Our attempt at Paper B 'Monitoring vital signs'

Herewith our attempt at Paper B 2017, which is available here: ENFR and DE

Claims
1. System for monitoring at least one vital sign of a human body, the system comprising:

-        holding attaching means (1, 11, 21) for holding attaching an optical sensor (2, 12, 22) and a motion sensor (3, 13, 23) close to the human body (10, 21), the holding attaching means (1, 11, 21) comprising in addition to the sensors (2, 12, 22, 3, 13, 23) transmitting means (4, 14, 24) for transmitting output signals from the sensors (2, 12, 22, 3, 13, 23),
-        evaluation means (5, 25) for receiving the output signals and calculating from the output signals the at least one vital sign,
characterised in that the attaching means is a garment,
and in that the evaluation means (5, 25) is configured to correct the output signal from the optical sensor (2, 12, 22) based on the output signal of the motion sensor (3, 13, 23) or to correct the output signal from the motion sensor (3, 13, 23) based on the output signal of the optical sensor
and in that the transmitting means (4, 14, 24) is a wireless transmitting means.

2. System according to claim 1, wherein the transmitting means (4, 14, 24) is a wireless transmitting meansat least one vital sign is pulse, body temperature, blood pressure and/or blood oxygen saturation.

3. System according to claim 1 or 2, wherein the wireless transmitting means (4, 14, 24) is a wireless local network emitter.

4. System according to any of claims 1 to 3, further comprising a screen (6) and configured to display the at least one vital sign on the screen.

5. System according to any of claims 1 to 4, wherein the holding means is an attaching means (1, 11) is one of such as a sock (1), or a wristband (11), and a glove.

6. System according to any of claims 1 to 3, wherein the attaching means is a headband (21) for goggles (20).

76. System according to any of claims 1 to 65, wherein the attaching means (1, 11, 21) is at least partly made of Optitexa material comprising 50-60% cotton, 30-40% polyurethane and 10-20% polyethylene glycol in % by weight.


Amendments
Claim 1
‘Holding means’ has been amended to ‘attaching means’ and ‘close to the human body’ has been amended to an attachment ‘to the human body’, both of which are supported by [02] first and second sentence. Thereby, objection 3.1 is addressed.
The attaching means being a garment is supported by [02] third sentence.
The transmitting means being a wireless transmitting means has been deleted (claimed now as dependent claim 2). This deletion satisfies the essentiality test of GL H-V 3.1; namely, (i)-(iii) are all clearly satisfied since [02] last sentence states that “it is not important for the invention how the signals are transmitted to the evaluation means”, while [04] for the Fig.1 embodiment and [12] for the Fig. 3 embodiment state that “the transmitting means may be any kind of transmitting means”. Equivalent support is provided for the Fig. 2 embodiment by [09] “remaining technical features … are identical to the first embodiment”.

Claim 2 corresponds to the deleted feature of the transmitting means being a wireless transmitting means, and is supported by claim 1 as filed.

Claim 3 has been amended to limit the dependency to claim 2.

Claim 5 has been brought into conformity with amended claim 1, while deleting the ‘glove’ embodiment. Thereby, objection 3.2 is addressed.

Claim 6 has been newly added and corresponds to the Fig. 3 embodiment described in [10] and [11]. It is noted that claim 6’s dependency has been limited to claims 1-3 (rather than also referring to claim 4) to satisfy Art. 123(2) in view of the first sentence of [12].

Claim 7 has been amended to directly claim the technical features of the Optitex material as described in [09].

Novelty
D1 describes an optical pulse oximeter for measuring the pulse and the oxygen saturation in the blood. D1 uses a clip which attaches to a finger and which houses two LEDs and an optical sensor. The optical sensor measures the intensity of the light emitted by the LEDs after passing through the finger. An evaluation means is provided for calculating the oxygen saturation and the pulse from the light measurements. A motion sensor may be provided in the clip to measure the pulse independently from the optical pulse oximeter.
However, D1 does not disclose the features in the characterizing portion.

D2 describes measuring the pulse of a baby with a camera and adjusting the position of the camera with an infra-red sensor. It is also described to correct the sound and image signals from the camera on the basis of motion data from a motion sensor in the camera.
However, D2 does not disclose the characterizing portion nor in general attachment means for attaching sensors to the human body. Rather, D2 uses a separate, non-body attached camera and infrared sensor (described by [01] of D2 to be “out of reach of the baby”).

D3 describes an electrical sensor attached by a garment to the human body. However, D3 does not disclose monitoring vital signs (only ECG), nor an optical sensor (only electrical sensor, optical sensor is unsuitable [03]), nor a motion sensor, nor the evaluation means being configured to improve the quality of the output signals of the sensors.

Inventive step
D1 is closest prior art as it also relates to monitoring vital signs using body-attached sensors. D2 is more remote since it does not use body-attached sensors but rather a camera. D3 is also more remote since it is not suitable for monitoring vital signs ([03] last sentence).

The distinguishing features over D1 are set out in the characterizing portion.

The technical effect is that a reliable and comfortable system is provided for long-term remote monitoring of vital signs of patients. This effect is already indicated in the application as filed, namely in [01], last sentence.

The objective technical problem is how to obtain a reliable and comfortable system for long-term remote monitoring of vital signs of patients.

By using a garment as attaching means, the optical sensor and the motion sensor are comfortably attached to the human body. Although this may in principle result in poor signal quality by introducing noise into the output signals of the sensors, the evaluation means is configured to improve the quality of the output signals of the sensors by correcting the output signal from the optical sensor based on the output signal of the motion sensor or to correct the output signal from the motion sensor based on the output signal of the optical sensor. Accordingly, the system is not only comfortable but also reliable for long-term remote monitoring of vital signs of patients.

D1 does not hint nor suggest the distinguishing features. Accordingly, the skilled person would not find a solution to the objective technical problem in D1.

D2 also does not provide a solution which falls within the scope of the claims, since D2 does not use body-attached sensors and fails to disclose the attaching means.

D3 does not relate to monitoring vital signals. The skilled person would thus not consider D3. However, even if the skilled person would consider D3, he/she would see that a garment is described as attachment means but with the garment being described as unsuitable for recording vital signs due to the attachment means introducing too much noise. D3 does not disclose the claimed correcting of the output signals which reduces the noise. As such, the skilled person would not find a solution for the objective technical problem in D3 either.

The invention as claimed is thus inventive over D1-D3.

Looking forward to your comments.

Nico Cordes, Roel van Woudenberg, Sander van Rijnswou

(c) DeltaPatents 2017

Comments

  1. I added "long-term" into the preamble, thus making it "System for long-term monitoring at least one vital sign of a human body".

    The amendment is based on par. [1], last two sentences.

    Also, I moved the feature "the evaluation means (5, 25) is configured to correct ..." to the pre-charactarizing part.

    Most importantly, I then used D2 as the cpa, since D1 is not useful for the long-term monitoring.

    Do you think I will get some points for my choice of the cpa?

    Thanks,

    Nick

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    1. I also moved the evaluation to the pre characterising portion, and used D2 as CPA. But now suspect partial problem was the correct approach.

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  2. I would appreciate if someone could comment on the reasons why not to keep the original claim 2 which relates to four different vital signs. Although the client has explicitly mentioned not interested in this protection, it would not harm either by keeping it as a dependent claim, and it may even clarify what "vital signs" are meant.

    Resitter 2020
    P/S: I wonder in real case would this term "vital sign" actually be granted without any clarity issue?

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    1. We did not consider to do so, as we considered it as well-defined term: [01] of the application ("The four ....") lists them in a way which shows the definition is not specific for our application, but a generally accepted definition.

      If if would not be well-known in the art, but a "private" definition, its definition would need to be incorporated in the claims where the term "vital signs" is introduced for the first time, otherwise the claim would not be clear (one could maybe even argue that essential features are then missing). This also answers your P/S: if the term is well-defined in the field of the invention, it is fully clear.

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  3. I'm surprised to see that you added a dependent claim. The final sentence of the client's letter states "Otherwise, we do not want you to add further dependent claims".

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    1. Good point, we also considered this, but in the end interpreted the "otherwise" to allow adding a dependent claim to address the preceding points (protection for the glove, protection for the headband). An alternative option is to add the headband to claim 5 but change its dependency to claim 1-3 (instead of 1-4).

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    2. Ah, I read paragraph [04] of the client letter and considered that both points were already addressed simply by introducing "garment" into claim 1.

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    3. Thanks for the comment SG. Yes, I noted that too but thought I will just keep the ori claim 2.
      I have actually added another dependent claim on the third embodiment(outputted as an audio signal, not through screen), as the client has mentioned this embodiment is vital for them.

      Resitter 2020

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    4. I also read the final sentence of the client as meaning, do not add anything (i.e. limit yourself to 5 claims!). As a consequence, and because garment in claim 1 do cover any garment including gloves or headbands, I did not even claim any of glove, headband, sock or wristband ! Is it critical as the client said these are very important to him?

      Thanks.

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    5. Dear Nico:

      in my view:
      I agree with your interpretation. However, I think if you add the band - than the client also wants a dependent claim on the glove. Therefore, the description is to be amended correspondingly. This is also what is recommended in the GL in this situation.

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    6. @KMX: the glove would then not need a seperate dependent claim, but can stay in claim 5. It is however then really necessary to amended the description to incorporate the glove - and hereby have it supported (see the Note in our original post; GL (2016) F-IV, 6.6).

      Note that the headband needed a separate dependent claim in view of the different dependency.

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    7. But amending the description is not allowed according to the IPREE: Rule 24(3) "Content of the examination – Reply paper (Paper B)" says: The description shall not, however, be amended.

      So the IPREE forced me to amend the claims by deleting the glove from it.

      Delete
    8. I think you have made a good point.

      If R. 24(3) says that the description shall not, however, be amended, it probably meant that it is not necessary to amend the description in order to adapt it to an amended set of claims.

      In the present case, I might have been sufficient to mention the amendments of the description in the response. In my view, the client clearly asked for having the glove (the same as the band) as (part of) a dependent claim. The only way to do so is amending the description - in my view.

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    9. what if, instead of adding dependent claims for different garments, original claim 4 (directed to the display) was amended by adding "wherein the garment is not a headband for goggles"?
      Is it a disclaimer allowed according to GL H V 4.2?
      Thank you for your opinion

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  4. Dear Delta,
    Thank tou for your solution.

    The place of the motion sensor (see [007] and others embodiments) relating to the places of the light source and the light detector seemed essential for the quality, notably when the attaching means is a garment. Can you keep it away from claim 1.

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  5. Do you really need to add garment in claim 1? Claim 1 would be new and inventive without it as well I guess.

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    1. I wondered this too (this morning, too late for the exam!)

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    2. I expect that the garment is needed, as the correction of the output signals by the evaluation means seems only to be needed when a garment is used, see [07] first sentence "accommodating an optical sensor into a garment adds electrical noise to the output signal (....)" and [08] "the output signal is corrected (...) such that noise is reduced".

      In other words, if the attachment means is not a garment, there may not be a problem with noise and thus no effect achieved by the evaluation means.

      This is also suggested by [02]: "the inventive idea is that the attaching means is a garment (...) and that the evaluation means is configured to correct the output signal (...)".

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    3. I further understand that the correction will not be relevant whatever the positions of the motion sensor and the optical sensor, [007].
      So for me there may be a missing feature.

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    4. In D2 there is the same correction without garment.
      So garment is not needed in a first place.

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    5. I think without the garment it is an inadmissible amendment, as it requires deleting an essential feature (actually the analogous argument as for deleting the type of transmission - except that in this case it doesn´t work).

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    6. the garment was not present in the original claim and both corrections were there (with an OR). if the garment is essential, the communication would have an objection as to missing an essential feature, which was not the case. Having an "AND" instead of "OR" in claim 1 would of course not require the presence of a garment (logically)! In addition, the embodiment of Figure 3 which is not a garment discloses the "AND" as well.

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  6. I can't remember which way round I had the prior art now.. but I did put that if looked at A3 the SP would learn that garments are ok for vital signs, as long as they are not made of Optitex..and so would at the most arrive at the device made of a material other than Optitex (and without the signal correction)

    I also left glove in, as it was in the claims in the app as filed, and description teaches garments, and glove is a garment. looks like that was wrong!

    and I at the last minute added an independent claim to a glove comprising the relevant sensors..since the glove seemed to be important to the client, and the glove may be an item that would be sold independently of the evaluating means..I didn't really think this through though and just threw it in

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  7. What about the issue that the headband embodiment is not compatible with the display of vital signs on the screen?

    I would think that DP's claim 4 is not supported across its breadth in view of this.

    TP

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  8. I also didn't discuss novelty over D1 or D3, since only D2 was raised in the objection - I didn't know I was supposed to do this..more lost marks

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  9. Is it possible to consider D3 as the closest prior art?

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    1. Why would it? Please give your arguments in support of D3 as CPA.

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    2. Sorry, I didn't find the way to have a nickname.
      I chose D3 as the closest prior art since the aim of the invention is to provide a reliable and comfortable system for monitoring...as disclosed in D3 wherein the sock is reliable, secure and comfortable means for attaching the sensor to the human boby. Certainly, D3 discribed that the material is not suitable for recording vital signs but it only directs to the specific material (cotton+PU...) not the sock. The amended claim 1 is directed to a garment with no limitation to the material. That is bascially why I chose D3 as the CPA.
      What do you think? Thanks

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    3. I had the same reasoning. Additonally, I put "wherein the attaching means is a garment" into the preamble for consistency with D3 as CPA. In your experience, would such an approach obtain some marks for argumentation and a PSA consistent with the 2-part form?

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    4. the closest prior art is usually determined from an engineer point of view. The client (e.g. engineer) mentioned explicitely in the letter tha he sees D1 as closest prior art; so he is corerect...

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    5. The client may think a lot of things... it doesn't mean that he is correct.

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  10. Thank you for posting your solution. With hindsight, D1 does indeed seem like the best choice for CPA. I chose D3 as CPA, arguing that recording the "electrical activity of the heart" allows recording of the pulse, which is a vital sign. As for the "unsuitable" statement in para.03 of D3, I viewed it as relating only to a particular embodiment of D3 which uses this material, i.e. in contrast to the general disclosure in para.01 of D3.

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  11. I also amendend "or" to "and" in the characterizing part of claim 1, because it seemed that D3 disclosed reliable and confortable sensor attachment, even for an optical sensor, which is hindered only by too low SNR. Then the problem of reliable measurement remained, but D2 discloses correcting the optical sensor output with a motion sensor output. So if comfortable+longterm attachment (garment) and reliable vital sign measurement (optical sensor output corrected with a motion sensor output) can be considered as separate partial problems, the combination of D1+D2+D3 would fall within the "or" claim scope.

    None of the prior art suggested the further correction of the motion sesnor output with the optical sensor output.

    I hope this is not too wrong.

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    1. Also paragraph 02 does not support the "or" claim in coombination with the attaching means being a garment, because it states "and viceversa".

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    2. But paragraph 08, penultimate sentence, uses "may". Hence, original "or" in claim 1 seems to be supported. At least, this is how I thought during the exam ...

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    3. yes, but See also par 011 relative to the third embodiment: also in this case the correction is "and viceversa". So the intermediate generalization of garment + "or-correction" seemed not justified by the overall disclosure and possibly not inventive in view of D1+D2+D3. This is what pushed me to introduce the amendement.

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    4. Original claim 1 recites "or" and has features with reference numerals for the third embodiment: evaluation means (25), optical sensor (22), motion sensor (24). Hence, that "and" in par 011 should be interpreted not so strictly, I guess, and the Examiner would not question this, since he did not use the chance to object to original claim 1 using Art. 84 ...

      I remember spending a lot of time, like 15 minutes, on this issue in exam. But I did not write the explanation down because Art 123(2) was typically 22-24 marks in total for all claims, and in the mock paper it was only 15, if I am not mistaken. I thought that these marks could be obtained by explaining the deletion of the feature "wireless transmitting means" in claim 1, and showing support for claim resolving the problem with the display and headband.

      Maybe, it would have been better if I did not see this potential Art 123(2) problem at all... Because in the end, I did not have time to write almost anything useful about the inventive step. Only the choice of the cpa may be correct (along with another short argument).

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  12. According to the proposed response there are two distinguising features of the invention starting from D1: garment and the correction of the output signal. One is disclosed in D3 and the other one in D2, rendering claim 1 not inventive in view of the combination of D1+D2+D3. Have you considered that?

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    1. I agree.
      I think that what is forgotten is that the monitoring system does not only correct noise to the output signal, but it also corrects FURTHER noise [007], which FURTHER reduces the quality of the output signal.
      So for me too the proposed solution is not sufficient.

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    2. @Anonymous March 10, 2017 6:14 pm: It would be a bit strange if it would be inventive when starting from the closest prior art, but not when starting from a further-away prior art. Seems also unlikely, as you need e.g. to change from electrical sensors to optical sensors and I donot see an incentive yo make that change in D1-D3 (maybe I am overlooking?). Can you explain your argumentation?

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    3. Dear Roel
      Thank you to be available.

      Par[07] states that "correction only" is not always efficient for noise, because of a FURTHER noise to manage. The solution for this is to position the movement sensor the right way in respect of the light source and the source detector.
      A claim without the feature about this position does not solve the announced problem and is against T32/82. According to this decision, all the necessary features to solve the problem must be indicated in the independant claim.

      Regards,

      Delete
  13. In the last paragraph of your inventive step you state that D3 discloses that an attachment means introduces too much noise. But, what D3 states, in par. 3, is that the Material (i.e. Optiflex) introduces too much noise, not the garment.

    Thanks in advance for your comments.
    -M

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    1. That "D3 does not relate to monitoring vital signals" is also doubtful.

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    2. The sock is at least partially made of the material. It is not about some abstract material. So, [03] of D3 says that the sock (which is the subject of D3) is at least partially of a material that is not suitable for recording vital signs.

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  14. And then par. 4 of D3 is positive about garment + sensor.

    -M from above

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    1. Yes, but not for measuring vital signs of the human body. Jist for recoding of the electrical activity of the heart - which is not in the exhaustive list of four vital signs.

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  15. AND you state first that D3 is not about recording vital signs, while saying it teaches a garment is unsuitable for recording vital signs?

    -M

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    1. I guess the distinction is between monitoring vs. recording. But I think monitoring is a substep of recording?

      -M

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    2. The distinction is about electrocardiography vs vital signs of the human body. The field of D3 is ECG, i.e. recording electrical activity, not recording vital signs. (And you shall not use any technical knowledge that is not given in the paper. So, you shall not use your knowledge or expectation that you can measure pulse from an ECG)

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    3. vital sign is litteraly referenced D3[03]

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  16. Definition of vital sign in the application is exhaustive. What is the activity of the heart (D3) if not a vital sign (i.e. sign of life)!! Thus said heart activity must be one of the vital signs in the list. Pulse = heart beat per dictionary

    -M.

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    1. See above. D3 does not talk about monitoring pulse or recording pulse, it talks about recording electrical activity of the heart. No fact in the paper that relates ECG to pulse - Rule 22(3) IPREE.

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    2. vital sign is litteraly named D3[03]

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  17. Correct one way And vice-versa - par. 2 and par. 11. While par. 8 says 'may', this is directed to an example. The device doesn't always correct a signal, only if it e.g. detects a peak. I think it must be configured to do Both corrections, i.e. AND construction. In operation, it may correct, i.e., only if necessary.

    Anyway, I now think D2 may be CPA. And that this is why application discusses that relative location of optical sensor and motion sensor is irrelevant.

    -M

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    1. The "and" ("and vice versa)" in [02] and [11], the "vice versa may" in [08] and implicitly in the last sentence of [09], and the "or" also puzzled me a bit.
      But, the "or" was in the original claims, and there was no objection from the examiner as to its support, so I decided it to be expected to be allowable and remain in the claim.

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  18. I did not put the 'and'.
    I argued that there is a synergistic effect between the use of a garment and the correction of noise created by the use of garment. So this is not a mere juxtaposition of features. So D1 cannot be combined with D2 and D3.
    In addition, D2 corrects the noise of the image of a camera and D1 has a very different system. So they cannot be combined.

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    1. Yes, I re-read again and now think indeed D1 is CPA, which is what I had in exam. Aim of invention is comfort, which is a problem hinted at in D1.

      I think it can be said that D2 corrects both ways. The infra-red image (optical) sensor adjust position of camera, which has a motion sensor to determine its position. Thus, the optical sensor ultimately corrects the motion sensor output of the camera, by moving it to the right position? Confusing.

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    2. Even if the effect was synergistic and so no splitting of the problem could be done, which personally I don't think is the case, the fact remains that neither par. 02, nor 11 supports the intermediate generalization of attaching means being a garment with the "or-correction".

      Indeed this is not even supported for the first embodiment, because paragraph 09 states that the evaluation means calculate from the corrected signalS, so both signals seem to be corrected. par. 09 is the only other support over par 02 for "any garment".

      So irrespective of the inventive step argument, the amended claim 1 proposed in the blogpost seems to contravene art 123(2).

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  19. To summarize

    Days after,remaining speculative topics are:
    "garment" may not be necessary for novelty;
    "garment + correction" may not be enough to get inventiveness over D1+D2+D3;
    Is it an "OR" or and "AND" correction;
    Can't the "OR" part be removed, as it can be seen to be optional [008]

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  20. I choose D3 as the CPA, as I put too much emphasis on this garment feature. With a wrong CPA, will one lose all the marks for the inventive step part?

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  21. I have put the garment in a dependent claim, and replaced "or" by "and".
    the feature "garment" has no synergistic effect with the signal correction. It may be the cause for correcting the signal but this does not means that it contributes to the same effect as the signal correction.

    by leaving the garment in claim 1, you would have to use a partial problem approach, but then D3 would anticipates the usage of garment!

    having the both signal corrections in claim 1 would make it inventive over D1-D3. D1 first teaches away because it says: "but no further software can be installed in the evaluation means 205". This means we cannot add the software for correction of the signals in the evaluating means of D1!

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  22. IMPORTANT ISSUE WITH THE FRENCH TEXT: the term "vice-versa" was not present on par [2] of the french copy, whereas it was clearly present at the end of par [2] of the english copy.

    THUS: the second "OR" alternative of claim 1 (see end of claim 1) was borderline supported in the sense of Art. 123(2) in the FRENCH copy!!

    "and in that the evaluation means (5, 25) is configured to correct the output signal from the optical sensor (2, 12, 22) based on the output signal of the motion sensor (3, 13, 23) or to correct the output signal from the motion sensor (3, 13, 23) based on the output signal of the optical sensor"

    The second "OR" alternative involves to specifically correct the MOTION sensor with the OPTICAL sensor (the so-called "vice-versa" mentioned in the description for Figure 3).

    Yet, support for this specific signal treatment is only mentioned for the headband accessory and one example related to the movement of foot in par. [2].

    Indeed, par. [08] only teaches litteraly OPTICAL vs MOTION and further refers to the "vice-versa" embodiment for one example related to the movement of a foot. Also, the description mentions in length on par. [02] that the correction is particularly important for garments.

    Accordingly, I suspected an impermissible intermediate generalization, based on the FRENCH copy, because the "vice-versa" approach was not permitted for ANY garment.

    I don't explain how the word "vice-versa" was removed in the FRENCH copy...

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    1. If you look at paper C2014
      There was an acknowledged mistake in the FR paper.
      They said they'd take it into account in the marking.
      You can look at he outcome:

      C2014: Best candidate paper mark:
      DE: 86
      EN: 82
      FR: 60

      They did lie.

      Delete
  23. I'm not a very fluent german speaker, but I don't see the "vice-versa" on par. [2] either.

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  24. to DELTA PATENTS:

    Please, could you share with us your opinion on some remaining questionable topics and the associated possible loss of points? :

    1. Is it an "OR" or an "AND" for the correction in claim 1 (see arguments in the discussion above)?
    2. with an "OR", is "garment + correction" inventive over D1+D2+D3 ?
    3. Is claim 4 as in DP answer supported by the original description (the screen cannot be combined with any garment as in claim 1, according to the description)?
    5. What about the differences in par.2 of the FR and DE version on the one hand, and EN version on the other hand? (pointed out by Kubrick above)

    Thanks a lot !

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  25. IMHO, for the EN version, the only admissible amended claim 1 is that wherein:
    - the holding means is an attaching means which is a garment; AND
    - the evaluation means (5, 25) is configured to correct the output signal from the optical sensor (2, 12, 22) based on the output signal of the motion sensor (3, 13, 23) AND to correct the output signal from the motion sensor (3, 13, 23) based on the output signal of the optical sensor.

    There is no basis for an intermediate generalization to "any attaching means" (no garment) nor to the intermediate generalization where the evaluation means remain configured to correct one way OR the other. This is for the following reasons:

    - there is no disclosure of any attaching means which is not a garment, this claim would also not be inventive in view of D1+D2;

    - The disclosure of the holding means being an attaching garment is at par 02, par 09, par 10+11 (headband is a garment). For all these embodiments the evaluation means is configured to correct one way AND the other, this is also true for the embodiment of par. 08,09 which is configured to correct the optical output with the motion output and may or may not correct the other way around, but is still configured to do both corrections, if necessary. So much so that it is on the corrected signalS (par. 09) that the vital sign(s) are evaluated.

    Furthermore, there is no disclosure of the evaluation means NOT being configured to carry out the optical output correction via the motion output (which is one of the two alternatives covered by (amended) claim 1). So also the overall disclosure does not justify the intermediate generalization.

    If the intermediate-generalized claim 1 as proposed was admissible u. A123(2), it would result that the features of the holding means being an attaching garment and the evaluation means being configured to correct the signals one way AND/OR the other are not structurally and functionally linked (necessary condition for the int. gen. to be admissible).
    How can their effects then be sinergically linked?

    As a result, even if hypothetically admissible, such a claim 1 would lack an inventive step in view of D1+D3(comfortable+stable sensor attachment with a garment)+D2(optical sensor output correction with motion sensor output to improve signal quality). Because the features are not linked and solve different partial problems.
    D3 does not teach that a garment cannot reliably+comfortably attach a sensor to the body, just that with a garment made of Optimex the SNR is too low to measure vital signs. In fact, D3 at par.04 teaches that a garment is a good solution to the problem of reliable+comfortable attachment of sensors to the body.
    D2 then teaches to improve the optical sensor output SNR with the output of a motion sensor. When combining D1 with D2 to solve the problem of the sensors attachment to the body, the skilled would be prompted to also look for a solution to improve the second partial problem of the low SNR in the output signal, and would look to D2 tha teaches the solution of the OR-claim. The modified system of D1+D3 already comprises both the optical and the motion sensors and the garment.

    This was my reasoning during the exam and I am not yet convinced it was wrong.

    For the FR and DE versions, things are even more clouded. Does par. 02 in this case support the intermediate-generalized OR-claim? There is still no embodiment where the evaluation means is not configured to carry out the optical output correction, so I don't know.

    What do you think?


    ReplyDelete
    Replies
    1. I also seriously considered just adding the AND amendment, but was not 100% sure that D2 did not teach two-way correction. So, went with AND - thinking also that there was no support in description, and added the garment with specific material to be safe. However, it would seem to me that the argumentation would be too basic if only needing to defend the AND amendment?

      Delete
    2. par[02]: no "OR" correction for DE and FR
      par[08]: optional "OR" correction
      par[11]: "OR" correction
      Conclusion: The "OR" correction is to be removed from claim 1.

      Delete
  26. Dear Tutors,

    Do you by the chance have an idea how Paper B will be graded?

    In the past EM papers Article 123(2) section was worth 22-24 marks. In contrast, in the Mock Exam it is only 15 marks.

    Also, in the past EM papers Novelty section was like 6 points. In the Mock exam it is 15 points and writing some strange summaries for each piece of prior art is recommended

    In the past papers, there were some points available for clarity. In the Mock Exam there is no separate clarity section.

    Thanks,

    Nick

    ReplyDelete
  27. I keep wondering, in relation to the "or"/"and" discussion why par.7 is there, in combination with the last sentence of par.8. Use of garment is actually not linked to the correction of the optical signal based on the motion signal and/or ;) vice versa. Any thougths?

    ReplyDelete
  28. I hope that I can convince you now!
    1)

    the corrections must be there because of the presence of noise that has to be corrtectetd in order to solve our problem, right?. What you are saying is that if I have to correct for the noise I need the source of the noise (i.e. garment) as well, right?

    However, in p [07]&[08], it is mentioned that other sources of noises than the garment(like movement)exist and add noise to the BOTH signals. Thus, without the garment, the correction is still needed for BOTH signals in order to achieve the effect of the invention. In other terms, if we have any other attaching means we have to do both corrections because both signals are affected. This is essential for achieving the effect.

    In addition, in p[07], the sentence "Accommodating an optical sensor into a garment adds electrical noise to the output signal of the optical sensor" mentions that ONLY the optical signal is affected by the garment. Thus only the "optical signal correction" would be needed, if any, in combination with the garment. However, from original claim 1, it is clear that any of the two corrections can be used with any holding means (referred to as 1, 11, 21) which are the (renamed) attaching means. In other terms, the "optical signal" correction was in original claims 1, and the communication does not object to the fact that for the "correction of the optical signal" the garment must be present e.g. because it is described as essential for the problem to be solved.

    2)
    even assuming that you are correct, but if you include the garment in claim 1, you would have to use the partial PSA, right? if you use the partial PSA for the garment you would end up with saying in a reply to an OA that your distinguishing feature "garment" is not inventive (over D3) and only the other distinguishing feature is inventive!?

    ReplyDelete
  29. The way I read par. 3 of D3 actually indicates to me that D3 is about vital signs. It says:

    "This material unfortunately allows measurements only with electrical sensors, because for any other type of sensor, e.g. optical sensor, the signal to noise ratio would be too low for measuring vital signs of the human body."

    Hence, a single sentence, first phrase discussing impliedly ECG measurements, the second phrase again refers to measurements, but this time explicitly calls them vital signs. To me that identifies ECG as a vital sign.

    Thus, several types of sensor may be used for measuring ECG/vital signs, but if you use optical you cannot use the material.

    -M

    ReplyDelete
    Replies
    1. With the optical example removed so it's clearer:

      This material unfortunately allows measurements only with electrical sensors, because for any other type of sensor, the signal to Noise ratio would bE too low for measuring vital signs of the human body.

      ECG sensed item = vital sign

      Delete
    2. This moves D3 to the realm of sensors for measuring vital sign, clearly making the teaching of par. 4 of D3 of garment + sensors fatal to the DP proposed claim.

      Delete
    3. I also have the same understanding of D3.

      Delete
    4. Hi M,

      You omitting quoting the subsequent sentence which states "Therefore, this material is not suitable for recording vital signs". Since the sock of D3 is made of this material (and not merely one of many design choices), D3 is in fact not suitable for monitoring/recording vital signs and thus, in my opinion, D3 does not relate to vital signs. I.e., if the document were a patent application, one would not assign an IPC/CPC class which pertains to monitoring/recording vital signs.

      If one would have remaining doubts, [01] of the client's letter gives an exhaustive list of the vital signs. D3 mentions none of these. One may of course reason that one may determine the pulse from the electrical activity of the heart, but this probably uses knowledge outside of the paper contrary to Rule 22(3) IPREE and thereby may cause you to arrive at a conclusion which is not intended by the paper.

      Delete
    5. Hi Nico,
      I had the same view for D3 after the amendments. How sufficient do you think it would be to just argue that D3 does not belong to the same technical field (as proposed by your customer)& nothing more?

      -A

      Delete
  30. Thanks Nico.

    In fact during the exam I read it the same way as you.

    ECG indeed is not a vital sign, it is a graphical plot of the vital sign. The raw physical entity must still be sensed to get the ECG plot. (the numerical pulse/heart rate could be visually or otherwise calculated from the chart or sensed data, I agree with that, but the raw data remains the same).

    In my opinion the exam doesn't need to tell me all that because that long sentence does it.

    Optical sensors are used for many other things that are not vital signs. I don't think it's bringing in vital signs there out of the blue just for kicks. It wouldn't make sense semantically.

    I agree the subsequent sentence does not make sense with the previous one. In my opinion the intention there was to say not suitable for measuring vital signs with non-electrical sensors, thus I suspect exam error.

    Well I leave with that as I have bothered you enough already ☺

    ReplyDelete
  31. The garment by itself is not associated to the technical effect of confort.
    In A1, the confort is associated to optitex.
    In D3, the confort is associated to a glove only.
    So the garment alone cannot protect the inventiveness of the proposed claim 1.

    ReplyDelete
    Replies
    1. OK with this comment. For my opinion, the garnment should be limited to the material optitex and original claim 6 has to be incorporated into claim 1 to defend inventive step.

      Delete
  32. You can't see how an item of clothing is more comfortable than a clip?

    ReplyDelete
    Replies
    1. Sure, but last sentence of D3. "glove reliable and confortable means for attaching sensors to the human body..."

      Delete
    2. The rule of the game is not what candidates know but what is disclosed in the paper.
      By the way I personnaly know a lot of garments which are not suitable at all.

      Garment alone does not solve the announced problems of reliability and comfort.
      Those problems are only solved in some specific cases:
      sock + optitex D3[03];
      glove D3[04];
      headband + optitex A1[10].

      Delete
    3. Correction alone does not solve the announced problem of noise. You need:
      correction + position of movement sensor in view of light source and light detector.
      see A1[07] and figures.
      See also A1[09], because of the `identical technical features` as in A1[07].

      Delete
    4. The `OR` correction is optional.
      see A1[02] for DE and FR, where it is absent
      and A1[08] where it is a `may be`.

      Delete
    5. conclusion
      These elements should lead to another claim 1 were:
      the garment feature is absent;
      the `OR` correction is removed;
      A position feature for the movement sensor is added.

      Delete
  33. I do not agree with the deletion of "glove" from the dependent claim.

    GL F-IV, 6.6 says:
    6.6 Support for dependent claims
    Where certain subject-matter is clearly disclosed in a claim of the
    application as filed, but is not mentioned anywhere in the description, it is permissible to amend the description so that it includes this subject-matter. Where the claim is dependent, it may suffice if it is mentioned in the description that the claim sets out a particular embodiment of the invention (see F-II, 4.5).

    The client explicitly asks to protect the glove. Thus, and although an implicit protection is provided by claim 1, an explicit protection is preferred, if complying with Art. 84.

    In the exam, I kept glove in the dependent claim and I replied to the clarity objection indicating that the skilled person is able to extend the teaching to a glove (F-IV, 6.3) and that the glove could be eventually added to the description (F-IV, 6.6).

    As far as I know, in paper B we are not supposed to amend the description, this is why I did not file an amended description.

    I would be surprised if the committee expected such an answer... but I believe that it would be the best solution for the client.
    Do you think the committee might accept my answer as at least equally valid? Or do they just follow templates so that I will lose points both for not amending and for not replying to the clarity objection as expected?

    ReplyDelete
    Replies
    1. Dear NewUser,

      We also debated internally whether deleting 'glove' was required or not. Indeed, we also considered that adding 'glove' to the description would be a solution (GL F IV 6.6) but actually doing so during the exam seemed to conflict with IPREE Rule 24(3) “The description shall not, however, be amended”. It may well be that the desired solution is to provide an argument along the lines that you have given.

      Delete
    2. Ok, thank you for your reply.
      Chances are that the committee goes either for one solution or for the other. The ones not having the 'right' (i.e. desired) solution will then miss several points. Does not sound really fair in this case.

      Delete
    3. My understanding of rule 24(3) IPREE is that, it is not part of the exam to submit an adapted description in line with the amended claims, as you would do in real life. However, this rule does not prevent you from arguing in your response that the description should be amended to overcome the clarity issue. More particularly, there is a sentence in the client letter indicating that "you may have to provide corresponding reasoning" in your reply to the Examiner with regard to the glove. This seems to be a hint that you should keep the glove and argue why you can keep it.
      GM

      Delete
  34. D1is the closest prior art: difference is the garment
    D3 teaches using a garment for measuring ECG = heart beats = pulse rates = VITAL SIGNS !!!!!
    Therefore, the garment itself cannot be the solution to the technical problem (provision of reliable and comfortable system for long-term remote monitoring of vital signs of patients) as it would be obvious from D3...
    The application indicates that the headband with the Optitex solves specifically this problem (par.10) AND the client clearly states in his letter that "the 3rd embodiment (=headband) is enjoying an unexpected success in the sports article market" (par.04). Guidelines for examination G.VII.10.3 : Commercial success as 2ndary indicator of inventive step
    This solution is not obvious since D3 teaches away from using Optitex with sensors other than electrical sensors (par. 03)

    ReplyDelete
  35. In addition to the extra "vice versa" in EN or missing "vice versa" in DE and FR,
    It appears to me that D3[03] embeds ambiguities and enables different understandings on wether it relates to vital signs or not.

    The sentence
    "This material unfortunately allows measurements only with
    electrical sensors, because for any other type of sensor, e.g. optical sensor, the signal to
    noise ratio would be too low for measuring vital signs of the human body"
    leaves no doubt that the electrical activity of the heart of D3 is a vital sign.

    But the next sentence
    "Therefore, this material is not suitable for recording vital signs"
    tends to contredict that.


    The left feeling is however that D3 should relate to vital signs.
    The paper would not mention "vital signs" twice, if it is to say that it's not about it.

    As a message I would invite the EQE to avoid ambiguities. If the text is not clear for people using their own language in the exam, imagine how difficult it is for the others. Besides, in real life you can ask for confirmation. In the EQE, you can't, and you just have seconds to make a choice. Please don't render the EQE only a game of chance.

    ReplyDelete
  36. The objective technical problem is defined as such "how to obtain a reliable and comfortable system for long-term remote monitoring of vital signs of patients".

    But D2 solves this problem because the device object of D2 is reliable (the undesired noise is reduced), comfortable (there is no contact with the baby's body) and it permits long-term remote monitoring of vital signs.

    Moreover, the aim of the invention is defined in [01] in opposition to the drawbacks of the device of D1 (which is not comfortable and reliable).

    ReplyDelete
  37. results are online...

    ReplyDelete
  38. The Examiners gave 5 points for explicitly reciting "glove" in a dependent claim 6 (see item 3.2.5 in the Report), 1 or 2 points for stating the basis for this claim (see item 5.2.4 in the Report) and 4 points for arguing that this claim is clear (see item 5.3.2 in the Report). Interesting!

    ReplyDelete
  39. Hello,

    The "official" template states on page 20 and elsewhere that maintaining signal correction for the signal coming from both captors is strictly based on the occurence of the term "vice-versa" (hence supporting an intermediate generalization).

    Yet, the french version definitely lacks the "vice-versa" part, so the reasoning of the Examining division does not apply anymore. So, what may one conclude from this?

    Because if the "vice-versa" is lacking, then this creates fundamental issues with the official approach (at least for those doing the examination in french).

    Because marks were not allowed for other parts of the discussion then, I think this would at least reduce by 10 or 15 the total amounts for those who (like me) canceled the "OR" part....

    I did not pass B by very little. Is it worth appealing?

    ReplyDelete
    Replies
    1. for clarity: "vice-versa" is lacking par. [2] in the FRENCH text.

      Delete
    2. Last year four Pre-Exam Appeals proved to be successful based on
      the ambiguity of question 5.4. "The Examination Committee had based its evaluation on an incorrect premise.the Examiner’s report was based on a question different from that inferable from statement 5. 4 on an objective reading." It seems at least worth to try.

      Delete
    3. Let me know if you appeal. I passed but think the poor standard of English in parts of the B exam is negligent at best. Thus, I'd join an appeal. I think you did the right thing cancelling the OR part, with OR configuration invention does not achieve the purported advantages.

      Delete
    4. I was the 100th comment! Do I get a prize???

      Delete
  40. How are client's instructions have to be interpreted according to EPC and IPREE?

    These instructions state: "If possible, please protect the option that the garment is a glove. In view of the comment of the examiner in section 3.2 you may have to provide corresponding reasoning. Otherwise we do not want you to add further dependent claims."

    The Examiner's report states "Therefore, it was expected from the candidates that a system comprising any kind of garment is protected by the independent claim".

    Ok, so with claim 1 being as the Examiners want, the option desired by the client is protected by claim 1. This means that in order to protect the option that the garment is a glove, I do not have, i.e. there is no any necessity, to keep the glove in the claims. That is, I do not have to provide any argument in response to the comment of the examiner in section 3.2. When I do not have to provide such argument, I shall not provide it, according to the client's instructions.

    However, the Examiner's report states "It was further
    expected to claim both the glove and headband for goggles as specific
    examples of a garment in the dependent claims". Where does this interpretation of the instructions come from?

    ReplyDelete
  41. they managed to find a match between two completely unrelated effects!!!!!

    does anyone believes that "comfortable" effect that is achieved by a garment has any synergy with "noise reduction" by signal correction!!!!


    in this way we don't need parttial problem approach. If we have a claim with effec1 and effect2 we jusr use a single problem "how to provide effect1 in combination with effect2 .....in combination with effectN"!!!!

    ReplyDelete
  42. Is anyone appealing this year? Since tomorrow is the last date, I am trying to decide..

    ReplyDelete
  43. I hope someone does!

    ReplyDelete

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