Valencell, Inc.Download PDFPatent Trials and Appeals BoardMay 4, 20212020002711 (P.T.A.B. May. 4, 2021) Copy Citation 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. 15/318,449 12/13/2016 Steven Matthew Just 9653-28 6924 20792 7590 05/04/2021 MYERS BIGEL, P.A. PO BOX 37428 RALEIGH, NC 27627 EXAMINER STEINBERG, AMANDA L ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 05/04/2021 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): myersbigel_pair@firsttofile.com uspto@myersbigel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte STEVEN MATTHEW JUST, STEVEN FRANCIS LEBOEUF, JESSE BERKLEY TUCKER, MICHAEL EDWARD AUMER, and MARK ANDREW FELICE __________ Appeal 2020-002711 Application 15/318,449 Technology Center 3700 __________ Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and TARA L. HUTCHINGS, Administrative Patent Judges. REIMERS, 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, 8–18, and 20–26. Claims 7 and 19 have been withdrawn from consideration. Final Act. 1.2 We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Valencell, Inc. Appeal Brief (“Appeal Br.”) 2, filed Aug. 21, 2019. 2 Final Office Action (“Final Act.”), dated Mar. 29, 2019. Appeal 2020-002711 Application 15/318,449 2 We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates to “monitoring devices for measuring physiological information.” Spec. 1:9–10. Claims 1, 12, 16, and 24 are independent. Claims 1 and 16 are illustrative of the claimed subject matter and recite: 1. A monitoring device configured to be attached to a body of a subject, the monitoring device comprising: at least one physiological sensor configured to detect and/or measure physiological information from the subject; at least one activity sensor configured to detect a change in physical activity of the subject as the subject is exercising or beginning to exercise; at least one actuator configured to adjust stability of the monitoring device relative to the body of the subject; and at least one processor in communication with the at least one activity sensor and the at least one actuator, wherein the at least one processor is configured to control the at least one actuator to adjust the stability of the monitoring device relative to the body of the subject in response to the at least one activity sensor detecting a change in the physical activity of the subject. 16. A monitoring device configured to be attached to a body of a subject, the monitoring device comprising: at least one physiological sensor configured to detect and/or measure physiological information from the subject; at least one environmental sensor configured to detect and/or measure at least one environmental condition in a vicinity of the subject; at least one actuator configured to adjust stability of the monitoring device relative to the body of the subject; and at least one processor in communication with the at least one environmental sensor and the at least one actuator, wherein the at least one processor is configured to control the at least one actuator to adjust stability of the monitoring device relative to the body of the subject in response to the at least one environmental Appeal 2020-002711 Application 15/318,449 3 sensor detecting a change in the at least one environmental condition. THE REJECTIONS Claims 1–6 and 8–15 stand rejected under 35 U.S.C. § 103 as unpatentable over Jackson (US 5,485,848, issued Jan. 23, 1996) and Beers (US 2014/0070042 A1, published Mar. 13, 2014). Claims 16–18 and 20–26 stand rejected under 35 U.S.C. § 103 as unpatentable over Jackson and Stivoric (US 2008/0167572 A1, published July 10, 2008). ANALYSIS Obviousness over Jackson and Beers Claims 1–6 and 8–15 Independent claim 1 is directed to a monitoring device including “at least one activity sensor configured to detect a change in physical activity of the subject as the subject is exercising or beginning to exercise.” Appeal Br. 18 (Claims App.). The monitoring device also includes at least one processor “configured to control . . . at least one actuator to adjust the stability of the monitoring device relative to the body of the subject in response to the at least one activity sensor detecting a change in the physical activity of the subject.” Id. Independent claim 12 is directed to a method including steps carrying out the functions assigned by claim 1 to the at least one activity sensor and to the at least one processor. Id. at 20. The Examiner finds that Jackson discloses the recited monitoring device substantially as claimed. Final Act. 5; see also id. at 9. The Examiner further finds that “[a]lthough Jackson does contemplate motion Appeal 2020-002711 Application 15/318,449 4 sensing transducers . . . , Jackson does not teach adjusting the stability of the monitoring device in response to detection of a change in subject activity.” Id. at 5 (citing Jackson 7:36–42). The Examiner turns to teachings of Beers for this limitation. Id. at 5–6. In particular, the Examiner finds that Beers discloses “a shoe lace tension adjustment actuator which operates in response to detected subject activity.” Id. at 5 (citing Beers ¶¶ 84, 163, 175, 178). The Examiner reasons that “[a]lthough the wrist band of Jackson and the shoe laces of Beers are not identical mechanism [sic], Beers teaches processor algorithms for adjusting fit of a wearable item based on activity, the laces and other mechanical features are not required in combination, merely the computer implemented method.” Id. at 5–6. The Examiner further reasons that “this modification does require motion sensing transducers, which the additional optical sensors of Jackson would provide.” Id. at 6. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify the automatic tensioning of Jackson to include control for modifying tension based on detected subject activity, as taught by Beers, because Jackson teaches that accurate blood pressure measurements should not be taken unless the appropriate transducer-skin contact pressure is achieved . . . and Beers teaches that automated motorized tensioning on any type of wearable can improve user experience for disadvantaged patients. Id. (citing Jackson, Fig. 10A, Beers ¶ 199); see also Ans. 5.3 In this case, we agree with Appellant that the Examiner has not articulated a reason based on rational underpinnings as to why one of ordinary skill in the art would have been motivated to modify Jackson’s 3 Examiner’s Answer (“Ans.”), dated Dec. 27, 2019. Appeal 2020-002711 Application 15/318,449 5 monitoring device with the teachings of Beers to “adjust the stability of the monitoring device . . . in response to the at least one activity sensor detecting a change in the physical activity of the subject,” as recited in the claims. Appeal Br. 6–11. First, Appellant correctly points out that Jackson does not teach simply that accurate blood pressure measurements should not be taken unless an appropriate transducer-skin contact pressure is achieved. Instead, Jackson teaches maintaining a constant tension in the band holding Jackson’s monitoring device on the user’s arm in order to maintain a constant base pressure that helps ensure the accuracy of the systolic and diastolic pressure measurements. See Appeal Br. 6–7; see also Jackson 12:31–40. Second, Appellant correctly points out that Jackson inherently achieves appropriate transducer-skin contact pressure, but only in the context of also keeping the base pressure within a predetermined range regardless of the user’s level of activity. See Appeal Br. 9; see also Jackson 7:28–31, 11:29–12:23; Reply Br. 3–4 (pointing out that steps 504–512 of the calibration technique outlined in Figure 10A of Jackson are consistent with this reading of Jackson).4 Additionally, paragraph 199 of Beers does not support the Examiner’s conclusion. Beers teaches that tensioning system 150 could be applied to a medical brace. Beers ¶ 197. In paragraph 199, Beers teaches that a person having limited dexterity might find it easier to use a motorized tensioning device to tighten the brace than to manually tighten a strap or fastener. Id. at ¶ 199. The Examiner has not persuasively explained how this teaching 4 Reply Brief (“Reply Br.”), filed Feb. 24, 2020. Appeal 2020-002711 Application 15/318,449 6 might have suggested “adjust[ing] the stability of the monitoring device . . . in response to the at least one activity sensor detecting a change in the physical activity of the subject,” as recited in claim 1. Furthermore, as Appellant correctly points out, Beers teaches tightening or loosening the lace in response to the user’s physical activity to promote comfort or athletic performance, but not to maintain a constant tension in the lace. Appeal Br. 7. More specifically, Beers’ tensioning system 150 may include a control board having an internal memory capable of storing lace tension preferences. Beers ¶ 84. The wearer may then manipulate the control board to tighten lace 152 to one or another of the stored lace tension preferences, depending on whether the wearer prefers a tighter fit for physical activities, such as playing sports or a looser fit for casual activities. Id. In addition, tensioning system 150 may include a pressure sensor to detect if the wearer moves from a standing position to a sitting position. Id. ¶ 163. Motorized tensioning device 160 may loosen the tension in lace 152 when the wearer is sitting in order to promote blood circulation or tighten the lace when the wearer is standing for safety purposes. Id. Alternatively, tensioning system 150 may include a gyroscope or accelerometer to detect sudden movements by the wearer. Id. ¶ 165. Motorized tensioning device 160 may tighten lace 152 when the wearer is active or loosen lace 152 when the wearer is inactive. Id.; see also id. ¶ 202. None of these paragraphs of Beers addresses adjusting the lace to maintain a constant tension. Rather, in each of these cases, Beers suggests varying the tension in lace 152 in order to promote comfort (such as by increasing blood circulation during periods of reduced activity) or athletic Appeal 2020-002711 Application 15/318,449 7 performance (by tightening the lace to improve safety). This suggestion is less compelling when one seeks to apply it to a blood pressure monitoring device worn on a user’s arm rather than to an article of footwear. See Appeal Br. 7 (pointing out that Beers teaches a lace tensioning system rather than a blood pressure monitoring device). The Examiner has not adequately explained why one of ordinary skill in the art would have been motivated to modify Jackson’s device to vary the tension in the bands in response to a user’s level of activity, as discussed in Beers, particularly when Jackson teaches keeping the tension constant to maintain the accuracy of pressure measurements. See Jackson 6:52–53, 12:31–40. For all these reasons, we do not sustain the Examiner’s rejection of claims 1–6 and 8–15 as unpatentable over Jackson and Beers. Obviousness over Jackson and Stivoric Claims 16–18 and 20–26 Independent claim 16 is directed to a monitoring device including “at least one environmental sensor configured to detect and/or measure at least one environmental condition in a vicinity of the subject.” Appeal Br. 21 (Claims App.). The monitoring device also includes at least one processor “configured to control . . . at least one actuator to adjust stability of the monitoring device relative to the body of the subject in response to the at least one environmental sensor detecting a change in the at least one environmental condition.” Id. Independent claim 24 is directed to a method including steps carrying out the functions assigned by claim 16 to the at least one environmental sensor and to the at least one processor. Id. at 22. Appeal 2020-002711 Application 15/318,449 8 The Examiner finds that Jackson discloses the recited monitoring device substantially as claimed. Final Act. 10; see also id. at 13. The Examiner further finds that although Jackson teaches “adjusting band tension for swelling in extremities,” such as a user’s arm (Ans. 8 (citing Jackson 5:16–19, 9:13–19)), Jackson fails to disclose “adjusting the stability of the monitoring device in response to detection of a change environmental conditions as sensed by at least one environmental sensor configured to detect and/or measure at least one environmental condition in a vicinity of the subject” (Final Act. 10). The Examiner turns to the teachings of Stivoric for this limitation. Final Act. 10–11. In particular, the Examiner finds that Stivoric teaches that environmental conditions such as ambient temperature may affect blood perfusion through a user’s limbs. Ans. 7 (citing Stivoric ¶¶ 9–10); see also Final Act. 10–11. The Examiner additionally finds that Stivoric teaches processing physiological signals in order to detect conditions such as edema, that is, an accumulation of fluid in body tissue. Ans. 8 (citing Stivoric ¶ 216); see also Final Act. 10–11. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify the automatic tensioning of Jackson to include control for modifying tension based on detected environmental context, because Stivoric teaches that environmental context changes the physiological mechanisms in the body, such as swelling, . . .and because Jackson teaches that accurate blood pressure measurements should not be taken unless the appropriate transducer-skin contact pressure is achieved . . . , including adjustments for swelling in the extremities. Final Act. 11 (citing Stivoric ¶ 107; Jackson 5:16–19, 9:13–19, Fig. 10A). There are several problems with the findings underlying the Examiner’s conclusion. First, the Examiner has not shown how blood perfusion may be related to edema (i.e., swelling). Consequently, the Appeal 2020-002711 Application 15/318,449 9 Examiner has not established a correlation between any particular environmental condition, or set of conditions, and swelling of a user’s arm. See Appeal Br. 14–15. Lacking such proof, the Examiner has not demonstrated that one of ordinary skill in the art would have had reason to modify Jackson’s monitoring device to adjust the stability of the device based on ambient temperature or any other environmental condition to address the problem of swelling of a user’s arm. Id. Second, Jackson teaches adjusting band portions 212, 216 to maintain constant tension in the band if the user’s wrist swells or shrinks over the course of a day or night. Jackson 11:10–20. Nevertheless, the Examiner has not adequately explained why one of ordinary skill in the art would seek to determine how to compensate for swelling or shrinkage in a patient’s arm by measuring an environmental condition, such as ambient temperature, rather than by just measuring the swelling or shrinkage itself. See Appeal Br. 15. As such, the Examiner has not persuasively explained why one of ordinary skill in the art would have been motivated to modify Jackson’s monitoring device in a manner satisfying the limitations of claim 16. Third, as discussed earlier, Jackson teaches maintaining a constant tension in the band holding Jackson’s monitoring device on the user’s arm in order to maintain a constant base pressure that helps ensure the accuracy of the systolic and diastolic pressure measurements. See Appeal Br. 6–7, 12; see also Jackson 12:31–40. As also discussed earlier, Jackson inherently achieves appropriate transducer-skin contact pressure, but only in the context of also keeping the base pressure within a predetermined range regardless of the user’s level of activity. See Appeal Br. 9, 15; see also Reply Br. 3–4; Jackson 7:28–31. In view of Jackson’s teaching of keeping Appeal 2020-002711 Application 15/318,449 10 the tension constant to maintain the accuracy of pressure measurements, the Examiner has not persuasively explained why one of ordinary skill in the art would have had reason to modify Jackson’s monitoring device to “adjust the stability of the monitoring device . . . in response to the at least one environmental sensor detecting a change in the at least one environmental condition,” as recited in claim 16. See Appeal Br. 12; see also Jackson 6:52–53, 12:31–40. For all these reasons, we do not sustain the Examiner’s rejection of claims 16–18 and 20–26 as unpatentable over Jackson and Stivoric. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 8–15 103 Jackson, Beers 1–6, 8–15 16–18, 20–26 103 Jackson, Stivoric 16–18, 20– 26 Overall Outcome 1–6, 8–18, 20–26 REVERSED Copy with citationCopy as parenthetical citation