Ex Parte Wang et alDownload PDFPatent Trial and Appeal BoardMay 4, 201713983880 (P.T.A.B. May. 4, 2017) 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. 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). 2 Appeal 2017-000979 Application 13/983,880 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. 3 Appeal 2017-000979 Application 13/983,880 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. 4 Appeal 2017-000979 Application 13/983,880 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). 5 Appeal 2017-000979 Application 13/983,880 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 6 Appeal 2017-000979 Application 13/983,880 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 7 Appeal 2017-000979 Application 13/983,880 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."). 8 Appeal 2017-000979 Application 13/983,880 [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."). 9 Appeal 2017-000979 Application 13/983,880 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. 10 Appeal 2017-000979 Application 13/983,880 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 11 Copy with citationCopy as parenthetical citation