Miku, Inc.

Patent Trials and Appeals Board

Jan 13, 2022

2020006258 (P.T.A.B. Jan. 13, 2022)

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. 16/239,501 01/03/2019 Eric Gregory White Miku-2 5809 32132 7590 01/13/2022 LAMORTE & ASSOCIATES P.C. P.O. BOX 434 YARDLEY, PA 19067 EXAMINER GLOVER, CHRISTOPHER KINGSBURY ART UNIT PAPER NUMBER 2485 NOTIFICATION DATE DELIVERY MODE 01/13/2022 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): mail@uspatlaw.com malamorte@verizon.net uspatlaw1@verizon.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIC GREGORY WHITE, DAVID ROBERT ABRAMS, and FEDERICO GUERRERO-REYES Appeal 2020-006258 Application 16/239,501 Technology Center 2400 Before JASON V. MORGAN, MINN CHUNG, and AMBER L. HAGY, Administrative Patent Judges. CHUNG, 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 1-20. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.2 We reverse and enter a new ground of rejection for claims 1-10. 1 “Appellant” herein refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Miku, Inc. Appeal Br. 2. 2 In this Decision, we refer to Appellant’s Appeal Brief filed May 27, 2020 (“Appeal Br.”) and Reply Brief filed September 3, 2020 (“Reply Br.”); the Examiner’s Final Office Action mailed March 31, 2020 (“Final Act.”) Appeal 2020-006258 Application 16/239,501 2 CLAIMED SUBJECT MATTER The subject matter of the present application pertains to “monitoring equipment that can monitor the life signs of a person as that person sleeps.” Spec. 1:18-20. Claims 1, 11, and 19 are independent. Claim 1, reproduced below is illustrative of the claimed subject matter: 1. A method of monitoring a person within a defined area, said method comprising the steps of: directing radar signals toward said defined area, wherein said radar signals reflect from said person within said defined area and create reflected radar signals, wherein said reflected radar signals indicate either movement or no movement of said person in said defined area; directing a camera toward said defined area, wherein said camera produces camera signals, wherein said camera signals indicate either movement or no movement of said person in said defined area; monitoring said defined area with at least one microphone, wherein sounds made by said person in said defined area are detected by said at least one microphone and said at least one microphone produces audio signals, wherein said audio signals indicate either movement or no movement of said person in said defined area; analyzing said reflected radar signals, said camera signals and said audio signals to determine if any of said reflected radar signals, said camera signals and said audio signals indicate movement of said person within said defined area; generating an alarm should said reflected radar signals, said camera signals and said audio signals all simultaneously and Answer mailed August 6, 2020 (“Ans.”); and the Specification filed January 3, 2019 (“Spec.”). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. Appeal 2020-006258 Application 16/239,501 3 indicate no movement of said person in said defined area for a selected period of time. Appeal Br. 20-21 (Claims App.). REJECTIONS The Examiner relies on the following references: Designation3 Reference Date Barsky WO 02/062282 Al Aug. 15, 2002 Tran US 2008/0294019 Al Nov. 27, 2008 Ho US 2016/0313442 Al Oct. 27, 2016 Claims 1-10 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Ho and Tran. Final Act. 5. Claims 11-20 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Ho and Barsky. Final Act. 9. OPINION Rejection of Claims 1-10 over Ho and Tran In support of the obviousness rejection of claims 1-10, the Examiner finds that the combination of Ho and Tran teaches all limitations of claims 1-10. Final Act. 5-9; Ans. 14-15. In particular, regarding the limitation “wherein said camera signals indicate either movement or no movement of said person in said defined area” recited in claim 1, the Examiner finds that “Ho . . . fails to disclose using the imager to detect movement itself” but finds that “Tran teaches to use the camera to detect movement, thereby teaching wherein said camera signals indicate either movement or no 3 All citations herein to the prior art are by reference to the first named inventor only. Appeal 2020-006258 Application 16/239,501 4 movement of said person in said defined area.” Final Act. 6-7 (emphasis omitted) (citing Tran ¶¶ 48, 55). Appellant argues that the cited paragraphs of Tran do not teach or suggest this limitation. Appeal Br. 10-11. We agree with Appellant. Paragraph 48 of Tran cited by the Examiner states: A plurality of monitoring cameras 10 may be placed in various predetermined positions in a home of a patient 30. The cameras 10 can be wired or wireless. For example, the cameras can communicate over infrared links or over radio links conforming to the 802X (e.g. 802.llA, 802.llB, 802.11G, 802.15) standard or the Bluetooth standard to a base station/server 20 may communicate over various communication links, such as a direct connection, such a serial connection, USB connection, Firewire connection or may be optically based, such as infrared or wireless based, for example, home RF, IEEE standard 802. 11a/b, Bluetooth or the like. In one embodiment, appliance 8 monitors the patient and activates the camera 10 to capture and transmit video to an authorized third party for providing assistance should the appliance 8 detects that the user needs assistance or that an emergency had occurred. Tran ¶ 48 (emphasis added). Most of the paragraph reproduced above describes the general operational or communications functions of the monitoring cameras. The last sentence of the paragraph describes activating a camera when an appliance detects that an emergency has occurred. The Examiner does not explain adequately how these disclosures of Tran teach or suggest camera signals indicating either movement or no movement of a person. Paragraph 55 of Tran cited by the Examiner describes: In another embodiment, instead of being mounted on the patient, the sensors can be mounted on fixed surfaces such as walls or tables, for example. One such sensor is a motion detector. Another sensor is a proximity sensor. The fixed sensors can Appeal 2020-006258 Application 16/239,501 5 operate alone or in conjunction with the cameras 10. In one embodiment where the motion detector operates with the cameras 10, the motion detector can be used to trigger camera recording. Thus, as long as motion is sensed, images from the cameras 10 are not saved. However, when motion is not detected, the images are stored and an alarm may be generated. In another embodiment where the motion detector operates stand alone, when no motion is sensed, the system generates an alarm. Tran ¶ 55 (emphases added). This paragraph describes a motion detector detecting a motion and, if no motion is detected, activating or triggering camera recording. We do not discern anything in this paragraph that teaches or suggests camera signals indicating either movement or no movement of a person. In the Answer, the Examiner elaborates by finding that “a motion detector is a form of camera.” Ans. 14. Thus, the Examiner’s position is that Tran’s “motion detector” teaches “camera” signals indicating either movement or no movement of a person because “a motion detector is a form of camera.” We are not persuaded by the Examiner’s explanation. The Examiner does not provide any evidence in support of his finding that “a motion detector is a form of camera.” Further, the Examiner’s position seems to be based on an implied interpretation of the recited term “camera” to include “a motion detector” or any “motion detector.” We disagree with this apparent claim interpretation by the Examiner as being unreasonably broad. Considering claim language, if a “motion detector” is a camera, then a “radar” and a “microphone” recited in claim 1 would also be the claimed “camera” because claim 1 recites that a radar and a microphone each detect movement-i.e., radars and microphones are motion detectors. See Appeal Br. 20. Thus, the Examiner’s approach would blur the distinction between Appeal 2020-006258 Application 16/239,501 6 the terms “radar,” “microphone,” and “camera” recited in claim 1. Such an approach is disfavored. See Dell Inc. v. Acceleron, LLC, 818 F.3d 1293, 1300 (Fed. Cir. 2016) (“meaning should be given to all of a claim’s terms”); Becton, Dickinson & Co. v. Tyco Healthcare Group, LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010) (“Where a claim lists elements separately, ‘the clear implication of the claim language’ is that those elements are ‘distinct component[s]’ of the patented invention.”) (citation omitted). The Specification also describes using radars and microphones to detect motion. See, e.g., Spec. 7:7-15 (using radar signals to detect movements of breathing and/or the beating heart), 17:6-19:2 (processing sound signals from a microphone to detect breathing based on breathing frequency waveforms). We do not, however, discern anything in the Specification that suggests radars and microphones are deemed cameras in the context of the instant Application. Indeed, the Examiner does not present any evidence that the Specification contemplates including any “motion detector,” such as a “radar” or a “microphone,” within the meaning of the recited term “camera.” Thus, we determine the Examiner’s implied claim construction underlying the Examiner’s position that “a motion detector is a form of camera” to be divorced from the Specification and unreasonably broad in the context of this Application. See In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir. 2011) (“While the Board must give the terms their broadest reasonable construction, the construction cannot be divorced from the specification and the record evidence.”); In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010) (“[C]laims should always be read in light of the specification and teachings in the underlying patent.”). Appeal 2020-006258 Application 16/239,501 7 Accordingly, we determine the Examiner’s position-i.e., Tran’s disclosure of a “motion detector” teaches camera signals indicating either movement or no movement of a person because “a motion detector is a form of camera”-to be unreasonable and unsupported by evidence of record. The Examiner also states that Ho’s disclosure of “processing the camera signals to obtain position of the person in the context of monitoring” teaches camera signals indicating movement because “monitoring position over time . . . can be considered movement.” Ans. 14 (bold emphasis added) (citing Ho ¶ 29). Although it is not clear what the Examiner means, this position seems inconsistent with the Examiner’s finding in rejecting the claim that “Ho discloses to image to detect posture, and in conjunction with radar to determine movement, but fails to disclose using the imager to detect movement itself.” Final Act. 6-7 (emphases added). The cited paragraph of Ho describes that The image capture unit 122 can capture image of an object to obtain the body posture of the object (such as sleeping face-down or face-up), and transmit the image to the processing unit 123. Accordingly, the processing unit 123 can determine whether the posture of the object is poor according to the respiratory rate or the heart rate of the object and the current image of the object . . . . Ho ¶ 29 (emphases added). In other words, Ho discloses using a camera to “obtain the body posture of the object (such as sleeping face-down or face- up),” not body movement, and analyzing the camera signal to determine “whether the posture of the object is poor,” not whether the posture is changing. Thus, we disagree with the Examiner’s position stated in the Answer. Appeal 2020-006258 Application 16/239,501 8 In sum, we are persuaded the Examiner erred in finding that Ho or Tran, alone or in combination, teaches or suggests “camera signals indicate either movement or no movement of said person in said defined area,” as recited in claim 1. As the Examiner does not rely on the other cited reference for this limitation, we are persuaded that the Examiner’s rejection of claim 1 is in error. Accordingly, we agree the Examiner erred, and, therefore, do not sustain the Examiner’s rejection of claim 1 or the rejection of dependent claims 2-10. New Ground Rejection of Claim 1 over Ho and Barsky Pursuant to our authority under 37 C.F.R. § 41.50(b), we newly reject claim 1 over the combination of Ho and Barsky. In doing so, we rely on Barsky as teaching the limitations “camera signals indicate either movement or no movement of said person” and “audio signals indicate either movement or no movement of said person,” as recited in claim 1. Barsky describes “incubators having non-contact sensing of physiological parameters and monitoring of an infant contained therein.” Barsky 1:4-6. In particular, Barsky discloses using a video camera (mounted on the canopy of the incubator) to generate video signals of the infant. Id. at 6:10-14. Barsky further discloses video signal processing software to analyze “the video signal by capturing and comparing frames to determine the number of rises and falls of the infant’s chest to determine respiration rate.” Id. at 6:14-18 (emphases added). For the reasons explained below, we determine that Barsky’s disclosure of using video camera signals to detect the rises and falls of the Appeal 2020-006258 Application 16/239,501 9 infant’s chest, i.e., the infant’s breathing, teaches camera signals indicating “movement” recited in claim 1. First, claim 2, which depends from claim 1, recites “[t]he method according to Claim 1, wherein said movement is body movement selected from a group consisting of breathing and heartbeats.” Appeal Br. 21 (emphases added). Because dependent claim 2 recites that the “movement” recited in claim 1 is “breathing” or “heartbeats,” we interpret the necessarily broader independent claim 1 as also covering “breathing.” See Trustees of Columbia Univ. in City of New York v. Symantec Corp., 811 F.3d 1359, 1370 (Fed. Cir. 2016) (“[I]n a situation where dependent claims have no meaningful difference other than an added limitation, the independent claim is not restricted by the added limitation in the dependent claim. In such situations, construing the independent claim to exclude material covered by the dependent claim would be inconsistent.”) (emphases added) (citations omitted). Second, the Specification describes that “[t]he camera detects movements of the subject person. Contained within the detected movements are movements caused by rhythmic breathing and/or the beating heart.” Spec. 7:16-20 (emphases added). In view of the claim language and the disclosures in the Specification, we interpret the claim term “movement” recited in claim 1 to include “breathing.” See In re Smith Int’l, Inc., 871 F.3d 1375, 1382-83 (Fed. Cir. 2017) (internal citations omitted) (“The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is . . . an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is ‘consistent with Appeal 2020-006258 Application 16/239,501 10 the specification.’”). Under this interpretation, we determine Barsky’s video camera signals indicating the rises and falls of the infant’s chest, i.e., the infant’s breathing, teaches “camera signals indicat[ing] either movement or no movement of said person” recited in claim 1. Barsky further describes a microphone that provides an audio feed from the interior of the incubator. Barsky 7:8-9. Additionally, Barsky discloses audio signal processing software that “analyzes the audio feed to determine the number of times infant 14 inhales and exhales to determine respiration rate.” Id. at 7:13-17 (emphases added). For the reasons similar to those discussed above with respect to the “camera signals” limitation, we determine that Barsky teaches “audio signals” that “indicate either movement or no movement of said person,” as recited in claim 1. Regarding the rest of the limitations of claim 1, we adopt as our own the findings of the Examiner regarding the teachings of Ho set forth by the Examiner in the action from which this appeal is taken. Final Act. 5-7. Accordingly, we determine that the combination of Ho and Barsky, as described above, teaches or suggests all limitations of claim 1. The motivation to combine Ho and Barsky in the manner described comes from the references themselves. In particular, Barsky describes using other non-contact sensors, such as an ultrasonic ranging system utilizing the Doppler effect of reflected ultrasonic sound waves to detect the respiration rate of an infant. Barsky 8:26-9:4. Barsky further states that “[i]t is within the teaching of the invention to use other wave generating and detecting apparatus in a similar manner as that disclosed for the ultrasonic ranging system to measure physiological parameters of an infant using non-contact sensors 28.” Id. at 9:4-7 (emphases added). Ho similarly describes using Appeal 2020-006258 Application 16/239,501 11 radar waves reflected from a person to detect “rising and falling movements of the object from breathing” (Ho ¶ 25) and to determine “the respiratory rate of a detected infant” (id. ¶ 30). Thus, a person of ordinary skill in the art would have recognized Ho’s reflected radar wave technique is exactly the “other wave” technique that operates “in a similar manner” as Barsky’s “ultrasonic ranging system to measure physiological parameters of an infant using non-contact sensors,” which Barsky expressly states is “within the teaching of [Barsky’s] invention.” Accordingly, a person of ordinary skill in the art would have been motivated to combine the teachings of Barsky regarding the use of a video camera and a microphone to detect an infant’s breathing with the teachings of Ho regarding using reflected radar waves to detect an infant’s breathing to obtain the subject matter recited in claim 1. In sum, we conclude that the subject matter of claim 1 would have been obvious over the combination of Ho and Barsky. We are primarily a body of review. Therefore, we leave it to the Examiner to ascertain whether the claims that depend from independent claim 1 should also be newly rejected in light of the teachings of Ho and Barsky. Rejection of Claims 11-20 over Ho and Barsky Turning next to claims 11-20, we have considered Appellant’s arguments (Appeal Br. 13-18; Reply Br. 4-5) in light of the Examiner’s findings and explanations (Final Act. 9-13; Ans. 15-17). For the reasons set forth below, we are not persuaded of Examiner error in the rejection of claims 11-20, and we, therefore, sustain the Examiner’s rejection. Appellant presents essentially the same arguments disputing the rejection of independent claims 11 and 19 under 35 U.S.C. § 103. Appeal Appeal 2020-006258 Application 16/239,501 12 Br. 13-18. Appellant does not separately argue patentability for the dependent claims.4 Id. Therefore, based on Appellant’s arguments, we decide the appeal of claims 11-20 based only on independent claims 11 and 19. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). We adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 9-13) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 15-17). We concur with the conclusions reached by the Examiner, and we highlight the following for emphasis. Appellant argues that the cited references do not teach or suggest “generating an alarm should said movements indicative of breathing not be found simultaneously in both said radar signals and said images for a selected period of time,” as recited in claim 11 because neither Ho nor Barsky teaches “simultaneous activation [based on radar signals and camera signals] in order to activate an alarm.” Appeal Br. 14. Similarly, regarding claim 19, Appellant argues that there is no teaching or suggestion in Ho or Barsky of “simultaneous activation [based on radar signals and sound signals] in order to activate an alarm.” Id. at 17. We are not persuaded by Appellant’s arguments because the Examiner relies on the combination of Ho and Barsky as teaching or suggesting these limitations. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)) (“Non-obviousness cannot be established by attacking 4 Only those arguments made by Appellant have been considered in this decision. Arguments Appellant did not make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-006258 Application 16/239,501 13 references individually where the rejection is based upon the teachings of a combination of references.”). Appellant further argues that there is no motivation to combine Ho and Barsky, as described by the Examiner, because the combination would have rendered “the cited art unfit for its intended use.” Appeal Br. 14 (Claim 11), 17 (Claim 19). In addition, Appellant argues that the Examiner’s combination would have changed the principle of operation of the cited references because the combination would have “require[d] a substantial reconstruction and redesign of the alarm parameters and operational methodology as well as a change in the basic principle under which the cited prior art was designed to operate.” Id. at 15, 17. In response, the Examiner explains Ho can readily be modified by Barky because Ho teaches all the physical elements (radar/camera/signal processing apparatus) in a monitoring device, and all that is further required is the very modestly additional camera signal processing taught by Barsky, which would be easily implemented in the processing system of Ho. Ans. 16. The Examiner concludes “[i]t would have been obvious to one of ordinary skill in the art before the effective filing date of the instant application to apply the teaching of Barsky to Ho because Barsky teaches its techniques are to be used to improve a (monitoring) environment with a camera.” Final Act. 10-11 (citing Barsky 3:1-10). We agree with the Examiner. The cited portion of Barsky discloses: The incubator 10 disclosed herein, improves the environment within the enclosure 18 of the incubator 10 by . . . eliminating several sensors and associated lead wires within the enclosure 18 which may be inhibitive to infant 14 movement or may be dislodged by such movement. The disclosed incubator 10 Appeal 2020-006258 Application 16/239,501 14 replaces several contact transducers for measuring physiological functions of an infant 14 within the enclosure 18 with non-contact sensors 28 for measuring the same physiological functions of the infant 14. The word “sensor” when used herein in the phrase “non-contact sensor” is intended to have the broadest possible definition. Barsky 3:1-11 (emphases added). The cited teachings of Barsky regarding improving the incubator by replacing conventional sensors with “non-contact sensors,” which is “intended to have the broadest possible definition,” are consistent with the discussion above regarding Barsky’s teaching that “[i]t is within the teaching of the invention to use other wave generating and detecting apparatus in a similar manner as that disclosed for the ultrasonic ranging system to measure physiological parameters of an infant using non-contact sensors 28.” Id. at 9:4-7 (emphases added). Thus, we agree with the Examiner that “[c]ombining the sensors data processing of Ho and Barsky is in accordance with the same intended purpose of both references and do not change the principle of operation, which is processing senor signals from sensors to monitor a person.” Ans. 16. For the foregoing reasons, we are not persuaded of Examiner error in the rejection of claims 11-20. We, therefore, sustain the Examiner’s rejection on this record. CONCLUSION The decision of the Examiner to reject claims 11-20 under 35 U.S.C. § 103 is affirmed. As for claims 1-10, we conclude Appellant has demonstrated the Examiner erred in rejecting claims 1-10 as obvious over the combined teachings of Ho and Tran. The decision of the Examiner to reject claims 1- Appeal 2020-006258 Application 16/239,501 15 10 is reversed. However, pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new ground of rejection for claim 1 under 35 U.S.C. § 103 as obvious over the combined teachings of Ho and Barsky. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1-10 103 Ho, Tran 1-10 11-20 103 Ho, Barsky 11-20 1 103 Ho, Barsky 1 Overall Outcome 11-20 1-10 1 Rule 37 C.F.R. § 41.50(b) states that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Further, § 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: (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. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. Appeal 2020-006258 Application 16/239,501 16 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)(iv). AFFIRMED-IN-PART 37 C.F.R. § 41.50(b)