AgaMatrix, Inc.Download PDFPatent Trials and Appeals BoardMay 13, 20202019004442 (P.T.A.B. May. 13, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/266,074 04/30/2014 Anoop Rao AGAM.P-071-2 8358 57381 7590 05/13/2020 Larson & Anderson, LLC P.O. BOX 4928 DILLON, CO 80435 EXAMINER SIEFKE, SAMUEL P ART UNIT PAPER NUMBER 1797 MAIL DATE DELIVERY MODE 05/13/2020 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANOOP RAO Appeal 2019-004442 Application 14/266,074 Technology Center 1700 Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–5. See Final Act. 2, 5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as AgaMatrix, Inc. Appeal Br. 1. Appeal 2019-004442 Application 14/266,074 2 CLAIMED SUBJECT MATTER The claims are directed to a web-enabled portion device (WEPD) (for example, an IPhone) that may be integrated with additional devices such as a glucose meter (GM) or blood glucose meter (BGM). Spec 1–2. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A portable combination for measuring a glucose concentration value in a sample, the combination comprising: (A) a portable glucose meter (GM) having a test strip port for receiving a disposable electrochemical test strip, wherein the GM is configured to calculate a glucose concentration value in a sample applied to a test strip received in the test strip port; and (B) a web enabled portable device (WEPD) having a rechargeable WEPD battery and a wireless connection to the internet, wherein: (I) the GM and the WEPD are electrically coupled to allow power transfer between the GM, and the WEPD, (II) the GM and the WEPD are communicatively coupled to allow for data transfer between the GM and the WEPD, and (III) the GM and WEPD are detachable from and reattachable to each other to form the portable combination. Claims Appendix (Appeal Br. 5). REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Brown et al. (“Brown”) US 2008/0300920 A1 Dec. 4, 2008 Frikart EP 1 764 030 A1 Sept. 20, 2005 Appeal 2019-004442 Application 14/266,074 3 REJECTIONS Claims 1 and 3 are rejected under 35 U.S.C. § 102(b) as being anticipated by Frikart. Final Act. 2. Claims 2, 4, and 5 are rejected under 35 U.S.C. § 103(a) as being unpatentable in view of Frikart and Brown. Final Act. 5. OPINION Claim 12 Appellant argues that the Examiner reversibly erred in finding that Frikart discloses an apparatus including an “GM and [an] WEPD [that] are electrically coupled to allow power transfer between the GM, and the WEPD” as recited in claim 1. Appeal Br. 2. Appellant acknowledges that “Frikart discloses a blood glucose meter that is designed to be connected to a portable electrical device” but argues that the “one way or unidirectional connection” of Frikart does not disclose the recited “power transfer between the GM, and the WEPD”3 which “is bidirectional, so that either device can transfer power to the other device or devices.” Id. The Examiner responds by defining the claim term “between” as “from one to another” under the broadest reasonable standard. Ans. 7.4 The 2 Appellant does not separately argue for claims 2 and 4 and they stand or fall with claim 1. See Appeal Br. 3–4; see also 37 C.F.R. § 41.37(c)(1)(vii). 3 We note that the claim term “power transfer between the GM, and the WEPD” is not grammatically logical because a comma separates “the GM” and “the WEPD.” 4 Appellant contends that the Examiner’s response to Appellant’s argument is a new ground of rejection. Reply Br. 1. This argument is not persuasive. In any event, any request to seek review of an examiner’s asserted failure to designate a rejection as a new ground of rejection in an examiner’s answer must be by way of a petition to the Director under 37 C.F.R. § 1.181 filed Appeal 2019-004442 Application 14/266,074 4 Examiner finds that “Frikart discloses GM 1 and the WEPD 2 are electrically coupled at an electrical connection 5’ (WEPD) and 5 (GM) for power transfer” which meets the claim limitation. Id. We are not persuaded by Appellant’s argument because it is unsupported by the record. Appellant does not cite to the Specification to support the argument that a power transfer “between” two devices is bidirectional. Although Appellant cites the “Specification at p. 8, lines 7-12 and p. 9, line 3 to p. 11, line 2”5 as written description support for the claim term at issue, neither these nor other portions of the Specification are cited in support of the argument with regard to “between.” See Appeal Br. 2. Appellant does not direct us to the Specification to support the argument that “either device can transfer power to the other device or devices” or that “power might be transferred back to the WEPD” from the GM. See Appeal Br. 2; Reply Br. 2. The Specification is consistent with the Examiner’s interpretation of the claim term. For example, the Specification provides that “the GM can draw operating power from either or both SBP 103 and the WEPD 105.” Spec. 8. The Specification provides that GM 101 may “draw operating power first from the SBP 103, second from the WEPD 105 battery, and third within two months from the entry of the examiner’s answer and before the filing of any reply brief. Failure of an appellant to timely file such a petition constitutes a waiver of any arguments that a rejection must be designated as a new ground of rejection. 37 C.F.R. § 41.40(a); see also, e.g., Manual of Patent Examining Procedure § 1002.02(c)6 and § 1207.03(b) (9th ed., Rev. 7, November 2015); In re Berger, 279 F.3d 975, 984–85 (Fed. Cir. 2002) (holding that issues regarding whether an examiner abused his or her discretion in matters of practice and procedure are not subject to appeal). 5 The Specification as originally filed lacks line numbers. Appeal 2019-004442 Application 14/266,074 5 from the GM 101 battery, if the GM 101 battery is present.” Id. at 9. Such a charging sequence “ensures minimizing power draw and providing the most operational power remaining in the WEPD battery and lastly and most preferably in the GM battery.” Id. Appellant’s argument with regard to Frikart’s teaching is unpersuasive because the argument is premised on the contention that “power transfer between the GM, and the WEPD” requires a bidirectional power transfer. We sustain the rejection of claim 1. Claim 3 Claim 3 depends from claim 1 and additionally recites “comprising a portable rechargeable supplemental battery pack (SBP).” Appellant argues that the Examiner reversibly erred in rejecting claim 3 because claim 3 states that “an external, third device is added to the device configuration.” Appeal Br. 3. Appellant argues that the device in Frikart “is part of the glucose meter and intended to operate the glucose meter when not connected to portable electrical device 2” and does not anticipate claim 3. Id. We are not persuaded by this argument because it is not based on the claim language which requires no more than “a portable rechargeable supplemental battery pack (SBP).” Claim 5 Claim 5 depends from claim 1 as well as claim 4 and additionally recites “wherein the GM first draws operating power from the SBP and then from the GM battery, and causes the GM battery to be recharged first, Appeal 2019-004442 Application 14/266,074 6 followed by the SBP, when the combination is connected to an external recharging power source.”6 In rejecting claim 5, the Examiner reasons that the prior art devices are “structurally capable of performing” the recited limitations. Ans. 11. Appellant does not dispute this finding. See Reply Br. 2–3 (arguing instead that “this is new ground of rejection and sufficient reason to reopen prosecution”).7 Because Appellant does not address this finding by the Examiner, no error has been identified and the rejection of claim 5 is sustained. CONCLUSION The Examiner’s rejection is affirmed. More specifically, DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3 102(b) Frikart 1, 3 2, 4, 5 103(a) Frikart, Brown 2, 4, 5 Overall Outcome: 1–5 6 Should prosecution continue, the Examiner may consider whether claim 5 which recites both an apparatus and a method of operating the apparatus meets the definiteness requirement under section 112. See Ans. 10–11 (noting that “the limitation[s] of claim 5 [are] process limitations”). 7 With regard to whether the Examiner’s response to Appellant’s argument is a new ground of rejection of claim 5, we decline to reach the issue for the reasons provided in FN 4 supra. Appeal 2019-004442 Application 14/266,074 7 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation