Ex Parte 6968375 et alDownload PDFPatent Trial and Appeal BoardDec 30, 201695002237 (P.T.A.B. Dec. 30, 2016) 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. 95/002,237 09/13/2012 6968375 12771.0076USR2 8444 60683 7590 12/30/2016 Robert Bosch LLC 1800 W. Central Road Mount Prospect, IL 60056 EXAMINER KE, PENG ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 12/30/2016 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 ____________________ MEDTRONIC, INC., MEDTRONIC CARE MANAGEMENT SERVICES, LLC, AND CARDIOCOM, INC., Requesters, v. ROBERT BOSCH HEALTHCARE SYSTEMS, INC. and HEALTH HERO NETWORK, INC., Patent Owner ____________________ Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. US 6,968,375 B1 Technology Center 3900 ____________________ Before MARC S. HOFF, STEPHEN C. SIU, and ERIC B. CHEN Administrative Patent Judges. HOFF, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Patent Owner Robert Bosch Healthcare Systems, Inc. appeals under 35 U.S.C. §§ 134(b) and 315(a) (2002) from the rejection of claims 1–67 as set forth in the Right of Appeal Notice (RAN) mailed September 23, 2014. Patent Owner filed a brief (“PO App. Br.”) on January 19, 2016. Requester Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 2 Medtronic, Inc. filed a respondent brief (“Req. Br.”) on February 18, 2016. Patent Owner filed a rebuttal brief (“PO Reb. Br.”) on May 02, 2016. The Examiner mailed an Examiner’s Answer (“Ans.”) on March 30, 2016 which incorporated the RAN by reference. We have jurisdiction under 35 U.S.C. §§ 134 and 315. An oral hearing was held on October 25, 2016. The record will include a written transcript of the oral hearing. We affirm. The ’375 Patent issued to Brown on November 22, 2005. The ’375 Patent concerns a system for remotely monitoring an individual. A server system generates a script program from a set of queries. The script program is executed at a remote apparatus, which displays information and/or queries to the individual through a user interface. Responses and individual identification information are sent to the server system. The server system also includes an automated answering service for providing a series of questions for the remotely-located individual to respond to, storing responses to each provided question, and providing a service based on the individual’s response to the questions. See Abstract. Claim 1, which is illustrative of the appealed subject matter, reads as follows: 1. A system for remotely monitoring an individual, the system comprising: (a) a remote apparatus for interacting with the individual; (b) a server system including Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 3 (i) a script generator for generating a script program from a set of health related queries, the script program being executable at the remote apparatus to communicate the set of queries to the individual; and (ii) a database for storing the[]queries, the responses to the queries, and details of the individual; wherein the remote apparatus includes: (i) a communication component for receiving the script program from the server and for transmitting the responses to the server; (ii) a user interface having an audio transducer for audibly notifying the individual and a display, and a processor connected to the user interface for executing the script program to cause presentation on the display of queries to the individual. The claims stand rejected as detailed below (see PO App. Br. 11). All rejections are made under 35 U.S.C. § 103(a). References Claims Fu and Wahlquist 1, 2, 4–7, 9–16, 37, 38, 59–62, and 67 Fu and Wright 1–19, 21–41, 43–65, and 67 Chaco and Wahlquist 1, 2, 4–7, 9–16, 37, 38, 59–62, and 67 Chaco and Wright 1–67 Kirk, Beckers, and Wahlquist 1, 2, 4–7, 9–16, 37, 38, 59–62, and 67 Kirk, Beckers, and Wright 1–19, 21–41, 43–65, and 67 Gombrich and Wahlquist 1, 2, 4–7, 9–16, 37, 38, 59–62, and 67 Gombrich and Wright 1–19, 21–41, 43–65, and 67 Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 4 ISSUES Patent Owner argues, inter alia, that neither Chaco nor Wright teach a processor that causes presentation on the display of the queries to the individual. PO App. Br. 38. Patent Owner contends that neither Chaco nor Wright teach a script generator for generating a script program from a set of health related queries. PO App. Br. 39. Patent Owner further asserts that neither Chaco nor Wright teach a database for storing the queries, the responses to the queries, and details of the individual. See PO App. Br. 39. Patent Owner expostulates that the Examiner has not identified a reason for combining Chaco and Wright to include a database for storing the queries, the responses to the queries, and details of the individual. PO App. Br. 39. With respect to claim 3, Patent Owner further argues that Wright fails to teach or suggest audible notification of unanswered queries. See PO App. Br. 26, 40. With respect to claim 20, Patent Owner contends that Wright does not teach or suggest a script program having a connection command to establish communication with a central computer at a prescribed connection time. PO App. Br. 42. The arguments made by Patent Owner and Requester present us with the following issues: 1. Does the combination of Chaco and Wright teach a processor that causes presentation on the display of the queries to the individual? Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 5 2. Does the combination of Chaco and Wright teach a script generator for generating a script program from a set of health related queries? 3. Does the combination of Chaco and Wright teach a database for storing the queries, the responses to the queries, and details of the individual? 4. Does the Examiner identify a reason for combining Chaco and Wright to include a database for storing the queries, the responses to the queries, and details of the individual? 5. Does Wright teach or suggest audible notification of unanswered queries? 6. Does Wright suggest a script program having a connection command to establish communication with a central computer at a prescribed connection time? ANALYSIS REJECTION OVER CHACO AND WRIGHT CLAIMS 1, 2, 4–19, AND 21–36 We are not persuaded by Patent Owner’s argument that neither reference teaches a processor that causes presentation on the display of the queries to the individual. PO App. Br. 38. Patent Owner’s argument is an attack on the references individually, and is thus ineffective to show error in a rejection based upon a combination of references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). As noted in the Request, Chaco discloses a physiological data monitoring system. Chaco Col. 4:59–64, Col. 14:36–40; See Request 366. The microprocessor-based subsystem (210 or 2310, Figure 4) includes a data Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 6 management unit adapted for digital data signal processing (414/414') and a monitoring device (410/222') to monitor physiological parameters of the patient. Chaco further discloses at least one health care professional computer 320 in signal communication (Figure 4) with the central server 430. The health care professional computer specifies information to be communicated to an individual at a microprocessor-based subsystem. Such information is inputted into a computer via an interface (e.g., a keyboard 324 and monitor 322). This information is provided to the central server, which is then communicated to the microprocessor-based subsystem. See Chaco, col. 13 ll. 26–32, col.16 ll. 7–14, and Fig. 4. As admitted by Patent Owner, Wright teaches a remote apparatus having a display that interacts with an individual. PO App. Br. 38. Wright teaches that the individual responds to queries presented on the display. See Abstract. Patent Owner’s argument that neither Chaco nor Wright teach a script generator for generating a script program from a set of health related queries is also unpersuasive. See PO App. Br. 39. We agree with Requester that Wright’s entire form is the “script program” claimed, and that the script program contains queries. Wright’s script generator receives user input, but generates script programs as recited. See Req. Br. 8–9; Wright col. 7:1–44. Wright teaches generating scripts that incorporate a set of queries. Req. Br. 9; Wright col. 9:10–13:36. Further, Wright teaches a script generator that accepts user input to create a script program. Wright prompts the user for field data input, such as prompting for the type of field. See Req. Br. 9; Wright col. 10:54–56. Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 7 We are not persuaded by Patent Owner’s argument that neither Chaco nor Wright teach a database for storing the queries, the responses to the queries, and details of the individual. See PO App. Br. 39. We agree with Requester that Wright teaches generating a form that contains queries. Req. Br. 10; Wright col. 10:11–53. That form is saved and sent to a remote device, where it is stored electronically. Wright’s PDA stores responses electronically and transmits them to a central computer, where they are also stored electronically. Req. Br. 10; Wright cols. 7:33–39, 13:24–36. We concur with the Board’s decision in IPR2013-00468, finding that Wright teaches “one or more databases . . . for storing the generic script program and any responses received from the remotely situated apparatus.” IPR2013- 00468 at pp. 17–18. The Board also found that Wright teaches the generation of customized or individualized script programs. See Id. Patent Owner argues that the Examiner has not identified a reason for combining Chaco and Wright to include a database for storing the queries, the responses to the queries, and details of the individual. PO App. Br. 39. We are not persuaded by Patent Owner’s argument. As noted by the Examiner, Chaco teaches patient monitoring and storing health related inquiries. See Req. Br. 17; Request 274–275. As discussed supra, Wright teaches generating a form that contains queries, as well as storing responses to the queries. The Examiner refers to the reasons for obviousness given with respect to the rejections over Fu and Wright, and Chaco and Wahlquist. See RAN 21, 25, 26. We agree with Requester that, as with the combinations of Fu and Wright or Chaco and Wahlquist, the combined teachings of the Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 8 references suggest all the claim limitations. A person of ordinary skill in the art would consider combining storage of the health related inquiries of Chaco and responses to the queries of Wright in the same database when combining the references. See Req. Br. 10 and 16–17. We are not persuaded by Patent Owner that the Examiner has failed to give a reason to modify Chaco to include Wright’s script generation. PO App. Br. 39–40. Patent Owner refers to “reasons analogous to those discussed above in Section VII.C.1.e,” in which Patent Owner traverses the Examiner’s rejection over Chaco and Wahlquist.1 Id. In that context, Requester answers, and we agree, that Patent Owner admits that the generation of script programs results in “a script file that can be sent to a remote computer and executed at the remote computer.” Req. Br. 17. This reasoning is equally applicable to the generation of script programs in Wright. We further agree with Requester that “a [person having ordinary skill in the art] would recognize that such benefits are desirable,” in Chaco as well as in Fu. Req. Br. 7. Patent Owner’s argument that the Examiner has not given a reason to modify Chaco to include receiving a script in a remote apparatus from a server is not persuasive to establish that the Examiner erred. See PO App. Br. 40. Patent Owner again refers to its arguments concerning the combination of Chaco and Wahlquist. Id. Again, we agree with Requester that Wright, as well as Wahlquist, teaches generating a script file that can be sent to a remote computer and executed at the remote computer; and that if a 1 This argument itself refers to reasons analogous to those expressed with respect to the rejection over Fu and Wahlquist. PO App. Br. 36. Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 9 program is sent to and executed by a remote device, it must necessarily have been received by that device. See Req. Br. 17–18. Because Patent Owner has not persuasively established that the Examiner’s rejection is erroneous, we sustain the Examiner’s rejection of claim 1, and claims 2, 4, and 5 not separately argued, over Chaco and Wright. Patent Owner’s argument with respect to claims 6–8 is that the combination of Chaco and Wright does not teach “generating a script program from a set of queries.” PO App. Br. 40. As analyzed supra, we find this argument to be unpersuasive, and that Wright does teach such script generation. Accordingly, we sustain the Examiner’s rejection of claims 6–8 over Chaco and Wright. Patent Owner argues claims 9–14 for the reasons “in sections VII.B.5 [sic, 4], VII.D.1.a and VII.D.1.f.” PO App. Br. 41. These reasons have been considered and found to be unpersuasive with respect to the rejection of claim 1, supra. Accordingly, we sustain the Examiner’s rejection of claims 9–14 over Chaco and Wright. Patent Owner’s remarks with respect to claims 15–19 and 21–36 rely on arguments “in Sections VII.D.1.a, VII.D.1.e and VII.D.1.f.” These arguments have been considered and found unpersuasive with respect to claim 1. We therefore sustain the Examiner’s rejection of claims 15–19 and 21–36 over Chaco and Wright, for the same reasons. CLAIM 3 Patent Owner relies on the argument made against the combination of Fu and Wright in remonstrating that the Examiner has not identified a Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 10 rationale to modify Chaco to include the teachings of Wright. See PO App. Br. 26, 40. We agree with Requester, however, that Wright teaches audible notification of unanswered queries. Req. Br. 12; Wright col. 10:21–23. We further agree with Requester that the person having ordinary skill in the art would have recognized that “audible indications would be used to notify a user of actions to be taken, such as unanswered queries.” Req. Br. 12. Because Patent Owner has not established that the Examiner erred, we sustain the Examiner’s rejection of claim 3 over Chaco and Wright. CLAIM 20 Patent Owner argues that Wright does not teach a script program having a connection command to establish communication with a central computer at a prescribed connection time. PO App. Br. 42. Patent Owner’s argument is not persuasive because, as explained in the Right of Appeal Notice, Wright teaches communication between the remote computer and the server, and Chaco teaches executing an action at a prescribed time. RAN 27; see Chaco col. 17:43–45 and Wright col. 26:53–54. Because Patent Owner has not established that the Examiner erred, we sustain the Examiner’s rejection of claim 20 over Chaco and Wright. CLAIMS 22 AND 23 Patent Owner’s only argument with respect to the rejection of these claims over Chaco and Wright is to refer the reader to the arguments with respect to the combination of Fu and Wright. We do not agree with Patent Owner that Wright fails to teach or suggest “a plurality of sets of queries and corresponding response choices.” PO App. Br. 28. First, we concur with the Decision in IPR2013-00468, finding that Wright teaches the use of both Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 11 queries and responses for scripts. IPR2013-00468 at 13–14. Second, we agree with Requester that Wright teaches multiple forms, each with multiple queries, as well as the creation of multiple, different script forms, for gathering information from remote devices via a script generator. Req. Br. 13; Wright cols. 8:29–31; 10:11–12:64; 9:46–13:23. We agree with Requester that the combination of Chaco and Wright teaches the elements of claims 22 and 23. We sustain the Examiner’s rejection of claims 22 and 23. CLAIMS 25–27 Patent Owner’s argument concerning claims 25–27 refers only to the arguments made with respect to the rejection of claims 25–27 over Fu and Wright. Those arguments are not pertinent to the rejection over Chaco and Wright, however, because Patent Owner discusses only what is deficient in Fu. See PO App. Br. 29–30. As such an argument fails to set forth Examiner error in rejecting claims 25–27 over the combination of Chaco and Wright, we sustain the Examiner’s rejection. CLAIMS 37–67 Patent Owner, in asserting error in the rejection of these claims, merely makes reference to arguments previously raised concerning claims 1, 20, 22–23, and 25–27. PO App. Br. 42. We have considered each of these arguments, and have found them to be unpersuasive. Accordingly, we sustain the Examiner’s rejection of claims 37–67, for the reasons expressed supra with respect to claims 1, 20, 22–23, and 25–27. Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 12 OTHER REJECTIONS NOT SPECIFICALLY DISCUSSED In affirming the rejected claims on appeal on these grounds, we decline to address the merits of additional grounds of rejection appealed by the Patent Owner. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (having decided a single dispositive issue, the ITC was not required to review other matters decided by the presiding officer). THIRD PARTY REQUESTER’S CROSS-APPEAL Requester appeals from the Examiner’s non-maintenance of the rejection of a number of claims, over various combinations of prior art references. In view of our affirmance of the rejection of all claims, we need not reach Requester’s arguments concerning the other grounds of rejection. See Id. CONCLUSIONS 1. The combination of Chaco and Wright teaches a processor that causes presentation on the display of the queries to the individual. 2. The combination of Chaco and Wright teaches a script generator for generating a script program from a set of health related queries. 3. The combination of Chaco and Wright teaches a database for storing the queries, the responses to the queries, and details of the individual. 4. The Examiner identifies a reason for combining Chaco and Wright to include a database for storing the queries, the responses to the queries, and details of the individual. 5. Wright suggests audible notification of unanswered queries. Appeal 2016-006953 Reexamination Control 95/002,237 Patent No. 6,968,375 B1 13 6. Wright suggests a script program having a connection command to establish communication with a central computer at a prescribed connection time. ORDER The Examiner’s decision to reject claims 1–67 is affirmed. 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). AFFIRMED Counsel for Patent Owner: ROBERT BOSCH HEALTHCARE SYSTEMS, INC. 2400 GENG ROAD SUITE 200 PALO ALTO, CALIFORNIA 94303 Counsel for Third Party Requester: Mercant & Gould PC 3200 IDs Center 80 South Eighth Street Minneapolis, Minnesota 55402 Copy with citationCopy as parenthetical citation