Bao Tran

Patent Trials and Appeals Board

Aug 30, 2019

13952604 - (D) (P.T.A.B. Aug. 30, 2019)

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.
13/952,604 07/27/2013 Bao Tran EMP0170-US 7602
67050 7590 08/30/2019
KASHA LAW LLC
14532 Dufief Mill Road
North Potomac, MD 20878
EXAMINER
FERNANDES, PATRICK M
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
08/30/2019 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):
JOHN.KASHA@KASHALAW.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte BAO TRAN
__________

Appeal 2018-005375
Application 13/952,6041
Technology Center 3700
__________

Before FRANCISCO C. PRATS, JEFFREY N. FREDMAN, and
JENNIFER MEYER CHAGNON, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL

This appeal under 35 U.S.C. § 134(a) involves claims to a wearable
apparatus that determines when a patient falls down, and transmits a wireless
emergency signal when a fall is detected. The Examiner entered rejections
for failure to comply with the written description and enablement
requirements, and for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant states that EMPIRE IP LLC is the real party in interest. Appeal
Br. 1.
Appeal 2018-005375
Application 13/952,604

2
STATEMENT OF THE CASE
The following rejections are before us for review:
(1) Claims 31 and 39, under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement (Final Act. 2–3
(entered August 2, 2017));
(2) Claims 31 and 39, under 35 U.S.C. § 112, first paragraph, as
failing to comply with the enablement requirement (Final Act. 3–4);
(3) Claims 31, 32, 34, 37, and 38, under 35 U.S.C. § 103(a), as being
unpatentable over Petelenz,2 Lehrman,3 and Holt4 (Final Act. 4–7);
(4) Claim 35, under 35 U.S.C. § 103(a), as being unpatentable over
Petelenz, Lehrman, Holt, and Friedman5 (Final Act. 7);
(5) Claim 36, under 35 U.S.C. § 103(a), as being unpatentable over
Petelenz, Lehrman, Holt, Friedman, and Florin6 (Final Act. 7);
(6) Claims 39 and 40, under 35 U.S.C. § 103(a), as being unpatentable
over Petelenz, Brock-Fisher,7 Cosentino,8 Holt, and Lehrman (Final Act. 7–
9).9

2 US 2001/0004234 A1 (published Jun. 21, 2001).
3 US 6,307,481 B1 (issued Oct. 23, 2001).
4 US 2006/0276714 A1 (published Dec. 7, 2006).
5 US 5,941,836 (issued Aug. 24, 1999).
6 US 4,348,562 (issued Sept. 7, 1982).
7 US 2006/0284732 A1 (published Dec. 21, 2006).
8 US 6,454,705 B1 (issued Sept. 24, 2002).
9 The Examiner did not include Lehrman in the initial list of references
forming the basis of the rejection of claims 39 and 40. See Final Act. 7. The
Examiner, however, cited Lehrman in the body of the rejection as evidence
of obviousness. See id. at 9. We therefore consider the Examiner’s failure
to include Lehrman in the initial list of references to be a typographical
error.
Appeal 2018-005375
Application 13/952,604

3
Claim 31 is representative and reads as follows:
31. A wearable fall detection apparatus, comprising:
a housing adapted to be worn by a patient;
an accelerometer disposed in the housing;
a wireless transmitter disposed in the housing;
a button disposed on the housing;
a pressure sensor disposed in the housing;
a processor disposed in the housing,
wherein the processor is adapted to analyze signals
from the accelerometer and the pressure sensor to determine
whether one or more of the signals are indicative of a fall by
the patient and automatically transmit a first emergency signal
via the wireless transmitter upon determination of a fall,
wherein the processor transmits the first emergency
signal only after a predetermined time period has elapsed and
the accelerometer has not generated any signal indicative of
motion of the housing during the predetermined time period,
and
wherein the processor is adapted to transmit a second
emergency signal when the processor detects that the button has
been pressed.
Appeal Br. i (Claims App’x) (emphasis added to limitation at issue).
WRITTEN DESCRIPTION
The Examiner’s Prima Facie Case
In rejecting claims 31 and 39 as failing to comply with the written
description requirement, the Examiner stated that “[c]laims 31 and 39 claim
. . . ‘a pressure sensor disposed in the housing.’ After review of the
[S]pecification it is unclear how this is possible.” Final Act. 2.
In particular, the Examiner found that although Appellant’s
Specification describes including a blood pressure sensor in a wearable
Appeal 2018-005375
Application 13/952,604

4
appliance such as a wristwatch, and also describes using an MEMS sensor
for sensing pressure on a patient, “[i]t is not clear how a blood pressure
sensor is used to determine a fall. And it is not clear how sensing the
pressure on a patient is used to determine a fall.” Id. at 3.
The Examiner noted that the Specification also discloses deploying a
pressure sensor on a bed, couch, or a chair to determine when a patient was
lying down or sitting, but found that such a sensor was “clearly not disposed
in the housing and it is not shown how it would work if it was.” Id.
In contrast, the Examiner noted the Specification’s disclosure of an
accelerometer, “clearly showing that the fall is determined by the
accelerometer. There is no teaching of using the pressure sensor for this
purpose.” Id.
Summarizing the rejection, the Examiner stated that “it is not clear
how a blood pressure sensor is meant to determine a fall, how a regular
pressure sensor is used to determine the fall or how the pressure sensor is
even disposed in the housing.” Id.
Analysis
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)
(citations omitted):
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
We select Appellant’s claim 31 as representative of the claims subject
to the Examiner’s written description rejection. See 37 C.F.R.
§ 41.37(c)(1)(iv). Having carefully considered the arguments and evidence
Appeal 2018-005375
Application 13/952,604

5
advanced by Appellant and the Examiner, we find that the preponderance of
the evidence supports the Examiner’s determination that claim 31 does not
find adequate descriptive support in Appellant’s Specification.
Appellant’s claim 31 recites a wearable fall detection apparatus that
includes a housing, “an accelerometer disposed in the housing,” and “a
pressure sensor disposed in the housing.” Appeal Br. i (Claims App’x).
The apparatus of claim 31 also includes a processor “adapted to
analyze signals from the accelerometer and the pressure sensor to determine
whether one or more of the signals are indicative of a fall by the patient.”
Id. As discussed below in relation to the obviousness rejection, because
claim 31 requires only one signal to be indicative of a fall by the patient,
claim 31 encompasses an apparatus in which the accelerometer generates a
single signal indicative of a fall.
However, because claim 31 recites that the processor analyzes one or
more signals from the accelerometer “and the pressure sensor to determine
whether one or more of the signals are indicative of a fall by the patient” (id.
(emphasis added)), the full scope of claim 31 also encompasses a pressure
sensor that generates signals indicative of a fall by the patient.
We agree with the Examiner that the Specification does not provide
adequate descriptive support for a pressure sensor that generates signals
indicative of a fall by the patient wearing the apparatus.
Appellant contends that the Specification provides descriptive support
for the pressure sensor recited in claim 31 because the Specification
discloses using MEMS sensors to sense pressure on a patient, and then
immediately thereafter discloses that the sensors are mounted on the
patient’s wrist in a wristwatch sensor. Appeal Br. 5–6 (citing Spec. 91:5–
Appeal 2018-005375
Application 13/952,604

6
8).10 Moreover, Appellant contends, the Specification is replete with
disclosures of using sensors to detect falls, and a skilled artisan would have
known that a barometric pressure sensor could be used to detect falls. Id. at
6–7 (citing Spec. 64:12–13); see also Reply Br. 2–3.
We do not find Appellant’s arguments persuasive.
In the first passage cited by Appellant, the Specification discloses that
a variety of sensors, including a pressure sensor, may be used to monitor a
patient’s health, that the patient may wear those sensors, and that the data
acquired from those sensors can be transmitted wirelessly:
The sensor can be active and powered by body motion or
body heat. The sensor can detect low battery situation and warn
the user to provide a replacement battery. In one embodiment,
a plurality of sensors attached to the person collects the vital
parameters. For example, the sensors can be attached to the
infant’s clothing (shirt or pant), diaper, undergarment or bed
sheet, bed linen, or bed spread. The patient may wear one or
more sensors, for example devices for sensing EMG, EKG,
blood pressure, sugar level, weight, temperature and pressure,
among others. In one embodiment, an optical temperature
sensor can be used. In another embodiment, a temperature
thermistor can be used to sense patient temperature. In another
embodiment, a fat scale sensor can be used to detect the
patient’s fat content. In yet another embodiment, a pressure
sensor such as a MEMS sensor can be used to sense pressure
on the patient.
In one embodiment, the sensors are mounted on the
patient’s wrist (such as a wristwatch sensor) and other
convenient anatomical locations. Exemplary sensors include

10 In citing to the Specification, the Examiner cites to the published
application, whereas in the Appeal Brief Appellant cites to the Specification
as filed. See Final Act. 2–3; Appeal Br. 5–6. In the Reply Brief, Appellant
cites to the published application. See Reply Br. 2. We cite to the original
Specification.
Appeal 2018-005375
Application 13/952,604

7
standard medical diagnostics for detecting the body's electrical
signals emanating from muscles (EMG and EOG) and brain
(EEG) and cardiovascular system (ECG). Leg sensors can
include piezoelectric accelerometers designed to give
qualitative assessment of limb movement. Additionally,
thoracic and abdominal bands used to measure expansion and
contraction of the thorax and abdomen respectively. A small
sensor can be mounted on the subject's finger in order to detect
blood-oxygen levels and pulse rate. Additionally, a
microphone can be attached to throat and used in sleep
diagnostic recordings for detecting breathing and other noise.
One or more position sensors can be used for detecting
orientation of body (lying on left side, right side or back) during
sleep diagnostic recordings. Each of sensors can individually
transmit data to the server 20 using wired or wireless
transmission. Alternatively, all sensors can be fed through a
common bus into a single transceiver for wired or wireless
transmission. The transmission can be done using a magnetic
medium such as a floppy disk or a flash memory card, or can be
done using infrared or radio network link, among others.
Spec. 90:27–91:22 (emphasis added to show disclosure cited by Appellant).
We acknowledge that page 91 of the Specification, reproduced above,
discloses that any of a variety sensors can be disposed within the housing of
a wearable fall detection device. As is evident, however, even when viewed
in context, the disclosure in the Specification cited by Appellant includes no
specific language describing whether or how a pressure sensor worn by a
patient detects information indicative of a fall. Nor does the Specification
describe whether or how the pressure sensor generates the signals indicative
of a fall by the patient.
As Appellant contends (Appeal Br. 6), the Specification discloses that
“[t]he electronic circuitry housed in the watch case 1380 detects adverse
conditions such as falls or seizures.” Spec. 64:12–13. Appellant, however,
does not identify any disclosure in the Specification that specifically
Appeal 2018-005375
Application 13/952,604

8
describes fall-detecting circuitry as being a pressure sensor disposed in the
housing of a wearable device.
As our reviewing court has explained, although the originally filed
disclosure need not provide word-for-word support for claimed subject
matter, “the written description must include all of the limitations . . ., or the
applicant must show that any absent text is necessarily comprehended in the
description provided and would have been so understood at the time the
patent application was filed.” Hyatt v. Boone, 146 F.3d 1348, 1354–55 (Fed.
Cir. 1998) (emphasis added).
The portions of the Specification cited by Appellant, as seen above,
do not include any specific description of the device encompassed by
Appellant’s claim 31, which includes a pressure sensor disposed in the
housing of a wearable device, wherein the pressure sensor generates signals
indicative of a fall by a patient. We are not persuaded, therefore, that a
skilled artisan would have necessarily comprehended the Specification as
providing descriptive support for the full scope of the apparatus
encompassed by claim 31.
We acknowledge Appellant’s contention that a skilled artisan would
have understood that a pressure sensor can measure barometric pressure,
which is indicative of a fall. See Appeal Br. 6–7; Reply Br. 2–3.
Appellant, however, does not identify (nor do we discern) where the
Specification describes using a barometric pressure sensor to generate
signals indicative of a fall. The fact that a skilled artisan might have
considered it obvious to use a barometric pressure sensor to generate signals
indicative of a fall is not an adequate substitute for a specific disclosure in
the Specification of a sensor having that functionality. See Ariad Pharms.,
Appeal 2018-005375
Application 13/952,604

9
Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010) (“[A]
description that merely renders the invention obvious does not satisfy the
requirement.”).
In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner erred in determining that the full scope of claim 31 lacks
sufficient descriptive support in the Specification. We therefore affirm the
Examiner’s rejection of claim 31 for failure to comply with the written
description requirement. Claim 39 falls with claim 31. See 37 C.F.R.
§ 41.37(c)(1)(iv).
ENABLEMENT
The Examiner’s Prima Facie Case
The Examiner’s rejection of claims 31 and 39 for failure to comply
with the enablement requirement applies essentially the same rationale
applied above in the rejection for lack of written description. Specifically,
the Examiner summarized the disclosures in the Specification relating to
pressure sensors, but concluded that none of those disclosures explains how
the Specification enables a skilled artisan to make and use a pressure sensor
that generates signals indicative of a fall by the patient, as required by claims
31 and 39. Final Act. 3–4.
Summarizing the rejection, the Examiner concluded that “it is not
clear how a blood pressure sensor is meant to determine a fall, how a regular
pressure sensor is used to determine the fall or how the pressure sensor is
even disposed in the housing.” Id. at 4.
Analysis
We again select Appellant’s claim 31 as representative of the claims
subject to this rejection. See 37 C.F.R. § 41.37(c)(1)(iv). For reasons
Appeal 2018-005375
Application 13/952,604

10
similar to those discussed above in relation to the Examiner’s rejection for
lack of written description, we also affirm the Examiner’s rejection for lack
of enablement.
In traversing the enablement rejection, Appellant reiterates the
arguments advanced against the written description rejection, addressed
above. Appeal Br. 7. For essentially the reasons discussed above, we do not
find those arguments persuasive.
In particular, as discussed above, Appellant does not identify, nor do
we discern, any specific disclosure in the Specification that describes
whether or how a pressure sensor worn by a patient detects information
indicative of a fall. Nor does the Specification describe whether or how a
pressure sensor generates signals indicative of a fall by the patient, as
encompassed by Appellant’s claim 31.
Given the absence of any specific disclosure in the Specification that
explains how to make and use a patient-worn pressure sensor that generates
signals indicative of a fall, we are not persuaded that Appellant’s
Specification enables the full scope of the apparatus recited in claim 31. See
Trustees of Boston University v. Everlight Electronics Co., Ltd., 896 F.3d
1357, 1362 (Fed. Cir. 2018) (“[T]o be enabling, the specification of a patent
must teach those skilled in the art how to make and use the full scope of the
claimed invention without undue experimentation.”) (bracketing in original;
internal quotations omitted); In re Vaeck, 947 F.2d 488, 496 (Fed. Cir. 1991)
(“[T]here must be sufficient disclosure, either through illustrative examples
or terminology, to teach those of ordinary skill [in the art] how to make and
how to use the invention as broadly as it is claimed.”).
Appeal 2018-005375
Application 13/952,604

11
The fact that a skilled artisan might have known how to make a
barometric pressure sensor that generates signals indicative of a fall is no
substitute for a disclosure in the Specification, of such a sensor. See
Genentech Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1366 (Fed. Cir. 1997)
(Although the Specification need not disclose what is well known in the art,
“that general, oft-repeated statement is merely a rule of supplementation, not
a substitute for a basic enabling disclosure. It means that the omission of
minor details does not cause a specification to fail to meet the enablement
requirement.”) (citation omitted).
In addition, in this particular instance, the fact that the Examiner’s
enablement rejection does not include a specific analysis of the factors set
out in In re Wands, 858 F.2d 731 (Fed. Cir. 1988), does not persuade us that
the Examiner’s rejection is insufficient. See Appeal Br. 8.
We agree that enablement rejections should generally include analyses
of the Wands factors. As our reviewing court has explained, however, “it is
not necessary that a court review all the Wands factors to find a disclosure
enabling. They are illustrative, not mandatory. What is relevant depends on
the facts . . . .” Amgen, Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1213
(Fed. Cir. 1991).
Thus, in situations where, as here, the specification of the patent at
issue provided little to no detail as to how a critical aspect of the claimed
invention was to be practiced, our reviewing court has held claims non-
enabled, without providing any specific Wands analysis. See Genentech v.
Novo Nordisk, 108 F.3d at 1365–68; see also Automotive Techs. Int’l, Inc. v.
BMW of N. Am., Inc., 501 F.3d 1274, 1281–1285 (Fed. Cir. 2007) (citing
Genentech v. Novo Nordisk).
Appeal 2018-005375
Application 13/952,604

12
In sum, for the reasons discussed, Appellant does not persuade us that
the preponderance of the evidence fails to support the Examiner’s
enablement rejection of claim 31. We therefore affirm the Examiner’s
rejection of claim 31 for lack of enablement. Claim 39 falls with claim 31.
See 37 C.F.R. § 41.37(c)(1)(iv).
OBVIOUSNESS
The Examiner’s Prima Facie Case
In rejecting claims 31, 32, 34, 37, and 38 over Petelenz, Lehrman, and
Holt, the Examiner cited Petelenz as describing a wearable fall detection
apparatus having nearly all of the features recited in the rejected claims. See
Final Act. 5–6.
The Examiner cited Lehrman as evidence that it would have been
obvious to configure Petelenz’s apparatus to transmit an emergency signal
only after a predetermined time period elapses during which the
accelerometer does not generate a signal indicative of motion of the housing
during the predetermined time period, as recited in Appellant’s claim 31. Id.
at 5. The Examiner also cited Lehrman as evidence that it would have been
obvious to include a button on the device to generate a second emergency
signal. Id. at 5–6.
As to the pressure sensor recited in Appellant’s claim 31, the
Examiner cited Holt as evidence that it would have been obvious to include
a blood pressure sensor on Petelenz’s device. Id. at 6. The Examiner also
cited Lehrman as disclosing that it was “known in the art” to include a
pressure sensor on a fall detection apparatus. Id.
Appeal 2018-005375
Application 13/952,604

13
Analysis
We again select Appellant’s claim 31 as representative of the claims
subject to this rejection. See 37 C.F.R. § 41.37(c)(1)(iv). Having carefully
considered the arguments and evidence advanced by Appellant and the
Examiner, Appellant does not persuade us that the Examiner’s conclusion of
obviousness as to claim 31 is not supported by a preponderance of the
evidence.
Appellant contends that there is “no disclosure in Holt of ‘a processor
disposed in the housing adapted to analyze signals from the accelerometer
and the pressure sensor to determine whether one or more of the signals are
indicative of a fall by the patient.’ Lehrman does not cure the deficiencies of
Petelenz and Holt.” Appeal Br. 8–9.
We do not find this argument persuasive.
As noted above, Appellant’s claim 31 recites a wearable fall detection
apparatus that includes a housing, “an accelerometer disposed in the
housing,” and “a pressure sensor disposed in the housing.” Appeal Br. i
(Claims App’x).
The apparatus of claim 31 also includes a processor “adapted to
analyze signals from the accelerometer and the pressure sensor to determine
whether one or more of the signals are indicative of a fall by the patient.”
Id. (emphasis added). As discussed above in relation to the written
description and enablement rejections, the full scope of claim 31
encompasses a pressure sensor that generates signals indicative of a fall by
the patient, which must be described and enabled by the Specification.
Nonetheless, because claim 31 expressly requires only one signal to
be indicative of a fall by the patient, claim 31 encompasses an apparatus in
Appeal 2018-005375
Application 13/952,604

14
which the accelerometer generates a single signal indicative of a fall. That
is, claim 31 does not require the pressure sensor to generate signals
indicative of a fall, because the claim recites that a single signal, which can
be generated by an accelerometer, can be determinative of a fall. “[D]uring
patent prosecution when claims can be amended, ambiguities should be
recognized, scope and breadth of language explored, and clarification
imposed.” In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
As the Examiner found, Petelenz discloses a wearable fall detection
apparatus with a processor that analyzes signals from an accelerometer. See
Petelenz ¶ 7 (“This invention provides a method for monitoring a person’s
fall using an accelerometer included in a personal monitoring device
configured to be carried on the person. The monitoring device has a
microprocessor and a memory buffer, and data is stored in the buffer of the
personal monitoring device.”).
Petelenz explains that when the device-borne processor determines
that the signals generated by the accelerometer are indicative of a fall, the
device transmits an emergency signal:
Referring now to FIG. 2, an important characteristic of
the present invention is that acceleration and body position
sensors 20 in the monitor provide information for detecting or
predicting a fall. This is performed using a software method 22
or digital signal processing (DSP) which recognizes body
movement and position patterns that indicate a fall has occurred
or could occur. When fall patterns are detected, a fall warning
can be transmitted to a careprovider via a communications link
24.
Id. ¶ 22 (see also Fig. 2 schematically showing software/digital processing
elements within the patient-worn device).
Appeal 2018-005375
Application 13/952,604

15
Thus, Petelenz’s processor analyzes at least one signal from an
accelerometer and determines whether that signal is indicative of a fall by
the patient, which is all that Appellant’s claim 31 requires of the claimed
processor. Appellant therefore does not persuade us that the cited
combination of references fails to teach or suggest a device with a processor
encompassed by claim 31.
We acknowledge, as Appellant contends (see Appeal Br. 8–9), that
the pressure sensor disclosed in Holt is a blood pressure sensor. See Holt
¶ 13. We note that, while Holt discloses including both blood pressure
sensors and accelerometers on a patient-wearable device, Holt distinguishes
between using the accelerometers to determine when a patient falls, and
using the blood pressure sensor to monitor the health of the patient:
Generally, a patient vital sign is any measurable presence
and/or level of particular substances, rates, or conditions which
could affect an individual’s health. Patient vital sign data could
represent any physiological variable or combination or
variables including but not limited to a heart rate, heart beat,
heart murmur, heart intensity, a pulse at extremities, blood
glucose, blood oxygen content, blood pressure, acoustic
monitoring of lung function, respiration rate, occlusion such as
an occlusion of air flow the lung and blocked blood flow in
veins or arteries, adrenal level, acetycholine level, temperature,
sodium levels, activity level for obesity and geriatric care, three
axis acceleration to detect falling.
Id. (emphasis added).
As discussed above, however, Appellant’s claim 31 does not require
the pressure sensor to generate signals indicative of a fall. Rather, claim 31
encompasses an apparatus with a processor that determines whether a single
signal from an accelerometer is indicative of a fall. As discussed above,
Petelenz discloses a device with a processor encompassed by claim 31.
Appeal 2018-005375
Application 13/952,604

16
Thus, the fact that Holt’s pressure sensor is limited to a blood pressure
sensor (as the Examiner admits) does not persuade us that the cited
combination of references fails to teach or suggest an apparatus with a
processor encompassed by claim 31.
Lehrman, similar to Petelenz, discloses a device that uses
accelerometers to determine whether a patient’s motion is outside tolerable
limits. See Lehrman 2:23–26 (“For the purposes hereof, the term ‘sensor’ is
defined broadly, meaning a device that senses one or more absolute values,
changes in value, or some combination of the same, of at least the sensed
accelerative phenomena.”) (emphasis added).
Lehrman, similar to Petelenz (as well as the apparatus recited in
Appellant’s claim 31), discloses that a processor may be employed to
determine when a sensor’s signals are indicative of a fall, whereupon an
emergency signal is transmitted:
Communication between the processor and the controller
may be by a wireless network, a wired network, or some
suitable combination of the same, and may include the Internet.
Preferably, the system generates an alert whenever the
monitored subscriber is in “jeopardy,” as determined by the
system, such as in response to a debilitating fall by the
subscriber.
Id. at 3:18–24.
In addition to accelerative phenomena, Lehrman discloses that, “[i]n
further embodiments, the processor may be programmed to distinguish other
physical characteristics, including temperature, pressure, force, sound, light,
relative position, and the like.” Id. at 2:37–40 (emphasis added).
Lehrman explains further:
Exemplary processor 47 is programmed to distinguish
between normal and abnormal accelerative events (e.g.,
Appeal 2018-005375
Application 13/952,604

17
walking, sitting, lying down, etc. versus tripping, falling down,
etc.), and, when an abnormal event is identified, indicates
whether the abnormal event is tolerable, or within tolerance.
Processor 47 may also suitably be programmed to distinguish
other physical characteristics, including temperature, pressure,
force, sound, light, relative position (including lying down),
and the like.
Id. at 11:24–31 (emphasis added).
Given Lehrman’s express disclosure that pressure is one of the
physical characteristics that its processor can distinguish, Appellant does not
persuade us that Lehrman fails to teach or suggest including pressure sensors
on a wearable device, nor are we persuaded that Lehrman teaches away from
including pressure sensors on its device, or other fall-detecting devices like
those disclosed in Petelenz and Holt. See Appeal Br. 9.
Moreover, while Lehrman discloses that its processor is not deployed
in the wearable device (see id. (citing Lehrman 11:24–32)), Petelenz
discloses that it was known in the art to include a processor on a patient-
worn fall detecting device, as discussed above. As our reviewing court has
explained, “[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We are also unpersuaded by Appellant’s contention that Lehrman’s
disclosures of including pressure sensors on a fall detection apparatus are
merely “vague, passing mention[s]” that fail to provide sufficient
information about a remote processor that determines whether signals
generated by a pressure sensor are indicative of a fall. Id. Other than a
Appeal 2018-005375
Application 13/952,604

18
conclusory statement that Lehrman’s disclosure is insufficient, Appellant
fails to advance any specific evidence or argument explaining with
particularity why a skilled artisan viewing the cited disclosures in Lehrman
would have failed to understand how to adapt a processor to determine
whether signals generated by a pressure sensor were indicative of a fall.
In addition, even if Appellant’s assertion of insufficiency in Lehrman
was supported by the evidence of record, Appellant’s claim 31 encompasses
an apparatus with a processor that determines whether a single signal from
an accelerometer is indicative of a fall, as discussed above. As also
discussed above, Petelenz discloses a device with a processor that
determines whether a single signal from an accelerometer is indicative of a
fall, as encompassed by claim 31. Thus, even if it were true that Lehrman
did not provide a disclosure sufficiently specific to teach or suggest a
processor encompassed by claim 31, we are not persuaded that the
combination of references cited by the Examiner fails to teach or suggest an
apparatus having a processor encompassed by claim 31.
In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner’s conclusion of obviousness as to claim 31 is not supported by
a preponderance of the evidence. We therefore affirm the Examiner’s
rejection of claim 31 over Petelenz, Lehrman, and Holt. Claims 32, 34, 37,
and 38 fall with claim 31. See 37 C.F.R. § 41.37(c)(1)(iv).
As to the remaining rejections, in rejecting claims 35, 36, 39, and 40
under § 103, the Examiner relied on the base combination of Petelenz,
Lehrman, and Holt to show the obviousness of the claimed combination of
features discussed above, and cited the Friedman, Florin, Brock-Fisher, and
Cosentino references as evidence to show that the additional features recited
Appeal 2018-005375
Application 13/952,604

19
in claims 35, 36, 39, and 40 would have been obvious elements of the
wearable fall detection system suggested by Petelenz, Lehrman, and Holt.
See Final Act. 7–9.
In traversing the Examiner’s obviousness rejections of claims 35, 36,
39, and 40, Appellant relies on the arguments, discussed above, in relation to
the combination of Petelenz, Lehrman, and Holt. See Appeal Br. 10. For
the reasons discussed above, we do not find those arguments persuasive.
Accordingly, we affirm the Examiner’s obviousness rejections of claims 35,
36, 39, and 40.

SUMMARY
For the reasons discussed, we affirm each of the rejections entered by
the Examiner.

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED