Valencell, Inc.Download PDFPatent Trials and Appeals BoardDec 17, 20202020002200 (P.T.A.B. Dec. 17, 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. 14/264,898 04/29/2014 Steven Francis LeBoeuf 9653-3TSCT4 3528 20792 7590 12/17/2020 MYERS BIGEL, P.A. PO BOX 37428 RALEIGH, NC 27627 EXAMINER STEINBERG, AMANDA L ART UNIT PAPER NUMBER 3792 NOTIFICATION DATE DELIVERY MODE 12/17/2020 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): myersbigel_pair@firsttofile.com uspto@myersbigel.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STEVEN FRANCIS LeBOEUF, JESSE BERKLEY TUCKER, and MICHAEL EDWARD AUMER ____________________ Appeal 2020-002200 Application 14/264,898 Technology Center 3700 ____________________ Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and SEAN P. O’HANLON, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 17–20 and 22–24.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Valencell, Inc. Appeal Br. 3. 2 The Examiner withdrew the rejection of claim 21. Ans. 3. Appeal 2020-002200 Application 14/264,898 2 THE CLAIMED SUBJECT MATTER Claim 17, reproduced below, is illustrative of the claimed subject matter. 17. A system for presenting personal health information to a person, comprising: at least one earpiece monitor comprising an earpiece fitting, wherein the earpiece fitting comprises a plurality of sensors, wherein the plurality of sensors are configured to detect physiological information from a body of the person and to detect motion information from the body of the person, wherein the physiological information comprises pulse rate and pulse signature, and wherein the body motion comprises footsteps, head motion, and jaw motion, wherein the at least one earpiece monitor is configured to process the physiological information and the motion information via one or more physiological algorithms stored within the at least one earpiece monitor to generate at least one assessment of the person; and a telecommunications device in communication with the at least one earpiece monitor, wherein the telecommunications device is configured to modify the one or more physiological algorithms stored within the at least one earpiece monitor and to download additional physiological algorithms to the at least one earpiece monitor, wherein the telecommunications device is configured to activate and deactivate the plurality of sensors, and wherein the telecommunications device is configured to display a graphical presentation of the at least one assessment generated by the at least one earpiece monitor. EVIDENCE The prior art relied upon by the Examiner is: Name Reference Date Zhou US 2003/0149526 A1 Aug. 7, 2003 Aceti US 2005/0059870 A1 Mar. 17, 2005 Shalon US 2006/0064037 A1 Mar. 23, 2006 Martis US 2006/0075257 A1 Apr. 6, 2006 Appeal 2020-002200 Application 14/264,898 3 REJECTION Claims 17–20 and 22–24 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Aceti, Shalon, Martis, and Zhou. OPINION The Examiner finds that Aceti discloses a personal health information system including, in relevant part, “a telecommunications device (Fig. 8, ¶[0040]) in communication with the at least one earpiece monitor wherein the telecommunications device is configured to download physiological algorithms to the at least one earpiece monitor (¶[0059] software is embodied on a carrier wave for installation on the wireless earpiece).” Non-Final Act. 5. The Examiner finds that Aceti does not disclose, inter alia, “that the telecommunications device is configured to modify a previously programmed algorithm on the earpiece monitor.” Id. at 6. However, the Examiner finds that Zhou discloses a telecommunications device (¶[0009] ASP and end user access point ¶¶[0024–0025] which includes telecommunications devices) . . . configured to modify one or more physiological algorithms stored within a sensor device (¶¶[0047–0048] the instructions/control signals transmitted to the sensor device are changed in response to detected condition such as an asthma attack). Id. at 7. The Examiner determines that it would have been obvious to modify Aceti “to include updateable firmware and the capacity for modifying or updating the physiological programming because it can then be updated without recall of the physical device and this minimizes support issues, and reduces required customer maintenance.” Id. at 8 (citing Zhou ¶ 50). Appeal 2020-002200 Application 14/264,898 4 Appellant argues that the Examiner’s rejection is in error because Zhou fails to disclose a “telecommunications device . . . configured to modify the one or more physiological algorithms stored within the at least one earpiece monitor,” as recited in claim 17. See Appeal Br. 14–15; Reply Br. 7–8. We agree with Appellant that a sustainable case of obviousness has not been established. Zhou discloses that application service provider (ASP) 200 serves as an intermediary link between remote localization and sensing devices 100 and devices of end user 25. Zhou ¶ 24. “ASP 200 provides end users 25 the ability to access the device data, specify alert threshold values for comparison to measured sensor values and receive notifications from the ASP 200.” Id. Zhou discloses that “[d]evice 100 monitors biological parameters such as blood pressure, heart rate, respiratory rate and/or lung capacity. Information related to the biological parameters is sent to the ASP 200.” Id. ¶ 48. “If the information is indicative of a condition in need of a response, a response signal is sent by the qualified person or via the automated process from the ASP 200 to the [d]evice 100 via the communication network 35 such as the Internet.” Id. ¶ 47. “The processing unit 260 processes the response signal and optionally, information retrieved from the information storage device 270 to formulate a control signal.” Id. The Examiner takes the position that paragraphs ¶¶[0047–0048] of Zhou . . . describe[] how not only does the ASP receive physiological information and analyze it (in and of itself a physiological algorithm) but that it further responds to “a condition in need of a response” by the ASP sending a response signal to the monitoring device which results [in] a control signal, which is a function of information supplied by the response signal and it alters the functioning of Appeal 2020-002200 Application 14/264,898 5 the device as described in ¶[0048]. This is a modification of a physiological algorithm because the rules by which the physiological device was functioning have been changed and it now functions in a different fashion. Ans. 7 (emphasis omitted). The Examiner’s position in unsound. We agree with Appellant that “the cited portions of Zhou describe what would appear to be normal processing of the monitoring device in response to a message from Zhou’s ASP, and make no reference to changing an algorithm, physiological or otherwise, that is stored on the device.” Reply Br. 7. In other words, although Zhou discloses that device 100 (i.e., monitoring device) performs a function in response to a signal from ASP 200 (i.e., telecommunications device), the Examiner does not identify, nor do we discern, sufficient evidence or technical reasoning to support a finding that ASP 200 modifies an algorithm stored on device 100. Thus, the Examiner’s finding that Zhou discloses a “telecommunications device configured to modify the one or more physiological algorithms stored within a sensor device” (Non-Final Act. 7) lacks adequate evidentiary support. Accordingly, based on the record before us, the Examiner has not met the burden of establishing a proper case that independent claim 17 is unpatentable based on the cited references. On this basis, we do not sustain the rejection of independent claim 17, or dependent claims 18–20 and 22–24, under 35 U.S.C. § 103(a) as unpatentable over Aceti, Shalon, Martis, and Zhou. CONCLUSION In summary: Appeal 2020-002200 Application 14/264,898 6 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 17–20, 22–24 103(a) Aceti, Shalon, Martis, Zhou 17–20, 22–24 REVERSED Copy with citationCopy as parenthetical citation