BOSE CORPORATION

Patent Trials and Appeals BoardSep 22, 2021

2020003205 (P.T.A.B. Sep. 22, 2021)

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. 15/267,552 09/16/2016 Jack Read B2108-701519_RS-16-207 5373 128905 7590 09/22/2021 LANDO & ANASTASI, LLP BOSE 60 STATE STREET, 23RD FLOOR BOSTON, MA 02109 EXAMINER SHERWIN, RYAN W ART UNIT PAPER NUMBER 2688 NOTIFICATION DATE DELIVERY MODE 09/22/2021 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): CKENT@LALAW.COM DOCKETING@LALAW.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JACK READ, LAURA WARE, JONATHAN FREED, DEBRA REICH, LEELA KESHAVAN, and BRIAN DAVID MULCAHEY Appeal 2020-003205 Application 15/267,552 Technology Center 2600 Before HUNG H. BUI, ADAM J. PYONIN, and MICHAEL J. ENGLE, Administrative Patent Judges. PYONIN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Bose Corporation. Appeal Br. 3. Appeal 2020-003205 Application 15/267,552 2 STATEMENT OF THE CASE Introduction The Application is directed to “a wake-up alarm that can wake a user based on the fulfilment of conditions pre-set by a user instead of just time.” Spec. ¶ 3. Claims 1–9, 11–16, 18–25, and 27–29 are pending; claims 1, 11, and 18 are independent. Appeal Br. 11–15. Claim 1 is reproduced below for reference (emphasis added): 1. A dynamic wake-up alarm comprising: a clock; a contactless biometric sensor for determining at least one of a heart rate, a respiratory rate, a presence of a user, or movement of a user; a microphone; a processor; memory; and a speaker; wherein said processor is configured to receive a wake-up rule based on at least two wake-up criteria, a first of said at least two wake-up criteria including a sleep score determined based on data from the contactless biometric sensor, a second of said at least two wake-up criteria being a time criterion including an earliest acceptable wake-up time and a latest permissible wake-up time, evaluate whether said at least two wake-up criteria are met, and activate an alarm based on a determination that said at least two wake-up criteria are met. References and Rejections Claims 1–7, 9, 11–16, 18–23, 25, and–27 are rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Rӧnnholm (US 7,248,915 B2; July 24, 2007) and Kahn (US 2013/0234823 A1; Sept. 12, 2013). Final Act. 3. Appeal 2020-003205 Application 15/267,552 3 Claims 8 and 24 are rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Rӧnnholm, Kahn, and Benson (US 2015/0164238 A1; June 18, 2015). Final Act. 13. Claims 28 and 29 are rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Rӧnnholm, Kahn, and Yun (US 2014/0334645 A1; Nov. 13, 2014). Final Act. 14. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments. Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant that the Examiner erred and adopt as our own the findings and reasons set forth by the Examiner, to the extent consistent with our analysis below. We add the following primarily for emphasis. Appellant argues the rejection of claim 1 is in error, because “[t]he prior art does not teach or suggest, expressly or inherently, a sleep score based on data from a biometric sensor” as claimed, and the Examiner has improperly relied on “hindsight reconstruction.” Appeal Br. 7, 10. Particularly, Appellant contends that, although Kahn teaches a “sleep report” displaying numerical percentages, these are not “necessarily sleep scores based on data from a biometric sensor” because “Kahn does not describe any process whatsoever for determining the percentages described . . . , whether based on data from a biometric sensor or otherwise.” Appeal Br. 7–8. Appellant further argues that “substituting [Kahn’s] percentages for [Rӧnnholm’s] REM information would make [Rӧnnholm] incapable of achieving its intended purpose of timing the alarm to wake the user during an appropriate sleep stage.” Appeal Br. 10. Appeal 2020-003205 Application 15/267,552 4 We are not persuaded the Examiner errs. “[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the Examiner finds, and Appellant does not challenge, that Rӧnnholm “is relied upon for teaching activating an alarm based on data from a contactless biometric sensor.” Advisory Act.2 2; see Rӧnnholm 9:18–22 (“The device of the present invention may, for example, be set to stimulate or awaken the user within a set interval if either REM sleep is detected.”). Kahn, as cited by the Examiner, discloses “sleep sensing system 100 includes . . . brainwave sensors, cameras to observe eye movement, or other sensors 218 may also monitor the user’s state” and “the default alarm includes a sleep report.” Kahn ¶¶ 26, 39. Kahn’s sleep report “is an announcement of the user’s completed sleep period data” such as stating “sleep efficiency is 97%, and you are getting 95% of your optimal sleep.” Kahn ¶ 39. We agree with the Examiner that the combined teachings of the references would have taught or suggested the limitations of the claim to those of ordinary skill in the art. Appellant does not persuade us that Kahn’s sleep report information fails to teach or suggest the claimed “sleep score determined based on data from the contactless biometric sensor.” Appellant argues the limitations are not inherent in the cited references, which does not show the Examiner errs in finding the limitations obvious in view of the cited references. See Reply Br. 2. Moreover, we find the Examiner’s findings to be reasonable: Kahn explains that “[s]leep state logic 220 utilizes data from one or more sensors 205, to determine the user’s current sleep state” which is used to “track[] 2 We refer to the Advisory Action (Advisory Act.) mailed July 8, 2019. Appeal 2020-003205 Application 15/267,552 5 cumulative sleep information . . . . [and] may be used for predictive modeling for the user.” Kahn ¶¶ 27, 28; Ans. 4. Kahn’s sleep report includes sleep information, such as “optimal wake up time,” “sleep efficiency [percentage],” and “[percentage of] optimal sleep.” Kahn ¶ 39. One of ordinary skill would understand Kahn’s sleep report—including percentages for sleep efficiency and optimal sleep information— to teach or suggest the sleep score within the meaning of the claim, because Kahn’s sleep report is based on contactless biometric data and the sleep report includes a score. See Final Act. 4; Advisory Act. 2; Ans. 4. Nor are we persuaded the Examiner errs in finding one of ordinary skill would “modify the teaching of [Rӧnnholm] with the sleep score and other data of Kahn because this provides a numerical representation of the quality of sleep so that a user knows if the system is working and can relate how they feel to how they sleep for improved sleep experience.” Final Act. 4. First, Kahn explains “the user’s completed sleep period data” from the sleep report includes the “optimal wake up time” and the percentage of “optimal sleep.” Kahn ¶ 39. We agree with the Examiner that Kahn’s sleep period data (including optimal sleep percentage) would be used by an artisan of ordinary skill to calculate the optimal wake up time, because combining Kahn’s teachings with Rӧnnholm’s alarm would further the intended purpose of “waking a user during an appropriate sleep stage.”3 Ans. 6; 3 Separately, we note that Kahn further teaches or suggests sleep period data is used to determine the wake up time, because “the system attempts to enable a user to have more refreshing sleep period, by ensuring that the user gets as much deep sleep as possible, while getting sufficient REM sleep.” Kahn ¶ 76. Rӧnnholm also discloses a sleep score used in determining a wake up rule: “On the basis of the ‘deep sleep’/’shallow sleep’-ratio, the Appeal 2020-003205 Application 15/267,552 6 Rӧnnholm 8:39–40; Kahn ¶ 37. Accordingly, we disagree with Appellant that the Examiner’s obviousness rejection is improper. See Appeal Br. 9, 10. Second, although the Examiner states a skilled artisan could “substitute” Kahn’s data for Rӧnnholm’s sleep criteria in the Response to Arguments section of the Final Action (see Final Act. 15), the Examiner alternatively finds one of ordinary skill would modify Rӧnnholm with the teachings of Kahn (see Final Act. 4). See, e.g., Ans. 4, 6 (“combining the teaching of Kahn with the teaching of [Rӧnnholm]”) (emphasis added). Claim 1 recites “at least two wake up criteria,” and we find that including Kahn’s sleep report information with Rӧnnholm’s alarm criteria would not reduce Rӧnnholm’s “reliability that the user is waking at an optimal time and from an optimal state.” Ans. 6. For this additional reason, we are not persuaded the Examiner’s combination analysis is in error. Third, claim 1 recites a “sleep score.” Both Rӧnnholm and Kahn teach waking a user based on the user’s sleep stage. See Rӧnnholm 9:18–22; Kahn ¶ 37. The sleep stage is a value, such as “stage 1” or “stage N1,” that is determined based on data from a contactless biometric sensor. Rӧnnholm 10:4–30; Kahn ¶ 27. We find, additional to the Examiner’s analysis discussed above, that the recited “sleep score” is broadly but reasonably taught or suggested by the determined sleep stage of the cited references. Accordingly, we are not persuaded the Examiner errs in finding the limitations of independent claim 1 to be obvious in view of the cited references. device could determine whether there is a need to sleep more or not.” Rӧnnholm 10:45–47 (emphasis added). Appeal 2020-003205 Application 15/267,552 7 INCORPORATION BY REFERENCE Appellant states support for the claimed subject matter is provided in a separately filed application: U.S. Patent Application Serial No. 15/267,464 (“the '464 Application”), entitled Sleep Quality Scoring and Improvement, is incorporated in the present application by reference. As described in further detail below, the ‘464 Application provides useful context for a sleep score based on biometric data. . . . The ‘464 Application, incorporated by reference in the present application, provides useful context for a sleep score based on biometric data. The ‘464 Application describes, generally, calculating a sleep score based at least in part on biometric readings from one or more biometric sensors. Appeal Br. 4, 6; see also Spec. ¶¶ 1, 38 (“A full description of how sleep state may be determined (and how the same system may induce and maintain it) is found in U.S. Patent Application . . . entitled Sleep Quality Scoring and Improvement”), 43 (“All of the monitored biometrics may be recorded in memory 11 and used to determine an overall sleep score in a manner described in U.S. Patent Application . . . entitled Sleep Quality Scoring and Improvement.”). “‘Essential material’ may be incorporated by reference, but only by way of an incorporation by reference to a U.S. patent or U.S. patent application publication, which patent or patent application publication does not itself incorporate such essential material by reference.” 37 C.F.R. 1.57(d) (emphasis added). In contrast, “[o]ther material (‘Nonessential material’) may be incorporated by reference to . . . prior and concurrently filed commonly owned U.S. applications.” 37 C.F.R. 1.57(e) (emphasis added). Appeal 2020-003205 Application 15/267,552 8 The ’464 Application appears to be concurrently filed with the present application. See Spec. ¶ 1. In the event of further prosecution, the Examiner may wish to determine whether the sleep score disclosure of the ’464 Application is properly incorporated by reference, and whether the claimed “sleep score” conforms with the requirements of 35 U.S.C. § 112 in the present application. See MPEP § 608.01(p) (“A noncompliant incorporation by reference statement may be corrected by an amendment. . . . However, the amendment must not include new matter. . . . An incorporation by reference of essential material to an unpublished U.S. patent application, a foreign application or patent, or to a publication is improper.”). CONCLUSION We are not persuaded the Examiner errs in finding the limitations of independent claim 1 to be obvious in view of the cited references. Appellant does not present separate substantive arguments for the remaining claims. See Appeal Br. 6. Thus, we sustain the Examiner’s obviousness rejections of claims 1–9, 11–16, 18–25, and 27–29. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–7, 9, 11– 16, 18–23, 25, 27 103 Rӧnnholm, Kahn 1–7, 9, 11– 16, 18–23, 25, 27 8, 24 103 Rӧnnholm, Kahn, Benson 8, 24 Appeal 2020-003205 Application 15/267,552 9 28, 29 103 Rӧnnholm, Kahn, Yun 28, 29 Overall Outcome 1–9, 11–16, 18–25, 27– 29 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