Braemar Manufacturing, LLCDownload PDFPatent Trials and Appeals BoardOct 12, 20212020004483 (P.T.A.B. Oct. 12, 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. 15/339,571 10/31/2016 Erich Vlach 108622-0025-105 4152 156116 7590 10/12/2021 BRAEMAR MANUFACTURING, LLC 1285 Corporate Center Drive Suite 150 Eagan, MN 55121 EXAMINER BORROMEO, JUANITO C ART UNIT PAPER NUMBER 2184 NOTIFICATION DATE DELIVERY MODE 10/12/2021 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): biotelemetry_docketing@cardinal-ip.com chang.b.hong@gmail.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ERICH VLACH, ANNA MCNAMARA, and CHARLES GROPPER ____________ Appeal 2020-004483 Application 15/339,571 Technology Center 2100 ____________ Before DENISE M. POTHIER, JUSTIN BUSCH, and BETH Z. SHAW, Administrative Patent Judges. POTHIER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2020-004483 Application 15/339,571 2 STATEMENT OF THE CASE Appellant1,2 appeals under 35 U.S.C. § 134(a) from the rejection of claims 28–51. Claims 1–27 have been canceled. Appeal Br. 3. We REVERSE. We enter a new ground of rejection as set forth in 37 C.F.R. § 41.50(b). Appellant’s invention relates to “systems and techniques by which physiological data for an individual (e.g., a patient or test subject) can be obtained corresponding to a physiological characteristic[,] such as cardiac activity and analysis of that physiological activity[, that] can be performed by a remote data processing center.” Spec. ¶ 3. Independent claim 28 at issue reads as follows: 28. An electrocardiogram (ECG) interface comprising: a first electrode lead and a second electrode lead, each having a first end and a second end; a first lead socket and a second lead socket mechanically and electrically connected to the first ends of the first and second electrode leads, respectively, wherein each of the first and second lead sockets is configured to connect to an ECG electrode; and a connector head mechanically and electrically connected to the second ends of the first and second electrode leads, the connector head comprising a connector receptacle configured to receive a male USB connector. Appeal Br. 9 (Claims App.). 1 Throughout this opinion, we refer to the Final Action (Final Act.) mailed April 16, 2019, the Appeal Brief (Appeal Br.) dated November 12, 2019, and the Examiner’s Answer (Ans.) mailed filed March 5, 2020. No reply brief was filed. 2 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 Braemar Manufacturing, LLC. Appeal Br. 3. Appeal 2020-004483 Application 15/339,571 3 THE OBVIOUSNESS REJECTION OVER QUISTGAARD AND KARJALAINEN Claims 28–33 and 40–433 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Quistgaard (US 7,686,766 B2, patented Mar. 30, 2010) and Karjalainen (WO 2010/103164 A1, published Sept. 16, 2010). Final Act. 2–4. As to claim 28, the Examiner finds that Quistgaard teaches “a first electrode lead,” “a second electrode lead,” “a first lead socket,” and “a second lead socket” as recited. Final Act. 2 (citing Quistgaard 2:66, 6:57–58, Figs. 1B–C). The Examiner turns to Karjalainen to teach claim 28’s recited “connector head comprising a connector receptacle.” Id. at 2–3 (citing Karjalainen, Fig. 2 (elements 100, 102)). Appellant argues that Karjalainen does not teach “the connector head comprising a connector receptacle configured to receive a male USB connector.” Appeal Br. 4–5. Appellant argues interface 102 in Karjalainen shows a male USB plug, not a female USB structure. Id. at 4–5 (citing Final Act. 3). Appellant further argues that an ordinarily skilled artisan would not have been motivated to replace Karjalainen’s interface 102 with a receptacle configured to receive a male USB connector. Id. at 5. MAIN ISSUE As proposed, has the Examiner erred in rejecting claim 28 by finding that Quistgaard and Karjalainen under 35 U.S.C. § 103(a) would have taught or suggested “the connector head comprising a connector receptacle configured to receive a male USB connector”? 3 Although the heading lists only claims 28–33 (Final Act. 2), the rejection’s body addresses claims 28–33 and 40–43. See id. at 2–4. Appeal 2020-004483 Application 15/339,571 4 ANALYSIS Based on the record before us, we find error in the Examiner’s rejection of claim 28. The rejection maps the recited “connector head” to element 100 and the “connector receptacle” to element 102 in Karjalainen’s Figure 2. Final Act. 2–3. Figure 2 is reproduced below. Karjalainen, Fig. 2. Figure 2 above shows element 102 is not designed such that it receives a male connector or a “connector receptacle configured to receive a male USB connector” (Appeal Br. 9 (Claim App.) (emphasis added)) as claim 28 recites. See id. Additionally, Karjalainen describes element 103 of interface 100 as “heart sensor connector 103” (Karjalainen 4:3) and shows element 103 couples to heart sensor 106 that contains electrodes 108 (e.g., leads). Id. at 4:3–14, Fig. 2. Element 103 thus is more appropriately “a connector receptacle” of the “connector head mechanically and electrically connected to the second ends of the first and second electrode leads” as claim 28 recites. In any event, connector 103 has the same structure as element 102 and thus similarly, does not teach or suggest “a connector receptacle configured to receive a male USB connector” as claim 28 recites. Element 103 may also not be viewed as “a connector head mechanically and electrically connected to the second ends of the first and second electrode Appeal 2020-004483 Application 15/339,571 5 leads” as claim 28 further recites. Appeal Br. 9 (Claim App.) (emphasis added). For the first time in the Examiner’s Answer, the Examiner asserts that Quistgaard discloses mechanical couplings that are “male-female type” couplings, that Quistgaard’s interface 102 or 103 is a “female connector interface,” and that an ordinarily skilled artisan “can ch[o]ose between connector interface 102/103 since the connection depends on which device is defined as the host or the peripheral device.” Ans. 3 (citing Quistgaard 4:16–17, Fig. 2). This position is unavailing. First, we presume that the Examiner intended to refer to Karjalainen, not Quistgaard, in the Examiner’s Answer. See Ans. 3 (mistakenly referring to “Quistgaard” when discussing interfaces 102 and 103). Second, neither interface 102 nor 103 in Karjalainen is a female connector, as previously explained. See id. Rather, its’ counterparts that are part of elements 106 and 130 (e.g., elements 101, 104B), which are not part of the mapped “connector head” (see Final Act. 2 (mapped to connector 100)), are female connectors or “a connector receptacle configured to receive a male USB connector” (e.g., 103, 102) as recited. See Karjalainen 4:5, 5:30, Fig. 2. Third, choosing between interfaces 102 and 103 as the Examiner proposes in the Answer fails to teach “a connector receptacle configured to receive a male USB connector,” because both interfaces are shown as male connectors, as previously discussed. Fourth, “[t]he mechanical coupling” discussed as “a male-female-type coupling” in Karjalainen (see id. at 4:16–17) is simply addressing the couplings discussed immediately above this cited passage (e.g., 103/101) and does not teach explicitly to an ordinarily skilled artisan to switch connector 103 for a female coupling, such as counterpart 101. Appeal 2020-004483 Application 15/339,571 6 To the extent the Examiner intended to refer to element “104B” rather then “103” in the statements “if interface 102, fig. 2 is male then 103 is female and vice versa” and “one of ordinary skill in the art can ch[o]ose between connector interface 102/103” (Ans. 3), such a position that an ordinarily skilled artisan would have recognized interfaces 102 and 103 are interchangeable with their counterparts 104B and 101 has not been sufficiently articulated or explained in the record. See Ans. 3; see also Final Act. 2–3. Moreover, the Examiner’s Answer appears to have numerous errors in its analysis as previously explained, for which we must infer what the Examiner intended to state. See, e.g., Ans. 3. Independent claim 40 recites a similar recitation of “the second end [of an electrode lead] terminating in a connector head having a connector receptacle configured to receive a male USB connector.” Appeal Br. 10 (Claim App.). For reasons similar to those above, we find the Examiner erred in determining Karjalainen teaches this limitation as proposed. See Final Act. 4 (stating “Claims 40 - 43 recite(s) the corresponding limitation of claims 28 - 33. Therefore, they are rejected accordingly.”).4 For the foregoing reasons, Appellant has persuaded us of error in the rejection of (1) independent claim 28, (2) independent claim 40, which recites similar limitations, and (3) dependent claims 29–33 and 41–43 for similar reasons. 4 Notably, Quistgaard’s Figures 1B and 1C do not show the first and second leads or their ends. See Final Act. 2 (citing Quistgaard Figs. 1B–C). Quistgaard’s Figure 1C only shows connector ports 176, which are described as connected to ECG leads RA, LA, and LL. Quistgaard 6:57–58, Fig. 1C. Appeal 2020-004483 Application 15/339,571 7 THE REMAINING OBVIOUSNESS REJECTION Claims 34–39 and 44–515 ultimately depend from one of independent claims 28 or 41. Claims 34–39 and 44–51 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Quistgaard, Karjalainen, and Shattuck (US 6,752,305 B2, patented June 22, 2004). Final Act. 4–6. This rejection does not rely on Shattuck to teach or suggest the “connector receptacle” limitation in claims 28 and 40 and to remedy the above-noted shortcoming. See id. Thus, for similar reasons to those above, Appellant has persuaded us of error in the rejection of dependent claims 34–39 and 44–51. NEW GROUND OF REJECTION Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new ground of rejection for independent claims 28 and 40 under 35 U.S.C. § 103(a) as being unpatentable over Karjalainen. Heart sensor 106 is shown above in Karjalainen’s Figure 2. Karjalainen, Fig. 2. When addressing Figure 2, Karjalainen states heart sensor 106 may reside in wearable structure 30, and structure 30 may include conductive fabric electrodes (e.g., 108) that detect heart activity. Id. at 3:4–16, Figs 1–2. Karjalainen further states element 108 can measure heart activity or cardiac data, including describing heart rate information, beat-to-beat intervals, and/or an electrocardiogram (ECG) as desirable. Id. at 3:15–24. Heart sensor 106 in Figure 2 further shows two wires, each having a left side (e.g., one end) located near the circular parts within 5 Claims 44–51 are omitted from the rejection’s heading (Final Act. 4) but are discussed in the rejection’s body (id. at 5–6). Appeal 2020-004483 Application 15/339,571 8 element 108, extending from each circular part to the right, and terminating (e.g., another end) at counterpart 101. Id. at 4:5, Fig. 2. Karjalainen thus teaches or suggests “[a] electrocardiogram (ECG) interface comprising: a first electrode lead” (e.g., one wire) and “a second electrode lead” (e.g., another wire) both having “a first end and a second end” as claim 28 recites. Regarding “a first lead socket and a second lead socket” recited in claim 28, the Specification, as originally filed, does not contain the phrase “socket” or “lead socket” as claim 28 recites. See generally Spec. Figure 1 in the Specification shows first electrode lead 121 and a second electrode lead 122 having an end with a circular component, each component having concentric circles. Id. at Fig. 1; see also id. at Fig. 7 (showing leads 721, 722 connected to electrodes 711, 712). The Specification does not explain the structure of the circular components but does state electrodes 115 “can be connected to distal ends of the first electrode lead 121 and the second electrode lead 122.” Id. ¶ 33, Fig. 1; see also id. ¶ 52. Also, a plain meaning of “socket” includes “an opening or hollow that forms a holder for something.” Socket, Merriam-Webster’s Online Dictionary, available at https://www.merriam-webster.com/dictionary/socket (last visited September 30, 2021). Thus, based on Figure 1 of the Specification, the Specification’s disclosure, and the plain meaning of “socket,” we presume the circular components’ concentric circles in the Specification’s Figure 1 depict an opening or hollow component (e.g., a socket) for holding or “connect[ing] to an ECG electrode” (e.g., electrodes 115) as claim 28 recites. Given our understanding of a “lead socket” recited in claim 28 consistent with the Specification, Karjalainen teaches or suggests this feature. Karjalainen shows element 108 as electrodes 108 for heart sensor Appeal 2020-004483 Application 15/339,571 9 106 and each of the leads, as previously discussed (e.g., the two wires extending from electrodes 108 in Figure 2) has an end connected to one of electrodes 108. See id., Fig. 2. Karjalainen further discloses electrodes 108 are permanently fixed to or integrated into structure 30. Id. at 5:13–15. Heart sensor 106, however, is detachably mounted to a structure 30 using “a press-stud or some other quick-disconnect fitting” or even “another type of fastening means . . . .” Id. at 5:4–7. One plain meaning of “press stud” includes “a device that fastens something by closing or locking with a short, sharp sound especially: a set of two metal or plastic pieces that fit tightly together when pressed.”6 Thus, although Karjalainen does not explicitly discuss that the “press-stud” or “quick-disconnect fitting” includes a socket (see 5:4–7), Karjalainen’s disclosure suggests to an ordinarily skilled artisan that these type of fittings include snap fasteners, which includes a part with a socket to fasten heart sensor 106, containing the leads/wiring and counterpart 101, to electrodes 108 integrated into structure 30 in order to lock sensor 106 to structure 30 with a short, sharp sound and to fit tightly these elements together when pressed. See id. Additionally, Karjalainen discloses a press-stud is an “electromechanical coupling.” Id. at 4:18–19. As such, Karjalainen teaches or suggests the recited “a first lead socket and a second lead socket mechanically and electrically connected to the first ends of the first and second electrode leads, respectively, wherein each of the first and second 6 Press Stud, Merriam-Webster’s Online Dictionary, available at https://www.merriam-webster.com/dictionary/press%20stud (last visited September 30, 2021). Appeal 2020-004483 Application 15/339,571 10 lead sockets is configured to connect to an ECG electrode,” as claim 28 recites. Regarding “a connector head” also recited in claim 28, Karjalainen discloses the right side of the wires shown in Figure 2, which extends from electrodes 108 and terminates (e.g., an end) at counterpart 101 as previously discussed. Id., Fig. 2. Karjalainen therefore at least suggests “a connector head” (e.g., counterpart 101) “mechanically and electrically connected to the second ends of the first and second electrode leads” as claim 28 further recites. Karjalainen also discusses data transfer component 100 has “[a] heart sensor connector 103 [that] enables an electromechanical coupling with a counterpart 101 of the heart sensor 106.” Id. at 4:4–5, Fig. 2; see id. at 3:30–31. Karjalainen discloses heart sensor connector 103 and counterpart 101 can be coupled “with a male-female-type coupling.” Id. at 4:16–17. Karjalainen also shows heart sensor connector 103 as a male connector and counterpart 101 as a female connector. See id., Fig. 2. Thus, Karjalainen further shows counterpart 101 as having “a connector head . . . comprising a connector receptacle configured to receive a male . . . connector” as claim 28 recites. Karjalainen additionally discloses “a standard electromechanical interface 102” (id. at 3:31–32, Fig. 2) may comply with various bus types (e.g., USB). Id. at 5:19–24. Although Karjalainen does not also state explicitly that heart connector 103 is a standard electromechanical interface, Karjalainen shows interface 102 has a similar structure to heart connector 103. See id., Fig. 2. As such, Karjalainen further suggests to an ordinarily skilled artisan that heart sensor connector 103 can also be a standard Appeal 2020-004483 Application 15/339,571 11 electromechanical interface, such as an USB-A or USB-B interface, and thus further suggests counterpart 101 has “a connector receptacle configured to receive a male USB connector” as claim 28 recites. Furthermore, Karjalainen discloses an alternative embodiment in Figure 9. Id. at Fig. 9. Figure 9 above shows “an embodiment where the data transfer component 100 [(right)] is coupled with a device 900 [(left)].” Karjalainen 10:30–31. Karjalainen states device 900 may be heart sensor 106. Id. at 10:34. Intermediate to device 900 (e.g., heart sensor) and data transfer component 100, shown above in Figure 9, is a coupling that includes electromechanical interface 102 and counterpart 902. Id. at 10:33–34, Fig. 9. Figure 9 shows counterpart 902 (e.g., yet another type of connector head) as part of device 900 (e.g., a hear sensor). Id. at Fig. 9. Although Figure 9 does not show the internal structure of device 900, Figure 2 shows heart sensor 106 having electrode ends of its leads (e.g., two wires), where one end of the leads is connected to interface 101 as previously explained. Id. at Appeal 2020-004483 Application 15/339,571 12 4:3–19, Fig. 2. Thus, given that both counterpart 902 (Fig. 9) and interface 101 (Fig. 2) are interfaces of a heart sensor, one skilled in the art would have recognized counterpart 902 in Figure 9 is similarly mechanically and electrically connected to an end of electrode leads (i.e., “a connector head mechanically and electrically connected to the second ends of the first and second electrode leads” as claim 28 recites). Also, counterpart 902 in Figure 9 is shown to receive interface 102, a male USB connector, thus suggesting having “a connector receptacle configured to receive a male USB connector” as claim 28 recites. Karjalainen further discusses counterpart 902 “may be the counterpart 104A or 104B.” Id. at 10:35–36. Counterparts 104A and 104B are shown as having a receptacle for receiving male USB counterpart 102. See id., Figs. 2–6. These teachings in Karjalainen collectively further suggest counterpart 902 in Figure 9 could be exchanged for elements 104A and 104B, thus also yielding “a connector receptacle configured to receive a male USB connector.” Accordingly, Karjalainen’s Figure 9 embodiment further teaches or suggests “the connector head comprising a connector receptacle configured to receive a male USB connector” as claim 28. Independent 40 recites “[a] lead-wire set comprising an electrode lead having a first end and a second end, the first end terminating in a socket for connecting to an electrocardiogram (ECG) electrode, and the second end terminating in a connector head having a connector receptacle configured to receive a male USB connector.” Appeal Br. 10 (Claims App.). Claim 40 is broader in scope than independent claim 28, reciting only one electrode lead. In any event, for the reasons discussed above when addressing claim 28, Karjalainen also teaches and suggests claim 40’s limitations. Appeal 2020-004483 Application 15/339,571 13 Although we decline to reject every appealed claim under our discretionary authority under 37 C.F.R. § 41.50(b), we emphasize that our decision does not mean that the remaining claims are necessarily patentable. Rather, we leave the patentability determination of these claims to the Examiner. See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th ed., Rev. 10.2019, June 2020). DECISION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reverse d New Ground 28–33, 40–43 103(a) Quistgaard, Karjalainen 28–33, 40–43 34–39, 44–51 103(a) Quistgaard, Karjalainen, Shattuck 34–39, 44–51 28, 40 103(a) Karjalainen 28, 40 Overall Outcome 28–51 28, 40 This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: Appeal 2020-004483 Application 15/339,571 14 (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the MPEP § 1214.01. 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) (2019). REVERSED; 37 C.F.R. § 41.50(b) Copy with citationCopy as parenthetical citation