Ex Parte Gunn-Beshears et alDownload PDFPatent Trial and Appeal BoardMay 16, 201411999542 (P.T.A.B. May. 16, 2014) 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. 11/999,542 12/06/2007 Lisa Gunn-Beshears 149-001 8974 37468 7590 05/19/2014 STOCKWELL & SMEDLEY, PSC 861 CORPORATE DRIVE, SUITE 200 LEXINGTON, KY 40503 EXAMINER MORRISON, JAY A ART UNIT PAPER NUMBER 2168 MAIL DATE DELIVERY MODE 05/19/2014 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 LISA GUNN-BESHEARS and HEATH PLUM ___________ Appeal 2012-000979 Application 11/999,542 Technology Center 2100 ____________ Before JOSEPH F. RUGGIERO, CAROLYN D. THOMAS, and ERIC B. CHEN, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000979 Application 11/999,542 2 This is an appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1-7 and 9-20. Claim 8 has been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention relates to a wearable identification and information device that can be used to retrieve previously disclosed information regarding individuals and their health statuses. The device is used to search a remote database accessible through the Internet or other communications networks. The remote database includes specific medical information related to the wearer of the device associated with that code. (Abstract.) Claim 1 is exemplary, with disputed limitations in italics: 1. A medical information tracking system comprising: a database configured to store a respective record of medical-related information for each of a plurality of user’s [sic] wherein each record is associated with a user specific code and has its data organized into a plurality of different tiers, wherein each user specific code corresponds to a user- wearable device; an interface configured to receive a particular user specific code from an accessor, wherein the accessor has an associated tier level corresponding to one of the plurality of different tiers; the interface, in response to receiving the particular user specific code, is further configured to output a portion of the record associated with the user specific code that corresponds to the tier level of the accessor; and wherein the interface includes a web server in communication with the database. Appeal 2012-000979 Application 11/999,542 3 Claims 1-7 and 9-20 stand rejected under 35 U.S.C. § 103(a) as obvious over Mazurik (US 2008/0126417 A1; May 29, 2008) and Bischof (US 2007/0078688 A1; Apr. 5, 2007). ANALYSIS Claims 1, 3-7, and 10-20 We are unpersuaded by Appellants’ arguments (App. Br. 9-10; see also Reply Br. 3-6) that the combination of Mazurik and Bischof would not have rendered obvious independent claim 1, which includes the limitations “a database configured to store a respective record of medical-related information for each of a plurality of [users] wherein each record is associated with a user specific code and has its data organized into a plurality of different tiers” and “the interface, in response to receiving the particular user specific code, is further configured to output a portion of the record associated with the user specific code that corresponds to the tier level of the accessor.” The Examiner found that the system of Mazurik for managing and storing records into sections and/or subsections, with a security level determining module, corresponds to the limitations “a database configured to store a respective record of medical-related information for each of a plurality of [users] wherein each record is associated with a user specific code and has its data organized into a plurality of different tiers” and “the interface, in response to receiving the particular user specific code, is further configured to output a portion of the record associated with the user specific code that corresponds to the tier level of the accessor.” (Ans. 5-6, 14-15; Mazurik, ¶¶ [0007], [0029].) We agree with the Examiner. Appeal 2012-000979 Application 11/999,542 4 Mazurik relates to a system “for operating in a mass casualty incident . . . that enable information providers/users operating in a mass casualty incident to be able to communicate through a central system and further to view, enter and modify information in real time.” (¶ [0003].) Mazurik explains that the system stores “a plurality of records, wherein each of the plurality of records includes at least one of a section and subsection” (¶ [0007]), such that “each of the plurality of sections and/or subsections [is] associated with one of a plurality of patients’ health care record” (¶ [0029]). Thus, Mazurik teaches the limitation “a database configured to store a respective record of medical-related information for each of a plurality of [users] wherein each record is associated with a user specific code and has its data organized into a plurality of different tiers.” Mazurik further explains that the system provides “access to at least one of the selected section and/or subsection in a record” (¶ [0007]) including a “security level determining module 314 for determining security levels assigned to each of a plurality of sections and/or subsections associated with a patient’s health care record” (¶ [0029]). Moreover, in one example, Mazurik explains that “a personal physician caring for the individual may have access to all of their health records, where as a hospital registration clerk may have access to information limited to patient demographics such as name, date of birth etc.” (¶ [0057]). Thus, Mazurik teaches the limitation “the interface, in response to receiving the particular user specific code, is further configured to output a portion of the record associated with the user specific code that corresponds to the tier level of the accessor.” First, Appellants argue that “a user in Mazurik may receive all sorts of information relating to the mass casualty incident, including information Appeal 2012-000979 Application 11/999,542 5 pertaining to multiple persons, in response to a request” and accordingly, “Mazurik does not teach these features of claims 1, 12 and 18 because each packet of information in Mazurik is not limited a single user or person” and “each packet of information in Mazurik may relate to all sorts of information relevant to a mass casualty incident.” (App. Br. 10.) Contrary to Appellants’ arguments, Mazurik explains that the sections and/or subsections are associated with patient records. (¶ [0029].) Second, Appellants argue that “Mazurik refers vaguely to a user having a level of security access, nowhere does the cited portion of Mazurik teach having information pre-sorted and organized into a plurality of different tiers corresponding to the associated tier levels of accessors as in the present claims.” (App. Br. 10.) Contrary to Appellants’ arguments, Mazurik explains that the sections and/or subsections are associated with patient records and that security levels are associated with such records. (¶ [0029].) For example, Mazurik explains that a physician and hospital registration clerk have different security levels. (¶ [0057].) Last, Appellants argue that “the presently claimed invention provides that a ‘user’ activates and enters their own information in anticipation of possible need in the future for access by an ‘accessor.’” (Reply Br. 3.) However, Appellants’ arguments are not commensurate in scope with claim 1, because the claim does not expressly provide a definition for a “user” or “accessor.” Furthermore, the claimed “user” would correspond to the patient of Mazurik and the claimed “accessor” would correspond to the users of Mazurik (e.g., police, firefighters, EMS, hospitals). Thus, we agree with the Examiner that the combination of Mazurik and Bischof would have rendered obvious independent claim 1, which Appeal 2012-000979 Application 11/999,542 6 includes the limitations “a database configured to store a respective record of medical-related information for each of a plurality of [users] wherein each record is associated with a user specific code and has its data organized into a plurality of different tiers” and “the interface, in response to receiving the particular user specific code, is further configured to output a portion of the record associated with the user specific code that corresponds to the tier level of the accessor.” We are further unpersuaded by Appellants’ arguments (App. Br. 11- 12) that the combination of Mazurik and Bischof would not have rendered obvious independent claim 1, which includes the limitation “wherein each user specific code corresponds to a user-wearable device.” The Examiner acknowledged that Mazurik does not disclose the limitation “wherein each user specific code corresponds to a user-wearable device” (Ans. 6) and thus, relied upon Bischof for teaching a physical identification device carried by a subscriber for accessing a database. (Ans. 6; Bischof, ¶ [0009].) The Examiner concluded that “[i]t would have been obvious . . . to combine Mazurik and Bischof” to provide “the user the advantage of a convenient and secure way of providing information.” (Ans. 6.) We agree with the Examiner. As discussed previously, Mazurik relates to a system “for operating in a mass casualty incident . . . that enable information providers/users operating in a mass casualty incident to be able to communicate through a central system and further to view, enter and modify information in real time.” (¶ [0003].) Bischof relates to “system for allowing a person . . . to provide service providers with access to extensive amounts of personal and private data, Appeal 2012-000979 Application 11/999,542 7 quickly and securely,” including medical information. (¶ [0004].) In one embodiment, the system of Bischof includes a physical identification device carried by a subscriber (¶ [0009]) such that a “Database 3 associates subscriber information with a subscriber ID” (¶ [0041]). Thus, Bischof teaches the limitation “wherein each user specific code corresponds to a user-wearable device.” A person of ordinary skill in the art would have recognized that incorporating the physical identification device of Bischof, which is associated with a subscriber ID, with the mass casualty incident system of Mazurik, provides the advantage of quick and secure access to individual medical information. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Thus, we agree with the Examiner (Ans. 6) that modifying Mazurik to include the physical identification device of Bischof would have been obvious. Appellants argue that modifying Mazurik “would not be appropriate for the system in Mazurik because the information stored and communicated in Mazurik relates to a mass casualty event and not to a specific record for a particular user or subscriber” (App. Br. 11-12) and “it is improper to combine the teachings of two references if such combination would impermissibly change the principle or mode of operation of the system described or render it inoperable for its intended purpose” (App. Br. 12). However, other than making conclusory statements, Appellants have not provided any persuasive arguments or evidence to support the argument that combining Mazurik and Bischof would fundamentally change the operation of Mazurik. Arguments of counsel cannot take the place of factually Appeal 2012-000979 Application 11/999,542 8 supported objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139-140 (Fed. Cir. 1996). Thus, we agree with the Examiner that the combination of Mazurik and Bischof would have rendered obvious independent claim 1, which includes the limitation “wherein each user specific code corresponds to a user-wearable device.” Accordingly, we sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 4-7, 10, and 11 depend from claim 1, and Appellants have not presented any substantive arguments with respect to these claims. Therefore, we sustain the rejection of claims 4-7, 10, and 11 under 35 U.S.C. § 103(a), for the same reasons discussed with respect to independent claim 1. Independent claims 12 and 18 recite limitations similar to those discussed with respect to independent claim 1, and Appellants have not presented any substantive arguments with respect to these claims. We sustain the rejection of claims 12 and 18, as well as dependent claims 14-17, 19 and 20, for the same reasons discussed with respect to claim 1. We find untimely Appellants’ additional arguments in the Reply Brief with respect to dependent claims 3 and 13. (Reply Br. 5-6.) We note that these new arguments were raised by Appellants for the first time in the Reply Brief, and they are not in response to a new issue brought up by the Examiner in the Answer. We therefore, find these new arguments unavailing. Appellants are reminded that: The purpose of a reply brief is to ensure the Appellant the opportunity to have the last word on an issue raised by the Examiner. The reply brief enables the Appellant to address any new grounds of rejection the Examiner may have raised in the Appeal 2012-000979 Application 11/999,542 9 answer, or to address changes or developments in the law that may have occurred after the principal brief was filed. The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not. Giving cognizance to belated arguments in a reply would vitiate the force of the requirement in Board Rule 37(c)(1)(vii) that “[a]ny arguments or authorities not included in the brief . . . will be refused consideration by the Board, unless good cause is shown.” The reference in that section to the “reply brief filed pursuant to § 41.41” does not create a right for the Appellant to raise an argument in the reply brief that could have been raised in the principal brief but was not. Rather, that reference merely puts Appellants on notice that arguments that could be made in the reply brief, but are not, are waived. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative). Dependent Claim 2 We are unpersuaded by Appellants’ arguments (App. Br. 12-13; see also Reply Br. 6-7) that the combination of Mazurik and Bischof would not have rendered obvious dependent claim 2, which includes the limitation “wherein the plurality of different tiers includes four tiers.” The Examiner found that the plurality of sections and/or subsections associated with a patient’s health care record of Mazurik corresponds to the limitation “wherein the plurality of different tiers includes four tiers.” (Ans. 7, 17-18; Mazurik, ¶ [0029].) We agree with the Examiner. Mazurik explains that “[s]oftware application(s) 314 may include security level determining module 314 for determining security levels assigned to each of a plurality of sections and/or subsections associated with Appeal 2012-000979 Application 11/999,542 10 a patient’s health care record.” (¶ [0029].) Because the security level determining module 314 of Mazurik determines security levels for a “plurality” (i.e., more than one in number) of sections and/or subsections, Mazurik teaches the limitation “the plurality of different tiers includes four tiers.” Appellants argue that “[n]owhere do the cited portions of Mazurik teach specifically ‘four tiers’ of security access with information sorted or organized according to these tiers.” (App. Br. 12; see also Reply Br. 6.) However, as discussed previously, the limitation “wherein the plurality of different tiers includes four tiers” is broad enough to encompass the security level determining module 314 of Mazurik that determines security levels for a “plurality” (i.e., more than one in number) of sections and/or subsections. Thus, we agree with the Examiner that the combination of Mazurik and Bischof would have rendered obvious dependent claim 2, which includes the limitations “wherein the plurality of different tiers includes four tiers.” Accordingly, we sustain the rejection of dependent claim 2 under 35 U.S.C. § 103(a). Dependent Claim 9 We are unpersuaded by Appellants’ arguments (Reply Br. 7) that the combination of Mazurik and Bischof would not have rendered obvious dependent claim 9, which includes the limitation “wherein such access permits the owner to modify the respective record associated with that user specific code.” Appeal 2012-000979 Application 11/999,542 11 The Examiner found that the Central Information Repository database of Mazurik, in which an individual can access a personal information record, corresponds to the limitation “wherein such access permits the owner to modify the respective record associated with that user specific code.” (Ans. 18; Mazurik, ¶ [0058].) Mazurik explains that persons can enter information into a Central Information Repository database to access their personal information record (PIR) (¶ [0055]), such that “[a]n individual may have access to all of their personal information record but may only be allowed to ‘read-write’ selected areas, for example contact information or place of residence” (¶ [0058]). Mazurik further explains that personal records can include date of birth, address, and allergies. (¶ [0060].) Because Mazurik explain that the individual can access personal information (e.g., date of birth, address, and allergies) in the “read-write” area, Mazurik teaches the limitation “wherein such access permits the owner to modify the respective record associated with that user specific code.” Appellants argue that “entering medical or health information into the system of Mazurik in response to a mass casualty event would be reserved for a physician or other appropriate ‘information provider’ using the system” but “claim 9 provides that the owner of the device associated with a user- specific code (i.e., the ‘user’) would be able to modify their record of medical-related information.” (Reply Br. 7.) However, as discussed previously, the claim limitation “wherein such access permits the owner to modify the respective record associated with that user specific code” is broad enough to encompass the personal information of Mazurik (e.g., date Appeal 2012-000979 Application 11/999,542 12 of birth, address, and allergies), because such information assists medical personnel in providing treatment. Thus, we agree with the Examiner that the combination of Mazurik and Bischof would have rendered obvious dependent claim 9, which includes the limitations “wherein such access permits the owner to modify the respective record associated with that user specific code.” Accordingly, we sustain the rejection of dependent claim 9 under 35 U.S.C. § 103(a). DECISION The Examiner’s decision to reject claims 1-7 and 9-20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED msc Copy with citationCopy as parenthetical citation