Ex Parte Wang et al

Patent Trial and Appeal Board

May 4, 2017

13983880 (P.T.A.B. May. 4, 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.
13/983,880 08/06/2013 Dong Wang 2011P00024WOUS 8187
24737 7590 05/08/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue TRANDAI, CINDY HUYEN
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
05/08/2017 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):
marianne. fox @ philips, com
debbie.henn @philips .com
patti. demichele @ Philips, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONG WANG, MONISHA GHOSH,
DELROY SMITH, HONGQIANG ZHAI, and
MAULIN DAHYABHAI PATEL
Appeal 2017-000979
Application 13/9 83,8 801
Technology Center 2600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
LINZY T. McCARTNEY, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—16 and 18—21. Appellants have canceled claim 17.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Koninklijke Philips
Electronics N.V. App. Br. 3.
Appeal 2017-000979
Application 13/983,880
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed inventions "relate[] to medical
monitoring and clinical data devices for monitoring the physiological
condition of a patient. . . [and] finds particular application in the use of
auxiliary channels to achieve fast and power-efficient association with
wireless networks." Spec. 1,11. 2—5.
Exemplary Claims
Claims 1 and 21, reproduced below, are representative of the subject
matter on appeal (emphases added to contested limitations):
1. A medical system comprising:
one or more medical body area network (MBAN)
systems, each MBAN system including:
one or more MBAN devices configured to acquire and
communicate patient data with a hub device via short-range
wireless communication, the communication of the patient data
via the short-range wireless communication being within a
predefined MBAN spectrum, the MBAN system being a
secondary user in the predefined MBAN spectrum;
the hub device being configured to receive patient data
communicated from the one or more MBAN devices via the
short-range wireless communication and communicate with a
central monitoring station via a longer range communication
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Feb. 18, 2016); Reply Brief ("Reply Br.," filed Oct. 19, 2016); Examiner's
Answer ("Ans.," mailed Aug. 19, 2016); Final Office Action ("Final Act.,"
mailed Aug. 31, 2015); and the original Specification ("Spec.," filed
Aug. 6, 2013).
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wherein the one or more MBAN devices are configured
to transmit an association request to the hub device via the
short-range wireless communication on one or more auxiliary
channels to associate each MBAN device with the hub device,
the auxiliary channels being outside the predefined MBAN
spectrum.
21. A medical system for transmitting patient data
from a plurality of patients in a medical facility or portion of a
medical facility to a central medical station, comprising:
a plurality of medical body area networks (MBANs),
each MBAN being associated with a corresponding patient,
each MBAN including:
a plurality of MBAN devices configured to acquire
patient data, each MBAN device including a MBAN device
transceiver configured to transmit the patient data in a
predefined MBAN spectrum of which the medical facility is a
secondary user, and to transmit and receive association
communications on each of a plurality of auxiliary channels
outside the MBAN spectrum, the patient data and the
association communications being transmitted using short-
range communications,
a hub device including a short-range hub transceiver
configured to receive the patient data in the MBAN spectrum
from the plurality of MBAN devices, and to transmit and
receive the association communications on the auxiliary
channels via the short-range communications, and to send an E-
key to each MBAN device approved for association on the one
of the auxiliary channels via the short-range communication,
each hub device further including a long-range transceiver
configured to send the patient data to the central medical station
via a medical facility network, and to receive the E-key from
the medical facility network,
an MBAN coordinator configured to determine whether
the medical facility wants to use and one or more primary are
users are not using a portion of the MBAN spectrum, and to
generate and send at least one of the E-key and authorization to
generate an E-key to the medical facility.
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Wahl et al. ("Wahl") US 2002/0089985 A1 July 11, 2002
Asokan et al. ("Asokan") US 2006/0251256 Al Nov. 9, 2006
Teague US 2010/0315225 Al Dec. 16,2010
Abedi et al. ("Abedi") US 2012/0063397 Al Mar. 15, 2012
Smith, D., PHILIPS HEALTHCARE SYSTEMS REPLY
COMMENTS; Amendment of the Commission's Rules to
Provide Spectrum for the Operation of Medical Body Area
Networks; ET Docket No. 08-59, 2009, pp. 1—50, (hereinafter
"Philips").
Rejections on Appeal
Rl. Claims 1—3, 5, 6, 11—13, 15, and 19—21 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Teague,
Phillips, and Asokan. Ans. 2.3
R2. Claims 4 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Teague, Phillips, Asokan, and
Wahl. Ans. 10.
3 Although the explicit statement of Rejection Rl includes claims 4, 7, 8,
14, 16, and 18, the detailed rejection omits analysis of these claims.
Ans. 2—7; Final Act. 2—6. Instead, claims 4 and 16 stand rejected under
Rejection R2, and claims 7, 8, 14, and 18 are rejected under Rejection R3.
In addition, the explicit statement of Rejection Rl omits claims 6 and 15, but
addresses these claims in the detailed rejection.
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R3. Claims 7—10, 14, and 18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of unpatentable over
Teague, Phillips, Asokan, and Abedi. Ans. 12.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 10-24), we decide the
appeal of obviousness Rejection R1 of claims 1, 2, 5, 6, 11, 12, 15, 19,
and 20 on the basis of representative claim 1; and we decide the appeal of
obviousness Rejection R1 of claims 3 and 13, infra. We decide the appeal
of separately argued obviousness Rejections R1 and R3 of claims 21 and 10,
respectively, infra.
Remaining claims 4, 7—9, 14, 16, and 18 in Rejections R2 and R3, not
argued separately with substance, stand or fall with the respective
independent claim from which they depend.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We agree with particular arguments advanced by Appellants with
respect to claims 1—16 and 18—20 for the specific reasons discussed below.
4 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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However, we disagree with Appellants' arguments with respect to claim 21,
and we incorporate herein and adopt as our own the Examiner's findings and
legal conclusions with respect to claim 21. We highlight and address
specific findings and arguments regarding claims 1 and 21 for emphases as
follows.
1. $ 103 Rejection R1 of Claims 1, 2, 5, 6, 11—13, 15, 19, and 20
Issue 1
Appellants argue (App. Br. 10—12; Reply Br. 3 4) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Teague, Phillips, and Asokan is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a medical system that includes, inter alia,
one or more medical body area network (MBAN) systems . . .
including one or more MBAN devices . . . configured to
transmit an association request to the hub device via the short-
range wireless communication on one or more auxiliary
channels to associate each MBAN device with the hub device,
the auxiliary channels being outside the predefined MBAN
spectrum,
as recited in claim 1 ?
Analysis
Appellants point out that claim 1 recites:
the one or more medical body area network (MBAN) devices
are configured to transmit an association request to the hub
device via the short-range wireless communication on one or
more auxiliary channels to associate each MBAN device with
the hub device, the auxiliary channels being outside the
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predefined MBAN spectrum. In other words, the MBAN
devices request to be associated with the hub device via the
short-range communication network.
App. Br. 10.
The Examiner relies upon Asokan as teaching or suggesting the
contested limitation (Final Act. 4 (citing Asokan Figs. 1—6; 25—30, 63)),
and Appellants respond by arguing
[tjhere is no disclosure in Asokan that the new device 414
transmits an association request to the introducer device 412.
This is different from claim 1, which recites that an association
request is transmitted from one or more MBAN devices to the
hub device to associate each MBAN device with the hub device.
App. Br. 11.
We disagree with Appellants' contention that Asokan does not teach
use of short-range communication for transmitting the acknowledgement
key (AK). App. Br. 11.
However, we agree with Appellants' argument (id.) that Asokan's new
device 414 does not teach or suggest transmitting an association request to
introducer device 412, and therefore, based upon the Examiner's claim
mapping (Final Act. 4; Ans. 4), we find Asokan does not teach or suggest
the contested limitation, i.e., "wherein the one or more MBAN devices are
configured to transmit an association request to the hub device via the short-
range wireless communication on one or more auxiliary channels to
associate each MBAN device," as recited in claim 1.
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner's reliance on the combined
teachings and suggestions of the cited prior art combination to teach or
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suggest the disputed limitation of claim 1 such that we cannot sustain the
Examiner's obviousness rejection of independent claim 1, and independent
claim 11 which recites the contested limitation in commensurate form. For
the same reasons, we also reverse Rejection R1 of claims 2, 3, 5, 6, 12, 13,
15, 19, and 20 that depend from claims 1 and 11.
Rejections R2 and R3 of claims 4, 7—10, 14, 16, and 18
In light of our reversal of the rejections of independent claims 1
and 11, supra, we also reverse obviousness Rejection R2 and R3 under
§ 103 of claims 4, 7—10, 14, 16, and 18, which variously depend from
claims 1 and 11. On this record, the Examiner has not shown how the
additionally cited secondary Wahl and Abedi references overcome the
aforementioned deficiencies with Teague, Philips, and Asokan, as discussed
above regarding claims 1 and 11.5
2. $103 Rejection R1 of Claim 21
Issue 2
Appellants argue (App. Br. 18—19) the Examiner's rejection of
claim 21 under 35 U.S.C. § 103(a) as being obvious over the combination of
Teague, Phillips, and Asokan is in error. These contentions present us with
the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a "medical system for transmitting patient data from a plurality
of patients" that includes, inter alia, "a plurality of MB AN devices . . .
5 In reFritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("[Djependent claims
are nonobvious if the independent claims from which they depend are
nonobvious.").
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[each] including a MB AN device transceiver configured to . . . transmit and
receive association communications on each of a plurality of auxiliary
channels outside the MB AN spectrum . . . using short-range
communications," as recited in claim 21? (Emphasis added).
Analysis
Appellants contend (1) "[t]here is no disclosure in Asokan that the AK
is transmitted via a short-range communication. Asokan does not disclose
whether the AK is transmitted via a short-range communication or a long-
range communication"; and (2) "[t]here is no disclosure in Asokan that the
new device 414 transmits an association request to the introducer device 412
. . . [and claim 21 requires] that an association request is transmitted from
one or more MB AN devices to the hub device to associate each MB AN
device with the hub device. " App. Br. 19.
We first find Appellants are arguing limitations not in the claim.
Claim 21 recites, in pertinent part, "a MB AN device transceiver configured
to . . . transmit and receive association communications" and, contrary to
Appellants' arguments, the claim does not require any particular originating
node or receiving node of an unclaimed "association request."6 Further, we
disagree with Appellants' argument that Asokan does not teach or suggest
the AK being transmitted via short-range communication. See Ans. 4 (citing
Asokan 125).
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
6 See In re Self 671 F.2d 1344, 1348 (CCPA 1982) ("[Appellant's
arguments fail from the outset because . . . they are not based on limitations
appearing in the claims.").
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suggestions of the cited prior art combination to teach or suggest the
disputed limitations of claim 21, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 21.
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 3—5) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
CONCLUSIONS
(1) The Examiner erred with respect to obviousness Rejections R1
through R3 of claims 1—16 and 18—20 under 35 U.S.C. § 103(a) over the
cited prior art combinations of record, and we do not sustain the rejections.
(2) The Examiner did not err with respect to obviousness Rejection
R1 of claim 21 under 35 U.S.C. § 103(a) over the cited prior art combination
of record, and we sustain the rejection.
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DECISION
We reverse the Examiner's decision rejecting claims 1—16 and 18—20,
and we affirm the Examiner's decision rejecting claim 21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. §41.50(f).
AFFIRMED-IN-PART
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