Kent Dicks et al.

Patent Trials and Appeals Board

Aug 14, 2019

13412518 - (D) (P.T.A.B. Aug. 14, 2019)

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.
13/412,518 03/05/2012 Kent Dicks 51753.1500 5577
7590 08/14/2019
Dr. Gregory J. Gonsalves
2216 Beacon Lane
Falls Church, VA 22043
EXAMINER
AUGUSTINE, VICTORIA PEARL
ART UNIT PAPER NUMBER
3686
MAIL DATE DELIVERY MODE
08/14/2019 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 KENT DICKS, RALPH A. KENT,
ROBERT M. TRIPP, TERRY BARTLETT,
THOMAS CROSLEY, and CHUCK WATERBURY
____________________

Appeal 2018-006348
Application 13/412,518
Technology Center 3600
____________________

Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the
Examiner’s decision to reject claims 1–26, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
CLAIMED SUBJECT MATTER
According to the Specification, “[i]nnovations in electronics . . . have
made available a large number of more affordable and patient-operable
medical devices that obviated, at least in part, the need for the patient to go
to a facility.” Spec. ¶ 5. “Medical devices can communicate through a wide

1 Appellants identify the real party in interest as MedApps, Inc. App. Br. 3.
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range of wired connections,” which may vary “in the communication
protocols used to transfer data.” Id. ¶ 7. “It would thus be desirable to have
the capability to communicate with a variety of medical devices regardless
of the specific wired connection they use.” Id.
Appellants’ invention relates to “receiv[ing] medical device data
transmitted in any format and from any medical device.” Id. ¶ 10. Notably,
“the system can optionally communicate with multiple medical devices,
regardless of the type of wired connection or communications protocol
utilized by each of the medical devices, and can retransmit (and optionally
reformat) data from the medical device(s) to any desired recipient using any
suitable frequency(ies) and communication protocol(s).” Id. ¶ 21.
Claim 1 is representative and reproduced below:
1. A system comprising:
a processor;
a medical device interface configured to communicate
with each of a plurality of medical devices via a wireless
connection, wherein at least one of the plurality of medical
devices uses a different communications protocol than the other
of the plurality of medical devices;
a data relay interface; and
a memory coupled to the processor and storing
instructions that, when executed by the processor, cause the
processor to:
automatically detect a wireless signal from one or more of
the plurality of medical devices, wherein the signal is received
via the medical device interface;
in response to the detected wireless signal, automatically
configure the medical device interface to communicate using a
frequency used by the one or more of the plurality of medical
devices and a communication protocol used by the one or more
of the plurality of medical devices;
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receive, using the medical device interface, data from the
plurality of medical devices; and
transmit a message including at least a portion of the
received data, using the data relay interface, to a provided
medical data server.
REJECTIONS
Claims 1–26 stand rejected under 35 U.S.C. § 101, as being directed
to ineligible subject matter. Non-Final Act. 3–5.
Claims 1–26 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mazar (US 2004/0122488 A1; June 24, 2004) and
Mosesov (US 2008/0009921 A1; Jan. 10, 2008). Non-Final Act. 6–18.2
ANALYSIS
THE PATENT INELIGIBLE SUBJECT MATTER REJECTION
Appellants dispute the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. See App. Br. 18–24; Reply
Br. 11–23. In particular, Appellants argue the pending claims are not
directed to an abstract idea but instead are directed to an improvement to
wireless device communications. See Reply Br. 15–16. Appellants argue
the pending claims are analogous to the patent-eligible claims in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). See

2 On the record before us, despite the Examiner indicating claims 1–23 are
rejected under 35 U.S.C. § 103(a) in the header of the rejection (see Non-
Final Act. 6), we presume that the Examiner rejected claims 1–26 under
§ 103(a). The Examiner included a statement of rejection for each of claims
1–26 in the body of the rejection under 35 U.S.C. § 103, and Appellants
addressed the rejection of claims 1–26 as under § 103(a). See Non-Final
Act. 6–18; App. Br. 11. Accordingly, we deem the Examiner’s error in the
heading of the rejection as harmless.
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Reply Br. 14–18 (asserting the claims overcome a problem specifically
arising in the realm of networks hosting wireless devices to improve
communication to different medical devices using different frequencies and
protocols).
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. See Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 217 (2014). In addition, the Office recently published revised
guidance for evaluating subject matter eligibility under 35 U.S.C. § 101,
specifically with respect to applying the Alice framework. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Office Guidance”). If a claim falls within one of the statutory
categories of patent eligibility (i.e., a process, machine, manufacture, or
composition of matter) then the first inquiry is whether the claim is directed
to one of the judicially recognized exceptions (i.e., a law of nature, a natural
phenomenon, or an abstract idea). See Alice, 573 U.S. at 217. As part of
this inquiry, we must “look at the ‘focus of the claimed advance over the
prior art’ to determine if the claim’s ‘character as a whole’ is directed to
excluded subject matter.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838
F.3d 1253, 1257 (Fed. Cir. 2016). Per Office Guidance, this first inquiry has
two prongs of analysis: (i) does the claim recite a judicial exception (e.g., an
abstract idea), and (ii) if so, is the judicial exception integrated into a
practical application. See 84 Fed. Reg. at 54. Under the Office Guidance, if
the judicial exception is integrated into a practical application, see infra, the
claim is patent eligible under § 101. See id. at 54–55. If the claim is not
directed to an abstract idea, the inquiry ends. See McRO, Inc. v. Bandai
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Namco Games Am., 837 F.3d 1299, 1312 (Fed. Cir. 2016). However, if the
claim is directed to a judicial exception (i.e., recites a judicial exception and
does not integrate the exception into a practical application), the next step is
to determine whether any element, or combination of elements, amounts to
significantly more than the judicial exception. See Alice, 573 U.S. at 217; 84
Fed. Reg. at 56.
Although the independent claims each broadly fall within the statutory
categories of patentability, the Examiner concludes the claims are directed to
“receiving and transmitting data.” Non-Final Act. 4. The Examiner finds
“receiving data from medical devices and transmitting the data to a server
. . . amount to using categories (e.g., patient identifier) to organize, store
(e.g., store in server), and transmit (e.g., send to server) information (e.g.,
patient data).” Id. at 3 (citing Cyberfone Sys., LLC v. CNN Interactive Grp.,
Inc., 558 F. App’x 988 (Fed. Cir. 2014) (unpublished)). Further, the
Examiner finds “[t]hese steps are directed to data recognition and storage
(e.g., receiving and sending medical data).” Id. (citing Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343 (Fed.
Cir. 2014)). Additionally, the Examiner finds claim 1 recites “additional
limitations of a processor, a medical device interface using wired or wireless
connections, a data relay interface, and a memory,” but the additional
limitations are generic computer elements. Id. at 4 (citing Spec. ¶¶ 17–19);
see also Ans. 6. Accordingly, the Examiner determines the additional
limitations alone, or in combination, do not improve the functioning of a
computer or any other technology. See Non-Final Act. 4–5. Moreover, the
Examiner finds the claims lack an inventive concept because the recited
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generic computer components “performing generic computer functions that
are well-understood, routine, and conventional activities amount to no more
than implementing the abstract idea with a computerized system.” Id. at 4.
As an initial matter, we find the Examiner’s conclusion that the claims
generally relate to receiving and transmitting data is similar to the Federal
Circuit’s determination that claims reciting receiving, processing, and
outputting data involve abstract ideas. Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (concluding claims were abstract
because the claims focused on “collecting information, analyzing it, and
displaying certain results”); see also Content Extraction, 776 F.3d at (Fed.
Cir. 2014) (determining claims reciting collecting, recognizing, and storing
data were drawn to an abstract idea); Concaten, Inc. v. Ameritrak Fleet
Solutions, LLC, 131 F.Supp.3d 1166, 1174 (D. Colo. 2015) aff’d, 669 F.
App’x 571 (Mem) (Fed. Cir. 2016) (determining “receiving, processing, and
transmitting data” involves an abstract idea). Accordingly, we determine the
claims recite an abstract idea.
Here, although the claims recite and generally relate to receiving and
transmitting data, we conclude the claims are directed to automatically
configuring a medical device interface to communicate over a particular
frequency using a particular communication protocol used by a particular
medical device from which the medical device interface received a wireless
signal. As described in the Specification, it was known that the manner in
which patient-operable medical devices communicate data varies depending
on the type and manufacturer of each medical device. Spec. ¶ 6. It was also
known that the medical devices communicate the data through a wide range
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of wired connections. Id. ¶ 7. But “[e]ach of these connections vary not
only in the physical structure of the connection, but also in the
communication protocols used to transfer data,” making it “desirable to have
the capability to communicate with a variety of medical devices regardless
of the specific wired connection they use.” Id.
By automatically configuring the interface in response to a detected
signal from a medical device Appellants’ “system can optionally
communicate with multiple medical devices, regardless of the type of wired
connection or communications protocol utilized by each of the medical
devices.” Id. ¶ 21. Thus, Appellants’ claimed systems and methods do not
reflect simply receiving and transmitting data. Accordingly, we conclude
Appellants’ claims are not directed to merely the abstract idea of any type of
receiving and transmitting data; rather, the claims are directed to the patent-
eligible application of automatically configuring a medical device interface
to communicate over a particular frequency using a particular
communication protocol used by a particular medical device from which the
medical device interface received a wireless signal.
Further, our reviewing court held eligible claims addressing the
problem of retaining website visitors who, if adhering to the well-
understood, routine, and conventional functioning of Internet hyperlink
protocol, would be transported instantly away from a host’s website after
clicking on an advertisement and activating a hyperlink. DDR, 773 F.3d at
1257. In reaching this determination, the court noted that the claims
“specify how interactions with the Internet are manipulated to yield a desired
result—a result that overrides the routine and conventional sequence of
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events ordinarily triggered by the click of a hyperlink.” Id. at 1258. The
court held that claims were eligible because they recited a solution
“necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks.” Id. at 1257. As
discussed above, the claimed automatically configuring a medical device
interface to communicate over a particular frequency using a particular
communication protocol used by a particular medical device from which the
medical device interface received a wireless signal is directed to an
improvement in wireless device communications.
Moreover, the analysis under the Office Guidance does not alter our
conclusion. The Examiner finds the claims are directed to receiving and
transmitting data and, therefore, an abstract idea. See Non-Final Act. 3–4.
Claim 1 is reproduced below and includes the following claim
limitations that recite operations for performing the abstract idea of
receiving and transmitting data, emphasized in italics:
1. A system comprising:
a processor;
a medical device interface configured to communicate
with each of a plurality of medical devices via a wireless
connection, wherein at least one of the plurality of medical
devices uses a different communications protocol than the other
of the plurality of medical devices;
a data relay interface; and
a memory coupled to the processor and storing
instructions that, when
executed by the processor, cause the processor to:
automatically detect a wireless signal from one or more of
the plurality of medical devices, wherein the signal is received
via the medical device interface;
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in response to the detected wireless signal, automatically
configure the medical device interface to communicate using a
frequency used by the one or more of the plurality of medical
devices and a communication protocol used by the one or more
of the plurality of medical devices;
receive, using the medical device interface, data from the
plurality of medical devices; and
transmit a message including at least a portion of the
received data, using the data relay interface, to a provided
medical data server.
Although the Examiner finds (and we agree as noted above) the
claims recite an abstract idea, “an invention is not rendered ineligible for
patent simply because it involves an abstract concept.” Alice, 573 U.S. at
217. Accordingly, we next determine whether the claim integrates the
judicial exception into a practical application. 84 Fed. Reg. at 54. To
determine whether the judicial exception is integrated into a practical
application, we identify whether there are “any additional elements recited
in the claim beyond the judicial exception(s)” and evaluate those elements to
determine whether they integrate the judicial exception into a recognized
practical application. 84 Fed. Reg. at 54–55 (emphasis added); see also
MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106.05(a)–(c),
(e)–(h) (9th ed. Rev. 08.2017, Jan. 2018).
Here, we find the additional limitations integrate the abstract concept
of receiving and transmitting data into a practical application. In particular,
we find the claim does not merely receive and transmit data, but rather, in
response to the received data, automatically configures a medical device
interface to communicate using a frequency and communication protocol
used by a medical device. As discussed above, and as described in the
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Specification, the use of the claimed medical device interface provides an
improvement over the use of existing medical devices in wireless device
communications. See Spec. ¶¶ 7 (“It would thus be desirable to have the
capability to communicate with a variety of medical devices regardless of
the specific wired connection they use.”), 9 (“What is also needed is a
portable device and system that interoperates with a variety of medical
devices utilizing a broad range of wired connections to receive medical
data.”); see also MPEP § 2106.05(a) (“An indication that the claimed
invention provides an improvement can include a discussion in the
specification that identifies a technical problem and explains the details of an
unconventional technical solution expressed in the claim, or identifies
technical improvements realized by the claim over the prior art.”); but see
Concaten, 131 F.Supp.3d at 1175–76.3
For the reasons discussed above, we conclude Appellants’ claims are
patent eligible under 35 U.S.C. § 101. Accordingly, we do not sustain the
Examiner’s rejection of claims 1–26 under 35 U.S.C. § 101.

3 The district court in Concaten determined the additionally-claimed
elements beyond the abstract idea did not add significantly more to the
abstract idea. Here, Appellants’ invention claims an alleged improvement to
a technology by automatically configuring an electronic device in response
to receiving specific data. See Spec. ¶¶ 7, 9; see also, e.g., id. ¶¶ 19, 61.
The Examiner made no finding and identified no evidence suggesting that
the additional elements beyond receiving and transmitting data (in particular,
at least the automatic configuration in response to received data) fail to
provide an improvement in technology. On this record, lacking relevant
findings or identified evidence to the contrary, Appellants’ claimed
invention provides an improvement to technology sufficient to integrate the
abstract idea into a practical application.
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THE OBVIOUSNESS REJECTION
Claims 1, 3–5, 9, 10, 14, 16–18, and 22–244
The Examiner finds Mazar discloses many recited elements of claim 1
including, among other things, a medical device interface configured to
communicate with each medical device via a wireless connection, wherein a
medical device uses a different communications protocol than another
medical device. Non-Final Act. 7 (citing Mazar ¶ 60). The Examiner also
finds Mazar discloses configuring the medical device interface to
communicate using a frequency and a communication protocol used by the
one or more of the medical devices. Id. (citing Mazar ¶ 26); Ans. 3
(additionally citing Mazar, Abstract).
The Examiner acknowledges Mazar does not teach automatically
configuring the interface in response to a detected wireless signal. Non-
Final Act. 8–9; Ans. 3 (“Examiner agrees with Appellant that Mazar is silent
as to how to establish the protocol and frequency in response to a detected
wireless signal. It is for that reason that Examiner reopened prosecution on 9
November 2016 and introduced a new reference, Mosesov.”). However, the
Examiner finds Mosesov, in combination with Mazar, teaches this feature in
concluding the claim would have obvious. See Non-Final Act. 8–9; Ans. 3–
4 (citing Mosesov ¶¶ 14, 27, 59).
Appellants assert paragraph 60 of Mazar lists various options for
communicating, but argue Mazar does not teach automatically configuring a

4 On the record before us, claims 14, 16–18, and 22–24 are not argued
separately with particularity from independent claim 1.
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medical device interface to communicate using a communication protocol
used by medical devices. App. Br. 12. Appellants further assert paragraph
60 of Mazar teaches that the communication between components uses
either wired or wireless technologies, but argue Mazar does not teach a
medical device interface automatically configured to communicate with one
medical device using a particular protocol and to communicate with a
second medical device using a different protocol. Id. at 13. Appellants also
argue Mosesov fails to compensate for Mazar’s alleged deficiency because
Mosesov’s cited portions “make[] no mention of any communication
protocol whatsoever.” Id. at 13–14. Appellants acknowledge Mosesov
teaches detecting signals on different frequencies, but assert Mosesov does
not teach or suggest automatically configuring an interface to communicate
using a device’s frequency and communication protocol. Reply Br. 5.
Mazar discloses a device comprising a “frequency and protocol agile”
transceiver capable of communicating with an implantable medical device
(IMD). Mazar, Abstract. Figures 1A and 5 of Mazar illustrate one
embodiment of the present invention involving an interface device. Id.
¶¶ 25–28, 98–105. In particular, Mazar’s interface device comprises
memory including IMD support files that describe different communication
protocols for communicating with different types of IMD devices. Id. ¶ 102;
Fig. 5. Mazar’s interface device further comprises a “frequency and
protocol agile” transmitter/receiver unit capable of communicating with the
different types of IMD devices. Id. ¶¶ 102, 105; Figs. 1, 5. Mazar, then, at
least suggests configuring the interface device’s transmitter/receiver unit
(the claimed “medical device interface”) to communicate using a
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communication protocol and frequency used by a particular IMD device (the
claimed “one or more of the plurality of medical devices”). Mazar further at
least suggests configuring the interface device’s transmitter/receiver unit to
communicate using a second communication protocol and frequency used by
a second IMD device.
Mosesov discloses an IMD and an external receiver communicating
over a plurality of communication channels at different frequencies.
Mosesov ¶¶ 13–14. Mosesov further discloses selecting one of the plurality
of channels (i.e., frequencies) over which to communicate. Id. ¶¶ 56–60. As
noted above, the Examiner finds Mazar’s frequency and protocol agile
transceiver teaches or suggests communicating over different frequencies
and protocols of various medical devices and Mosesov’s automatic channel
selection teaches or suggests automatically configuring a communication
between a medical device and an interface in response to detecting a signal.
Non-Final Act. 7–9.
Thus, Appellants’ arguments regarding Mazar and Mosesov’s alleged
individual shortcomings are not persuasive, because they do not address the
pending rejection, which is based on a combination of Mazar and Mosesov.
More specifically, the Examiner finds Mazar, not Mosesov, teaches or
suggests communicating using different protocols and frequencies, and the
Examiner finds Mosesov, not Mazar, teaches or suggests automatically
configuring a device to communicate with another device using particular
settings (i.e., a particular frequency) in response to a detected signal from
that device. Thus, the Examiner finds combining Mazar’s disclosed
interface that communicates with multiple medical devices with Mosesov’s
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disclosed automatic communication setting selection teaches or suggest the
disputed “automatically configure” limitation.
We also find unavailing Appellants’ contention that “the Examiner
did not explain why a person of ordinary skill in the art would have been
motivated to combine the teachings of Mazar and Mosesov and reasonably
expect success in achieving a medical device interface that is automatically
configured to communicate with different medical devices using different
protocols.” App. Br. 14; Reply Br. 6–7.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results,”
KSR International Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007), especially
if the combination would not be “uniquely challenging or difficult for one of
ordinary skill in the art,” Leapfrog Enterprises, Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
“[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious,” the answer depends on “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” KSR, 550 U.S. at 417 (citing Anderson’s–
Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969); Sakraida v.
Ag Pro, Inc., 425 U.S. 273 (1976)).
The common features between Mazar’s interface device and
Mosesov’s implant receiver include receiving and sending data. See Mazar
¶¶ 25–26; Mosesov ¶ 27. A device that combines Mazar’s interface device
and Mosesov’s implant receiver simply does what the two devices would do
separately. The proposed device performs the same functions when
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combined as each did in the prior art. See Sakraida, 425 U.S. at 282;
Anderson’s-Black Rock, 396 U.S. at 90. Accord Non-Final Act. 9. Thus,
one of ordinary skill in the art would have been able to combine Mazar’s
interface device and Mosesov’s implant receiver using methods known in
the art at the time the invention was made. See Leapfrog Enters., 485 F.3d
at 1162. “If a person of ordinary skill can implement a predictable variation,
§ 103 likely bars its patentability.” KSR, 550 U.S. at 417.
Lastly, Appellants’ contention that the Examiner violated the notice
provision of the Administrative Procedure Act in the Answer, Reply Br. 4–5,
is a petitionable matter decided before a Reply Brief is filed. See 37 C.F.R.
§ 41.40(a); see also MPEP § 1201 (“The Board will not ordinarily hear a
question that should be decided on petition . . . .”). Where, as here, no such
petition is filed, we do not consider Appellants’ arguments in the Reply
Brief regarding the allegedly improper new ground of rejection because that
is not an appealable issue. See 37 C.F.R. § 41.40(a); see also MPEP
§§ 1201, 1207.03(b).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 3–5, 9, 10, 14, 16–18, and 22–24 not argued separately
with particularity.
Claims 2, 6, 12, 13, 15, 19, 25, and 265
We sustain the Examiner’s obviousness rejection of claims 2, 6, 12,
13, 15, 19, 25, and 26. Appellants’ argument that claims 2, 6, 12, 13, 15, 19,

5 In the Appeal Brief, Appellants argue the “Examiner rejected claims 14–26
on the same basis” as claims 2, 6, 12, and 13. App. Br. 15. Claims 15, 19,
25, and 26 are commensurate in scope with claims 2, 6, 12, and 13,
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25, and 26 are not directed to printed matter (see App. Br. 15; Reply Br. 8)
does not address—let alone persuasively rebut—the Examiner’s finding that,
regardless of whether the disputed limitations recite non-functional
descriptive material, Mazar teaches each of the recited limitations. See Non-
Final Act. 10 (finding paragraph 24 of Mazar teaches the limitations of claim
2), 12 (finding paragraph 40 of Mazar teaches the limitations of claim 6), 16
(finding paragraphs 27 and 91 of Mazar teach the limitations of claim 12),
17 (finding paragraph 49 of Mazar teaches the limitations of claim 13).
Notably Mazar discloses collecting patient specific information to
enable a predictive management of patients with chronic disease. Mazar
¶ 24. Therefore, Mazar at least suggests medical devices retrieving the data
from patients, as recited in claims 2 and 15. Mazar discloses devices can
record non-patient specific characteristics such as temperature. Id. ¶ 40.
Mazar, therefore, at least suggests retrieving from a medical device an
environmental parameter, including a temperature, as recited in claims 6 and
19. Mazar discloses receiving software updates and configuration changes
from a host computer and a patient accessible web interface. Id. ¶¶ 27, 91.
In that sense, then, Mazar at least suggests the information provided to the
patient includes one or more of: an indicator as to whether a medical device
is currently in communication with the system; an indicator that the system

respectively. The Examiner rejects claims 15, 19, 25, and 26 on the same
basis as claims 2, 6, 12, and 13. Non-Final Act. 18 (finding “[c]laims 14–26
recite substantially similar limitations to claims 1–13.”). Accordingly, based
on the record before us, we presume Appellants intended to refer to “claims
2, 6, 12, 13, [15, 19, 25, and 26]” on page 15 of the Appeal Brief and page 8
of the Reply Brief.
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has received the medical data from the medical device; a survey regarding a
treatment for the patient; and an indicator regarding the status of an update
to a software application operating on a medical device, as recited in claims
12 and 25. Mazar discloses collecting subjective data from a patient. Id.
¶ 49. Therefore, Mazar at least suggests receiving from a patient
information regarding a treatment for the patient, as recited in claims 13 and
26.
Accordingly, we sustain the Examiner’s rejection of claims 2, 6, 12,
13, 15, 19, 25, and 26.
Claims 7 and 20
We sustain the Examiner’s obviousness rejection of claim 7. See
Non-Final Act. 13. In particular, the Examiner finds Mazar teaches or
suggests the additional limitation recited in claim 7 regarding a data relay
interface being configured to transmit a message through a wireless network
selected from the group consisting of: a cellular network; a General Packet
Radio Service (GPRS) network; a wireless Local Area Network (WLAN); a
Global System for Mobile Communications (GSM) network; a Personal
Communication Service (PCS) network; an Advanced Mobile Phone System
(AMPS) network; a satellite communication network; and combinations
thereof. Id. (citing Mazar ¶ 62).
Appellants argue the rejection does not explain why it would have
been obvious for the data relay interface to transmit through any of the
particular types of wireless networks recited in claim 7. See App. Br. 16.
Appellants’ contention is unavailing because it fails to consider what Mazar
suggests to one skilled in the art. Specifically, in light of Mazar’s disclosure
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that the data relay interface transmits messages through a satellite
communication network (one of the types of recited wireless networks),
Appellants’ argument fails to consider that an ordinarily skilled artisan
would readily understand the benefits of such communication, including
communicating over long distances wirelessly.
Appellants next contend claim 7 requires a particular component—a
data relay interface—to transmit a message through one of a group of
particular types of wireless networks. See App. Br. 16. To the extent
Appellants contend Mazar does not teach or suggest the data relay interface,
we disagree. Mazar’s interrogator/transceiver unit (ITU) 208 wirelessly
communicates via satellite. See Mazar ¶ 62. Mazar, then, at least suggests
an ITU (the claimed “data relay interface”) is configured to transmit a
message through a wireless network, such as a satellite communication
network.
Accordingly, we sustain the Examiner’s rejection of claim 7, and
claim 20, not argued separately with particularity. See App. Br. 15–16;
Reply Br. 9.
Claims 8 and 21
We sustain the Examiner’s obviousness rejection of claim 8 which
recites, in part, a data relay interface is configured to transmit the message
through a wired connection selected from the group consisting of: a
universal serial bus (USB) connection; a serial connection; a telephone
connection; a parallel connection; a Firewire connection; an Ethernet
connection; and combinations thereof. See Non-Final Act. 14. Appellants
contend the Examiner finds Mazar teaches a wireless telephone network and
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a wide area network, but argue “the Examiner did not even allege that either
Mazar or Mosesov teaches any of the types of wired connections that are
listed in claims 8 and 21.” App. Br. 16. We disagree.
The Examiner finds Mazar’s “connection 712 may comprise . . . a
USB connection.” Non-Final Act. 14 (citing Mazar ¶ 122). Thus,
Appellants’ argument that the Examiner did not allege Mazar teaches any of
the types of wired connections including a USB connection does not
address—let alone persuasively rebut—the Examiner’s finding with respect
to Mazar’s paragraph 122.
Accordingly, we sustain the Examiner’s rejection of claim 8, and
claim 21, not argued separately with particularity. See App. Br. 16; Reply
Br. 9.
Claim 11
We do not sustain the Examiner’s obviousness rejection of claim 11
which recites, in part, (1) a user interface in communication with the
processor of claim 1; and (2) the memory of claim 1 stores instructions to
cause the processor to provide information to, and receive information from,
a patient through the user interface. Claim 1 recites the processor
automatically configures a medical device interface to communicate using a
communication protocol used by a medical device.
The Examiner finds Mazar teaches a user interface in communication
with the processor. See Non-Final Act. 15 (citing Mazar ¶ 91); Ans. 5–6
(additionally citing Mazar ¶ 90). According to the Examiner, Mazar’s web
interface is managed by a delivery module and accessed by patients. Non-
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Final Act. 15. Appellants argue Mazar does not teach a single processor that
performs all the functions recited in claim 11. App. Br. 16–17. We agree.
Mazar’s Figure 2 illustrates host 212 including delivery module 218.
Mazar ¶ 66. Mazar’s delivery module 218 manages a patient accessible web
interface. Id. ¶ 91. We understand the Examiner to find Mazar’s interface
device 105 teaches or suggests the recited medical device interface. See,
e.g., Final Act. 7–8 (citing Mazar ¶ 129). Whether Mazar’s web interface
managed by host 212 communicates with a processor that automatically
configures Mazar’s interface device 105 (the claimed “medical device
interface”) to communicate using a communication protocol used by an IMD
100 device (the claimed “one or more of the plurality of medical devices”),
as recited in claim 1 and claim 11, based on its dependency from claim 1, we
cannot say on this record. Nor will we speculate in that regard here in the
first instance on appeal.
For the above reasons, we are persuaded that the Examiner erred in
rejecting claim 11.
NEW GROUND OF REJECTION UNDER 35 U.S.C. § 103
We enter a new ground of rejection of claim 11 under 35 U.S.C.
§ 103(a) as being unpatentable over Mazar and Mosesov pursuant to our
authority under 37 C.F.R. § 41.50(b).
Mazar’s Figure 5 illustrates interface device 99 including (1) a
command and control processor 516 for controlling the operation of the
interface device 99, and (2) a memory 522 used in conjunction with the
processor 516. Mazar ¶ 99. Mazar’s Figure 5 further illustrates the interface
device 99 including display 502 and keypad 504 in communication with the
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processor 516. Id. ¶¶ 102, 109. Mazar, then, at least suggests display 502
and keypad 504 (the claimed “user interface”) in communication with
processor 516 (the claimed “processor”). A given IMD 100’s support file is
selected through display 502 and keypad 504. Mazar, then, at least suggests
memory 522 (the claimed “memory”) stores instructions to cause processor
516 to provide information to, and receive information from, a patient
through display 502 and keypad 504.
CONCLUSION
Under § 101, the Examiner erred in rejecting claims 1–26.
Under § 103(a), the Examiner did not err in rejecting claims 1–10 and
12–26, but erred in rejecting claim 11.
Regarding the affirmed rejection of claims 1–10 and 12–26 under
§ 103(a), 37 C.F.R. § 41.52(a)(1) provides “Appellant may file a single
request for rehearing within two months of the date of the original decision
of the Board.”
In addition to affirming the Examiner’s rejection of claims 1–10 and
12–26 under § 103(a), this decision contains new ground of rejection for
claim 11 pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a]
new ground of rejection pursuant to this paragraph shall not be considered
final for judicial review.”
Section 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
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(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
Should Appellants elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If Appellants elect prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejection, including any timely request for rehearing thereof.
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).

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DECISION
We affirm the Examiner’s decision to reject claims 1–10 and 12–26.
We reverse the Examiner’s decision to reject claim 11.
We present a new ground of rejection for claim 11.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)