identical to claim 1, with the exception being the
`
`last method step, which removes the language “when the additional data set
`
`related to the monitored data set is required” and “received from the remote
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`monitoring unit,” but adds the language “the step of the central unit
`
`analyzing.” Compare Ex. 1001, 7:1–36, with id. at 8:57–9:21. In particular,
`
`claim 16 recites,
`
`the central unit instructing the remote monitoring unit that the
`additional data set related to the monitored data set is to be
`transmitted from the remote monitoring unit to the central unit
`and as to a time at which the additional data set is to be
`transmitted based on the step of the central unit analyzing the
`initially transmitted data set.
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`Id. at 8:57–9:21 (emphasis to limitation added).
`
`To address this claim, Petitioner asserts that, as discussed with respect
`
`to claim 1, the combination satisfies the claim and Ferguson’s “central unit”
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`analyzes the initially transmitted data to determine whether and when
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`additional data is required. See Pet. 36–37 (citing Ex. 1002 ¶ 212).
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`IPR2017-00796
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`11.
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`Independent Claim 17
`
`Claim 17 is similar to claim 1 with the exception of two claim
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