Ex Parte Brown

Patent Trial and Appeal Board

Oct 31, 2016

11474708 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111474,708 0612612006
10800 7590 11/01/2016
Maginot, Moore & Beck LLP
One Indiana Square, Suite 2200
Indianapolis, IN 46204
FIRST NAMED INVENTOR
Stephen J. Brown
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7553.00024 I 06-0460 9254
EXAMINER
REYES, REGINALD R
ART UNIT PAPER NUMBER
3686
MAILDATE DELIVERY MODE
11/01/2016 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
Ex parte STEPHEN J. BROWN
Appeal2014-007649
Application 11/474,708
Technology Center 3600
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Stephen J. Brown appeals under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 1, 3-9, 11-22, 24--33. We have
jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE DECISION
We AFFIRM-IN-PART.
Appeal2014-007649
Application 11/474,708
CLAIMED INVENTION
The claimed invention relates to "self-care health monitoring" (Spec.
para. 2). Claims 1, 12, and 25 are the independent claims on appeal. Claim
1, reproduced below with bracketed matter added, is illustrative of the
subject matter on appeal (App. Br. 31-32, Claims App.).
1. A health monitoring system for communicating with a
remote computing facility, the system comprising:
[ 1] a health monitoring device associated with a person being
monitored, said health monitoring device configured to collect
physiological data related to a health condition of the person
being monitored;
[2a] a central server arranged to receive and communicate data,
said central server remotely located from the person being
monitored,
[2b] wherein said central server is configured to analyze health-
related data corresponding to said person
[2c] and generate statistical data based on said analysis of said
health-related data,
[2d] wherein said health-related data comprises said
physiological data related to said health condition of the person
being monitored;
[3] a programmable microprocessor-based unit associated
with the person being monitored, said programmable
microprocessor-based unit in signal communication with the
health monitoring device and in signal communication with the
central server, said programmable microprocessor-based unit (i)
including a microprocessor, a multi-line display, a plurality of
switches and a receptacle and (ii) configured to present
information on the display to the person being monitored and
provide a digital signal representative of said physiological data
related to said health condition of the person being monitored,
wherein said microprocessor-based unit presents to said person
on said display (A) alphanumeric messages of at least one line of
text, and
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[3b] (B) graphs representing said statistical data;
[ 4] a removable memory device configured to electrically and
physically connect with said programmable microprocessor-
based unit via said receptacle, wherein said removable memory
device comprises a program cartridge; and
[5] a computer for use by a health care professional and
remotely located from said health monitoring device, said central
server and said programmable microprocessor-based unit, said
computer for use by a health care professional being in signal
communication with the central server, wherein said computer
for use by the health care professional is constructed and
arranged for transmitting messages to the programmable
microprocessor-based unit via the central server for presentation
to the person being monitored.
REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
McNeight
Ruzumna
Fu
Chaco
Leatherman
Durairaj
us 4,463,250
us 4,773,492
us 4,803,625
us 5,465,082
us 5,544,044
US 7,359,993 Bl
July 31, 1984
Sep.27, 1988
Feb. 7, 1989
Nov. 7, 1995
Aug. 6, 1996
Apr. 15, 2008
1. Claims 1, 3-9, 12-22, 31, and 32 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Fu, McNeight, Chaco, and
Leatherman.
2. Claims 25-30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fu, Chaco, and Leatherman.
3. Claims 11 and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Fu, McNeight, Chaco, Leatherman, and Ruzumna.
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Application 11/474,708
4. Claim 33 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fu, McNeight, Chaco, Leatherman, and Durairaj.
ANALYSIS
Independent claim 1
Regarding independent claim 1, the Examiner finds limitation [ 4] in
Fu in column 5, lines 44--52, column 6, lines 37---60, column 9, lines 20-23
(Non-Final Act. 4), and column 7, lines 56-59 (Ans. 2).
Appellant contends that "[t]he Examiner has mischaracterized Fu"
because "[a] floppy disc with storage space is not a program cartridge"
(App. Br. 10). Appellant argues, for the first time in the Reply Brief, that
"program cartridge" "is defined at the Appellant's specification at paragraph
16 as a device which 'provides the software necessary (program
instructions) to program the handheld microprocessor unit for operation with
the microprocessor-based data management unit"' (Reply Br. 2), and that
"[ s ]ince floppy discs can be provided which do not include program
instructions, floppy discs which are program cartridges are not inherent to
the system of Fu" (id. at 3).
We do not find Appellant's arguments persuasive. First, claim 1 does
not include a "handheld microprocessor unit" or a "microprocessor-based
data management unit" so Appellant's proffered interpretation would render
the claim indefinite for lack of antecedent basis. Appellant's argument
regarding inherency does not address the actual rejection, which is based on
obviousness and not anticipation.
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Application 11/474,708
Additionally, we agree with the Examiner that even under Appellant's
proffered interpretation, Fu discloses limitation [ 4]. Fu at column 9, lines
20-23 discloses a routine that "loads previously stored data flags and the
system state table from the disk into RAM." We are not apprised of
Examiner error because Appellant does not explain why it is unreasonable to
interpret the program instructions as the data flags and system state table as
taught by Fu.
We further note that Appellant's Specification suggests that program
cartridges are admitted prior art. For example, paragraph 36 of Appellant's
Specification discloses that "'palm top computers' have been introduced into
the marketplace ... include provision for programming the device by means
of an insertable program card or cartridge" and paragraph 38 discusses
program cartridges that are "compatible with commercially available
compact video game systems, such as the system manufactured by Nintendo
of America Inc. under the trademark 'GAME BOY'."
The Examiner finds limitation [2c] of claim 1 taught by Leatherman at
column 231 lines 1-9 (Non-Final Act. 6).
Appellant disputes this finding on the grounds that "[t]here is no
mention of any statistical analysis of an individual's physiological data"
(App. Br. 9).
Appellant's arguments are not commensurate with the scope of the
claim. Claim 1 requires a "health monitoring device configured to collect
physiological data related to a health condition" and a "central server [that]
is configured to analyze health-related data corresponding to said person"
and "wherein said health-related data comprises said physiological data
related to said health condition." Claim 1 does not specifically require
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analysis of physiological data; claim 1 requires analysis of health-related
data that comprises said physiological data. Because the word "comprises"
is open-ended, the "health-related data" is not limited to "said physiological
data"; the "physiological data" is a subset of the "health-related data."
Accordingly, the claimed analysis of the health-related data does not
necessarily include an analysis of the subset of health-related data that is
physiological data.
The Examiner finds the "display" of limitation [3] of claim 1 taught
by Fu at column 6 lines 37---60, column 7 lines 56---65, column 9 lines 20-23,
and column 6, lines 46-48, and "graphs representing statistical data"
(limitation [3b]) taught by Leatherman at column 231 lines 1-9. The
Examiner finds limitation [5] of claim 1 taught by Chaco in column 22, lines
44--67 and column 23, lines 1-7 and Figure 14 (Non-Final Act. 5; Ans. 3--4).
Appellant contends that "[ s ]imply having a display is not the same as
configuring a system to transmit statistical data generated at a central server
to a remote unit and displaying the statistical data at the remote unit" (App.
Br. 10). Appellant also contends that "[t]he Examiner has failed to identify
any teaching in Leatherman of transmitting any results obtained at the
alleged central server of Leatherman to a remote unit of one of the patient's
for display" (id.) and "there is no teaching in Chaco of transmission of a
message from a remote healthcare professional computer to the central
server and then to the patient's microprocessor-based unit which displays the
message."
Appellant's arguments fail because Appellant is attacking Fu and
Leatherman individually; the rejection is based on the combined teachings of
the references, not on any one of them alone. See In re Merck & Co., 800
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F.2d 1091, 1097 (Fed. Cir. 1986) ("Nonobviousness cannot be established
by attacking the references individually when the rejection is based on the
teachings of a combination of references"). The Examiner relies on Fu as
disclosing a central unit 20 ("central server") and a home unit 60
("programmable microprocessor-based unit") that displays data (Non-Final
Act. 3--4; Ans. 3), Leatherman for statistical analysis (including generating
charts and graphs) (Non-Final Act. 5---6; Ans. 2-3), and Chaco for
transmitting messages via a "star-type network" that includes nurse stations,
a central computer, and patient stations (Non-Final Act. 5; Ans. 3--4).
Regarding the combination of references, Appellant contends that "the
rationale proposed by the Examiner is not convincing" (App. Br. 13).
According to Appellant, there is no motivation to make the proposed
modification because it would render Fu unsatisfactory for its intended
purpose (App. Br. 12-13) (citing Fu at column 3, lines 46---62).
We are not persuaded by Appellant's argument because there is no
evidence that the intended purpose of Fu is to reduce data transmission.
Column 3, lines 46---62 of Fu discloses that it is advantageous to reduce the
number of false alarms at the central station by adjusting the range of normal
values, but that does not support the Appellant's position; not all data
transmission results in a false alarm at the central server. On the contrary,
the range of normal values determines whether an alarm will be triggered.
Appellant further argues that "the patient's microprocessor-based unit
in Chaco does not have a display" (App. Br. 13) (apparently referring to
patient station 210 of Chaco).
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We are not persuaded by Appellant's argument because it is attacking
Fu and Chaco individually. As noted above, the Examiner relies on Fu for
the programmable microprocessor-based unit that displays data and relies on
Chaco for the transmission of messages between stations via a "star-type
network." Thus, Appellant's arguments regarding the lack of a display in
patient station 210 do not apprise us of error in the Examiner's rejection.
Independent claim 12
Appellant provides the same arguments for claim 12 as for claim 1
(App. Br. 18). Accordingly, we sustain the rejection of claim 12 for the
same reasons set forth above with respect to claim 1.
Dependent claims 3 and 17
Claim 3 depends from claim 1 and requires "wherein the removable
memory device comprises program instructions executable by the
microprocessor-based unit." Claim 17 depends from claim 12 and recites a
similar limitation. The Examiner finds this limitation in Fu at column 5,
lines 53---61 and Figure 2 (Non-Final Act. 6).
Appellant disputes this finding (App. Br. 15).
We have discussed that the Examiner's finding of program
instructions in mass storage device 80 disclosed in Fu is supported by the
evidence (see Fu, column 9, lines 21-23; see also, Fu, column 8, lines
46---65). Accordingly, we are not apprised of error in the Examiner's
finding.
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Dependent claim 31
Claim 31 depends from claim 1 and requires "wherein said
programmable microprocessor-based unit comprises a hand-held unit." The
Examiner finds this limitation in Fu at column 6, lines 38---64.
Appellant contends that "Fu does not expressly disclose that the home
unit 60 is a hand-held unit" (App. Br. 17) (emphasis added).
Appellant's argument is not commensurate with the scope of the
claim. Because the word "comprises" is open-ended, claim 31 does not
require that "said programmable microprocessor-based unit" is "a hand-held
unit." The cited portion of Fu discloses that home unit 60 comprises a
"portable keyboard 76 [that] is preferably a hand-held unit." Accordingly,
we are not apprised of error in the Examiner's finding.
Appellant also argues that "there is no indication in Fu that the
'limited display' is capable of displaying graphical information" (Reply Br.
5).
We do not find Appellant's argument persuasive because the "limited
display" of portable key board 7 6 is not the only display shown in Figure 2,
which also includes display unit 68 that is "preferably a nine inch CRT
monitor" (Fu, col. 6, line 46-47). Accordingly, we are not apprised of error
in the Examiner's finding.
Dependent claim 14
Claim 14 depends from claim 12 and requires "wherein the receptacle
is located in the health monitoring device." The Examiner finds this
limitation in Fu at column 6, lines 37-64 (Non-Final Act. 9), which
discloses that "mass storage device 80 is preferably a 3.5 inch mini-floppy
disc drive."
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Appellant contends that mass storage device 80 "is separate from any
of the components which could reasonably be construed to be a health
monitoring device" as shown in Figure 2.
Appellant's argument is not commensurate with the scope of the
claim. Claim 12 requires "a health monitoring device" and a
"programmable microprocessor-based unit in signal communication with the
health monitoring device." Nothing in claim 12 or 14 requires that the
"health monitoring device" is physically separate from the "programmable
microprocessor-based unit." As shown in Figure 2 of Fu, home unit 60
comprises both CPU 64 and various health monitoring devices 84, 86, and
88. Thus, home unit 60 meets both the claimed "health monitoring device"
and the "programmable microprocessor-based unit in signal communication
with the health monitoring device." Because the home unit 60 includes a
receptacle (disk drive), claim 14 reads on home unit 60. Accordingly, we
are not apprised of error in the Examiner's finding.
Claims 4-9, 11, 13, 15, 16, 18-22, 24, 32 and 33
Appellant relies on arguments presented with respect to claims 1 and
12 in contesting the rejection of dependent claims 4-9, 11, 13, 15, 16, 18-
22, 24, 32 and 33 (see App. Br. 15, 19, 28, 29). Therefore, we sustain the
rejection of claims 4-9, 11, 13, 15, 16, 18-22, 24, 32 and 33 for the same
reasons as claims 1 and 12.
Claims 25-30
Independent claim 25 requires, inter alia, "a computer having a
receptacle configured to electrically and physically connect with said
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removable memory device ... wherein said computer is (i) remotely
located," (App. Br. 37, Claims App.).
The Examiner finds this limitation disclosed in "Chaco at column 22
lines 44---67 and column 23 lines 1-7 and Figure 14" (Non-Final Act. 11).
Appellant contends that "there is no teaching in Chaco of a central
computer with a receptacle for receiving the program cartridge" (App. Br.
25).
In the Answer, the Examiner does not respond to the Appellant's
argument regarding claim 25.
We are persuaded by Appellant's arguments.
A rejection based on § 103 must clearly rest on a factual basis. The
Examiner has the initial duty of supplying the factual basis for the rejection
and may not resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in its factual basis. We have reviewed
the cited portions of Chaco and see no discussion of such a receptacle.
Chaco discloses that the central computer can include "a wireless data link"
(Chaco, col. 22, line 47), but we fail to see how a wireless data link is
configured to "physically connect" with a removable memory device.
Accordingly, we do not sustain the rejection of independent claim 25
as obvious over Fu, Chaco, and Leatherman. For the same reasons, we do
not sustain the rejection of claims 26-30 dependent thereon. Cf In re
Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("dependent claims are
nonobvious if the independent claims from which they depend are
nonobvious").
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DECISION
The Examiner's decision to reject claims 1, 3-9, 11-22, 24, and
31-33 under 35 U.S.C. § 103(a) is affirmed.
The Examiner's decision to reject claims 25-30 under 35 U.S.C.
§ 103(a) is reversed.
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-IN-PART
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