Michelle Fisher

Patent Trials and Appeals BoardNov 19, 2020

2020001667 (P.T.A.B. Nov. 19, 2020)

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. 14/078,440 11/12/2013 Michelle T Fisher BLZMP008 2133 12120 7590 11/19/2020 Michelle Fisher 2930 Domingo Ave Suite 123 Berkeley, CA 94705 EXAMINER BARR, MARY EVANGELINE ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 11/19/2020 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): mfisher@blazemobile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHELLE T. FISHER ____________ Appeal 2020-001667 Application 14/078,440 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, CYNTHIA L. MURPHY, and KENNETH G. SCHOPFER, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-6, 8-15, and 18-42. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Michelle Fisher (Appeal Br. 1). Appeal 2020-001667 Application 14/078,440 2 CLAIMED SUBJECT MATTER The Appellants’ claimed invention relates to data communications and wireless devices (Spec., para. 3). Claim 1, reproduced below the bracketed numbering added, is representative of the subject matter on appeal. 1. A method for transmitting a medical digital artifact from a mobile device, the method comprising: [1] executing a first secure element application on a processor of a first secure element coupled to a medical device externally coupled to a body in response to a Near Field Communication (NFC) inductive signal by a second secure element coupled to the mobile device, wherein the first secure element is connected to the medical device via a universal port, the first secure element application configured to use a near field communication protocol; [2] wirelessly transmitting the medical digital artifact from first secure element coupled to the medical device using the first secure element application, through a first communication channel configured to use the NFC protocol to the second secure element coupled to the mobile device [3] and further wherein the mobile device wirelessly transmits the medical digital artifact using a non- browser based application to a server for processing through a second communication channel, wherein the second communication channel is different than the first communication channel, wherein the non- browser based application is a mobile operating system platform non- browser based mobile application with a graphical user interface that is preinstalled or downloaded and installed on a mobile device, wherein the graphical user interface includes a graphical icon; [4] receiving response data at the non-browser based application running on the mobile device from the sever through the second communication channel for display within the nonbrowser based mobile application running on the mobile device, [5] wherein the mobile device comprises a mobile device transceiver, a mobile device display, and a mobile device memory for storing the non- browser based mobile application. Appeal 2020-001667 Application 14/078,440 3 THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Name Reference Date Wesby US 2005/0222933 A1 Oct. 6, 2005 Rosenfeld US 2006/0025657 A1 Feb. 2, 2006 Wen US 2006/0056655 A1 Mar. 16, 2006 Baker US 2007/0135866 A1 June 14, 2007 Caldwell US 2008/0004009 A1 Jan. 3, 2008 Lyshkow US 2009/0164253 A1 June 25, 2009 Cronrath WO2006/108858 A1 Oct. 19, 2006 The following rejections are before us for review: 1. Claims 1–5, 8–15, 18–27, 29, 33, 35, 37, and 40–42 are rejected under 35 U.S.C. § 103 as being unpatentable over Cronrath, Baker, and Lyshkow. 2. Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over Cronrath, Baker, Lyshkow, and Wesby. 3. Claims 28, 30, 34, and 36 are rejected under 35 U.S.C. § 103 as being unpatentable over Cronrath, Baker, Lyshkow, and Rosenfeld. 4. Claims 31 and 37 are rejected under 35 U.S.C. § 103 as being unpatentable over Cronrath, Baker, Lyshkow, and Caldwell. 5. Claims 32 and 38 are rejected under 35 U.S.C. § 103 as being unpatentable over Cronrath, Baker, Lyshkow, and Wen. Appeal 2020-001667 Application 14/078,440 4 FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 ANALYSIS The Appellant in the Appeal Brief at pages 12–19 has argued that the cited prior art fails to disclose claim limitation [1] which requires: [1] executing a first secure element application on a processor of a first secure element coupled to a medical device externally coupled to a body in response to a Near Field Communication (NFC) inductive signal by a second secure element coupled to the mobile device, wherein the first secure element is connected to the medical device via a universal port, the first secure element application configured to use a near field communication protocol. (Claim 1, emphasis added). Similar arguments are presented in the Reply Brief at pages 7–10. The Examiner in the Answer has determined that the cited claim limitation is disclosed by Baker at paras. 28, 29, 38, and Cronrath at page 4, lines 27–32, page 5, line 34–page 6, lines 5–13, page 7, lines 8–25, and page 13 lines 10–30 (Ans. 6, 7). We agree with the Appellant. Here, the above cited claim limitation requires “a first secure element application on a processor of a first secure element coupled to a medical device” as well as a “second secure element coupled to the mobile device, wherein the first secure element is connected 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2020-001667 Application 14/078,440 5 to the medical device via a universal port.” The above citations to Baker and Cronrath fail to disclose the claimed “secure element application” on a processor of a “first secure element”. For instance, Baker at paras. 28, 29, and 38 does disclose the use of a medical device wireless adapter (MWDA), but there is no specific disclosure that this element is “secure” as claimed. Cronrath at the above cited portions does, for example, disclose “data transfer” between the mobile communications device and the portable medical device at page 5, lines 34–36, but there is no specific disclosure that these connections are “secure” as claimed. Also, the above citations fail to disclose a “first secure element application on a processor of a first secure element” that is separate and distinct from the “medical device”. The Examiner in the Answer at page 6 has cited to the Specification at paragraph 26 stating that the “secure element” is a “smart card” and determined that the PCMCIA card of Baker at paragraph 38 thus meets the claimed limitations for the “secure element”. We disagree with this contention by the Examiner. Although the Specification at paragraph 26 does describe the secure element 130 as a smart card it also discloses it as having a “secure processor” and “secure memory,” one of ordinary skill in the art would have interpreted the term “secure” to require a secure connection. Here, the rejection of record fails to show the argued claim limitation and the rejection of independent claim 1 is not sustained. Independent claim 11 contains similar limitations and the rejection of these claims is not sustained for the same reasons given above. The rejection of the dependent claims fails to cure the deficiencies in the base independent claims and the rejection of these claims is not sustained as well. Appeal 2020-001667 Application 14/078,440 6 CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting the claims as listed in the Rejections section above. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 8–15, 18–27, 29, 33, 35, 37, 40–42 103 Cronrath, Baker, Lyshkow 1–5, 8–15, 18–27, 29, 33, 35, 37, 40–42 6 103 Cronrath, Baker, Lyshkow, Wesby 6 28, 30, 34, 36 103 Cronrath, Baker, Lyshkow, Rosenfeld 28, 30, 34, 36 31, 37 103 Cronrath, Baker, Lyshkow, Caldwell 31, 37 32, 38 103 Cronrath, Baker, Lyshkow, Wen 32, 38 Overall Outcome 1–6, 8–15, 18–42 REVERSED