Safer Care LLC

Patent Trials and Appeals Board

Jun 25, 2020

2020000199 (P.T.A.B. Jun. 25, 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.
14/681,301 04/08/2015 Elliott Bennett-Guerrero BEN-103A 2194
74712 7590 06/25/2020
Muir Patent Law, PLLC
P.O. Box 1213
9913 Georgetown Pike, Suite 200
Great Falls, VA 22066
EXAMINER
ARCHER, MARIE
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
eofficeaction@appcoll.com
pto@muirpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ELLIOTT BENNETT-GUERRERO1
____________

Appeal 2020-000199
Application 14/681,301
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, ULRIKE W. JENKS, and
JOHN G. NEW, Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON APPEAL

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 Safer Care LLC.
App. Br. 4.
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SUMMARY
Appellant files this appeal pursuant to 35 U.S.C. § 134(a) from the
Examiner’s Final rejection of claims 1, 3–7, 10–15, 17–36, and 38–41.
Specifically, claims 1, 3, 4, 11–15, 20–24, 27–32, and 39 stand rejected as
unpatentable under 35 U.S.C. § 103(a) for being obvious over the
combination of Sun, et al. (US 2012/0172681 A1, July 5, 2012) (“Sun”) and
Del Mar (US 6,605,046 B1, August 12, 2003) (“Del Mar”).
Claim 5 stands rejected as unpatentable under 35 U.S.C. § 103(a) for
being obvious over the combination of Sun, Del Mar, and Ridenour (US
6,113,539, September 5, 2000) (“Ridenour”).
Claims 6 and 7 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) for being obvious over the combination of Sun, Del Mar, and
Huang (US 2009/0186264 A1, July 23, 2009) (“Huang”)
Claims 10 and 17–19 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) for being obvious over the combination of Sun, Del Mar, and
Spolin et al. (US 2015/0133747 A1, May 14, 2015) (“Spolin”).
Claims 25 and 26 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) for being obvious over the combination of Sun, Del Mar, and
Zaleski (US 2004/0158132 A1, August 12, 2004) (“Zaleski”).
Claims 33–36 and 38 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) for being obvious over the combination of Sun, Del Mar, Ridenour,
and Huang.
Claims 40 and 41 stand rejected as unpatentable under 35 U.S.C. §
103(a) for being obvious over the combination of Sun, Del Mar, and Van
Dongen (US 2005/0237209 A1, October 27, 2005) (“Van Dongen”).

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We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

NATURE OF THE CLAIMED INVENTION
Appellant’s claimed invention is directed to an apparatus for
monitoring patient orientation, including a sensor attachment portion
configured for removable attachment to the sensor such that the sensor is
prevented from direct contact with the patient. Abstr.

REPRESENTATIVE CLAIMS
Claim 1 is representative of the claimed subject matter, and recites:
1. An apparatus for monitoring conditions of a patient,
comprising:

a reusable sensor configured to provide measurements
associated with plural conditions of the patient including at least
two of heart rate, respiratory rate, respiratory depth, GI motility,
sleep, and seizure; and

a disposable attachment device configured for removable
attachment to both the reusable sensor and the patient’s anterior
region, the attachment device including:

a pouch configured for removable attachment to the
reusable sensor, the pouch being configured to dispose the
reusable sensor therein to fully encapsulate the reusable sensor
to prevent direct contact of the reusable sensor with the patient,
the pouch comprising a sealable opening to facilitate insertion of
the reusable sensor into the pouch,

a patient attachment portion configured for removable
attachment to the patient’s anterior region, and
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a first connector portion attached to the pouch and a
second connector portion attached to the patient attachment
portion, the first connector portion and the second connector
portion being configured to detachably mate to each other; and

a wireless transmitter configured to be in communication
with the reusable sensor to receive measurements from the
reusable sensor and to transmit the measurements wirelessly to a
controller,

wherein the controller is spaced apart from and physically
unconnected with the reusable sensor, the controller being
configured to receive the measurements wirelessly transmitted
by the wireless transmitter and to monitor one or more conditions
of the plural conditions of the patient, including at least two of
heart rate, respiratory rate, respiratory depth, GI motility, sleep,
and seizure.

App. Br. 36.

Claims 31 and 32 are argued separately. Claim 31 is representative
and recites:
31. The apparatus for monitoring conditions of a patient
according to claim 1, further comprising:

a third connector portion attached to the pouch and a
fourth connector portion attached to an additional patient
attachment portion, the third connector portion and the fourth
connector portion being configured to detachably mate to each
other,

wherein the pouch has an elongated shape extending along
a first axis from a first end of the pouch to a second end of the
pouch,

wherein the first connector portion is configured to attach
to the second connector portion at a first location and wherein
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the third connector portion is configured to attach to the fourth
connector portion at a second location, and

wherein a line extending from the first location to the
second location is aligned with the first axis.

App. Br. 41.

ISSUES AND ANALYSES
We adopt the Examiner’s findings, reasoning, and conclusion that the
claims on appeal are prima facie obvious over the cited prior art. We
address the arguments raised by Appellant below.

A. Independent claims 1 and 22
Issue 1
Appellant argues that the Examiner erred because none of the
references relied upon by the Examiner teach or suggest a sensor device
which is “fully encapsulate[d]” as required by independent claims 1 and 22.
App. Br. 13 (emphasis omitted).

Analysis
The Examiner finds that Sun teaches a sensor that is capable of
measuring a number of distinct vital signs, contained within a pouch
designed to be attached to the anterior portion of a subject via a number of
adhesive pads. Final Act. 10 (citing Sun ¶¶ 2–3, 20–21, 25). The Examiner
finds that Sun teaches a wireless connection between the sensor/pouch
assembly and a remotely located receiver. Id. (citing Sun ¶¶ 31–35, Fig. 2).
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The Examiner acknowledges that Sun does not teach that the pouch is
configured to fully encapsulate the sensor. Final Act. 11. However, the
Examiner finds that Del Mar teaches a water-repelling envelope or inverted
pouch for containing patient monitors configured for adherence to a patient’s
chest. Id. (citing Del Mar cols. 3–4, ll. 58–4; col. 6, ll. 35–51; col. 7, ll. 3–
6). The Examiner finds Del Mar describes the envelope/pouch as a “sealing
envelope” which “substantially close[s] off the opening … to safely confine
the recorder housing … therein,” and is thus designed to completely enclose
the recorder, protecting it from water and environmental contaminants. Ans.
21 (emphasis omitted); see also Final Act. 11 (citing Del Mar cols. 3–4, ll.
58–4; col.7, ll. 3–6).
The Examiner notes that claim 1 requires the pouch be “configured to
dispose the reusable sensor therein to fully encapsulate the reusable sensor to
prevent direct contact of the [reusable] sensor with the patient.” Ans. 19
(emphasis omitted). The Examiner reasons that because the claim requires
preventing direct contact of the sensor portion with the patient, the “sealing
pouch” of Del Mar teaches the “sealable” and “fully encapsulated”
limitations of the claims by serving to confine, enclose, and protect the
sensor contained therein. Ans. 19–20.
The Examiner concludes it would have been prima facie obvious to
combine the teachings of the references so as to enclose the monitor of Sun
within the sealing pouch of Del Mar. Final Act. 12. The Examiner reasons
that the combination would have been obvious because a skilled artisan
would have recognized that the sealing envelope of Del Mar would more
fully protect the sensor taught by Sun from water, perspiration, and
environmental contaminants in a sealing envelope. Final Act. 12–13.
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Appellant argues that Del Mar neither teaches nor suggests that the
envelope/inverted pouch 19 of Del Mar “fully encapsulate[s]” monitor 22.
App. Br. 21. According to Appellant, this function is provided by the
housing within which the sensor apparatus is to be contained rather than the
envelope. Id. at 25 (citing Del Mar col. 6, ll. 7–9, 37–41; col. 7, ll. 45–48;
col. 3, ll. 59–61). In contrast, argues Appellant, when describing
envelope/inverted pouch 19, Del Mar uses other language recognizing only
partial protection afforded by envelope/inverted pouch 19. Id. (citing Del
Mar col. 1, ll. 37–39; col. 4, ll. 39–36; col. 6, ll. 58–61; col. 12, ll. 12–14,
claim 2). Therefore, argues Appellant, Del Mar’s use of “environmentally
sealed” refers to monitor housing 22, rather than to envelope/inverted pouch
19, which is referred to as being “partially sealed,” “semi-sealed,” “water
repelling,” and a “shield.” Id. at 26. Appellant maintains that all of these
uses are consistent with providing an envelope/inverted pouch 19 that does
not “fully encapsulate” monitor housing 22. Id.
Appellant argues further that Del Mar’s use of the term “enclosing”
does not require “fully encapsulate,” as recited in the claims App. Br. 27.
Appellant acknowledges that although certain types of “enclosing” might
also “fully encapsulate,” a simple reference to “enclosing” does not require
fully encapsulating. Id.
Appellant points to dictionary definitions of “enclose” as meaning “to
surround something.” App. Br. 27 (citing Enclose, Merriam-Webster’s
Learner Dictionary, available at: http://www.learnersdictionary.com/
definition/enclose (last accessed April 4, 2019); Enclose, Cambridge
Dictionary, https://dictionary.cambridge.org/us/dictionary/english/ enclosing
(accessed April 4, 2019)). Appellant argues that these definitions of
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“enclose,” as in “[h]igh walls enclose the courtyard” is not necessarily the
equivalent of “encapsulating.” Id. at 28 (quoting Enclose, Merriam-
Webster’s Learner Dictionary, available at: http://www.learnersdictionary
.com/definition/enclose (last accessed April 4, 2019)). Relatedly, Appellant
also argues that Del Mar’s teaching that its envelope/inverted pouch 19
“protects the recorder from water and environmental contaminants” is
equivalent to an umbrella which does not need to “fully encapsulate” the
sensor to perform its function. App. Br. 29 (emphasis omitted).
Finally, Appellant argues that Del Mar’s envelope/inverted pouch 19
cannot be modified to fully “encapsulate,” because doing so would prevent
the electrical leads 32, 34, 36, and 38 carrying information from the sensors
40, 42, 44, and 46, from being connected to the patient monitor 22, and
would therefore render the prior art invention unsatisfactory for its intended
purpose. App. Br. 28 (citing MPEP § 2143.01(V)).
We are not persuaded by Appellant’s arguments. Sun teaches:
[A]n apparatus with a housing wearable by a subject and a first
sensor operable to detect a position of the subject. An
embodiment of the apparatus includes a second sensor operable
to detect a body state of the subject, where the first body state
may be a vital sign such as heart rate, blood pressure, body
temperature or respiratory rate.

Sun Abstr. Sun also teaches that “[i]n a related embodiment, the adhesive
pad 120 may comprise a pocket wherein the monitor-device IC 115 may be
held, such that one may dispose of or recycle the pad 120 and reuse the IC
115 with a new pad 120. Id. at ¶ 25.
Del Mar expressly teaches:
[T]he invention disclosed herein consists of a miniature, solid
state recorder for ambulatory monitoring of body signals,
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electrocardiographic data in particular, and related body motions
over extended periods of time in general mobile activities…
sealed against moisture and other contaminants by an
encapsulating envelope or inverted pouch, mounted under
clothing, and supported by conventional skin mounted electrode
adhesive pads attaching the recorder or the encapsulating, sealing
envelope directly to the patient’s chest.

Del Mar col. 1, ll. 12–22 (emphasis added). Del Mar elaborates that: “All
the foregoing functions and elements are sealed within a compact recorder
housing disposed within an envelope or inverted pouch protecting the
recorder from water and environmental contaminants” and that “[r]ecorder
housing 22 is confined within envelope 19 by male/female snap on elements
37 and 39, respectfully, that substantially close off the opening 41 of sealing
envelope 19, to safely confine recorder housing 22 therein.” Id. at col. 3, ll.
57–61; col. 7, ll. 3–6.
Appellant’s Specification provides no express definition of the claim
term “fully encapsulate.” Absent any such express definition of the claim
terms, we apply the broadest reasonable interpretation of the claim language
consistent with the Specification. Phillips v. AWH Corp., 415 F.3d 1303,
1316 (Fed. Cir. 2005) (holding that the Board “determines the scope of
claims in patent applications not solely on the basis of the claim language,
but upon giving claims their broadest reasonable construction ‘in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”
(citation omitted)). “Encapsulate” can be defined as “to enclose in or as if in
a capsule.” See https://www.merriam-webster.com/dictionary/encapsulate
(last visited May 20, 2020), see also Ans. 20–21.
Based upon Del Mar’s teaching that, inter alia, the “encapsulating
envelope” is “sealed against moisture and other contaminants,” we agree
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with the Examiner that Del Mar teaches that the sensor is, within the
broadest reasonable definition of the claim term, “fully encapsulate[d].”
We consequently find that the combined references teach the
limitation of independent claims 1 and 22 reciting “the pouch being
configured to dispose the reusable sensor therein to fully encapsulate the
reusable sensor.”

Issue 2
Appellant argues that the Examiner erred in finding that the
limitations reciting (1) “wherein the patient attachment portion is configured
for removable attachment to skin of the patient at a sternum of the patient,”
in claim 20; (2) “wherein the first end of the pouch comprises a pivoting arm
to open the pouch to facilitate insertion of the reusable sensor into the pouch
via the sealable opening at the first end,” in claim 5; (3) “wherein the
controller is configured to generate an alert in response to the received
sensor measurements and a comparison with information obtained from a
user input,” in claim 28; and (4) “a battery receiver disposed in the pouch
and configured to house a battery to supply power to the reusable sensor,”
and “wherein the sensor strip is detachably mated with the battery receiver
to provide an electrical connection to supply power to the reusable sensor”
in claims 6–7 and 33–34, are all recitations of intended uses and are not
limiting upon the claim. App. Br. 30 (citing Final Act. 14–15).
Analysis
Appellant argues that the respective limitations at issue are not
directed to how the apparatus is intended to be employed, but instead relate
to the structure of their individual elements. App. Br. 30. According to
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Appellant, the limitations are each preceded by the claim term “configured
to,” and Appellant’s Specification supports an interpretation by which
“configured to” denotes an actual state of configuration that fundamentally
ties these recitations to the physical characteristics of the element preceding
the term “configured to.” Id. Appellant contends these limitations “reach[ ]
well beyond merely describing an intended use since the claims recite an
actual state of configuration.” Id. Appellant argues that the Examiner has
failed to properly address the structural limitations represented by these
claim phrases. Id.
The Examiner responds that, with respect to claim 20, the limitation
recites an “attachment portion” configured for removable attachment to the
skin of a patient at the sternum, and recites the intended use of the
attachment portion, i.e., attachment to skin of the patient “at the sternum.”
Ans. 24. The Examiner finds that there is no recitation in the claim of any
structural limitations that provide a specific “state of configuration” (as
asserted by the Appellant) to specifically attach to the skin at the sternum
area. Id. Nothing in the claim, the Examiner finds, precludes the attachment
portion from being removably attached to any other portion of the body
other than the sternum. Id.
The Examiner points to MPEP § 2114(II), which explains that a
“claim containing a recitation with respect to the manner in which a claimed
apparatus is intended to be employed does not differentiate the claimed
apparatus from a prior art apparatus if the prior art apparatus teaches all the
structural limitations of the claim.” (Citation and internal quotation marks
omitted) The Examiner reasons that the attachment portion is intended to be
used at a sternum area of a patient and, as such, it does not differentiate the
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claimed device from Sun’s teaching that its device can be attached to the
sternum. Id. (citing Sun Figs. 1, 6 and 7).
With respect to claim 5, the Examiner finds that the limitation reciting
“wherein the first end of the pouch comprises a pivoting arm to open the
pouch to facilitate insertion of the reusable sensor into the pouch via the
sealable opening at the first end” structurally requires only that the pivoting
arm to open the pouch. Ans. 23. The Examiner finds that whether the
pivoting arm “facilitate[s] insertion of the [reusable] sensor into the pouch”
is an intended use and is not structurally limiting upon the claim. Id.
Claim 28 recites “wherein the controller is configured to generate an
alert in response to the received sensor measurements and a comparison with
information obtained from a user input.” App. Br. 41. The Examiner finds
that there is no recitation in the claim that the apparatus and/or the controller
are “configured to” receive a user input. Ans. 24–25. The Examiner also
finds that Appellant has not pointed to any disclosures of the Specification
that provide support for any understanding by which the phrase “configured
to” denotes an actual state of configuration that ties the recitations in these
claims to the physical characteristic of the controller preceding the phrase
“configured to.” Id. at 25.
Claims 6 and 33 recite “a battery receiver disposed in the pouch and
configured to house a battery to supply power to the reusable sensor.” App.
Br. 37, 42. The Examiner finds that there is no recitation in the claims that
the battery receiver is configured to supply power, rather, the battery
receiver is configured to hold a battery. Ans. 24. The Examiner reasons that
a battery would presumably supply power; however, the Examiner finds that
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the phrase “to supply power to the reusable sensor” recites an intended use,
and is not a structural limitation upon the claim.
Claims 7 and 34 additionally recite “wherein the sensor strip is
detachably mated with the battery receiver to provide an electrical
connection to supply power to the reusable sensor.” App. Br. 37, 42. The
Examiner finds, again, that the claims do not require that the battery receiver
provide an electrical connection and/or to supply power. Ans. 24. Rather,
the Examiner finds, the claims only require structurally that the claims
require that the sensor strip be detachably mated with the battery receiver.
We are not persuaded by Appellant’s arguments. It well established
that “apparatus claims cover what a device is, not what a device does.”
Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed.
Cir. 1990) (emphasis omitted).
With respect to claim 20’s recitation that “the patient attachment
portion is configured for removable attachment to skin of the patient at a
sternum of the patient,” we agree with the Examiner that Sun teaches that
the pouch containing the monitor can be adhered to the subject’s skin via a
removable adhesive pad. See Sun ¶ 20–21; 31–35. Moreover, Figure 1 of
Sun expressly depicts the monitor attached to a subject’s chest in the vicinity
of the sternum. Id. at Fig. 1. Furthermore, Del Mar teaches that it is well
known in the art that ambulatory monitoring devices can be “sealed against
moisture and other contaminants by an encapsulating envelope or inverted
pouch, mounted under clothing, and supported by conventional skin
mounted electrode adhesive pads attaching the recorder or the encapsulating,
sealing envelope directly to the patient’s chest.” Del Mar col. 1, ll. 17–23.
We conclude that a person of ordinary skill in the art would have understood
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that attaching a monitor to a patient’s chest would obviously include
attachment to the skin at the sternum.
With respect to claim 5, we agree with the Examiner that the pivoting
arm is structurally required only to open the pouch, and that whether the
pivoting arm “facilitate[s] insertion of the sensor into the pouch via the
sealable open[ing] at the first end,” as recited by the claim, relates only to
the intended use of the pivoting arm and not to its structure. See Ans. 23.
We therefore agree with the Examiner that the claim phrase reciting “to
facilitate insertion of the sensor into the pouch via the sealable open[ing] at
the first end” is not limiting upon the claim.
Claim 28 recites “configured to generate an alert in response to the
received sensor measurements and a comparison with information obtained
from a user input.” We agree with the Examiner that, based upon the plain
language of the claim, there is no language in the claim requiring that the
controller be necessarily configured to receive a user input. See Ans. 24–25.
Claim 6 recites “a battery receiver disposed in the pouch and
configured to house a battery to supply power to the reusable sensor.” We
agree with the Examiner that the limitation requires only that the battery
receiver disposed in the pouch is structurally configured to hold a battery,
and that there is no requirement that the receiver be configured to “supply
power to the reusable sensor,” which is the intended function of the battery.
In any case, the use of either a battery, a battery receiver, or some other
enclosable power source is an obvious alternative, given the teachings of
Sun and Del Mar. See Sun ¶ 32; Del Mar 8:20–26.
Similarly, with respect to the limitation reciting “wherein the sensor
strip is detachably mated with the battery receiver to provide an electrical
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connection to supply power to the reusable sensor,” we find that this
structural limitation requires only that the sensor strip be detachably mated
with the battery receiver.
We consequently affirm the Examiner’s rejection of independent
claims 1 and 22.

B. Rejections of Dependent claims 3–7, 10–15, 17–21, 23–36, and 38–41
Appellant repeats the arguments, presented supra, with respect to the
alleged deficiencies of Sun and Del Mar, and argues that the remaining
references do not cure these alleged deficiencies. App. Br. 32.
We have explained, supra, our reasoning as to why we are not
persuaded by Appellant’s arguments that the combination of Sun and Del
Mar fails to teach or suggest the limitations of independent claims 1 and 22.
Consequently, and for the same reasons, we affirm the Examiner’s rejection
of dependent claims 3–7, 10–15, 17–21, 23–36, and 38–41.

C. Rejections of claims 31 and 32
Issue
Appellant argues that the Examiner erred in finding that Del Mar
teaches the limitation of the claims reciting “wherein a line extending from
the first location to the second location is aligned with the first axis.” App.
Br. 32–33.

Analysis
The Examiner finds that the pouch taught by Del Mar is elongate and
possess snap-on connectors on either side to attach the pouch to adhesive
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pads. Final. Act. 28 (citing Del Mar Fig. 2b). The Examiner reasons that,
on the basis of the geometry and connector configuration of Del Mar’s
apparatus, envelopes inherently possess a line extending from the first
location to the second location and a first axis extending longitudinally from
a first end of the pouch to a second end of the pouch. Id. The Examiner
reasons that the language of the claims does not require the connector
portions be “parallel” with any axis of the device or pouch, but rather that
the requirement of claims 31 and 32 that the first line and the first axis be
“aligned” is taught by the perpendicular orientation between the first axis
extending from the first to second end of the elongated pouch and the line
extending from the first to second connector portion attachment locations.
Id.
Appellant argues that the Examiner has failed to properly interpret the
scope of the language of claims 31 and 32 concerning the shape and
alignment of the pouch claimed and the placement of connector portions
placed on the pouch. App. Br. 32. Appellant argues that the claimed line
“provide[s] a structural description of the relative positioning of the second
connector portion, which is attached at a first location, and the third
connector portion, which is attached at a second location.” Id. at 33.
Appellant argues that “the plain meaning of the term ‘align’ requires that the
claimed ‘line’ be parallel with the first axis.” Id. at 34.
The Examiner points to Appellant’s argument that, within the
meaning of the claims, the claim term “align” means “to be in or come into
precise adjustment or correct relative position,” and responds that nothing in
the plain language of the claim, or in Appellant’s position concerning the
meaning of the term “align,” requires that the “aligned” position be
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“parallel” to the axis of the device. Ans. 26. The Examiner concludes that
on this basis, the attachment positions described by Sun and Del Mar address
the broadest reasonable interpretation of the “aligned” language of claims 31
and 32. Id.
As an initial matter we agree with Appellant that a perpendicular
orientation between the line between the first and second connector portion,
and a first axis extending from a first to second end of the pouch, would not
comply with the broadest reasonable definition of “align” as a person of
ordinary skill in the art would understand it. See https://dictionary.
cambridge.org/us/dictionary/english/align (accessed May 21, 2020)
(defining align as “to put two or more things into a straight line.”).
However, the claims in question recite “comprising” “a line extending
from the first location to the second location is aligned with the first axis.”
Appellant is reminded that the use of the transition “comprising” in the
language of a claim “creates a presumption ... that the claim does not
exclude additional, unrecited elements.” Crystal Semiconductor Corp. v.
TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001)
(citation omitted).
Figures 3–5 of Del Mar show perspective views of the monitor
housing 22, as originally depicted in Figures 2 and 2a, and 2b. (Del Mar
col.7, ll. 33–37). These views show connector locations defining an
alignment perpendicular to the axis (Fig. 4, snap-on connectors 24, 30)
extending along the elongate portion from the first to second end of the
pouch, and also connector portions arranged in an alignment parallel to this
axis (Fig. 4, snap-on connectors 30, 28). See Del Mar col. 8, ll. 26–41
(“Each adhesive pad 24–30 is designed with … a top side pimple 110, male
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insert, for convenient attachment to a respective dimple 112, female
receptacle, of housing 22”).
Appellant argues that the meaning of the term “align,” requires that
the “aligned” position be “parallel” to the axis of the device. See Ans. 26.
We find that Del Mar thus teaches a line from a first and second connector
portion, i.e., snap-on connectors 24–30, that is parallel to a first axis that
extends “from a first end of the pouch to a second end of the pouch,” and are
consequently “aligned,” as defined by Appellant. We consequently affirm
the Examiner’s rejection of claims 31 and 32.

CONCLUSION
The Examiners rejection of claims 1, 3–7, 10–15, 17–36, and 38–41
under 35 U.S.C. § 103 is affirmed.
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.
§ 1.136(a)(1)(iv).

DECISION SUMMARY

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 4, 11–
15, 20–24,
27–32, 39
103 Sun, Del Mar 1, 3, 4, 11–
15, 20–24,
27–32, 39

5 103 Sun, Del Mar,
Ridenour
5
6, 7 103 Sun, Del Mar,
Huang
6, 7
10, 17–19 103 Sun, Del Mar, 10, 17–19
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Spolin
25, 26 103 Sun, Del Mar,
Zaleski
25, 26
33–36, 38 103 Sun, Del Mar,
Ridenour, Huang
33–36, 38
40, 41 103 Sun Del Mar, Van
Dongen
40, 41
Overall
Outcome
1, 3–7, 10–
15, 17–36,
38–41

AFFIRMED