Ex Parte Goldberg

Patent Trial and Appeal Board

Jan 31, 2019

13149202 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/149,202 05/31/2011
20999 7590 02/04/2019
HAUG PARTNERS LLP
745 FIFTH A VENUE - 10th FLOOR
NEW YORK, NY 10151
FIRST NAMED INVENTOR
Jason Goldberg
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.
336009-2001.2 1990
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
docket@haugpartners.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON GOLDBERG
Appeal2017-004908
Application 13/149,202
Technology Center 3700
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and JILL D. HILL,
Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jason Goldberg (Appellant) 1 appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 26-31. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing in accordance with 37 C.F.R. § 41.47 was
held on January 16, 2019.
We REVERSE.
1 The Appeal Brief identifies Ideal Life Inc. as the real party in interest.
Appeal Br. 1.
Appeal2017-004908
Application 13/149,202
THE CLAIMED SUBJECT MATTER
Claim 26, reproduced below with pertinent limitations italicized for
emphasis, is the only independent claim and is representative of the claimed
subject matter.
26. A medical monitoring system comprising a portable
monitoring device and a remote computer:
wherein the monitoring device and the remote computer
communicate over a communications network, the monitoring
device receives sensor data from at least one sensor related to at
least one physiological characteristic of a person being
monitored and provides data over the communications network
to the remote computer, and the remote computer
generates statistical data related to data received from the
monitoring device over the communications network and
provides at least the statistical data to the monitoring device
over the communications network;
the monitoring device comprising:
at least one memory;
an electronic controller which causes sensor data
to be stored at least temporarily in the at least one
memory, generates measurement data related to the
sensor data and causes the measurement data to be at
least temporarily stored in the at least one memory;
a communications unit;
wherein the electronic controller causes the
communications unit to provide data stored in the at least
one memory for transmission over the communications
network for receipt by the remote computer and causes at
least statistical data provided by the remote computer
over the communications network received by the
monitoring device to be at least temporarily stored in the
at least one memory;
a display device;
wherein the electronic controller causes the display
device to display at least measurement data from the
measurement data that was previously generated and
stored in the at least one memory device by the electronic
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Application 13/149,202
controller, and statistical data from the statistical data that
was received from the remote computer.
REJECTIONS
I. Claims 26, 27, and 31 stand rejected under 35 U.S.C. § I02(b) as
anticipated by Mault (US 6,478,736 Bl, issued Nov. 12, 2002).
II. Claims 28-30 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Mault and Teller (US 6,605,038 Bl, issued Aug.
12, 2003).
DISCUSSION
Both of the rejections are predicated in pertinent part on the
Examiner's finding that Mault's remote computer system 80 (the remote
computer) generates statistical data related to data received by computing
device 52 (the portable monitoring device) from sensors and provides this
statistical data to device 52. See Ans. 3-5, 6-7 (relying on Teller only for
its teachings directed to various options for having the portable monitoring
device initiate transfer of data), 9-11. Appellant persuasively argues that the
passages of Mault cited by the Examiner as disclosing that remote computer
system 80 provides statistical data to device 52 do not support this finding
by a preponderance of the evidence. Appeal Br. 4--9; Reply Br. 2-7.
Appellant's Specification provides examples of what is meant by
"statistical data." See Spec. 1:20-25; 3:17-19; 10:23-11:2; see also
Abstract 4--8. For example, "[s]tatistical data may include high, low,
average, mean value, median value, standard deviation, least square,
variance, distribution, compilation, etc." for a given time period "for the
person being monitored, as well as for such values for segments or groups of
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the population, or limit values, or target values, etc." Spec. 1 :20-25;
Abstract 4--8. Thus, we construe "statistical data," consistent with both its
customary usage and the Specification, as numerical data.
In the passage in column 10 cited by the Examiner, Mault discloses
that remote computer system 80 provides feedback to device 52, but does
not specifically disclose providing feedback comprising statistical data. See
Mault 10:31---67; Ans. 4, 9-10. The only type of feedback specifically
discussed in this passage is feedback "in terms of foods to avoid and
alternatives to previously consumed items of poor nutritional value." Mault
10:49-51. Mault discloses that the data collected by devices 52 may "be
used to monitor trends amongst the consumer base, hence enabling the
improvement of advice given to any individual consumer." Id. 10:65-67.
Monitoring "trends amongst the consumer base" may very well include
performing statistical analysis of the collected data, but Mault does not
disclose remote computer system 80 providing the statistical data resulting
from such analysis to the consumer, much less via device 52.
In the paragraph bridging columns 11 and 12 of Mault, cited by the
Examiner (Ans. 4), Mault once again discloses remote computer system 80
analyzing data from device 52 and transmitting messages to device 52, but
does not disclose that such messages include statistical data. Mault 11 :58-
12: 14. Mault merely discloses that the messages "could include messages as
to modifications in the patient's conduct, including tests to be conducted or
intervals for such tests, and information related to food consumption" and
"may include encouragement or criticism of past results." Id. 12: 1---6.
Although such messages could include statistical data, the messages
described in this paragraph would not necessarily include statistical data.
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Application 13/149,202
The Examiner also cites column 11, lines 6-20 of Mault,
emphasizing, in particular, Mault' s disclosures that "computer system 80
analyzes the lifestyle data and determines appropriate feedback" and that
"[t]he user may view feedback on the display of computing device 52."
Ans. 9 ( emphasis omitted). These disclosures are unavailing because, like
the other passages discussed above, they are devoid of any indication that
the feedback provided from remote computer system 8 0 includes statistical
data.
The Examiner additionally cites column 11, lines 45-57 of Mault,
emphasizing, in particular, Mault's disclosure that "[t]he format and style of
the feedback may be varied to optimize the response of the user" and "[t]he
style and tone of the feedback may be matched to an optimum response of
the user using the results of previous testing, questioning, previous success
or failure at weight control, or other information regarding the user."
Ans. 10-11 ( emphasis omitted). As Appellant points out (Reply Br. 5),
these disclosures are directed to the format, style, and tone of the feedback,
but do not specify that the provided feedback includes statistical data. In
particular, Mault discloses providing the feedback using a format, style, and
tone designed to evoke an optimum response from the user, based on
information known about the user (such as from past results or questioning,
or previous success or failure at weight control by the user).
The Examiner also cites column 13, lines 10-20 of Mault. Ans. 11.
In particular, the Examiner highlights Mault' s disclosure of feedback from
the fitness center "regarding the user's progress towards weight goals and
fitness goals," as well as the disclosure that "[a]n increased metabolic rate is
indicative of an increased level of muscle mass, or reduced fat percentage
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for a constant body weight, hence is a desirable goal for users of the fitness
center." Id. ( emphasis omitted) ( quoting Mault 13: 14--20). Like the
passages discussed above, this passage is silent as to the particular content of
the feedback. Feedback regarding a user's progress toward a weight or
fitness goal certainly could contain statistical data, such as the target value
(the goal) or an average metabolic rate over a particular time period, for
example. However, it is possible to provide feedback regarding a user's
progress toward a weight or fitness goal with a message that does not
contain statistical data. For example, consistent with Mault's disclosure of
providing messages including encouragement or criticism of past results, the
fitness center computer could provide feedback regarding a user's progress
toward a goal by means of a message containing something as simple as a
thumbs up or thumbs down emoji, which does not include statistical data.
Mault's statement regarding what an increased metabolic rate may indicate
(Mault 13: 16-20) appears pertinent to the type of analysis that the fitness
center's computer system might perform in order to assess progress and,
thus, determine what feedback to provide. However, Mault does not specify
that the computer system provides feedback containing statistical data
related to metabolic rate, muscle mass, or fat percentage to the portable
monitoring device.
Finally, the Examiner points to the graphs and texts provided in the
displays shown in Figures 7A-12C ofMault, which, according to the
Examiner, "include statistical data such as: target/goal values, daily balance,
progress towards goals, and percentage/distribution values." Ans. 11. The
Examiner is correct that several of the displays in Figures 7 A-12C include
statistical data. However, these displays are unavailing to establish that
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Mault discloses that Mault's remote computer system 80 provides statistical
data to device 52 (the portable monitoring device) because Mault discloses
that Figures 7-12 show screens displayed on device 52 and "provided by
health management software running on device 52." Mault 7:59----62
(boldface omitted); see also id. 7:61-9:29 (discussing the screens and the
health management software running on device 52, which includes functions
such as permitting data entry into device 52 by the user, allowing device 52
to receive resting metabolic rate (RMR) data, and providing feedback to the
user regarding caloric balance, body measurements ( e.g. RMR), body
measurement trends, etc.). The Examiner does not direct us to any
disclosure in Mault indicating that remote computer system 80 provides the
data displayed on the screens depicted in Figures 7 A-12C to device 52 for
display. 2
For the above reasons, the Examiner does not establish by a
preponderance of the evidence that Mault discloses that remote computer
2 The Examiner reasons that "since the feedback and advice can be any style
or format that is appealing to the [user], ... then it would have reasonably
include[ d] graphs and information that are most effective for the specific
user, including statistical graph," examples of which "can be found in Figs.
7 A-12C." Ans. 11 ( citing Mault 11 :45-57). To the extent that this
reasoning may be directed to content that a person having ordinary skill in
the art might have been prompted to include in the feedback and advice
provided to device 52 by remote computer system 80, this reasoning might
be pertinent to a determination that it would have been obvious to modify
Mault to have remote computer system 80 provide statistical data to
device 52, but it is not pertinent to the finding on which the rejections are
premised-namely, that Mault discloses this feature. Moreover, given that
the displays in Figures 7 A-12C are provided by software running on
device 52, the Examiner does not adequately explain why one would have
been prompted to have remote computer system 80 provide these same
displays to device 52.
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system 80 provides statistical data to device 52. Inasmuch as both the
rejection of claims 26, 27, and 31 as anticipated by Mault and the rejection
of claims 28-30 as unpatentable over Mault and Teller are premised on the
Examiner's unsupported finding that Mault discloses this feature, we do not
sustain either of these rejections.
DECISION
The Examiner's decision rejecting claims 26-31 is reversed.
REVERSED
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