Luvozo PBC

Patent Trials and Appeals Board

Jun 29, 2021

2020001857 (P.T.A.B. Jun. 29, 2021)

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.
15/268,228 09/16/2016 David Pietrocola 031340-000110US 3214
12075 7590 06/29/2021
Butzel Long
1909 K St. NW
Suite 500
Washington, DC 20006
EXAMINER
BOLOURCHI, NADER
ART UNIT PAPER NUMBER
2631
NOTIFICATION DATE DELIVERY MODE
06/29/2021 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):
docket@butzel.com
kamlay@butzel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID PIETROCOLA, TERRANCE JUDE KESSLER,
MOHAMMED SAMER CHARIFA, and BABATUNDE O. OGUNFEMI

Appeal 2020-001857
Application 15/268,228
Technology Center 2600
____________

Before ELENI MANTIS MERCADER, JOHN A. EVANS, and
NORMAN H. BEAMER, Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
decision to reject claims 1–20. Appeal Br. 1. We have jurisdiction under 35
U.S.C. § 6.
We REVERSE.2

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Luvozo PBC, as the real party in
interest. Appeal Br. 1.
2 Throughout this Decision, we refer to the Appeal Brief filed August 12,
2019 (“Appeal Br.”); the Reply Brief filed January 13, 2020 (“Reply Br.”);
the Non-Final Office Action mailed March 8, 2019 (“Non-Final Act.”); the
Examiner’s Answer mailed November 12, 2019 (“Ans.”); and the
Specification filed January 3, 2019 (“Spec.”).
Appeal 2020-001857
Application 15/268,228

2
STATEMENT OF THE CASE
CLAIMED SUBJECT MATTER
The claims relate to systems and methods for sensor-based collection
of environmental data. See Spec., Abstract.
CLAIMS
Claims 1 and 11 are independent. Claim 1 is illustrative and
reproduced below:
1. A system comprising:
one or more environmental sensors including at least a
camera, each environmental sensor of the one or more
environmental sensors configured to obtain environmental data
describing at least one physical attribute of an environment in
which the system is disposed, the environmental data including
at least image data obtained by the camera;
a processing system configured to receive the
environmental data from the one or more environmental sensors
and, based upon the environmental data, identify at least one
potential fall hazard in the environment and a degree of risk
associated with the at least one potential fall hazard; and
a reporting component configured to provide an
indication of the identified at least one potential fall hazard and
the degree of risk associated with the fall hazard.

Prior Art
Name3 Reference Date
Derenne US 2012/0075464 A1 Mar. 29, 2012
Piekniewski US 2013/0297542 A1 Nov. 7, 2013
Ménélas US 2015/0260514 A1 Sept. 17, 2015
Dean WO 2009/001057 A1 Dec. 31, 2008

3 All citations herein to the references are by reference to the first named
inventor/author only.
Appeal 2020-001857
Application 15/268,228

3
REJECTIONS4 AT ISSUE
1. Claims 11–20 stand rejected under 35 U.S.C. § 112(b) as
indefinite. Non-Final Act. 10–11.
2. Claims 11–14, 17, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ménélas. Non-Final Act. 14–18.
3. Claims 1–7, 10, 15, and 16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Ménélas and Derenne. Non-Final
Act. 18–24.
4. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Ménélas, Derenne, and Dean. Non-Final Act. 24–25.
5. Claim 18 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Ménélas and Dean. Non-Final Act. 25–26.
6. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Ménélas, Derenne, and Piekniewski. Non-Final Act. 27.
ANALYSIS
We have reviewed the rejection of Claims 1–20 in light of Appellant’s
arguments that the Examiner erred. We have considered in this Decision
only those arguments Appellant actually raised in the Brief. Any other
arguments which Appellant could have made but chose not to make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We are
persuaded that Appellant identifies reversible error.

4 The present application, filed on or after March 16, 2013, is being
examined under the first inventor to file provisions of the AIA. Final Act. 2.
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Application 15/268,228

4

CLAIMS 11–20: INDEFINITENESS.
Claim 11 recites, inter alia:
determining a risk score for a portion of the environment
in which the physical attributes are located based upon
properties of the environment;
determining a total risk score for the environment based
upon the degree of risk associated with the at least one potential
hazard and the risk score for the portion of the environment.
The Examiner finds claim 11 is indefinite because it is unclear to what the
recitation “a portion of the environment in which the physical attributes are
located” refers. Non-Final Act. 10.
Appellant argues claim 11 provides an antecedent basis by reciting
“based upon [] one or more physical attributes, identifying at least one
potential hazard in the environment.” Appeal Br. 12. Appellant argues:
“One of skill in the art would readily understand that a ‘physical attribute”
may be confined to a particular portion of the environment under
consideration” and thus, “the ‘portion of the environment in which the
physical attributes are located’ merely refers to a part of an environment that
contains an identified physical attribute, and the claim is not indefinite.” Id.
The Examiner finds:
the Applicant argues that “total risk [score] is determined
separate from the risk associated with the particular hazard.”
On the contrary, claim 11 recites the total risk factor determined
based on the risk associated with the potential hazard.
Moreover, it is not clear what is the relationship between the
degree of risk associated with the potential hazard for the
portion of the environment and the risk score for the portion of
environment.
Ans. 24.
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5
Appellant does not separately reply to the Answer respecting the
§ 112 rejection.
Appellant discloses a first algorithm for an Identified Hazard Risk
(Spec. ¶ 45), a second algorithm for an area risk (Spec. ¶ 46), and a third
algorithm for a total space risk (Spec. ¶ 47). In view of the Specification
disclosure, we are not persuaded the claims are indefinite.

CLAIMS 1–10, 15, AND 16: OBVIOUSNESS OVER MÉNÉLAS.
Appellant argues the combination of Ménélas, Derenne, Dean, and
Piekniewski fails to render obvious independent Claim 1. Appeal Br. 8.
Appellant further argues dependent claims 2–10, 15, and 16 are patentable in
view of their dependence from independent Claim 1. Id. Therefore, we
decide the appeal of the § 103 rejections on the basis of claim 1 and refer to
the rejected claims collectively herein as “the claims.” See 37 C.F.R. §
41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Claim 1 recites, inter alia:
one or more environmental sensors including at least a camera,
each environmental sensor of the one or more environmental
sensors configured to obtain environmental data describing at
least one physical attribute of an environment in which the
system is disposed, the environmental data including at least
image data obtained by the camera.
Appeal Br. 4.
The Examiner finds Ménélas essentially teaches Claim 1 except
failing to teach a camera and image data obtained by a camera. Non-Final
Act. 20. The Examiner finds Derenne teaches a camera and image data
obtained thereby. Id.
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6
Appellant contends Derenne teaches a system of fixed-position
cameras (Appeal Br. 5) and that:
one of skill in the art would have no reason to look to
Derenne’s [fixed-position camera] patient-monitoring system
when considering Menelas’ shoe. Menelas’ shoe is entirely
concerned with measuring the state of the ground beneath the
shoe. There would be no reason to incorporate cameras to
observe other individuals, or even the shoe wearer [because]
doing so is completely unrelated to any feature of Menelas, and
one of skill in the art would [not] have reason to combine these
two extremely different systems.
Appeal Br. 6. Appellant argues because:
Menelas’ shoe is already capable of “advis[ing] a user of a risk
of falling based on at least the physical properties of the
ground” . . . and there is no indication that incorporating
Derenne’s system would provide any further capability beyond
that already described by Menelas. Accordingly, one of skill in
the art would not combine the systems as suggested by the
Examiner.
Id. (quoting Ménélas, Abstract) (citing ¶¶ 7–9, 30).
The Examiner responds:
As noted in the office [Action], use of cameras to monitor
patients are very common practice. In fact, use of camera is
now part of our daily life, e.g., use of camera embedded in
mobile phones, doorbells, vehicles, security system, as well as
use of wearable mini wireless cameras, in smart watches,
eyeglasses, and the body camera.
Ans. 27.
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007); see
also Metalcraft of Mayville, Inc., v. The Toro Co., 848 F.3d 1358, 1367
Appeal 2020-001857
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7
(Fed. Cir. 2017) (“Without any explanation as to . . . why the references
would be combined to arrive at the claimed invention, we are left with only
hindsight bias that KSR warns against. . . . [W]e cannot allow hindsight bias
to be the thread that stitches together prior art patches into something that is
the claimed invention.”). Further, the USPTO “must examine the relevant
data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made” and that
articulation requirement “appl[ies] with equal force to the . . . motivation to
combine analysis.” In re Nuvasive, Inc., 842 F.3d 1376, 1382–83 (Fed. Cir.
2016). “The factual inquiry whether to combine references must be
thorough and searching and the need for specificity pervades our authority
on the . . . findings on motivation to combine.” Id. at 1381–82 (internal
quotation marks and citation omitted). When “motivation to combine . . . is
disputed,” the USPTO “must articulate a reason why a PHOSITA would
combine the prior art references.” Id. We will not resort to speculation or
assumptions to cure deficiencies in the Examiner’s fact finding or reasoning.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
In the case before us, we find the Examiner’s logic to be conclusory
and unsupported by the evidence of record. As argued by Appellant,
Ménélas discloses: “[t]he solution taught herein allows to determine physical
properties of the ground that a user is walking on using a signal from an
accelerometer located in a foot-worn sensor.” Appeal Br. 4 (quoting
Ménélas ¶ 4). The Examiner fails to explain how the “use of cameras to
monitor patients” (Ans. 27) is relevant or helpful to the use of an
accelerometer “to determine physical properties of the ground that a user is
walking on.”
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8
In view of the foregoing, we are not persuaded a person of skill in the
art would find it obvious to combine the teachings of Ménélas and Derenne.
We, therefore decline to sustain the rejection of claim 1 or of claims 2–7, 10,
15, and 16 dependent therefrom. With respect to dependent claims 8 and 9,
Appellant contends the Examiner does not apply either Dean or Piekniewski
to teach the disputed limitation. The Examiner applies Dean to teach an
ambient light sensor (Non-Final Act. 25), but not to teach the claimed
limitation. The Examiner applies Piekniewski to teach training of neural
nets against environmental data (Non-Final Act. 27), but not to teach the
claimed limitation. We, therefore further decline to sustain the rejection of
claims 8 and 9.

CLAIMS 13 AND 14: OBVIOUSNESS OVER MÉNÉLAS AND DERENNE.
Claims 13 and 14, dependent from independent claim 11 do not recite
a camera limitation, as discussed above. Claim 12 recites: “[t]he method of
claim 11, wherein the one or more environmental sensors are disposed
within a portable computing device.” Claim 13 recites: “[t]he method of
claim 12, further comprising automatically displaying the report on a display
screen of the portable computing device.”
The Examiner finds: “Menelas also disclose automatically displaying
the report on a display screen of the portable computing device (data can be
analyze[d] and displayed on smart phone.” Non-Final Act. 16.
Appellant contends the claimed “environmental sensors are disposed
within a portable computing device.” Appeal Br. 9 (citing Claim 12).
Appellant argues Ménélas’ “environmental sensors” are necessarily located
in the ground-sensing shoe because they operate by contacting the ground
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directly or through the shoe itself, such as by measuring the impact on the
ground. Id. Appellant argues, however, “Menelas’ system would not
function properly if the alleged environmental sensors were instead placed in
a smart phone (since they would not be in contact with the ground), or if the
alleged “display” or “smart phone” was incorporated into the shoe (since the
user would have to somehow view the display while walking in the shoe, or
stop and take off the shoe to access the data).” Appeal Br. 9.
The Examiner fails to address Appellant’s contention that Menelas’
system would not function properly if the alleged environmental sensors
were instead placed in a smart phone or if the display were to be
incorporated in a shoe. See Ans. 33. We are persuaded the rejection relies
on impermissible hindsight. We, therefore further decline to sustain the
rejection of claims 13 and 14.

CLAIMS 11–14, 17, 19, AND 20.
Independent claim 11 recites, inter alia:
determining a risk score for a portion of the environment in
which [one or more] physical attributes are located based upon
properties of the environment;
determining a total risk score for the environment based upon
the degree of risk associated with the at least one potential
hazard and the risk score for the portion of the environment.
Appeal Br. 16, Claims App. (Claim 11).
The Examiner finds each of these risks is taught by Ménélas. Non-
Final Act. 15. The Examiner finds Ménélas teaches:
1. “automatically determining a degree of risk associated with the
at least one potential hazard.” Final Act. 15 (citing Ménélas
¶ 30) (“electronic board advises user of the risk of falling based
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10
on the determined properties of the ground”);
2. “determining a risk score for a portion of the environment in
which the physical attributes are located based upon properties
of the environment.” Id. (citing Ménélas ¶ 30) (“user is advised
of the risk of falling”); and,
3. “determining a total risk score for the environment based upon
the degree of risk associated with the at least one potential
hazard and the risk score for the portion of the environment.”
Id. (citing Ménélas ¶ 30) (“user is advised of the risk of
falling”).
Appellant contends Ménélas is limited to techniques for sensing the
ground immediately under a sensor-equipped shoe. Appeal Br. 10. Thus,
Appellant argues, Ménélas cannot distinguish between a risk for a portion of
the environment and a total risk for the environment. Appeal Br. 10.
The Examiner finds “the total risk factor has to be determined only for
the portion of the environment, where the physical attributes are and
potential hazards exist, i.e., the risk factor for the portion of the
environment.” Ans. 34.
As argued by Appellant, Ménélas determines a risk only for that
portion of the ground upon which a user walks. “The solution taught herein
allows to determine physical properties of the ground that a user is walking
on using a signal from an accelerometer located in a foot-worn sensor.”
Ménélas ¶ 4. As discussed above in connection with the indefiniteness
rejection, Appellant discloses at least three different risk functions which
describe areas of risk beyond merely the ground upon which a user walks.
We are not persuaded the prior art teaches the claimed limitation.
Appeal 2020-001857
Application 15/268,228

11

CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
11–20 112(b) Indefiniteness 11–20
11–14,
17, 19,
20
103(a) Ménélas 11–14,
17, 19,
20
1–7, 10,
15, 16
103(a) Ménélas, Derenne 1–7, 10,
15, 16
8 103(a) Ménélas, Derenne,
Dean
8
18 103(a) Ménélas, Dean 18
9 103(a) Ménélas, Derenne,
Piekniewski
9
Overall
Outcome
1–20

REVERSED