Ex Parte Brown

Patent Trial and Appeal Board

Aug 25, 2017

11226404 (P.T.A.B. Aug. 25, 2017)

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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
7553.00115/05-0900 4380
EXAMINER
JIAN, SHIRLEY XUEYING
ART UNIT PAPER NUMBER
3769
MAIL DATE DELIVERY MODE
11/226,404 09/15/2005
60683 7590
Robert Bosch LLC
1800 W. Central Road
Mount Prospect, IL 60056
Stephen J. Brown
08/28/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN J. BROWN
Appeal 2016-001013
Application 11/226,404
Technology Center 3700
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
BRUCE T. WIEDER, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 54—61, 63—66, and 68—77. We have jurisdiction under 35
U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM-IN-PART.
1 Appellant identifies Robert Bosch Healthcare Systems, Inc. as the real
party in interest (Appeal Br. 2).
Appeal 2016-001013
Application 11/226,404
THE INVENTION
Appellant’s claimed invention relates to a remote health monitoring
and maintenance system that enables a bi-directional interaction between a
patient and a health care provider (Spec. 1: 14—16). Claim 54, reproduced
below with bracketed numerals added, is illustrative of the subject matter on
appeal.
54. A healthcare data monitoring and management system,
comprising:
[1] one or more physiological monitoring devices, each
producing healthcare data representative of the health of a
person;
[2] a handheld unit configured to receive said healthcare data
from at least one of the physiological monitoring devices in
response to executing a computer-executable program and
transmit the healthcare data over a communication network in
response to executing the computer-executable program, said
handheld unit comprising a display allowing the person to view
the healthcare data and a speaker allowing the person to hear
the healthcare data;
[3] a clearinghouse configured to receive the healthcare data
from the handheld unit and format the healthcare data to be
reviewed remotely through an interactive website over the
communication network by a healthcare provider using a
computer; and
[4] a database in communication with said clearinghouse and
configured to (i) store the healthcare data received by the
clearinghouse from the handheld unit and (ii) provide said
healthcare data to the healthcare provider via the clearinghouse.
THE REJECTION
The Examiner relies on the following as evidence of unpatentability:
Bomn et al. US 5,348,008 Sept. 20, 1994
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(“Bomn”)
Ballantyne et al. US 5,867,821 Feb. 2, 1999
(“Ballantyne”)
Moshfeghi et al. US 6,076,166 June 13,2000
(“Moshfeghi”)
Claims 54—61, 63—66, and 68—77 are rejected under 35 U.S.C. § 103
as being unpatentable over Bomn, Ballantyne, and Moshfeghi.
ANALYSIS
Priority
Appellant argues that Ballantyne and Moshfeghi are not available as
prior art because this application is entitled to a priority date of November
17, 1992, which antedates Ballantyne and Moshfeghi (Appeal Br. 7, 9—10;
Reply Br. 2—3). Appellant has made a claim of priority to Application No.
07/977,323 (now US Patent No. 5,307,263) under 35 U.S.C. § 120 {see
Spec. 1, lines 3—12). In order for the claims on appeal to be entitled to the
benefit of the filing dates of the ’323 application under 35 U.S.C. §120, the
record must show that the ’323 application contains a disclosure which
complies with 35 U.S.C. § 112, first paragraph, for each claim in the
subsequently filed ’404 application. Studiengesellschaft Kohle, M.B.H. v.
Shell Oil Co., 112 F.3d 1561, 1564—65 (Fed. Cir. 1997). According to
Appellant, “[a]s exemplified by FIG. 1, column 7 line 29 through column 12
line 28 of the ’263 patent, each limitation of claim 1 [sic — claim 54] is
disclosed in the ’263 patent.” (Appeal Br. 7, 9).
In contrast, the Examiner finds that “for claim features [3] and [4],
support is not found in any other parent applications/patents; except, US
Patent No. 7,624,028 which has a priority date of 03/17/1999.” (Ans. 11—
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Application 11/226,404
12). The Examiner therefore determines that the claims are entitled to an
earliest priority date of March 17, 1999 and that Ballantyne and Moshfeghi
are available as prior art.
We agree with the Examiner. Independent claims 54, 63, and 70 each
requires formatting data to be reviewed “through an interactive website.”
Appellant has not pointed to any support in the ’263 patent for this limitation
(Appeal Br. 7, 9-10; Reply Br. 2—3). We have reviewed the ’263 patent and
find that it does not provide support for formatting data to be reviewed
“through an interactive website.” The ’263 patent does not contain any
disclosure of any website, web server, or web browser, much less an
interactive website.
Accordingly, we sustain the Examiner’s finding that the claims of this
application are not entitled to the priority date of the ’323 application (’263
patent). Consequently, we also find that the Appellant has not persuasively
shown that Ballantyne and Moshfeghi are not available as prior art.
Obviousness
Independent claim 54
Appellant argues that “Ballantyne does not disclose the transfer of
‘healthcare data’ as that term is used in the claim” because Ballantyne’s data
is not “produced by a physiological machine as required by claim 54”
(Appeal Br. 7). Appellant also contends that “the PDA of Ballantyne is not
a physiological monitoring device” (Reply Br. 5).
The Examiner finds the “physiological monitoring devices, each
producing healthcare data” limitation of claim 54 in Bomn (Ans. 3).
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Appellant’s arguments that Ballantyne does not disclose “healthcare data”
and “a physiological monitoring device” do not address the Examiner’s
findings in Bomn. The Examiner only relied on Ballantyne’s PDA units to
show the claimed data path to the clearinghouse “from the handheld unit”
(i.e., instead of Bomn’s direct path from patient unit 1000 to central base
station 2000) (Ans. 4—5; 12—13).
The Appellant contends that “the Examiner has failed to provide a
clear articulation explaining why it would be obvious” to modify Bomn “to
transmit healthcare data from a portable device” (Appeal Br. 9). The
Appellant argues that, because of the direct path from the patient unit 1000
to the central base station 2000 in Bomn, “any healthcare data in the nurse’s
unit is already present in the central base station 2000 prior to any
communication from the nurse unit 3000” (Appeal Br. 8). According to the
Appellant, “[sjince the most recent healthcare data is at the central base,
there is no purpose behind retransmitting the data to the central base after the
central base transmits the data to the nurse unit” (Appeal Br. 8—9).
Appellant also contends that “[t]he nurse’s unit is not a physiological
monitoring device” and “[tjherefore, the nurse’s annotations are not
healthcare data as required by claim 54.” {Id. at 9). According to Appellant,
“[sjimply making notes in a device does not transform that device into a
‘physiological monitoring device.’” (Reply Br. 5).
The Examiner finds the claimed “physiological monitoring device” in
patient units 1000 of Bomn (Ans. 3), not in Bomn’s nurse units 3000 or
Ballantyne’s PDA 420. Thus, Appellant’s arguments that the nurse units are
not physiological monitoring devices do not address the Examiner’s finding.
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The Examiner’s discussion of using the PDA disclosed in Ballantyne is to
provide a motivation for modifying the data path of Bomn to include a
handheld device. According to the Examiner, “it is necessary to transmit
patient’s healthcare data from the nurse unit to the central monitoring station
to ensure the latest record of patient data is kept since nurses often
modify/mark specific events to a patient’s healthcare data.” (Ans. 5).
Ballantyne discloses that medical personnel can update medical records
using a handheld PDA tablet display 420. For example, Ballantyne discloses
that “new information is entered through the PDA technology by simply
writing as normal on the pen display tablet” (Ballantyne col. 14, lines 19—
26). Ballantyne further discloses that this additional or modified data must
be transferred to the nursing station 418 (see, e.g., Ballantyne col. 12, lines
48—63). Appellant’s argument that “the nurse’s annotations are not
healthcare data” is not persuasive because nothing in claim 54 excludes a
nurse’s annotations from being added to existing healthcare data (i.e., data
produced by patient units 1000) that is transferred to a handheld unit.
Appellant’s argument that there is “no purpose” for the combination is not
persuasive because it ignores the Examiner’s articulated reasoning.
Accordingly, we find that the Examiner clearly articulated a reason for the
proposed combination of Bomn and Ballantyne.
The Appellant further argues that “the Examiner has failed to provide
a clear articulation” for the combination of Bomn and Moshfeghi (Appeal
Br. 10-11). According to the Appellant, “[ajdding verification protocols,
and limiting the individuals who can receive the data which has been
determined to be indicative of a life-threatening situation, would
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Application 11/226,404
unacceptably delay the receipt of alerts in the system of Bomn” (Id. at 10).
Appellant contends that “while the protocols and security layers provided by
Moshfeghi are suitable for stored confidential material as intended by the
system of Moshfeghi (see, e.g., Moshfeghi at Abstract), such protocols are
not suitable for an alert system dealing with real-time life-threatening
situations” (Id.).
Appellant’s argument is not persuasive because it amounts to attorney
argument, not record evidence sufficient to rebut the Examiner’s prima facie
case of obviousness. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997) (Attorney argument cannot take the place of record evidence.).
For the foregoing reasons, the Appellant’s arguments as to error in the
rejection is unpersuasive. Accordingly, the rejection of claim 54 under 35
U.S.C. § 103(a) as being unpatentable over Bomn, Ballantyne, and
Moshfeghi is sustained.
Because the arguments with respect to independent claims 63 and 70
and dependent claims 56—58, 60, 61, 65, 66, 68, 69, and 72—77 (Appeal Br.
6—18; Reply Br. 2—6) are the same, we sustain the rejection of those claims
for the same reasons.
Dependent claims 55, 64, and 71
Claim 55 depends from claim 54 and recites “wherein said
clearinghouse comprises a computer server.”
The Appellant contends that the rejection of claim 55 is improper
“because not all computers are servers, Bomn’s computer is not necessarily
a server.” According to the Appellant, “[i]t is well-known, however, that
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‘servers’ are specialized computers which ‘operate within a client-server
architecture.’” (Appeal Br. 12).
The Examiner finds that “Bomn teaches a client-server architecture in
Fig. 1 A. Specifically, the central base station 2000 is a server computer that
is in two way communication with a plurality of client devices including
patient devices 1000 and nurse units 3000.” (Ans. 17).
The Appellant has not addressed this finding by the Examiner and the
Appellant’s argument therefore does not apprise us of error in the
Examiner’s rejection of claim 55. Accordingly, we sustain the rejection of
dependent claim 55. Because the Appellant’s arguments with respect to
dependent claims 64 and 71 are the same (Appeal Br. 16,18), we sustain the
rejection of those claims for the same reasons.
Dependent claim 59
Claim 59 depends from claim 54 and recites “wherein the handheld
unit is a compact, portable unit adapted to patient self-care.”
The Examiner finds that “Bomn teaches a remote dispatcher station
that is handheld, compact and portable” (Ans. 18).
The Appellant argues, inter alia, that “Bomn [] teaches that a remote
dispatcher station includes a personal computer, a full screen display, a
printer, and other components. A personal computer with a full screen
display and printer is neither handheld nor portable.” (Reply Br. 6) (citing
Bomn col. 15, lines 28—29).
Dispatcher station 5000, as shown in Figure 2 A of Bomn, includes
display 5004, which is described as a “full screen PC display 5004” (Bomn
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col. 15, lines 28—29), i.e., a personal computer (“PC”) display. Therefore,
we agree with the Appellant that dispatcher station 5000 is not a “handheld
unit [that] is a compact, portable unit” as required by claim 59.
Accordingly, we do not sustain the rejection of claim 59.
DECISION
The rejection of claims 54—58, 60, 61, 63—66, and 68—77 under 35
U.S.C. § 103 is affirmed.
The rejection of claim 59 under 35 U.S.C. § 103 is reversed.
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-IN-PART
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