Luvozo PBC

Patent Trials and Appeals BoardJun 29, 2021

2020001857 (P.T.A.B. Jun. 29, 2021)

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. 15/268,228 09/16/2016 David Pietrocola 031340-000110US 3214 12075 7590 06/29/2021 Butzel Long 1909 K St. NW Suite 500 Washington, DC 20006 EXAMINER BOLOURCHI, NADER ART UNIT PAPER NUMBER 2631 NOTIFICATION DATE DELIVERY MODE 06/29/2021 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): docket@butzel.com kamlay@butzel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID PIETROCOLA, TERRANCE JUDE KESSLER, MOHAMMED SAMER CHARIFA, and BABATUNDE O. OGUNFEMI Appeal 2020-001857 Application 15/268,228 Technology Center 2600 ____________ Before ELENI MANTIS MERCADER, JOHN A. EVANS, and NORMAN H. BEAMER, Administrative Patent Judges. EVANS, Administrative Patent Judge. DECISION ON APPEAL1 Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision to reject claims 1–20. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6. We REVERSE.2 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Luvozo PBC, as the real party in interest. Appeal Br. 1. 2 Throughout this Decision, we refer to the Appeal Brief filed August 12, 2019 (“Appeal Br.”); the Reply Brief filed January 13, 2020 (“Reply Br.”); the Non-Final Office Action mailed March 8, 2019 (“Non-Final Act.”); the Examiner’s Answer mailed November 12, 2019 (“Ans.”); and the Specification filed January 3, 2019 (“Spec.”). Appeal 2020-001857 Application 15/268,228 2 STATEMENT OF THE CASE CLAIMED SUBJECT MATTER The claims relate to systems and methods for sensor-based collection of environmental data. See Spec., Abstract. CLAIMS Claims 1 and 11 are independent. Claim 1 is illustrative and reproduced below: 1. A system comprising: one or more environmental sensors including at least a camera, each environmental sensor of the one or more environmental sensors configured to obtain environmental data describing at least one physical attribute of an environment in which the system is disposed, the environmental data including at least image data obtained by the camera; a processing system configured to receive the environmental data from the one or more environmental sensors and, based upon the environmental data, identify at least one potential fall hazard in the environment and a degree of risk associated with the at least one potential fall hazard; and a reporting component configured to provide an indication of the identified at least one potential fall hazard and the degree of risk associated with the fall hazard. Prior Art Name3 Reference Date Derenne US 2012/0075464 A1 Mar. 29, 2012 Piekniewski US 2013/0297542 A1 Nov. 7, 2013 Ménélas US 2015/0260514 A1 Sept. 17, 2015 Dean WO 2009/001057 A1 Dec. 31, 2008 3 All citations herein to the references are by reference to the first named inventor/author only. Appeal 2020-001857 Application 15/268,228 3 REJECTIONS4 AT ISSUE 1. Claims 11–20 stand rejected under 35 U.S.C. § 112(b) as indefinite. Non-Final Act. 10–11. 2. Claims 11–14, 17, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ménélas. Non-Final Act. 14–18. 3. Claims 1–7, 10, 15, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ménélas and Derenne. Non-Final Act. 18–24. 4. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ménélas, Derenne, and Dean. Non-Final Act. 24–25. 5. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ménélas and Dean. Non-Final Act. 25–26. 6. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Ménélas, Derenne, and Piekniewski. Non-Final Act. 27. ANALYSIS We have reviewed the rejection of Claims 1–20 in light of Appellant’s arguments that the Examiner erred. We have considered in this Decision only those arguments Appellant actually raised in the Brief. Any other arguments which Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We are persuaded that Appellant identifies reversible error. 4 The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. Final Act. 2. Appeal 2020-001857 Application 15/268,228 4 CLAIMS 11–20: INDEFINITENESS. Claim 11 recites, inter alia: determining a risk score for a portion of the environment in which the physical attributes are located based upon properties of the environment; determining a total risk score for the environment based upon the degree of risk associated with the at least one potential hazard and the risk score for the portion of the environment. The Examiner finds claim 11 is indefinite because it is unclear to what the recitation “a portion of the environment in which the physical attributes are located” refers. Non-Final Act. 10. Appellant argues claim 11 provides an antecedent basis by reciting “based upon [] one or more physical attributes, identifying at least one potential hazard in the environment.” Appeal Br. 12. Appellant argues: “One of skill in the art would readily understand that a ‘physical attribute” may be confined to a particular portion of the environment under consideration” and thus, “the ‘portion of the environment in which the physical attributes are located’ merely refers to a part of an environment that contains an identified physical attribute, and the claim is not indefinite.” Id. The Examiner finds: the Applicant argues that “total risk [score] is determined separate from the risk associated with the particular hazard.” On the contrary, claim 11 recites the total risk factor determined based on the risk associated with the potential hazard. Moreover, it is not clear what is the relationship between the degree of risk associated with the potential hazard for the portion of the environment and the risk score for the portion of environment. Ans. 24. Appeal 2020-001857 Application 15/268,228 5 Appellant does not separately reply to the Answer respecting the § 112 rejection. Appellant discloses a first algorithm for an Identified Hazard Risk (Spec. ¶ 45), a second algorithm for an area risk (Spec. ¶ 46), and a third algorithm for a total space risk (Spec. ¶ 47). In view of the Specification disclosure, we are not persuaded the claims are indefinite. CLAIMS 1–10, 15, AND 16: OBVIOUSNESS OVER MÉNÉLAS. Appellant argues the combination of Ménélas, Derenne, Dean, and Piekniewski fails to render obvious independent Claim 1. Appeal Br. 8. Appellant further argues dependent claims 2–10, 15, and 16 are patentable in view of their dependence from independent Claim 1. Id. Therefore, we decide the appeal of the § 103 rejections on the basis of claim 1 and refer to the rejected claims collectively herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Claim 1 recites, inter alia: one or more environmental sensors including at least a camera, each environmental sensor of the one or more environmental sensors configured to obtain environmental data describing at least one physical attribute of an environment in which the system is disposed, the environmental data including at least image data obtained by the camera. Appeal Br. 4. The Examiner finds Ménélas essentially teaches Claim 1 except failing to teach a camera and image data obtained by a camera. Non-Final Act. 20. The Examiner finds Derenne teaches a camera and image data obtained thereby. Id. Appeal 2020-001857 Application 15/268,228 6 Appellant contends Derenne teaches a system of fixed-position cameras (Appeal Br. 5) and that: one of skill in the art would have no reason to look to Derenne’s [fixed-position camera] patient-monitoring system when considering Menelas’ shoe. Menelas’ shoe is entirely concerned with measuring the state of the ground beneath the shoe. There would be no reason to incorporate cameras to observe other individuals, or even the shoe wearer [because] doing so is completely unrelated to any feature of Menelas, and one of skill in the art would [not] have reason to combine these two extremely different systems. Appeal Br. 6. Appellant argues because: Menelas’ shoe is already capable of “advis[ing] a user of a risk of falling based on at least the physical properties of the ground” . . . and there is no indication that incorporating Derenne’s system would provide any further capability beyond that already described by Menelas. Accordingly, one of skill in the art would not combine the systems as suggested by the Examiner. Id. (quoting Ménélas, Abstract) (citing ¶¶ 7–9, 30). The Examiner responds: As noted in the office [Action], use of cameras to monitor patients are very common practice. In fact, use of camera is now part of our daily life, e.g., use of camera embedded in mobile phones, doorbells, vehicles, security system, as well as use of wearable mini wireless cameras, in smart watches, eyeglasses, and the body camera. Ans. 27. “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007); see also Metalcraft of Mayville, Inc., v. The Toro Co., 848 F.3d 1358, 1367 Appeal 2020-001857 Application 15/268,228 7 (Fed. Cir. 2017) (“Without any explanation as to . . . why the references would be combined to arrive at the claimed invention, we are left with only hindsight bias that KSR warns against. . . . [W]e cannot allow hindsight bias to be the thread that stitches together prior art patches into something that is the claimed invention.”). Further, the USPTO “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” and that articulation requirement “appl[ies] with equal force to the . . . motivation to combine analysis.” In re Nuvasive, Inc., 842 F.3d 1376, 1382–83 (Fed. Cir. 2016). “The factual inquiry whether to combine references must be thorough and searching and the need for specificity pervades our authority on the . . . findings on motivation to combine.” Id. at 1381–82 (internal quotation marks and citation omitted). When “motivation to combine . . . is disputed,” the USPTO “must articulate a reason why a PHOSITA would combine the prior art references.” Id. We will not resort to speculation or assumptions to cure deficiencies in the Examiner’s fact finding or reasoning. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). In the case before us, we find the Examiner’s logic to be conclusory and unsupported by the evidence of record. As argued by Appellant, Ménélas discloses: “[t]he solution taught herein allows to determine physical properties of the ground that a user is walking on using a signal from an accelerometer located in a foot-worn sensor.” Appeal Br. 4 (quoting Ménélas ¶ 4). The Examiner fails to explain how the “use of cameras to monitor patients” (Ans. 27) is relevant or helpful to the use of an accelerometer “to determine physical properties of the ground that a user is walking on.” Appeal 2020-001857 Application 15/268,228 8 In view of the foregoing, we are not persuaded a person of skill in the art would find it obvious to combine the teachings of Ménélas and Derenne. We, therefore decline to sustain the rejection of claim 1 or of claims 2–7, 10, 15, and 16 dependent therefrom. With respect to dependent claims 8 and 9, Appellant contends the Examiner does not apply either Dean or Piekniewski to teach the disputed limitation. The Examiner applies Dean to teach an ambient light sensor (Non-Final Act. 25), but not to teach the claimed limitation. The Examiner applies Piekniewski to teach training of neural nets against environmental data (Non-Final Act. 27), but not to teach the claimed limitation. We, therefore further decline to sustain the rejection of claims 8 and 9. CLAIMS 13 AND 14: OBVIOUSNESS OVER MÉNÉLAS AND DERENNE. Claims 13 and 14, dependent from independent claim 11 do not recite a camera limitation, as discussed above. Claim 12 recites: “[t]he method of claim 11, wherein the one or more environmental sensors are disposed within a portable computing device.” Claim 13 recites: “[t]he method of claim 12, further comprising automatically displaying the report on a display screen of the portable computing device.” The Examiner finds: “Menelas also disclose automatically displaying the report on a display screen of the portable computing device (data can be analyze[d] and displayed on smart phone.” Non-Final Act. 16. Appellant contends the claimed “environmental sensors are disposed within a portable computing device.” Appeal Br. 9 (citing Claim 12). Appellant argues Ménélas’ “environmental sensors” are necessarily located in the ground-sensing shoe because they operate by contacting the ground Appeal 2020-001857 Application 15/268,228 9 directly or through the shoe itself, such as by measuring the impact on the ground. Id. Appellant argues, however, “Menelas’ system would not function properly if the alleged environmental sensors were instead placed in a smart phone (since they would not be in contact with the ground), or if the alleged “display” or “smart phone” was incorporated into the shoe (since the user would have to somehow view the display while walking in the shoe, or stop and take off the shoe to access the data).” Appeal Br. 9. The Examiner fails to address Appellant’s contention that Menelas’ system would not function properly if the alleged environmental sensors were instead placed in a smart phone or if the display were to be incorporated in a shoe. See Ans. 33. We are persuaded the rejection relies on impermissible hindsight. We, therefore further decline to sustain the rejection of claims 13 and 14. CLAIMS 11–14, 17, 19, AND 20. Independent claim 11 recites, inter alia: determining a risk score for a portion of the environment in which [one or more] physical attributes are located based upon properties of the environment; determining a total risk score for the environment based upon the degree of risk associated with the at least one potential hazard and the risk score for the portion of the environment. Appeal Br. 16, Claims App. (Claim 11). The Examiner finds each of these risks is taught by Ménélas. Non- Final Act. 15. The Examiner finds Ménélas teaches: 1. “automatically determining a degree of risk associated with the at least one potential hazard.” Final Act. 15 (citing Ménélas ¶ 30) (“electronic board advises user of the risk of falling based Appeal 2020-001857 Application 15/268,228 10 on the determined properties of the ground”); 2. “determining a risk score for a portion of the environment in which the physical attributes are located based upon properties of the environment.” Id. (citing Ménélas ¶ 30) (“user is advised of the risk of falling”); and, 3. “determining a total risk score for the environment based upon the degree of risk associated with the at least one potential hazard and the risk score for the portion of the environment.” Id. (citing Ménélas ¶ 30) (“user is advised of the risk of falling”). Appellant contends Ménélas is limited to techniques for sensing the ground immediately under a sensor-equipped shoe. Appeal Br. 10. Thus, Appellant argues, Ménélas cannot distinguish between a risk for a portion of the environment and a total risk for the environment. Appeal Br. 10. The Examiner finds “the total risk factor has to be determined only for the portion of the environment, where the physical attributes are and potential hazards exist, i.e., the risk factor for the portion of the environment.” Ans. 34. As argued by Appellant, Ménélas determines a risk only for that portion of the ground upon which a user walks. “The solution taught herein allows to determine physical properties of the ground that a user is walking on using a signal from an accelerometer located in a foot-worn sensor.” Ménélas ¶ 4. As discussed above in connection with the indefiniteness rejection, Appellant discloses at least three different risk functions which describe areas of risk beyond merely the ground upon which a user walks. We are not persuaded the prior art teaches the claimed limitation. Appeal 2020-001857 Application 15/268,228 11 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11–20 112(b) Indefiniteness 11–20 11–14, 17, 19, 20 103(a) Ménélas 11–14, 17, 19, 20 1–7, 10, 15, 16 103(a) Ménélas, Derenne 1–7, 10, 15, 16 8 103(a) Ménélas, Derenne, Dean 8 18 103(a) Ménélas, Dean 18 9 103(a) Ménélas, Derenne, Piekniewski 9 Overall Outcome 1–20 REVERSED