Bruce Llewellyn

Patent Trials and Appeals Board

Aug 30, 2021

2020000378 (P.T.A.B. Aug. 30, 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.
14/990,169 01/07/2016 Bruce Llewellyn JR. MEDGENIUS-001-DIV1 5234
97794 7590 08/30/2021
Maxwell L Minch Esq. PA
11925 SW 1st Lane
Gainesville, FL 32607
EXAMINER
BARAKAT, MOHAMED
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
08/30/2021 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):
maxwell.minch@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte BRUCE LLEWELLYN, JR.1
________________

Appeal 2020-000378
Application 14/990,169
Technology Center 2600
________________

Before CAROLYN D. THOMAS, BRADLEY W. BAUMEISTER, and
SCOTT RAEVSKY, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 7, 9–12, 14–22, and 25, which constitute all of the
pending claims. Appeal Br. 2.2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Bruce Llewellyn, Jr. as the real party in interest. Appeal Brief, 2,
filed July 22, 2019 (“Appeal Br.”).
2 Appellant states that claim 25 is pending and that it stands or falls with
independent claim 1. Appeal Br. 2; see also id.at 6 (stating the claim 25 is
rejected as unpatentable). But Appellant alternatively states that claim 25 is
canceled. Appeal Br. 56; Claims Appx. We understand this latter statement
to be a clerical error intending to set forth claim 25 as pending and claim 26
as being canceled.
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CLAIMED SUBJECT MATTER
According to Appellant, “[t]he present invention generally relates to
healthcare call bells. Specifically, this invention relates to a call bell system
and method for providing . . . need specific service identifiers and requests
based on one or more criteria identified by the system.” Spec. Abstr.
Independent claim 1, reproduced below, illustrates the subject matter
of the appealed claims:
1. A need specific call bell system which offers a patient
multiple selectable buttons that each correspond to a variety of
specific needs and can likewise directly alert the healthcare
professional best qualified to assist the patient with a given need,
said call bell system comprising:
a call bell device having a first communications means and
a capacitive touch screen with one or more customizable need
specific graphical buttons, said customizable graphical button
indicating a picture of the need specific request;
a remote computing device having a call processing
module and a second communication means;
wherein said first communications means is configured to
send a call request in response to a user’s interaction with said
one or more customizable need specific graphical buttons;
wherein said remote computing device receives said call
request from said call bell device and said call processing module
of said remote computing device processes said call request to
create a notification for a particular responder to assist a patient
based on the one or more customizable need specific graphical
buttons selected by the patient;
wherein said responder is selected by the remote
computing device by comparing the qualifications of the
available responders and the need specific request.

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STATEMENT OF THE REJECTIONS
Claims 1, 2, 7, 17–20, and 25 stand rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1, 6, 15, 16,
and 18 of Llewellyn, Jr. (US 9,286,771 B2; issued Mar. 15, 2016), Chriss
(US 2006/0105301 A1; published May 18, 2006), and Shih
(US 2008/0300885 A1; published Dec. 4, 2008). Final Action, 5–7, mailed
Nov. 1, 2018 (“Final Act.”).
Claims 9, 10, 12, and 14 stand rejected on the ground of nonstatutory
double patenting as being unpatentable over claims 1, 6, 15, 16, and 18 of
Llewellyn, Jr., Chriss, Shih, and Fichadia (US 2002/0124184 A1; published
Sept. 5, 2002). Final Act. 7–9.
Claim 21 stands rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1, 6, 15, 16, and 18 of
Llewellyn, Jr., Chriss, Shih, and Coulter (US 2010/0305966 A1; published
Dec. 2, 2010). Final Act. 9.
Claims 1, 2, 7, 17–20, 22, and 25 stand rejected under 35 U.S.C. § 103
as being unpatentable over Kirkeby (US 2005/0242928 A1; published
Nov. 3, 2005), Chriss, and Shih. Final Act. 10–14.
Claims 9–12 and 14–16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kirkeby, Chriss, Shih, and Fichadia. Final Act. 14–17.
Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Kirkeby, Chriss, Shih, and Coulter. Final Act. 17–18.

STANDARD OF REVIEW
The Board conducts a limited de novo review of the appealed rejections for
error based upon the issues identified by Appellant, and in light of the
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arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential).

THE DOUBLE PATENTING REJECTIONS
In the Final Rejection, the Examiner rejects claims 1, 2, 7, 9, 10, 12,
14, 17–21, and 25 on the ground of nonstatutory double patenting over the
various combinations of references, as outlined above in this opinion. Final
Act. 4–9. Appellant does not present arguments on the merits as to why
these double-patenting rejections are improper. Appeal Br. 6–29. Rather,
Appellant only argues the merits of the obviousness rejections. See, e.g., id.
at 6 (only setting forth that the grounds of rejection to be reviewed on appeal
are the two obviousness grounds under 35 U.S.C. § 103). Appellant then
summarily asserts in the conclusion section of the arguments that the double-
patenting rejections must be reversed. Id. at 29. Accordingly, we
summarily affirm these rejections.

THE OBVIOUSNESS REJECTIONS OF
CLAIMS 1, 2, 7, 17–20, 22, and 25
The Examiner’s Determinations Regarding Independent Claim 1
The Examiner finds that Kirkeby discloses all of the limitations of
claim 1 with two exceptions. Final Act. 10–11. Specifically, the Examiner
finds, “Kirkeby fails to expressly disclose that the call bell device [has] a
capacitive touch screen with one or more customizable need specific
graphical buttons.” Id. at 11. The Examiner relies on Chriss for teaching
this limitation and cites motivation to combine the teachings of Kirkeby and
Chriss. Id. at 12.
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The Examiner further finds that the combination of Kirkeby and
Chriss does not disclose that the customizable graphical button indicates a
picture of the need-specific request. Final Act. 12. The Examiner relies on
Shih for teaching this missing limitation and cites motivation to combine the
teachings of Shih with those of Kirkeby and Chriss. Id.
Summary of Appellant’s Arguments
Appellant presents six arguments regarding independent claim 1:
(a) The combination of Kirkeby, Chriss, and Shih fail[s] to
teach or suggest the need specific call bell system described in
the pending claims as required under Graham and MPEP [§§]
2141 and 2142.
(b) The outstanding rejection is factually flawed in that the
combinations of references of Kirkeby, Chriss, and Shih perform
a function different tha[n] each element performs separately, thus
the combination of which do[es] not teach or arrive at the present
invention and as such [is] contrary to the claimed invention.
(c) The combinations of Kirkeby, Chriss, and Shih add
complexity and cost without solving a recognized problem in the
art field of call bell devices.
(d) Kirkeby, Chriss, and Shih are not art recognized
equivalents . . . due to the disparity in their levels [of]
sophistication and technology dependence, and they teach away
from call bell devices, thus a person of ordinary skill in the art
must proceed contrary to the clear teachings of Kirkeby, Chriss,
and Shih with respect to the call bell, in that none alone or in
combination teach[es] a need specific call bell.
(e) The intervening time of Kirkeby, Chriss, and Shih makes
a rejection for obviousness inappropriate.
(f) Kirkeby, Chriss, and Shih each teach away from a need
specific call bell device.
Appeal Br. 9 (emphasis added).
We address these arguments below in turn.
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Contentions and Analysis
(A) DOES THE COMBINATION OF KIRKEBY, CHRISS, AND SHIH FAIL TO TEACH
OR SUGGEST THE NEED SPECIFIC CALL BELL SYSTEM DESCRIBED IN THE PENDING
CLAIMS, AS REQUIRED UNDER GRAHAM AND MPEP §§ 2141 AND 2142?
Appellant argues that claim 1 recites, “[a] need specific call bell
system [that] offers a patient multiple selectable buttons that each
correspond to a variety of specific needs and can likewise directly alert the
healthcare professional best qualified to assist the patient with a given
need.” Appeal Br. 11. Appellant argues that Kirkeby fails to disclose these
two claim requirements. Id.
First, Appellant argues, “Kirkeby does not teach, at least, one or more
customizable need specific graphical buttons (or multiple need specific
graphical buttons),” as claimed. Appeal Br. 11. Appellant argues more
specifically,
Kirkeby does not teach “multiple selectable buttons that each
correspond to a variety of specific needs”, “one or more
customizable need specific graphical buttons”, that “the call
request is initiated by the user’s interaction with one or more
need-specific buttons”, nor that the singular button illustrated on
the input device 175 is a need specific button, a graphical button,
or even a customizable button, as each is required by claim 1.
Kirkeby merely teaches that an indication may be generated for
a specific request in response to interaction with a patient console
without teaching anything else.
Id. at 12.
This argument is unpersuasive because Appellant is arguing Kirkeby
alone, whereas the appealed rejection is based on the combination of
Kirkeby, Chriss, and Shih. Final Act. 10–12. The Examiner relies on Chriss
for teaching a capacitive touch screen with one or more customizable need
specific graphical buttons, as claimed—not Kirkeby. Id. at 11–12. One
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cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981).
Appellant next argues,
Kirkeby does not teach that the device “create(s) a notification
for a particular responder to assist a patient based on the one or
more customizable need specific graphical buttons selected by
the patient”, or that “the responder is selected by the remote
computing device by comparing the qualifications of the
available responders and the need specific request.”
Appeal Br. 12–13.
Appellant acknowledges that Kirkeby teaches a Patient Console 108
that transmits messages to a Central Command Computer 109. Appeal
Br. 13. Appellant also acknowledges, “The Central Command
Computer 109 determines whether the message indicates an emergency
situation. If the message indicates that there is an emergency[,] then said
Central Command Computer generates a list of qualified medical staff
members and assigns the [closest] staff member.” Id. (citing Kirkeby ¶ 23).
Appellant argues, though, “Kirkeby does not, therefore, teach a call
bell device having a first communications means configured to send a call
request in response to a user’s interaction with one or more customizable
need specific graphical buttons.” Appeal Br. 13.
This argument is unpersuasive for the reasons noted above—namely,
Appellant is arguing Kirkeby alone, whereas the rejection is based upon the
combination of Kirkeby, Chriss, and Shih. See Final Act. 10–12.
Appellant continues, “rather, Kirkeby teaches only reporting an
emergency to a medical staff member irrespective of their individual
qualifications related to the request, and just that they are qualified medical
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staff [regardless of] whether they are specialized in the medical emergency
being reported.” Appeal Br. 13 (citing Kirkeby ¶ 7).
This argument is unpersuasive because Kirkeby discloses,
If the message indicates that there is an emergency, the central
command computer 109 generates a list of qualified medical staff
members (e.g., any doctor, any nurse, or a specialist) at
block 410. One suitable way of making this determination
involves matching the event code sent at blocks 206 and 306 with
a list of qualified people identified in the configuration file
described in more detail with reference to FIG. 6. The central
command computer 109 then determines the closest qualified
medical staff member at block 412 and assigns that staff member
at block 414.
Kirkeby ¶ 23 (emphasis added). Appellant does not persuasively explain
why this passage fails to teach or suggest the claim requirement, “said
responder is selected by the remote computing device by comparing the
qualifications of the available responders and the need specific request.”
Appellant further argues that Kirkeby is deficient because “Kirkeby
only reports medical emergencies to medical staff, but does not handle any
non-medical emergency to any specific responder that is not a qualified
medical staff member.” Appeal Br. 14. This argument is unpersuasive
because it is not commensurate in scope with claim 1. That is, Appellant
does not sufficiently explain why claim 1 requires reporting medical non-
emergencies, as well as medical emergencies.
Appellant also argues, “Kirkeby does not comprise a call bell device
consisting of a means for the patient to request attention from the ‘healthcare
professional best qualified to assist the patient with a given need.’” Appeal
Br. 14 (citing claim 1; Spec. ¶ 7). According to Appellant, “Kirkeby teaches
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of medical alerts being assigned to the closest qualified medical staff
member.” Id. (citing Kirkeby ¶¶ 23–24).
This argument is unpersuasive because it is not commensurate in
scope with claim 1. Claim 1 does not require that the selected responder be
the healthcare professional best qualified to assist. Although the claims are
interpreted in light of the specification, limitations from the specification are
not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993).
Furthermore, Appellant fails to argue persuasively why it would have
been unreasonable to interpret the closest staff member of a pool of qualified
medical staff members as constituting the best qualified staff member. See
Kirkeby ¶ 23. Moreover, in that subset of situations covered by Kirkeby
where only one medical staff member is qualified to respond to a particular
call, that medical staff member would be, by definition, the best qualified
medical staff member. See id.
Appellant argues, “Chriss does not teach ‘a capacitive touch screen
with one or more customizable need specific graphical buttons, said
customizable graphical button indicating a picture of the need specific
request.’” Appeal Br. 17 (emphasis added). This argument is unpersuasive
for multiple reasons. First, the argument is not commensurate in scope with
the rejection. The Examiner relies on Chriss only for teaching “a capacitive
touch screen with one or more customizable need specific graphical
buttons.” Final Act. 12; Examiner’s Answer, 5, mailed Aug. 23, 2019
(“Ans.”). The Examiner relies on Shih—not Chriss—for teaching that the
customizable graphic button indicates a picture of the need specific request.
Id. 12.
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Second, Chriss does teach the disputed claim language for which it
was relied upon, “a capacitive touch screen with one or more customizable
need specific graphical buttons.” Chriss teaches, for example,
“WordGroup Object” is used to refer to a data structure
[that] preferably is used to store the text strings displayed on
WordGroup Panels (such as those in FIG. 2) and other text
strings used in association with WordGroup Panels and
Command Panels, as well as to store a number of integer and
Boolean variables [that] control how the specific WordGroup
Object is to be used or displayed. A configuration utility
preferably is provided for use in generating new WordGroup
Objects, or to modify existing WordGroup Objects to customize
Patient Module 2 to meet the needs of a particular patient.
Chriss ¶ 110.
Third, the Examiner relies on Shih—not Chriss—for teaching the
claim language, “said customizable graphical button indicating a picture of
the need specific request.” Final Act. 12. And Shih does teach this claim
language. E.g., Shih ¶ 24, 27; Fig. 3.
Moreover, it is immaterial for purposes of patentability whether the
printed matter that appears on the touch-screen’s buttons of Kirkeby or
Chriss consists of words or alternatively of pictures indicating the specific
need. The Examiner need not give patentable weight to descriptive material
absent a new and unobvious functional relationship between the descriptive
material and the substrate. See In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir.
2004); In re Lowry, 32 F.3d 1579, 1583–84 (Fed. Cir. 1994); Ex parte
Curry, 84 USPQ2d 1272, 1275 (BPAI 2005), aff’d, slip op. 06-1003 (Fed.
Cir. 2006).
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(B) IS THE OUTSTANDING REJECTION FACTUALLY FLAWED IN THAT THE
COMBINATION OF REFERENCES OF KIRKEBY, CHRISS, AND SHIH PERFORM A
FUNCTION DIFFERENT THAN EACH ELEMENT PERFORMS SEPARATELY?
Appellant asserts, “Kirkeby provides for [a] medical alert method and
system,” whereas “Chriss explicitly provides an assistive communication
device [that] allows individuals with temporary or permanent impairments to
communicate audible synthetic speech to a person, through a telephone, or to
a nurse[’]s station. Appeal Br. 19–20 (Citing Chriss ¶¶ 2, 105, 106).
Appellant further asserts, “Chriss provides for a system for a patient who is
unable to speak to provide audible synthetic speech.” Id. at 20.
According to Appellant,
The only logical connection between the references cited from
Chriss, paragraphs [0222], [0110], and [0360] and Figures 2, 3
and 6, is that they contain certain keywords that are similar in
nature to the “capacitive touch screen with one or more
customizable need specific graphical buttons” elements of the
Claim 1 of the present invention. The Examiner fails to provide
“clear articulation” and “rational underpinnings” as to why the
referenced teachings taken “as a whole” achieve the same
advantage or result discovered by applicant.
Appeal Br. 20.
Appellant further argues,
One skilled in the art could not have combined the
elements of Kirkeby and Chriss to arrive at the present invention
by known methods with no change in their respective functions,
to yield a predictable result, because the combination would not
provide a call bell device having a first communications means
and a capacitive touch screen with one or more customizable
need specific graphical buttons, wherein said remote computing
device receives said call request from said call bell device and
said call processing module of said remote computing device
processes said call request to create a notification for a particular
responder to assist a patient based on the one or more
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customizable need specific graphical buttons selected by the
patient; and wherein said responder is selected by the remote
computing device by comparing the qualifications of the
available responders and the need specific request. Rather, the
combination would have resulted in a synthetic speech device as
taught is Chriss connected to a combination call bell system and
equipment monitor as taught in Kirkeby.
Appeal Br. 21–22.
Appellant’s arguments are unpersuasive. The Examiner determines
that one of ordinary skill would have been motivated to combine the
teachings of Chriss and Shih with those of Kirkeby so that the user can use
“a graphical button indicating a picture of [a] need specific request in order
to make it easy and simple for the patients to request what the[y] need by
pressing a button that includes a picture corresponding to their need and
thereby improve the overall patient experience.” Final Act. 12.
Appellant does not point to persuasive evidence of record that the
combination would be “uniquely challenging or difficult for one of ordinary
skill in the art” or “represent[] an unobvious step over the prior art.”
Leapfrog Enters. Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007) (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418–19 (2007));
Appeal Br. 21–22. Nor has Appellant provided objective evidence of
secondary considerations, which our reviewing court states “operate[] as a
beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese &
Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). The Examiner’s
findings are reasonable because the skilled artisan would “be able to fit the
teachings of multiple patents together like pieces of a puzzle” because the
skilled artisan is “a person of ordinary creativity, not an automaton.” KSR,
550 U.S. at 420–21. The claimed subject matter exemplifies the principle
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that “[t]he combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.” Id.
at 416.
(C) DOES THE COMBINATION OF KIRKEBY, CHRISS, AND SHIH IMPROPERLY
ADD COMPLEXITY AND COST WITHOUT SOLVING A RECOGNIZED PROBLEM IN
THE ART FIELD OF MEDICAL ALERT SYSTEMS AND METHODS?
Appellant argues that it would not have been obvious to combine the
teachings of the cited references because adding the relied-upon
functionality of Chriss would have resulted in an additional process step at
additional cost for no apparent reason. Appeal Br. 23–24.
This argument is unpersuasive because the Examiner has set forth a
reason for adding Chriss’s additional functionality—to make it easier for a
patient to request assistance. Final Act. 13. The Examiner further explains
that including Chriss’s functionality improves Kirkeby’s call bell device by
making it customizable for the needs of different types of users. Ans. 5.
The Examiner also reasons that providing a graphical button indicating a
picture of the need can make using a call device easier for patients. Id. at 6.
Further, Appellant’s argument regarding the purported additional
costs from combining the references is unsupported by evidence.
Regardless, even if there were some additional costs entailed in combining
the references, “[a] given course of action often has simultaneous advantages
and disadvantages, and this does not necessarily obviate motivation to
combine.” Allied Erecting v. Genesis Attachments, 825 F.3d 1373, 1381
(Fed. Cir. 2016) (cleaned up). Appellant’s purported cost disadvantage does
not outweigh the advantages of combining the references identified by the
Examiner.
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(D) DO KIRKEBY, CHRISS, AND SHIH TEACH AWAY FROM THE CLAIMED
CALL BELL DEVICE DUE TO NOT BEING ART-RECOGNIZED EQUIVALENTS?
Appellant argues,
Kirkeby, Chriss, and Shih are not art recognized equivalents due
to the disparity in their levels [of] sophistication and technology
dependence, and they teach away from call bell devices, thus a
person of ordinary skill in the art must proceed contrary to the
clear teachings of Kirkeby, Chriss, and Shih with respect to the
call bell, in that none alone or in combination teach a need
specific call bell.
Appeal Br. 24 (emphasis omitted).
More specifically, Appellant first restates the purported purposes of
each of the Kirkeby, Chriss, and Shih references (Appeal Br. 25–27), and
Appellant then argues, “[t]he problem being addressed in developing a
means for ‘summoning assistance from a healthcare professional of the call
bell system of [the Llewellyn, Jr.,’771] Patent . . . operates on [a] much less
sophisticated technology platform as evidenced by the language of the
specification.” Appeal Br. 26. Appellant then contends, “[t]o suggest that
Kirkeby, Chriss and Shih are art recognized equivalents is anathema to the
holdings of Bigio and In re GPAC.” Id.; see also id. at 21 (citing In re Bigio,
381 F.3d 1320 at 1325 (Fed. Cir. 2004); In re GPAC Inc., 57 F.3d 1573
(Fed. Cir. 1995)).
Appellant’s arguments are unpersuasive. First, the Examiner does not
cite Llewellyn, Jr., ’771 as a basis for the obviousness rejection of
independent claim 1. The Examiner, instead, relies on Llewellyn , Jr.,’771
for the obviousness-type double patenting rejections. Final Act. 5–9.
Even if we assume that Appellant intends to argue that the present
invention is of the same level of sophistication as Llewellyn, Jr., ’771, and,
therefore, the cited art is non-analogous because the present invention
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operates on a much less sophisticated technology platform than does the
cited art, this argument still does not persuade us that the cited references
constitute non-analogous art. The cited case law does not hold that
differences in sophistication of the technology can serve as a basis for
finding the art to be non-analogous. Rather, In re GPAC merely holds that
sophistication of the technology can be considered in determining the level
of ordinary skill in the art. In re GPAC, 57 F.3d at 1579.
As Appellant acknowledges,
A reference is analogous art to the claimed invention if: (1) the
reference is from the same field of endeavor as the claimed
invention (even if it addresses a different problem); or (2) the
reference is reasonably pertinent to the problem faced by the
inventor (even if it is not in the same field of endeavor as the
claimed invention).
Appeal Br. 25 (citing Bigio, 381 F.3d at 1325). But Appellant does not
adequately address both parts of the Bigio test. See Appeal Br. 24–26.
(E) DOES THE INTERVENING TIME OF KIRKEBY, CHRISS, AND SHIH
MAKE A REJECTION FOR OBVIOUSNESS INAPPROPRIATE?
Appellant argues, “the length of the intervening time between the
publication dates of Kirkeby and Chriss are objective indicators of a lack of
recognized need in the call bell device art field for these elements.” Appeal
Br. 27. According to Appellant,
It has been over 10(+) years since these elements have been
known in the art. In the intervening 10(+) years between these
cited references and the present invention, a person having
ordinary skill in the art has yet to combine Kirkeby, Chriss and
Shih during the normal course of research and development to
produce Applicants invention. It was not until the present
inventions filing in 2016 (11 years after Kirkeby, 10 years after
Chriss, and 9 years after Shih) that the solution to the
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unrecognized need for a graphical button need-specific call bell
system was created in the present invention. The intervening
time between the prior art’s teaching of the components and the
eventual disclosure of the present invention “speaks volumes to
the nonobviousness of the present invention”. (See Leo
Pharmaceutical Products, Ltd. v. Rea, 2013 WL 4054937 (Fed.
Cir. 2013) (holding that the length of the intervening time
between the publication dates of the prior art and the claimed
invention can also qualify as an objective indicator of
nonobviousness; accord Ecolochem, Inc. v. S. Cal. Edison Co.,
227 F.3d 1361, 1376–77 (Fed Cir. 2000).)
Appeal Br. 27–28.
This argument is unpersuasive. Leo Pharmaceutical Products
addressed the question of whether there existed a reasonable expectation of
success in combining a vitamin D analog and a corticosteroid for treating the
skin condition, psoriasis. Leo Pharmaceutical Products, 726 F.3d 1346,
1348 (Fed. Cir. 2013). In Leo Pharmaceutical Products, that patent owner
“provided ‘extensive experimental evidence’ that water, alcohol, and
propylene glycol cause unacceptable degradation of vitamin D and steroid
compositions,” and one of the cited reference, “Turi provided explicit
guidance to exclude these ingredients” that were being claimed. Id. at 1351.
Our reviewing court found,
While the record shows that, as early as 1995, the prior art
indicated that both vitamin D analogs and corticosteroids were
effective treatments for psoriasis, . . . that same prior art gave no
direction as to which of the many possible combination choices
were likely to be successful. Instead, the prior art consistently
taught away from combining vitamin D analogs and
corticosteroids.
Id. at 1357 (citation omitted).
It was within that context that our reviewing court looked at “the lack
of expectation of a successful result, the failure of the prior art to provide
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direction, and the substantial number of intervening years between the
publication of the prior art and the [disputed patent’s] filing date,” and
determined,
this invention is not simply a case of “‘picking and choosing’
from a list in order to achieve a compatible and non-deleterious
preparation” . . . . Because the problem was not known, the
possible approaches to solving the problem were not known or
finite, and the solution was not predictable, it would not have
been obvious for a person of ordinary skill to make the claimed
invention.
Id.
In contrast, the fact that all three of Kirkeby, Chriss, and Shih
published roughly a decade prior to the present Appellant’s invention does
not indicate a lack of recognized need in the call bell device art field, as
Appellant contends. Appeal Br. 27. And Appellant points to no facts that
reasonably can be characterized as a teaching away. Rather, the length of
intervening time is merely evidence that Appellant was not aware of or fully
appreciated the scope of prior-art teachings, such as the teachings of
Kirkeby, Chriss, and Shih.
(F) IS THE REJECTION FOR OBVIOUSNESS NOT APPROPRIATE BECAUSE THE
REFERENCED ART TEACHES AWAY FROM THE PRESENT INVENTION?
Appellant argues that all three cited references “teach away from a
need-specific call bell system[] that sends need-specific alerts directly to
non-medical staff.” Appeal Br. 28 (emphasis added). Appellant first argues,
“Kirkeby teaches of a need to limit alerts sent to medical staff to prevent
‘information overload.’” Id. (citing Kirkeby ¶¶ 3, 7). Appellant also argues,
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“[b]oth Kirkeby and Chriss teach that non-medical alerts [sic: are sent?] to a
central dispatcher or to [a] nurse[’s] station.” Id.
These arguments are unpersuasive because they are not commensurate
in scope with the language of claim 1. Claim 1 does not recite any language
particularly regarding non-medical staff. Claim 1 only recites “healthcare
professionals.”
Appellant next argues that Shih teaches away from call bells
altogether. Appeal Br. 28 (citing Shih ¶¶ 4, 7, 8, Fig. 10). This argument is
unpersuasive because Appellant does not include any facts or reasoning to
support this bald conclusion. See id.
Conclusions
Because Appellant’s arguments are unpersuasive of reversible error,
we affirm the obviousness rejection under 35 U.S.C. § 103 of independent
claim 1.
We, likewise, affirm the obviousness rejection of claims 2, 7, 17–20,
22, and 25, which Appellant does not argue separately. Appeal Br. 2, 29.
Furthermore, Appellant does not present any separate substantive
arguments in relation to the additional obviousness rejection of claim 21.
Accordingly, we affirm this rejection for the reasons set forth in relation to
claim 1, from which it ultimately depends.

THE OBVIOUSNESS REJECTIONS OF
CLAIMS 9–12 and 14–16
Independent Claim 9
Claim 9 recites [a] method for providing a need specific call bell
system,” with language that is similar to that of system claim 1. Appeal
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Br. 53–54. But in addition to the subject matter of claim 1, claim 9 further
recites,
providing a first communication means;
providing at least one call bell device having a capacitive
touch screen with one or more customizable need specific
graphical buttons, . . . , said customizable graphical buttons
indicating a request status on said first communications means
when selected;
. . .
wherein said request status is “in-progress,” “on hold,”
“reserved,” “high-priority,” or combinations thereof.
Id.
The Examiner’s Determinations
The Examiner relies on the combination of Kirkeby, Chriss, and Shih
in a similar manner as for claim 1. Final Act. 14–16. The Examiner
additionally determines that Fichadia provides evidence that “it was well
known in the art of request devices to include a device that indicates a
request status on a first communication means when selected, wherein said
request status is ‘in-progress.’” Id. (citing Fichadia ¶¶ 9, 23). The Examiner
further determines that combining Fichadia’s teachings with those of
Kirkeby, Chriss, and Shih merely entails combining prior art elements
according to known methods to yield predictable results. Id.
Summary of Appellant’s Arguments
In its primary brief, Appellant presents four general arguments in
relation to independent claim 9:
(a) The combination of Kirkeby, Chriss, Shih and Fichadia
fail[s] to teach or suggest the need specific call bell system
described in the pending claims as required under Graham and
MPEP [§§] 2141 and 2142.
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(b) The outstanding rejection is factually flawed in that the
combinations of references of Kirkeby, Chriss, Shih and
Fichadia perform a function different tha[n] each element
performs separately, thus the combination of which do[es] not
teach or arrive at the present invention and as such [is] contrary
to the claimed invention.
(c) Kirkeby, Chriss, Shih and Fichadia are not art recognized
equivalents because of their due to the [sic] disparity in their
levels sophistication and technology dependence, and they teach
away from call bell devices, thus a person of ordinary skill in the
art must proceed contrary to the clear teachings of Kirkeby,
Chriss, and Shih [and Fichadia?] with respect to the call bell, in
that none alone or in combination teach[es] a need specific call
bell.
(d) The intervening time of Kirkeby, Chriss, Shih and
Fichadia makes a rejection for obviousness inappropriate.
Appeal Br. 31–32.
We address these arguments below in turn.
Contentions and Analysis
(A) DOES THE COMBINATION OF KIRKEBY, CHRISS, SHIH, AND FICHADIA FAIL
TO TEACH OR SUGGEST THE NEED SPECIFIC CALL BELL SYSTEM DESCRIBED IN
THE PENDING CLAIMS, AS REQUIRED UNDER GRAHAM AND MPEP §§ 2141 AND
2142?
Appellant’s arguments for claim 9 that pertain to Kirkeby, Chriss, and
Shih are substantially the same as those presented in relation to claim 1.
Compare Appeal Br. 32–36, with id. at 10–18. These arguments are not
persuasive for the reasons set forth in relation to claim 1. We, therefore, turn
to the remaining arguments regarding Fichadia.
Appellant argues,
Fichadia provides an authority management method [that] quite
literally, and simply, sends a request to [perform] a particular
task, and waits for permission or a denial. Paragraph [0006] of
Fichadia is instructive that the whole entire purpose of Fichadia
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is because “the method of manually delivering a written request
from department to department for approval and entry can
literally take days, if it is completed at all, due to human error or
an incorrect request format.”
Appeal Br. 36–37.
Appellant further argues, “Fichadia doesn’t provide that the status of a
need specific request is indicated, but the status of an authority management
system such as request for access to sensitive or proprietary computer
resources owned by the employer or other third party vendor.” Appeal
Br. 37 (citing Fichadia ¶ 9). Appellant continues,
Thus, as can be seen from the teachings of Fichadia, Fichadia
does not teach “indicating a request status on said first
communications means when [the need specific request is]
selected wherein said request status is “in-progress,” “on hold,”
“reserved,” “high-priority,” or [“]combinations thereof” as is
required in claim 9 of the present invention.
Id. at 37–38.
This argument is unpersuasive. The Examiner does not rely on
Fichadia for indicating the status specifically of a need specific request. The
Examiner, instead, relies on Fichadia for more broadly teaching that a device
can indicate a request status, whatever that request may be. Final Act. 16.
Moreover, Fichadia teaches that one such indicated request status may be “in
progress.” Fichadia ¶ 9. Appellant provides unpersuasive argument for why
it would have been unobvious to include such status indicators in need
specific call bell systems, such as in a system according to the combination
of Kirkeby, Chriss, and Shih.

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(B) IS THE OUTSTANDING REJECTION FACTUALLY FLAWED IN THAT THE
COMBINATION OF REFERENCES OF KIRKEBY, CHRISS, SHIH, AND FICHADIA
PERFORMS A FUNCTION DIFFERENT THAN EACH ELEMENT PERFORMS
SEPARATELY?
Appellant’s arguments for claim 9 that pertain to Kirkeby, Chriss,
and Shih are substantially the same as those presented in relation to claim 1.
See Appeal Br. 40 (referencing the arguments made in relation to claim 1 in
Section A(2)(a) of the Appeal Brief). These arguments are unpersuasive for
the reasons set forth in relation to claim 1. We, therefore, turn to the
arguments regarding Fichadia.
Appellant argues,
The Examiner fails to offer any explanation as to the
motivation to combine Kirkeby, Chriss and Shih with Fichadia.
In other words, while some of the keywords in the paragraphs
cited in Fichadia appear to be similar in nature to a status
indication, the Examiner fails to provide a “clear articulation”
and “rational underpinnings” as to why the referenced teachings
taken “as a whole” achieve the same advantage or result
discovered by the Applicant.
Appeal Br. 41.
This argument is unpersuasive because the Examiner does set forth a
motivation to combine Fichadia’s teachings with those of the other cited
references. For example, the Examiner reasons,
It would have been obvious to one of ordinary skill in the
art of request devices at the time the invention was made to
modify Kirkeby in view of Chriss with the teaching of Fichadia
to include in the device an indication of the request status in order
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to enable the user to monitor the status of a request selected easily
and thereby increase the overall user convenience.
Final Act. 16. The Examiner further reasons that combining Fichadia’s
teachings with the other references’ teachings “is merely combining prior art
elements according to known methods to yield predictable results.” Id.
(C) DO KIRKEBY, CHRISS, SHIH, AND FICHADIA TEACH AWAY FROM THE
CLAIMED CALL BELL DEVICE DUE TO NOT BEING ANALOGOUS ART?
Appellant’s arguments for claim 9 that pertain to Kirkeby, Chriss, and
Shih are substantially the same as those presented in relation to claim 1. See
Appeal Br. 43 (referencing the arguments made in relation to claim 1 in
Section A(2)(a)–(f) of the Appeal Brief). These arguments are unpersuasive
for the reasons set forth in relation to claim 1. We, therefore, turn to the
arguments regarding Fichadia.
Although the heading of this section of Appellant’s arguments states
that the issue is whether Fichadia is an art-recognized equivalent,
substantively, Appellant only argues that Fichadia is not analogous art:
Fichadia provides an authority management method [that] quite
literally, and simply, sends a request to [perform] a particular
task, and waits for permission or a denial. Paragraph [0006] of
Fichadia is instructive that the whole entire purpose of Fichadia
is because “the method of manually delivering a written request
from department to department for approval and entry can
literally take days, if it is completed at all, due to human error or
an incorrect request format.” No part of Fichadia has anything
to do with a call bell system method and providing a status of
responding to a need-specific call request.
Appeal Br. 43–44.
This argument is unpersuasive because Fichadia’s teachings are
reasonably pertinent to the problem faced by the inventor. In particular,
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Fichadia provides a user with information about the status of a request.
Fichadia ¶ 9.
(D) DOES THE INTERVENING TIME OF KIRKEBY, CHRISS, SHIH, AND FICHADIA
MAKE A REJECTION FOR OBVIOUSNESS INAPPROPRIATE?
Appellant’s arguments for claim 9 on this point are substantially the
same as those presented in relation to claim 1. Compare Appeal Br. 45, with
id. at 26–28. These arguments are not persuasive for the reasons set forth in
relation to claim 1.
Conclusions
Because Appellant’s arguments are unpersuasive of reversible error,
we affirm the obviousness rejection under 35 U.S.C. § 103 of independent
claim 9.
We, likewise, affirm the obviousness rejection of claims 10–12 and
14–16, which Appellant does not argue separately. Appeal Br. 2, 45.

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DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 2, 7, 17–20,
25
Nonstatutory
Double
Patenting
9,286,771,
Chriss, Shih
1, 2, 7, 17–
20, 25

9, 10, 12, 14 Nonstatutory
Double
Patenting
9,286,771,
Chriss, Shih,
Fichadia
9, 10, 12, 14
21 Nonstatutory
Double
Patenting
9,286,771,
Chriss, Shih,
Coulter
21
1, 2, 7, 17–20,
22, 25
103 Kirkeby, Chriss,
Shih
1, 2, 7, 17–
20, 22, 25

9–12, 14–16 103 Kirkeby, Chriss,
Shih, Fichadia
9–12, 14–16
21 103 Kirkeby, Chriss,
Shih, Coulter
21
Overall
Outcome
1, 2, 7, 9–
12, 14–22,
25

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TIME PERIOD FOR RESPONSE
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED