The Boeing Company

Patent Trials and Appeals Board

Jan 27, 2022

2020006373 (P.T.A.B. Jan. 27, 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. 15/680,519 08/18/2017 Gerald Pollard B17-0091/M17-414 1904 121171 7590 01/27/2022 McDonnell Boehnen Hulbert & Berghoff LLP/BOEING 300 South Wacker Drive, Suite 3100 Chicago, IL 60606 EXAMINER CHOI, MICHAEL W ART UNIT PAPER NUMBER 2116 NOTIFICATION DATE DELIVERY MODE 01/27/2022 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): docketing@mbhb.com patentadmin@boeing.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GERALD POLLARD and JAMES LYNN Appeal 2020-006373 Application 15/680,519 Technology Center 2100 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and ADAM J. PYONIN, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 3-12, and 14-22. Appeal Br. 4. Claims 2 and 13 are canceled. Claims App. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to the Specification, filed Aug. 18, 2017 (“Spec.”); Final Office Action, mailed Dec. 16, 2019 (“Final Act.”); Appeal Brief, filed Apr. 29, 2020 (“Appeal Br.”); Examiner’s Answer, mailed Jul. 15, 2020 (“Ans.”); and Reply Brief, filed Sep. 11, 2020 (“Reply Br.”). 2 “Appellant” refers to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as The Boeing Company. Appeal Br. 1. Appeal 2020-006373 Application 15/680,519 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for pausing operation of electrical system 116 or hydraulic system 117 of equipment 114 upon receiving from biometric interface 104 connected thereto x,y,z-axis movement data exceeding a predetermined threshold. Spec. ¶¶ 1, 24. Figure 1, reproduced below, is useful for understanding the claimed subject matter: Figure 1 depicts wearable biometric interfaces 104 including biometric accelerometer for outputting x,y,z-axis movement data to computing device Appeal 2020-006373 Application 15/680,519 3 110 to control operation of power unit 112 to pause movement of a component of equipment 114. Id. ¶¶ 24-29, and 54. Claims 1, 17, 20, and 21 are independent. Claim 1, with disputed limitations emphasized, is illustrative: 1. A method for pausing operation of one or more of electrical and hydraulic systems of an equipment, wherein a power unit is coupled to the equipment for enabling movement of one or more components of the one or more of electrical and hydraulic systems of the equipment, the method comprising: receiving, at a computing device having one or more processors, biometric data from a wearable biometric interface of a wearer, wherein the wearable biometric interface comprises an accelerometer for outputting data indicative of x,y,z-axis movement data of the wearable biometric interface; based on the biometric data being outside of a range of baseline data including the x,y,z-axis movement data of the wearable biometric interface being above a threshold, the computing device controlling operation of the power unit to pause movement of the one or more components of the one or more of electrical and hydraulic systems of the equipment; and based on the biometric data being within the range of baseline data, including the x,y,z-axis movement data of the wearable biometric interface being below the threshold, the computing device controlling operation of the power unit to enable movement of the one or more components of the one or more of electrical and hydraulic systems of the equipment. Appeal Br. 17 (emphasis added). Appeal 2020-006373 Application 15/680,519 4 III. REFERENCES The Examiner relies upon the following references as evidence.3 Name Reference Date Onu US 2008/0255713 A1 Oct. 16, 2008 McBain US 2012/0130563 A1 May 24, 2012 Rickards US 2014/0169609 A1 Jun. 19, 2014 Hong US 2014/0275852 A1 Sept. 18, 2014 Kaplan US 2016/0071393 A1 Mar. 10, 2016 Siddiqui US 2017/0120929 A1 May 4, 2017 IV. REJECTIONS The Examiner rejects the claims on appeal as follows: Claims 1, 3-6, 8-12, 14-18, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Siddiqui and Kaplan. Final Act. 9-40.4 Claim 7 stands rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Siddiqui, Kaplan, and Hong. Final Act. 40-42. Claim 19 stands rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Siddiqui, Kaplan, McBain, and Onu. Final Act. 42-44. Claim 21 stands rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Siddiqui and Rickards. Final Act. 44-49. 3 All reference citations are to the first named inventor only. 4 The Examiner inadvertently included claims 21 and 22 as part of this group. Final Act 9. However, the cited claims were discussed in detail in subsequent rejections listed above. Appeal 2020-006373 Application 15/680,519 5 Claim 22 stands rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Siddiqui, Kaplan, and Rickards. Final Act. 50-52. V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 5-17 and the Reply Brief, pages 1-5.5 We are unpersuaded by Appellant’s contentions. Except as otherwise indicated herein below, we adopt as our own the findings and reasons set forth in the Final Action, and the Examiner’s Answer in response to Appellant’s Appeal Brief.6 Final Act. 2-52; Ans. 4-15. However, we highlight and address specific arguments and findings for emphasis as follows. Appellant argues that the Examiner errs in finding that the combination of Siddiqui and Kaplan renders claim 1 obvious. Appeal Br. 6- 8. In particular, Appellant argues that the combination of Siddiqui and Kaplan does not teach or suggest a computing device pausing the movement of an electric system or a hydraulic system upon receiving biometric data being outside of the range of baseline data including x,y,z-axis movement data of the wearable biometric interface being above a threshold, as recited 5 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). 6 See ICON Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). Appeal 2020-006373 Application 15/680,519 6 in independent claim 1. Id. According to Appellant, the Examiner improperly construes the disputed claim limitations under the broadest reasonable interpretation without regard to the Specification’s guidance that the x,y,z-axis movement data represents movement of the wearable biometric interface provided in 3-axis to determine if a wearer is or has fallen. Appeal Br. 10, Reply Br. 1 (citing Spec. ¶ 54). Appellant argues that although Kaplan discloses alerting a third party when measurements indicating a lack of user movement fall outside an acceptable range, such data includes movement data of the biometric interface being below a threshold as opposed to being above a threshold, as required by the claim. Id. at Appeal Br. 7-9 (citing Kaplan ¶¶ 14, 16, 1791, 92, 105-107, 110-112, 114, 116, and 128); Reply Br. 2-3. Further, Appellant argues that there is insufficient rationale to combine Kaplan with Siddiqui as proposed by the Examiner to activate brakes on a vehicle when it is determined that the operator is incapacitated (i.e., not moving) because modifying Siddiqui to include movement exceeding a threshold teaches away from Siddiqui. Appeal Br. 12; Reply Br. 3. Therefore, Appellant submits that the combination of Siddiqui and Kaplan results at best in the opposite scenario from the claim, in which safety precautions are taken when the user shows no movement, and not when the user’s movement exceeds a threshold as required by the claim. Reply Br. 4. Appellant’s arguments are not persuasive of reversible Examiner error. As an initial matter, we note that the disputed claim language “x,y,z- axis movement data of the wearable biometric interface being above a threshold” must be given its broadest reasonable interpretation consistent with Appellant’s disclosure, as explained in Morris: Appeal 2020-006373 Application 15/680,519 7 [T]he PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); see also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating that “claims must be interpreted as broadly as their terms reasonably allow.”). Our reviewing court states, “the proper … construction is not just the broadest construction, but rather the broadest reasonable construction in light of the specification.” In re Man Mach. Interface Techs. LLC, 822 F.3d 1282, 1287 (Fed. Cir. 2016). In this case, Appellant’s Specification recites in relevant parts the following: The biometric interface 104 also includes an accelerometer 166 for outputting data indicative of x,y,z-axis movement data of the wearable biometric interface 104. The accelerometer 166 thus provides 3-axis movement data and is used to determine if a wearer is or has fallen. Absolute stillness or sudden change in position or height could be an alert condition in a variety of scenarios. The computing device 110 can receive outputs of the accelerometer 166 and control operation of the power unit 112 to pause movement of the one or more components 115 of the equipment 114 based on the x,y,z-axis movement data of the wearable biometric interface being above a threshold. Spec. ¶ 54 (emphasis added). As correctly noted by the Examiner, the cited portion of Appellant’s specification does not provide an expressed definition for the claimed phrase “x,y,z-axis movement data”. Ans. 6. Instead, it merely provides a scenario that illustrates the cited phrase as an accident during which a wearer of the Appeal 2020-006373 Application 15/680,519 8 biometric interface falls off a ladder as indicated by the wearer’s “absolute stillness” or “sudden change in the position or height”. Id. at 7. Therefore, we determine the broadest reasonable interpretation of the disputed phrase “x,y,z-axis movement data” consistent the Specification to refer to data indicating that the “position or height” of the biometric interface wearer has suddenly changed, and it has exceeded a predetermined threshold when it indicates “absolute stillness” (i.e., no movement). Siddiqui discloses a vehicle computer system braking the vehicle upon detecting that the operator thereof is incapacitated due to being sleepy or tired. Siddiqui ¶¶ 7, 40. Further, Kaplan discloses notifying a party to take remedial action upon detecting an operator’s degradation of alertness as indicated by the operator’s movement (e.g., a sudden drop of the driver’s arm or changes in the movement of the steering wheel) to incapacitation at which point the operator has reached absolute stillness (sitting, standing lying down). Kaplan ¶ 14-17, 90, 112. We find the Examiner’s proposed combination of the cited teachings of Siddiqui and Kaplan is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from such an arrangement. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Therefore, the ordinarily skilled artisan, being “a person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably result a vehicle operator alertness monitoring system to cause the vehicle computer system to brake or pause the vehicle upon being alerted by an accelerometer in the operator’s biometric vest that the operator’s x,y,z- axis movement data (i.e., sudden drop of operator’s arm or change in Appeal 2020-006373 Application 15/680,519 9 operator’s steering) has reached an absolute stillness level. Id. at 420-21. Because Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Further, we are not persuaded by Appellant’s argument that the Examiner’s proposed reason to combine the teachings of Siddiqui and Kaplan is insufficient, thereby rendering the proposed combination improper.7 The U.S. Supreme Court has held “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The Court further instructs that: Often, it will be necessary for a court to look to interrelated teachings of multiple patents; . . . and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent 7 “If references taken in combination would produce a ‘seemingly inoperative device,’ . . . such references teach away from the combination and thus cannot serve as predicates for a prima facie case of obviousness.” McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001) (citation omitted); see also In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1382 (Fed. Cir. 2007) (“a reference teaches away from a combination when using it in that combination would produce an inoperative result,” but the obviousness analysis must account for “modifications that one skilled in the art would make to a device borrowed from the prior art”). 7 The Federal Circuit has held “‘[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.’” In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)) Appeal 2020-006373 Application 15/680,519 10 reason to combine the known elements in the fashion claimed by the patent at issue. Id. at 418. “[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.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited by KSR, 550 U.S. at 418). However, the Court also instructs that “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. In addition, the Court instructs, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 417. This precedent controls, and the application of the cited legal principles to the facts of this appeal provide us with the necessary guidance in affirming this obviousness rejection. As noted above, the Examiner relies upon Siddiqui to teach a vehicle controller braking or pausing the vehicle determining that the vehicle operator is incapacitated. Ans. 9-10. Further, the Examiner relies upon Kaplan to teach accelerometer x,y,z-axis movement data that exceeds a threshold. Id. Accordingly, the Examiner concludes the following: Accordingly, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed, having the teachings of Siddiqui and Kaplan before them, to modify a plurality of biometric sensors disposed within a Appeal 2020-006373 Application 15/680,519 11 wearable device of a wearer to incorporate an accelerometer to measure the motion of the wearer (the operator of a vehicle). One of ordinary skill in the art at the time of the invention would have been motivated to do this modification because it would allow to determine wearer's lack of alertness due to fatigue, boredom, inattentiveness, drug use, sickness, etc. to help prevent accidents. Id. at 10. We agree with the Examiner that the proposed combination of the teachings of Siddiqui and Kaplan is supported by a preponderance of the evidence, and the ensuing conclusion of obviousness is consistent with controlling authorities. Id. Consequently, we are satisfied that, on the record before us, the Examiner has established by a preponderance of the evidence that the combination of Siddiqui and Kaplan teaches the disputed claim limitations. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 1 as being unpatentable over the combination of Siddiqui and Kaplan. Regarding the rejections of claims 3-12, and 14-20, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 1. As such, claims 3-12, and 14-20 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). Regarding the rejection of claim 21, Appellant argues that the combination of Siddiqui and Rickards does not teach or suggest the limitation “based on the wearable biometric interface being within a predefined area, controlling operation of the power unit to perform a safeguarding action relating to the movement of the one or more components of the equipment.” Appeal Br. 14. In particular, Appellant argues the Examiner’s interpretation of Rickards’s vibrating components of a wearable Appeal 2020-006373 Application 15/680,519 12 eyewear as teaching performing a safeguarding action relating to the movement of an electrical system or a hydraulic system is in error. Id. at 15 (citing Rickards ¶¶ 51, 71). Appellant’s arguments are not persuasive. We agree with the Examiner that Rickards’s disclosure of a factory operator wearing an eyewear assembly, upon entering a hazardous area on the factory floor, receives a vibration relating to a vibrating device within the eyewear teaches the disputed limitations. Ans. 13-14 (citing Rickards ¶¶ 10, 51, 71). We further agree with the Examiner that sufficient rationale exists on this record to support the combination of Siddiqui and Rickards. Id. at 14-15. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 21 as being unpatentable over the combination of Siddiqui and Rickards. Regarding the rejections of claim 22, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 21. As such, claim 22 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). VI. CONCLUSION On this record, we affirm the Examiner’s rejections of claims 1, 3-12, and 14-22. Appeal 2020-006373 Application 15/680,519 13 VII. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References s Affirmed Reversed 1, 3-6, 8-12, 14-18, 20 103 Siddiqui, Kaplan 1, 3-6, 8-12, 14-18, 20 7 103 Siddiqui, Kaplan, Hong 7 19 103 Siddiqui, Kaplan, McBain, Onu 19 21 103 Siddiqui, Rickards 21 22 103 Siddiqui, Kaplan, Rickards 22 Overall Outcome 1, 3-12, 14-22 VIII. TIME PERIOD FOR RESPONSE 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. § 1.136(a)(1)(iv). AFFIRMED