Ex Parte Brauer et al

Patent Trial and Appeal Board

Aug 10, 2017

12468671 (P.T.A.B. Aug. 10, 2017)

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.
12/468,671 05/19/2009 Jacob S. Brauer BHDD-029 08DC018 1343
88180 7590 08/14/2017
Outran Rr Outran PP
EXAMINER
245 Saw Mill River Road, Suite 309
Hawthorne, NY 10532
MUI, CHRISTINE T
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
08/14/2017 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):
DuganEmail@duganpatent.com
bdugan@duganpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACOB S. BRAUER, DARREN BROWN, KEVIN CHANG,
JUN CHEN, RICHARD KATES, JENNIFER M. LEVIN,
HARRIS LIEBER, JING LIN, DAWN ROUNTREE, AMY SCHWARTZ,
FRED SOMMER, FU HSIUNG TSAI, HUAN-PING WU,
and RAYMOND YAO
Appeal 2016-005205
Application 12/468,671
Technology Center 1700
Before BRADLEY R. GARRIS, AVELYN M. ROSS, and
MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1, 2, 4, 5, 12, and 16—30 of
Application 12/468,671 under 35 U.S.C. § 103(a) as obvious. Final Act.
(Feb. 3, 2015) 4—10. Appellants1 seek reversal of these rejections pursuant
to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 Bayer Healthcare LLC is identified as the real party in interest. Appeal
Br. 2.
Appeal 2016-005205
Application 12/468,671
BACKGROUND
The present application generally relates to the testing and monitoring
of health data. Spec. 12. The application indicates that the described
systems and methods are intended to provide an interface for displaying
information regarding the testing and monitoring of health data in a more
useful and accurate manner. Id.
Claims 1 and 22 are representative of the pending claims and are
reproduced below:
1. A testing system for testing an analyte in a body fluid
sample, comprising:
a test sensor; and
a meter configured to receive the test sensor and test an
analyte in a body fluid sample, the meter comprising:
a user interface including:
a display for displaying information relating
to measurements of health data, and
an input device including a set of soft keys
for receiving information from a user relating to the health data,
wherein:
the user interface is operational to prompt the
user to press the soft keys to enter the information via a set of
user-selectable options displayed next to the set of soft keys and
to provide on the display a count of readings that fall within a
target range;
a processor programmed to cause the user interface
to prompt a user to enter the information upon the user applying
a body fluid sample to the test sensor; and
an automatic control marking feature adapted to
mark on the display with an icon or label a testing result of a
control solution containing a control marker, wherein the
processor is configured to:
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Application 12/468,671
distinguish the testing result of the control
solution from the testing of a body fluid sample, and
exclude the testing result of the control
solution from the information relating to the measurements of
health data displayed to a user via the user interface.
22. A testing system adapted to test an analyte in a body fluid
sample, comprising:
a user interface including:
a display for displaying information relating to
measurements of analyte data, the display comprising one of a
graphic liquid crystal display (LCD), an organic light-emitting
diode (OLED) display, or a segment LCD, and
an input device including a set of three soft keys
adapted to enable interaction to receive instructions from the
user, wherein:
the user interface is operational to prompt the user
to press one of the three soft keys to enter the information or
instructions via a set of three user-selectable options displayed
next to three soft keys;
a processor programmed to cause text or images to move
on the display; and
an automatic control marking feature adapted to mark on
the display with a control icon or control label a testing result of
a control solution containing a control marker, the testing result
of the control solution being distinguishable from the testing of
the body fluid sample, and wherein the testing result of the
control solution is not included in the information relating to the
measurements of analyte data that is displayed to a user via the
user interface wherein the control solution includes a known
amount of an analyte.
Appeal Br. 10, 12—13 (Claims App.).
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Application 12/468,671
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 2, 4, 5, 12, 16—21, and 30 are rejected under 35
U.S.C. § 103(a) as obvious over the Ascensia Contour Blood Glucose
Monitoring System User Guide, © 2006 Bayer Healthcare LLC (hereinafter
“Ascensia”) in view of Marcus et al. (US 2008/0071580 Al, pub. Mar. 20,
2008) (hereinafter “Marcus”). Final Act. || 8—14.
2. Claims 22—29 are rejected under 35 U.S.C. § 103(a) as obvious
over Ascensia in view of Bayer Contour TS Blood Glucose Monitoring
System User Guide, © 2007 Bayer (hereinafter “Contour TS”). Id. Tflf 1—7.
DISCUSSION
Rejection 1. The Examiner rejected claims 1, 2, 4, 5, 12, 16—21, and
30 as obvious over Ascensia in view of Marcus. Id. 8—14. Claims 2, 4, 5,
12, 16—21, and 30 depend from claim 1. Appellants did not submit timely
separate argument regarding their patentability. Accordingly, claims 2, 4, 5,
12, 16—21, and 30 will stand or fall with claim 1. See 37 CFR
§ 41.37(c)(l)(iv).
The Examiner found that Ascensia teaches every limitation of claim 1
other than a user interface that permits one to display a count of readings
that fall within a target range. Final Act. 111. The Examiner finds that this
feature is taught by Marcus. Id. 112 (citing Marcus 157, 158, 174, 175).
The Examiner further determines that a person of ordinary skill in the art
would have had reason to modify the user interface of Ascensia to include
displaying the data taught by Marcus “so that the user is able to determine
and correspond certain event[s] or timeframes with readings and how many
of the reading [s] are with[in] an acceptable target range and determine which
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events, meals, therapy sessions, stress, insulin injections or exercise routines
affect the reading of their analyte levels.” Final Act. 113. Accordingly, the
Examiner rejected the claim as obvious. Id.
Appellants assert that Marcus teaches a diabetes data management
system (DDMS) that may include blood glucose meters in communication
with computing device 100. Appeal Br. 5. Therefore, Appellants argue, the
reports referred to in the paragraphs cited by the Examiner are not shown on
the meter’s display panel, but rather on the display panel of a computing
device that receives uploaded information from one or more support devices
(e.g., blood glucose meters) as shown in Marcus’ FIG. 1. Id. at 5—6. As a
result, Appellants conclude, the cited combination would not result in a
meter configured to test an analyte as required by claim 1. Id. at 6. Instead,
such combination would yield a system where the Ascensia device may be
connected to computing device 100 of Marcus. Id.
Appellants misconstrue the rejection. The Examiner relies upon
Marcus to teach generation and display of a report that includes “a count of
readings that fall within a target range,” not the location where the data is
displayed. Answer 9; Marcus Fig. 5B. The Examiner does not seek to
physically combine the teachings of Ascensia and Marcus. “There is a
distinction between trying to physically combine the two separate apparatus
disclosed in two prior art references on the one hand, and on the other hand
trying to learn enough from the disclosures of the two references to render
obvious the claims in suit. . . . Claims may be obvious in view of a
combination of references, even if the features of one reference cannot be
substituted physically into the structure of the other reference.” Orthopedic
Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983). Here, the
computer display of Marcus may not be physically combinable with the
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portable glucose meter of Ascensia, but the teaching of Marcus to display a
count of readings that fall within a range is readily combinable with
Ascensia.
In view of the foregoing, Appellants have failed to demonstrate error
in the Examiner’s determination that claim 1 is obvious over Ascensia in
view of Marcus.
Rejection 2. The Examiner rejected claims 22—29 as obvious over
Ascensia in view of the Contour TS. Final Act. H 1—7. Claims 23—29
depend from claim 22. Appellants did not submit timely separate argument
regarding their patentability. Accordingly, claims 23—29 will stand or fall
with claim 22. See 37 CFR § 41.37(c)(l)(iv).
Claim 22 requires, inter alia, “a processor programmed to cause text
or images to move on the display.” Appeal Br. at 13 (Claims App.). The
Examiner finds that this limitation is satisfied by Ascensia’s teaching that
the display shows a numerical countdown as well as flashing text and/or
icons as in the “on/off’ indicator. Final Act. 13; Advisory Action 2 (April
15, 2015). Additionally, the Examiner finds that “[t]he scrolling of
information on a display is notoriously well-known in the art and it is
obvious to cause images to move.” Answer 9.
Appellants argue that the claim term “move” requires that the feature
“go from one place or position to another.” Appeal Br. 7. Accordingly, in
their view, neither a blinking image nor a countdown of numbers would
teach the limitation. Appellants do not address the Examiner’s finding that
moving text is notoriously well-known in the art in their Reply.
During examination, claim terms must be given their broadest
reasonable construction consistent with the Specification. In re ICON
Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Here the only
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portion of the Specification relevant to the limitation at issue provides that
“[i]t is contemplated that the user interface 20 may provide a high-
resolution, rich viewing display 22, which may present both static and
moving text and images to the user.” Spec. 122 (emphasis added). This
tends to suggest that text is moving when not “static.” With little guidance
from the Specification, we construe the limitation “to move on the display”
broadly to include the movement of a numerical countdown and a flashing
icon or digit.
Accordingly, we find that Appellants have failed to demonstrate
reversible error in the Examiner’s determination of obviousness of claim 22.
In their Reply, Appellants present argument regarding claims 21 and
29 that was not raised in the Appeal Brief. See Reply Br. 3. Patent and
Trademark Office regulations provide that Appellants may not raise new
arguments in their Reply except under circumstances not applicable here. 37
CFR § 41.41 (b)(2) (“Any argument raised in the reply brief which was not
raised in the appeal brief, or is not responsive to an argument raised in the
examiner's answer, including any designated new ground of rejection, will
not be considered by the Board for purposes of the present appeal, unless
good cause is shown.”). Accordingly, we do not consider the arguments set
forth in the Reply Brief regarding claims 21 and 29.
CONCLUSION
In view of the foregoing, the rejection of claims 1, 2, 4, 5, 12, and 16—
30 of Application 12/468,671 under 35 U.S.C. § 103(a) as obvious is
affirmed.
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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
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