Ex Parte Hamdan

Patent Trial and Appeal BoardMar 22, 2018

13872906 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/872,906 04/29/2013 27939 7590 03/23/2018 Philip H. Burrus, IV Burrus Intellectual Property Law Group LLC 222 12th Street NE Suite 1803 Atlanta, GA 30309 FIRST NAMED INVENTOR Mahmoud N. Hamdan 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. BPMDLOOOlMHCl (10021U Cl) CONFIRMATION NO. 1786 EXAMINER HOEKSTRA, JEFFREY GERBEN ART UNIT PAPER NUMBER 3736 MAILDATE DELIVERY MODE 03/23/2018 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 MAHMOUD N. HAMDAN 1 Appeal2017-003209 Application 13/872,906 Technology Center 3700 Before ERIC B. GRIMES, JOHN G. NEW, and DEVON ZASTROW NEWMAN, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant states that the real party-in-interest is Medline Industries, Inc. App. Br. 2. Appeal2017-003209 Application 13/872,906 SUMMARY Appellant files this appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 1-20. Specifically, claims 1, 3-8, 11- 13, and 16-20 stand rejected under 35 U.S.C. Â§ 103(a) as being obvious over the combination of Jaques et al. (US 2002/0067273 Al, June 6, 2002) ("Jaques"), Smith et al. (US 7 ,378,975 B 1, May 27, 2008) ("Smith") and Ranney (US 2007 /0069560 Al, March 29, 2007) ("Ranney"). Claims 2, 14, and 15 stand rejected under 35 U.S.C. Â§ 103(a) as being obvious over the combination of Jaques, Smith, Ranney, and Clute (US 5,357,642, October 25, 1994) ("Clute"). Claims 9 and 10 stand rejected under 35 U.S.C. Â§ 103(a) as being obvious over the combination of Jaques, Smith, Ranney, and Vrzalik et al. (US 2007/0261548 Al, November 15, 2007) ("Vrzalik"). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. NATURE OF THE CLAIMED INVENTION Appellant's invention is directed to a unitary patient monitoring system, including an alarm, such as a loudspeaker, and a weight sensitive switch. Each component is encapsulated in a cover member, which can be configured as a T-shape. Abstract. REPRESENTATIVE CLAIM Claim 1 is representative of the claims on appeal and recites: 1. A unitary patient monitoring system, comprising: 2 Appeal2017-003209 Application 13/872,906 a loudspeaker; a weight sensitive switch to actuate the loudspeaker; and a unitary cover member encapsulating both the loudspeaker and the weight sensitive switch within the unitary cover member; the unitary cover member comprising a first portion and a second portion extending from the first portion so as to form a trunk from the first portion with length and width dimensions of the first portion different than the second portion, the weight sensitive switch disposed in the first portion and the loudspeaker disposed in the second portion. App. Br. 20. ISSUE AND ANALYSIS We adopt the Examiner's findings of fact and conclusions that the appealed claims are obvious over the cited prior art. We address the arguments raised by Appellant below. Issue Appellant argues the Examiner erred because the combined cited prior art neither teaches nor suggests a weight-sensitive switch and a loudspeaker encapsulated by a unitary cover, as recited in claim 1. App. Br. 11. Analysis The Examiner finds that Jaques teaches a weight-sensitive switch to actuate a loudspeaker and a unitary cover member encapsulating both the 3 Appeal2017-003209 Application 13/872,906 loudspeaker and the switch within the unitary cover. Final Act. 3 (citing Jaques, Figs. 10, 12, i-fi-156-61). Appellant disagrees, arguing that Jaques expressly teaches an exposed, rather than an encapsulated, loudspeaker. App. Br. 12. Appellant points to paragraphs [0056]-[0057] of Jaques, in which Jaques depicts the control unit and pressure sensor in the cover. Id. However, Appellant argues, in both paragraphs Jaques teaches that at least a portion of the control unit is exposed. Id. Specifically, Appellant points to paragraph [0056], which states that: "The control unit 164 is located in a pocket within the case 168 so that a control surface is exposed and available for setting." Id. Furthermore, paragraph [0057] teaches that: "The enclosing case 168 is sealed around the control unit 164 leaving a control face 170 exposed to permit adjustment of the amount of pressure necessary to cause an alarm to be given by the pressure sensing pad 160." Id. at 13. Appellant next invokes paragraph [0058] of Jaques, which describes the circuit elements included in the control unit depicted in Figures 9-12: "In FIG. 11, there is shown a simplified schematic circuit diagram of the control unit 164 having a double-pole, single-throw pressure-activated switch 172, a time delay circuit 180, an audible alarm 186, an on/off switch 182, a battery 184, and a lamp 188." App. Br. 13. Appellant also points to paragraph [0061], in which Appellant asserts that Jaques states: "In FIG. 12, there is shown a fragmentary perspective view of the control unit 164 within the case 168, with the case 168 sealed to the control face 170 leaving exposed the lamp 188 (not shown in FIG. 12), the speaker of the alarm 186, the bias adjustment manual dial 190 and the on/off switch 182." Id. Appellant argues that the latter passage of Jaques thus expressly teaches that 4 Appeal2017-003209 Application 13/872,906 four elements are left exposed in this embodiment: (1) the lamp; (2) the speaker of the alarm; (3) the bias adjustment manual dial, and (4) the on/off switch. Id. Appellant asserts, therefore, that Jaques fails to teach a cover member "enclosing" or "encapsulating" an alarm as claimed. Id. We are not persuaded. Figure 12 of Jaques is reproduced below: .. -186 t70 Figure 12 of Jaques is a fragmentary perspective view of a portion of the pressure pad of FIG. 10. Jacques i-f 30. Appellant's Specification provides no express definition of the claim term "encapsulated" but, by way of example, discloses that: "The internal components are encapsulated by the cover member 101 so as to form a single, closed outer housing about the system." Spec. i-f 42. Absent an express definition in the Specification or claims, we give the claim term "encapsulated" the broadest reasonable interpretation consistent with Appellant's Specification. See In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1146 (Fed. Cir. 2012). "Encapsulate" may be defined as meaning "to enclose in or as ifin a capsule." MERRIAM-WEBSTER DICTIONARY, definition of "encapsulate," available at: https://www.merriamwebster.com/ dictionary/encapsulate (last visited March 1, 2018). As is evident from Figure 12 of Jaques, as well as from the corresponding passage of paragraph [0061] quoted by Appellant supra, Jaques teaches that the speaker of the alarm 186 (i.e., Appellant's 5 Appeal2017-003209 Application 13/872,906 "loudspeaker") is contained entirely within the envelope of the unitary cover 168 that covers the rest of the unit. See also Jaques FIG. 10. Figure 12 shows that no portion of the speaker of the alarm extends or protrudes outside of the envelope of the cover, as is indicated by the dashed line indicating the entire profile of the speaker. See id. i-f 61 (describing control unit 164, which is indicated in dashed lines in Figure 12, as being "within the case 168"). We agree with Appellant that, despite what is shown in Figure 12, paragraph 61 of Jaques teaches that the speaker of the alarm is "exposed." But even if an opening in the cover exposes a small portion of the loudspeaker, that does not mean that the speaker is not "enclosed" within the cover itself, as long as the speaker is contained entirely within the borders of the cover because, as we have explained, no portion of the speaker extends or protrudes beyond the envelope of the enclosing cover. We therefore agree with the Examiner's finding that Jaques teaches the disputed limitation. Appellant argues further that none of the remaining references cure the alleged deficiencies of Jaques. App. Br. 13-18. However, because we agree with the Examiner that Jaques teaches that the loudspeaker is encapsulated by the unitary cover, as required by claim 1, we do not reach these arguments. Furthermore, Appellant makes essentially the same argument for claims 2-20. Id. We consequently affirm the Examiner's rejection of these claims as well. DECISION The Examiner's rejection of claims 1-20 as unpatentable under 6 Appeal2017-003209 Application 13/872,906 35 U.S.C. Â§ 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7