Gordon, Brian Michael. et al.Download PDFPatent Trials and Appeals BoardMay 11, 20202019005654 (P.T.A.B. May. 11, 2020) 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. 14/716,006 05/19/2015 Brian Michael Gordon TTS-0001-US 1055 23550 7590 05/11/2020 HOFFMAN WARNICK LLC 540 Broadway 4th Floor Albany, NY 12207 EXAMINER JANG, CHRISTIAN YONGKYUN ART UNIT PAPER NUMBER 3791 NOTIFICATION DATE DELIVERY MODE 05/11/2020 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): PTOCommunications@hoffmanwarnick.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte BRIAN MICHAEL GORDON, HOWARD SCHLOSSBERG, and HERBERT REICH __________ Appeal 2019-005654 Application 14/716,006 Technology Center 3700 __________ Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, 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 1–7, 9–16, and 19–23, which constitute all the claims pending in this application. Non-Final Act. 1 (Office Action Summary). Claims 8, 17, and 18 have been canceled. See Appeal Br. 4. 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 “H D L Enterprises, LLC.” Appeal Br. 1. Appeal 2019-005654 Application 14/716,006 2 We have jurisdiction under 35 U.S.C. § 6(b). For the reasons explained below, we do not find error in the Examiner’s rejections. Accordingly, we AFFIRM the Examiner’s rejections. CLAIMED SUBJECT MATTER The disclosed subject matter “relates generally to pulse monitoring.” Spec. 1. System claim 1, method claim 11, apparatus claim 16, and program product claim 20 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A pulse monitoring system comprising: a monitoring device for monitoring a pulse of an individual, the device being operable to detect a pulse and transmit data related to the detected pulse; a communication device operable to receive data from the monitoring device and initiate a communication; and a program product which, when executed, is operable to carry out a method comprising: receiving data related to the detected pulse; analyzing the data related to the detected pulse and determining either or both of a heart rate or a heart beat regularity; determining whether the data are indicative of a heart rate or heart beat regularity outside a predetermined parameter; in the case that the data are indicative of a heart rate or heart beat regularity being outside a predetermined parameter, initiating a visual alert to the individual on the communication device, the visual alert indicating that the heart rate or heart beat regularity is outside the predetermined parameter; and forcing a persistent display on the external communication device, the persistent display including data related to the detected pulse. Appeal 2019-005654 Application 14/716,006 3 REFERENCES RELIED ON BY THE EXAMINER Webb US 6,599,250 B2 July 29, 2003 King US 2006/0152373 A1 July 13, 2006 Mastrototaro US 2008/0139910 A1 June 12, 2008 LaLonde US 8,970,392 B2 Mar. 3, 2015 Larvenz US 2015/0164390 A1 June 18, 2015 THE REJECTIONS ON APPEAL2 Claims 1–7, 9, 11–16, 19, and 20 are rejected under 35 U.S.C. § 103 as unpatentable over King, Larvenz, and Webb. Non-Final Act. 5. Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable over King, Larvenz, Webb, and LaLonde. Non-Final Act. 8. Claims 21–23 are rejected under 35 U.S.C. § 103 as unpatentable over King, Larvenz, Webb, and Mastrototaro. Non-Final Act. 8. ANALYSIS The rejection of claims 1–7, 9, 11–16, 19, and 20 as obvious over King, Larvenz, and Webb Appellant argues claims 1–7, 9, 11–16, 19, and 20 together. Appeal Br. 6–8. We select claim 1 for review, with independent claims 11, 16, and 20, and dependent claims 2–7, 9, 12–15, and 19, standing or falling with claim 1. See 37 C.F.R. § 1.37(c)(1)(iv). Claim 1 recites a case wherein data is “indicative of a heart rate or heart beat regularity being outside a predetermined parameter.” In such event, a program product carries out the step of “initiating a visual alert to [an] individual on [a] communication device, the visual alert indicating that 2 The rejection of claims 1–7, 9–16, and 19–23 under 35 U.S.C. § 101 as being directed to patent ineligible subject matter has been withdrawn. See Ans. 3; Non-Final 2–4. Appeal 2019-005654 Application 14/716,006 4 the heart rate or heart beat regularity is outside the predetermined parameter.” The program product is also recited as including the step of “forcing a persistent display on [an] external communication device,[3] the persistent display including data related to the detected pulse.” Appeal Br. 9 (Claims App.). Appellant contends, “[t]he only mention in King of using a visual alert is in the context of an emergency center operator being advised of a distress signal” and thus, King’s “alert is made to someone other than the device user and using a mechanism other than a user’s communication device.” Appeal Br. 6. However, the Examiner correctly points out that King teaches a system which comprises of two separate units (60 and 70). The measuring unit 60 can be placed directly on the user. The second unit 70 can be located elsewhere (e.g. such as a pocket of the user). The two devices are communicably connected, which can be both wired or wireless ([0042]). King teaches the use of alarms such as using LED lights ([0031]) as well as audible/visible alarms to the end user ([0045]). Ans. 4 (emphasis added); see also King Fig. 2. Because King’s visual alarm can be in the form of an LED light, which can reside on a second unit that communicates with a first unit and can be placed in the pocket of a user, thereby alerting the user, Appellant’s contention that King’s “alert is made to someone other than the device user and using a mechanism other than a user’s communication device” is without merit. We note that King’s Figure 2 depicts a second unit 70 that appears to be a mobile phone, i.e., an “external communication device.”4 3 We note that “the external communication device” lacks antecedent basis. 4 Additionally, even should King’s alert be “made to someone other than the device user,” as Appellant asserts above, Paragraph 45 of King expressly Appeal 2019-005654 Application 14/716,006 5 However, even crediting Appellant’s argument that King does not disclose an alert that is made to the device user using the user’s communication device, Larvenz discloses these features because, as the Examiner points out, Larvenz discloses a wearable sensor device (8) [that] interacts with various devices with a display ([0136]). Some of the devices taught include a dedicated receiver (16), a smartphone (18), wearable devices (21), or a small display device ([0079]). All of these devices include a display for displaying information. Similarly, all these devices can communicate wirelessly with the sensor device, and can be considered a communication device ([0077]). The cited portion of Larvenz ([0109]) states that information received from the sensor system by the wearable device is displayed on the display until the user presses a button that the information has been viewed and may persist even when the wearer acknowledges having viewed the information. Thus, the device forces a persistent display on the communication device. Ans. 4–5 (emphasis added); see also Larvenz Fig. 1. Notably, Larvenz discloses that “display device 18 is a general purpose smartphone” (Larvenz ¶ 79) and further that [i]t is understood that any other user equipment (e.g. computing devices) configured to at least present information (e.g., a medicament delivery information, discrete self-monitoring analyte readings, heart rate monitor, caloric intake monitor, and the like) can be used in addition or instead of those discussed with reference to FIG. 1. Larvenz ¶ 81 (emphasis added). Accordingly, such “other user equipment” or “computing equipment” thus includes display devices 14, 16, 18, and 20, which are depicted in states that the recipient thereof “will attempt to establish contact with the user via any communication device.” We note that claim 1 does not require the alert be sent only directly to the user with no intermediary recipient. Appeal 2019-005654 Application 14/716,006 6 Figure 1 as including at least a smartphone 18 and a desktop computer 20. See Larvenz ¶ 77; Fig. 1. In this regard, Larvenz discloses that an alert is made to the device user employing a user’s communication device such as a smartphone or a desktop computer.5 “Non-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., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Accordingly, Appellant attacks the references individually rather than consider the combination of references as a whole, and thus does not apprise us of Examiner error. Appellant also contends, “[t]he Examiner has, for whatever reason, read ‘on the external communication device’ out of the claims.” Appeal Br. 7. Appellant argues that Larvenz “do[es] not cure the conceded deficiencies of King” because “Appellant claims ‘initiating a visual alert to the individual on the communication device’ and ‘forcing a persistent display on the external communication device.’” Appeal Br. 7. This argument is unpersuasive in that we fail to see why King’s second unit 70 and Larvenz’s various devices––which includes a smart 5 Appellant’s contention that “the portion of Larvenz cited in the rejection describes delivering information (which the Examiner equates with a persistent display) to the wearable device” (Appeal Br. 7) is unpersuasive for the reasons discussed above. More specifically, referring to Paragraph 109 of Larvenz, the Examiner notes that information is received from the sensor system by the wearable device rather than information is transmitted to and displayed on the wearable device 21. See Ans. 4–5. Appeal 2019-005654 Application 14/716,006 7 phone––as discussed above, cannot be considered as satisfying these limitations. Appellant additionally argues that “there is absolutely no mention in Webb of visually displaying information on a communication device.” Appeal Br. 7. Webb was relied on for the display of data (see Final Act. 7), while King and Larvenz were relied on for the display occurring on a communication device (see above). Here, the Examiner correctly responds that “Webb was brought in to show that a visual alert can be given in response to cardiovascular parameters exceeding a threshold.” Ans. 5. In other words, Appellant again attacks the references individually rather than considering the combination of references as a whole. In summary, and based on the record presented, we are not persuaded the Examiner erred in rejecting independent claim 1 as being unpatentable over King, Larvenz, and Webb. Accordingly, we sustain the Examiner’s rejection of claims 1–7, 9, 11–16, 19, and 20. The rejection of claim 10 as being obvious over King, Larvenz, Webb, and LaLonde The rejection of claims 21–23 as being obvious over King, Larvenz, Webb, and Mastrototaro Appellant does not provide any substantive arguments for these rejections and, instead, relies on the arguments provided for parent claims 1, 11, and 20. See Appeal Br. 8. Because we find no deficiencies in the Examiner’s rejection of independent claims 1, 11, and 20 as being obvious over King, Larvenz, and Webb, we likewise sustain the Examiner’s rejections of claim 10 and 21–23 as being obvious over the various combinations of cited art. Appeal 2019-005654 Application 14/716,006 8 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–7, 9, 11–16, 19, 20 103 King, Larvenz, Webb 1–7, 9, 11–16, 19, 20 10 103 King, Larvenz, Webb, LaLonde 10 21–23 103 King, Larvenz, Webb, Mastrototaro 21–23 Overall Outcome 1–7, 9–16, 19–23 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)(iv). AFFIRMED Copy with citationCopy as parenthetical citation