       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 (Serial No. 10/988,358)
    IN RE DAVID KRYZPOW, JAMES ELLIOTT,
     AARON ROOD, AND FREDERICK J. LISY
            __________________________

                      2010-1209
              __________________________

    Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
               ___________________________

              Decided: December 20, 2010
             ___________________________

    BRIAN M. KOLKOWSKI, Orbital Research Inc., of Cleve-
land, Ohio, for appellants.

    RAYMOND T. CHEN, Solicitor, Office of the Solicitor,
United States Patent and Trademark Office, of Alexan-
dria, Virginia, argued for the Director of the United
States Patent and Trademark Office. With him on the
brief were FRANCES M. LYNCH and JANET A. GONGOLA,
Associate Solicitors.
               __________________________
IN RE KRYZPOW                                             2


    Before BRYSON, DYK, and MOORE, Circuit Judges.
MOORE, Circuit Judge.

    David Kryzpow, James Elliott, Aaron Rood, and Fre-
derick Lisy appeal the decision of the United States
Patent and Trademark Office Board of Patent Appeals
and Interferences (Board) concluding that claims 13-15
and 23 of U.S. Application No. 10/988,358 (’358 applica-
tion) would have been obvious over U.S. Patent No.
6,415,619 (Kornrumpf) in view of U.S. Patent No.
7,032,302 (Schmidt) and U.S. Patent No. 4,763,660 (Kroll)
and concluding that claim 16 would have been obvious
over Kornrumpf in view of Schmidt and Kroll and further
in view of U.S. Patent No. 6,259,939 (Rogel). We affirm.

                      BACKGROUND

    The ’358 application concerns an electrode harness
used for taking biopotential measurements. The specifi-
cation states that in one embodiment, the electrical
pathways of the harness are shielded from large defibril-
lator voltages and smaller voltages, both of which would
degrade the biopotential signal. J.A. 140.

    The claims at issue all require an electrical pathway
shielded from large defibrillator voltages. Claim 13
recites:

   13. An electrode harness for physiological monitor-
       ing of a subject, the electrode harness compris-
       ing

   at least two dry electrodes; and

   material operable to interconnect the at least two
   dry electrodes, the material comprising an electri-
3                                             IN RE KRYZPOW



    cal pathway from at least one of the at least two
    dry electrodes, the electrical pathway being elec-
    trically shielded from large defibrillator voltages;

    wherein the at least two dry electrodes are at-
    tached to the material.

Claims 14-16, 19, and 23 all depend from claim 13. Claim
16 requires that the electrode harness include “a wireless
transmitter or transceiver, which is electrically connected
to the at least two dry electrodes.” The other dependent
claims add limitations not argued on appeal.

    The examiner rejected claims 13-15, 19, and 23 over
Kornrumpf in view of Schmidt and Kroll, and claim 16
further in view of Rogel. The examiner explained that
Kornrumpf discloses a harness but does not disclose the
use of dry electrodes or a shield layer. The examiner
found that Schmidt disclosed the use of dry electrodes and
stated that they could be used with a harness. J.A. 257-
58. The examiner thus concluded that it would have been
obvious to modify Kornrumpf’s harness with Schmidt’s
dry electrodes to permit signal detection without the use
of conductive gels or adhesives. J.A. 258. The examiner
further found that Kroll disclosed a shield layer on an
electrode belt device and concluded that it would have
been obvious to one of skill in the art to modify the Korn-
rumpf harness with the shield in Kroll to permit superior
signal detection. Id. The examiner also found that Rogel
disclosed a wireless transmitter and concluded that it
would have been obvious to modify the Kornrumpf har-
ness with such a feature. Id.

    In response, the appellants argued that
IN RE KRYZPOW                                               4


    Kroll only teaches of a shielding layer that “pre-
    vents interference from the device with other
    medical and diagnostic and therapeutic devices.”
    Column 6 lines 19-20 . . . . Kroll does not teach or
    disclose an electrical pathway from the at least
    one electrode, the electrical pathway being
    shielded from large defibrillator voltages. Kroll
    only teaches of a shielding layer that “prevents in-
    terference”. The claimed invention not only pre-
    vents interference from other devices, it protects
    the patient from potentially harmful currents, and
    likewise the connected electronics.

J.A. 269 (emphasis in original); see also J.A. 274.

    The examiner again rejected the claims, reiterating
the same arguments. The examiner did not respond to
the appellants’ argument presented above. Rather, the
examiner stated: “Kornrumph et al fail to disclose a
shield layer. Such a feature is disclosed by Kroll et al (see
column 6, lines 17+, particularly lines 19-21).” J.A. 283.

    In response, the appellants asserted that:

    Further, Kroll only teaches a shielding layer that
    “prevents interference from the device with other
    medical diagnostic and therapeutic devices.” Col-
    umn 6, lines 19-20. With respect to Claim 6, Kroll
    does not teach or disclose an electrical pathway
    from the at least one electrode, the electrical path-
    way being electrically shielded from large defibril-
    lator voltages. Kroll only teaches of a shielding
    layer that “prevents interference.” Column 6, lines
    19-20. The claimed invention not only prevents in-
    terference from other devices, it protects the pa-
    tient from potentially hazardous currents, and
5                                             IN RE KRYZPOW



    likewise protects the connected electronics. There
    is a large difference between electronic shielding
    for interference and electronic shielding of large
    defibrillator voltages, and a large difference for the
    type of structures required for such shielding. The
    Examiner has not yet explained why he believes
    that shielding for electronic interference and for
    large defibrillator voltages are the same nor pro-
    vided a reference for disclosing such.

J.A. 291 (emphasis removed); see also J.A. 299.

    The appellants filed a notice of appeal, and the exam-
iner issued a “Supplemental” Office Action reiterating the
previous rejection and further rejecting certain previously
allowed claims. J.A. 306-15.

    Before the Board, the appellants asserted that “elec-
tric shielding for interference and electronic shielding of
large defibrillator voltages are drastically different.” J.A.
341. The appellants further argued that “the type of
structures required for shielding against interference are
different from the type of structures required for shielding
against damage that can be caused by large voltages.” Id.
After the parties exchanged briefing, the examiner filed a
“Supplemental Examiner’s Answer.” J.A. 409-24. In this
supplemental paper, the examiner for the first time
stated that “the shield layer of Kroll et al would inher-
ently offer at least some protection from the claimed
[defibrillator] voltages.” J.A. 420.

    The Board affirmed the examiner’s rejection of claims
13-16, 19, and 23 over Kornrumpf in view of Schmidt and
Kroll, and, for claim 16, further in view of Rogel. The
Board found that Kroll teaches a belt shielded from
outside interference by a shielding layer. J.A. 18. The
IN RE KRYZPOW                                              6


Board further found that “[a]lthough Kroll does not
specifically state that the shielding layer is sufficient to
shield the electrical pathways of the device from large
defibrillator voltages (Fact 14), Kroll expressly suggests
that the shielding layer can be modified in order to pro-
vide additional shielding (Fact 13).” Id. The Board found
that the “[a]ppellants d[id] not identify any specific struc-
ture in the Specification or in the claims that specifically
enables shielding from large defibrillator voltages.” Id.
The Board concluded that “[s]electing an appropriate
amount of shielding based upon the expected outside
interference that the device may encounter is a detail of
construction that does not patentably distinguish the
invention from the prior art.” Id. The Board found that
“Kroll itself suggests that incorporating more shielding
layers will produce more shielding.” J.A. 18-19. As to
claim 16, the Board applied the same reasoning and
further concluded that “[i]incorporating Rogel’s wireless
transmitter into the device of Kornrumpf amounts to
using a known technique, to improve a known device, in
order to achieve the predictable result of enabling cordless
operation of the device and making it simpler to manufac-
ture.” J.A. 20.

   The appellants appealed. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(4)(A).

                        DISCUSSION

    We review the Board’s ultimate determination of ob-
viousness de novo and the Board’s underlying factual
findings for substantial evidence. In re Kotzab, 217 F.3d
1365, 1369 (Fed. Cir. 2000).

   The appellants argue that the Board erred in its obvi-
ousness determination by equating a shield that protects
7                                             IN RE KRYZPOW



against interference with the claimed shield, which pro-
tects against large defibrillator voltages. The appellants
further elaborate on the two types of shielding, explaining
that “interference is shielded to improve the physiological
signal quality or prevent noise in the signal.” Appl. Br.
21. The appellants assert that equipment found in a
medical environment, such as computers, monitors, and
power lines, create interference. Id. at 22. The appel-
lants assert that a skilled artisan would understand that
“[d]efibrillators involve the discharge of direct current
(DC) at high voltages across a patient to treat life threat-
ening cardiac arrhythmias, ventricular fibrillation and
pulseless ventricular tachycardia. Thus, direct current is
not a source of interference.” Id. The appellants assert
that the Board erred by not defining the level of skill in
the art or taking the skilled artisan’s knowledge of this
type of information into account.

    The appellants also argue that Kroll’s shield would
not protect against large defibrillator voltages, even if
additional layers were added. The appellants explain
that Kroll’s shield is located in one of the outermost layers
of the harness. The appellants assert that Kroll does not
teach or suggest providing a shield between the electrical
pathways and the patient; rather, the shield of Kroll
protects the device and its electrical pathways from
outside (external) interference sources. The appellants
thus contend that Kroll’s shield does not protect the
electrical pathways against any voltages passed through
the patient’s body and leaked into the harness through
contact with the patient’s skin. By contrast, the appel-
lants explain that their specification describes an em-
bodiment in which the electrical pathways are shielded
from large defibrillator voltages. In this embodiment, the
electrical pathways “are longitudinally enclosed with a
conductive layer of shielding, such as metal or foil, ex-
IN RE KRYZPOW                                              8


tending from the electrode connector to the output plug at
the opposite end of the harness. Each individual electri-
cal pathway is shielded.” J.A. 140.

    The government responds that “[t]he fact that Kroll’s
specific embodiments only depict shielding on one side of
the harness is of no moment.” Gov’t Br. 15. The govern-
ment asserts that based on an understanding of interfer-
ence and direct currents, the appellants’ skilled artisan
“surely would know exactly where and how to shield.” Id.
The government further asserts that Kroll’s shield is
capable of protecting against large defibrillator voltages.
The government explains that the shield described in the
’358 application is made of metal, and the appellants
acknowledge that the shield in the ’358 application pro-
tects against large defibrillator voltages. The government
thus argues that “there is more than a reasonable basis to
conclude that Kroll’s shielding layers are capable of full or
partial shielding from large defibrillator voltages because
they, too, are metallic.” Gov’t Br. 16. Next, the govern-
ment asserts that the Board did not base its decision on a
finding that Kroll’s shield inherently protected against
large defibrillator voltages. Rather, according to the
government, the Board relied on Kroll’s express disclosure
that “the shielding layer can be modified in order to
provide additional shielding.” Gov’t Br. 17. 1

    We conclude that the Board did not err when it de-
termined that the asserted references rendered these
claims obvious. All of the claims at issue require an
electrical pathway that is “electrically shielded from large
defibrillator voltages.” Giving this claim term its broad-

    1   The government also argues that appellants
waived their arguments regarding the structure of the
shield. Given our discussion below, we do not reach the
waiver argument.
9                                           IN RE KRYZPOW



est reasonable interpretation, it could apply to shielding
on either side of the pathway. Kroll discloses a top-side
shield that may be modified for additional shielding.
Given this construction and the teachings of the refer-
ences, we conclude that the Board did not err by deter-
mining that these claims would have been obvious over
the cited references.

    Although we affirm the Board’s rejection of the claims
on appeal, there are claims in this case that remain
pending at the Patent Office. The applicant may amend
pending claims or submit new claims to clarify that this
shielding is disposed between the patient’s body and the
pathway, rather than on top of the pathway as in Kroll.
We express no opinion about the allowability of these
potentially amended claims and the Patent Office should
consider them in the first instance.

                       CONCLUSION

    For the foregoing reasons, we affirm.

                      AFFIRMED
