Ex Parte 7641611 et al

Patent Trial and Appeal Board

Mar 28, 2014

95001610 (P.T.A.B. Mar. 28, 2014)

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.
95/001,610 04/21/2011 7641611 BI-003100 5855
30954 7590 03/31/2014
LATHROP & GAGE LLP
2345 GRAND Boulevard
SUITE 2400
KANSAS CITY, MO 64108
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/31/2014 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
________________

B.I. INC.,
Appellant, Requester

v.

ALCOHOL MONITORING SYSTEMS, INC.,
Respondent, Patent Owner
________________

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Patent No. US 7,641,611 B2
1

Technology Center 3900
________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
MICHAEL L. HOELTER, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1
Issued January 5, 2010 to Jeffrey Scott Hawthorne, Brian Kirby
Phillips, Michael Leonard Iiams, William James Roushey, III, and Nolan
James Farmer, Jr. (the “′611 patent”). The ′611 patent issued from Appl.
11/411,686, filed January 5, 2010.
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STATEMENT OF THE CASE 1
The Appellant/Requester appeals from the Examiner’s decision 2
refusing to adopt rejections of claims 1, 7, 15-20, 22 and 24-31. Claims 2-6 3
and 8-14 are not subject to reexamination in this proceeding. (See Right of 4
Appeal Notice mailed January 23, 2013 (“Right of Appeal Notice” or 5
“RAN”) at 2). Independent claims 1 and 7 were part of the ′611 patent as 6
issued on January 5, 2010 and have not been amended. The 7
Respondent/Patent Owner added claims 15-31 by amendment during this 8
proceeding (RAN 2), but later cancelled claims 21 and 23 (see RAN 13 and 9
16). 10
The decision of the Examiner is set forth in the Right of Appeal 11
Notice.
2
The Appellant/Requester relies on an “Appeal Brief in Support of 12
Appellant/Third-Party Requester’s Appeal to the Patent Trial and Appeal 13
Board” dated July 1, 2013 (“Appeal Brief” or “App. Br. Req’r”). The 14
Respondent/Patent Owner relies on an “Amended Respondent Brief” dated 15
July 31, 2013 (“Respondent Brief” or “Resp. Br. PO”). The Requester did 16
not file a rebuttal to the Respondent Brief. Only issues and findings of fact 17
raised by the parties have been considered. See 37 C.F.R. § 41.67(c)(1)(vii) 18
(2011); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); Ex parte Frye, 94 19
USPQ2d 1072, 1075-76 (BPAI 2010). 20
The record includes a “Declaration of Jeffrey S. Hawthorne Under 37 21
C.F.R. § 1.132” dated March 8, 2012 (“Hawthorne Declaration” or 22
“Hawthorne Decl.”); a “Declaration of Jeffrey V. Nase Under 37 C.F.R. 23

2
The Examiner’s Answer mailed March 11, 2013 merely incorporates
the RAN by reference.
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§ 1.132” dated March 5, 2012 (“Nase Declaration” or “Nase Decl.”); a 1
“Declaration of James J. Buck, Jr. Under 37 C.F.R. § 1.132” dated April 12, 2
2012 (“Buck Declaration” or “Buck Decl.”); and a Declaration of Mark 3
Wojcik Under 37 C.F.R. § 1.132” dated July 19, 2011. 4
In a “Request for Inter Partes Reexamination Under 35 U.S.C. 5
§§ 311-316” dated April 21, 2011 (“Request”), the Requester proposed 6
rejecting each of independent claims 1 and 7 under 35 U.S.C. § 103(a) as 7
being unpatentable over Williamson (US 4,999,613, issued Mar. 12, 1991) 8
and Phillips (US 5,220,919, issued Jun. 22, 1993); or alternatively, over 9
Williamson, Phillips and Flick (US 6,924,750 B2, issued Aug. 2, 2005). 10
(See, e.g., Request 18).
3
On pages 19-27 of a “Third Party Requester’s 11
Reply to the Patent Owner’s Response Under 35 USC § 314(b)(2)” dated 12
August 18, 2011, the Requester proposed rejecting newly-added claims 15-13
17 under § 103(a) as being unpatentable over Williamson and Phillips; or 14

3
The Request cited three additional patents, Lemelson (US 6,054928,
issued Apr. 25, 2000); Collier (US 4,697,666, issued Oct. 6, 1987); and
Fuller (US 4,843,377, issued Jun. 27, 1989). The Requester argued that:
Lemelson, Collier and Fuller evidence Williamson,
Phillips and Flick are in the same general field of
endeavor and are representative of art those skilled
in the art would [have been] expected to examine
for solutions relating to remote confinement and/or
monitoring systems, sobriety testing in connection
with house arrest and/or motor vehicle operation
scenarios, location tracking and the like.
(Request 21). The Board has considered Lemelson, Collier and Fuller for
what the references teach concerning the general knowledge of one of
ordinary skill in the art as of the effective filing date of the ′611 patent. See
Randall Mfg. v. Rea, 733 F.3d 1355, 1362-63 (Fed. Cir. 2013).

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over Williamson, Phillips and Flick. Finally, on pages 17-67 of an Office 1
Action mailed May 23, 2012, the Examiner rejected claims 20-26, 29 and 30 2
under § 103(a) as being unpatentable over Williamson and Phillips; or 3
alternatively, over Williamson, Phillips and Flick. 4
The Examiner withdrew each of these rejections in an Action Closing 5
Prosecution mailed October 26, 2012 and confirmed the withdrawal of the 6
rejections in the Right of Appeal Notice. The Requester appeals. We have 7
jurisdiction under 35 U.S.C. § 134(c) (2011) and 35 U.S.C. § 315(b) (2011).
4
8
We AFFIRM. 9
Claims 1, 7, 15-17, 20, 22 and 24-31 are independent. The remaining 10
two claims on appeal, claims 18 and 19, depend from claims 15 and 16, 11
respectively. Claim 1, reproduced with italics added for emphasis, is 12
illustrative: 13
1. A monitor network for use with a modem 14
and a continuous remote blood alcohol monitoring 15
device adapted to be attached to a human subject, 16
the monitor network comprising: 17
a communication server, wherein said 18
communication server receives raw data over a 19
communication link from the modem, wherein said 20
raw data is gathered by the continuous remote 21
blood alcohol monitoring device adapted to be 22

4
The Requester and the Patent Owner also are parties to a lawsuit in
Alcohol Monitoring Sys., Inc. v. BI Inc., Civil Action No. 11-cv-00301-
DME-CBS (D. Col.). Judge David M. Ebel issued an “Order Granting
Summary Judgment on Patent ′884 and Constructing Claims in Patents ′149
and ′611” on June 20, 2012. The Order is reproduced as Exhibit R to the
“Amended Respondent Brief” dated July 31, 2013 (“Resp. Br. PO”). As
presently advised, the litigation remains pending. (See Resp. Brief PO 2).
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attached to the subject and transmitted to the 1
modem; 2
a situation analyzer connectable to said 3
communication server, wherein said situation 4
analyzer parses said raw data through a 5
predetermined set of rules into a plurality of 6
messages; 7
a workflow instructions connectable to said 8
situation analyzer, wherein said situation analyzer 9
queries said workflow instructions and a historical 10
data relating to similar said plurality of messages 11
for an action to be applied to each of said plurality 12
of messages; 13
a supervising agency/subject database 14
connectable to said situation analyzer 15
for storing said raw data, for storing 16
information on the human subject, a 17
supervising agency, and a supervising 18
person monitoring the human subject, 19
and 20
for storing a predetermined 21
notification method by said 22
supervising person; and 23
a notification server connectable to said 24
situation analyzer, wherein when said situation 25
analyzer determines that said action to be applied 26
to one of said plurality of messages requires an 27
immediate notification of said supervising person, 28
said situation analyzer will communicate said one 29
of said plurality of messages to said notification 30
server, and 31
further wherein said notification 32
server queries said supervising 33
agency/subject database to determine 34
said predetermined notification 35
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method, and executes said 1
predetermined notification method to 2
communicate one of said plurality of 3
messages to said supervising person. 4
(App. Br. Req’r at 31 (Claims App’x); see also ′611 patent, col. 16, l. 50 – 5
col. 17, l. 18). 6
7
ISSUE 8
Apparatus claims 1, 17, 20, 22 and 27-31 recite a monitor network 9
including a supervising agency/subject database and a notification server, 10
each “connectable to [a] situation analyzer.” The claims also recite that the 11
supervising agency/subject database is “for storing a predetermined 12
notification method by [a] supervising person.” Claims 1, 17, 20, 22 and 27-13
31 additionally recite that the notification server “queries said supervising 14
agency/subject database to determine said predetermined notification 15
method, and executes said predetermined notification method to 16
communicate one of [a] plurality of messages to said supervising person.” 17
Claims 15 and 16 (from which claims 18 and 19, respectively, depend) 18
phrase the last limitation slightly differently, reciting that the notification 19
server “executes said predetermined notification method to communicate 20
one of said categorized messages to said supervising person.” (Italics added 21
to emphasize the difference in language between corresponding limitations 22
of claims 1 and 15.) 23
Method claims 7 and 24-26 recite the step of “storing in a supervising 24
agency/subject database . . . a predetermined notification method for 25
notifying a supervising person of said supervising agency associated with 26
the human subject.” (Italics added for emphasis.) The claims also recite the 27
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step of “executing with a notification server said predetermined notification 1
method to communicate one of said one or more messages to said 2
supervising person.” 3
Each of the proposed rejections relies on Williamson as a primary 4
reference. The Examiner finds that: 5
Although Williamson discloses that supervisors 6
are informed “when immediately action may be 7
called for by the nature of the message received,” 8
“interpret information,” and that an “alarm alerts 9
the supervising personnel” (Williamson at col. 12, 10
lines 43-63), the disclosures, without more, do not 11
lead to Williamson teaching a supervising 12
agency/subject database connectable to said 13
situation analyzer and a notification server that 14
queries the supervising agency/subject database to 15
determine said predetermined notification method. 16
Also, evidence has been produced by Patent 17
Owner that Williamson does not either explicitly 18
or impliedly disclose a supervising agency/subject 19
database. Hawthorne Declaration received 13 20
March 2012 at ¶¶ 19-21. 21
(RAN 4-5). The Examiner also concludes that it would not have been 22
obvious to modify Williamson’s system to add a supervising agency/subject 23
database connectable to said situation analyzer. (RAN 5). 24
The dispositive issue in this appeal is: 25
Does Williamson, as a primary reference, describe the limitations 26
identified above? 27
28
FINDINGS OF FACT 29
The record supports the following findings of fact (“FF”) by a 30
preponderance of the evidence. 31
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Williamson describes a remote confinement system 10 including 1
home monitoring units (“HMU”) 20 located at remote locations 11 and a 2
host unit 27 located at a central office 12. (Williamson, col. 6, ll. 14-21, 29-3
33 and 56-62; col. 7, ll. 16-18; and fig. 1). The system includes anklets 15 to 4
be worn by prisoners 13. The anklets 15 includes radio frequency (“RF”) 5
transmitters 16 for communicating with the HMUs 20 to monitor the 6
presence of the prisoners 13 at the remote locations 11. (Williamson, col. 6, 7
ll. 36-43 and 56-67). The system also includes voice and alcohol test masks 8
21 for conducting breath tests to determine the blood alcohol level of the 9
prisoners 13. (Williamson, col. 6, l. 62 – col. 7, l. 5). The HMUs 20 10
communicate with the host unit 27 through a telephone exchange 24. 11
(Williamson, col. 7, ll. 12-18). 12
Each HMU includes a microprocessor 40. (Williamson, col. 8, ll. 4-13
6). The microprocessor 40 is connected to a register 42 which stores in 14
digital form information received from the anklet 15 by way of the RF 15
transmitter 16. (Williamson, col. 8, ll. 10-14). Signals received from the RF 16
transmitter 16 of the anklet 15 are encoded to include information regarding 17
the strength of a battery powering the anklet 15 and any tampering with the 18
anklet 15. (Williamson, col. 7, ll. 29-38). Williamson teaches that: 19
The RF monitoring is programmed by the 20
microprocessor 40 to operate to look for the receipt 21
of a recognizable incoming RF signal from the 22
transmitter 16. When a signal is received, it is 23
analyzed to determine whether it carries 24
information in a preamble portion indicating that it 25
is a valid signal from a transmitter of the type used 26
on the system 10. If it is, and the other fields of 27
expected information are present, the decoded 28
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transmitter 10, battery and tamper fields are then 1
placed into the RF register 42. 2
(Williamson, col. 8, l. 66 – col. 9, l. 7). 3
Williamson’s central host unit 27 includes computers 90. “Each of 4
the computers 90 would have associated therewith a data storage medium 93 5
containing information on the various prisoners . . . for transmission to the 6
HMU in order to load [the HMU’s] registers [48] in replying to host calls 7
from the remote unit.” (Williamson, col. 12, ll. 28-32). Williamson teaches 8
that: 9
For example, when a signal is received that 10
a prisoner 13 has departed from the location 11 11
without authorization, or that a breath alcohol test 12
has been failed, or that a voice test has been failed, 13
or that an equipment tamper has occurred, follow 14
up action in real time may be required. 15
Accordingly, the alarm alerts the supervising 16
personnel so that the indicated action can be taken. 17
Generally, the primary functions of the central host 18
unit 27 are to issue the commands described above 19
which the HMU’s 20 expect to receive relating to 20
the particular prisoner in order to load the various 21
registers 48, to receive and interpret information 22
received in the form of messages from the message 23
queue 60 and transmitted over the phone line 23 24
from the HMU 20, and to display to the supervisor 25
the messages that are received and to inform the 26
supervisor when immediate action may be called 27
for by the nature of the message received. 28
(Williamson, col. 12, ll. 43-59). 29
30
ANALYSIS 31
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The common usage of the term “database” refers to “a file composed 1
of records, each containing fields together with a set of operations for 2
searching, sorting, recombining, and other functions.” (MICROSOFT 3
COMPUTER DICTIONARY (Microsoft Press, 5th edition 2002)(“database”)). 4
Although the Specification indicates that the “supervisory agency/subject 5
database” recited in claim 1 may encompass more than one database as the 6
term is conventionally used (see ′611 patent, col. 12, ll. 31-33), the usage of 7
the term “database” in the Specification of the ′611 patent otherwise is 8
consistent with the common usage. 9
The Patent Owner correctly argues that the ordinary usage of the term 10
“notification method” refers to a type of communication (Resp. Br. PO 4), 11
that is, a method for performing a notification. This interpretation is 12
consistent with the use of the term in the Specification of the ′611 patent. 13
(See, e.g., ′611 patent, col. 13, ll. 39-43). The Requester does not point to 14
any evidence either in the ordinary usage of the term “notification method” 15
or in the Specification to indicate that the term might refer to a method of 16
prioritizing the content of a communication. 17
The Requester argues that the predetermined notification method 18
stored in the supervisory agency/subject database in both the apparatus 19
claims and the method claims either lacks a functional relationship to the 20
supervisory agency/subject database or lacks a functional relationship which 21
would have been novel and nonobvious. (App. Br. Req’r 14-15). As the 22
Patent Owner correctly points out, this argument fails to explain how the 23
Examiner might have erred in finding that Williamson does not disclose a 24
supervisory agency/subject database connectable to the situation analyzer at 25
all, regardless of any relationship between information stored in such a 26
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database and the database itself. (See Resp. Br. PO 3-4). In particular, the 1
Requester in the Appeal Brief fails to identify any database structure for 2
storing a predetermined notification method by a supervising person. The 3
fact that Williamson identifies several devices through which a supervising 4
person might be identified, such as a printer, a display and an enunciator as 5
described at column 12, lines 36-42, does not imply that one of ordinary skill 6
in the art would have had reason to provide a capability to store a 7
predetermined notification method in a database. 8
Alternatively, the Requester argues that Williamson “teaches the 9
ability to define, store and make use of different notification modes.” (App. 10
Br. Req’r 15-16). The Requester cites column 14 of Williamson as support 11
for this argument. (Id.) Column 14, lines 42-43 of Williamson teaches that 12
there are two ways in which Williamson’s HMU might transmit messages to 13
the central host unit 27. 14
According to one option, all of the messages in the 15
message queue [60 in Figure 3] can be transmitted 16
in a single call. If this is the case, upon [their] 17
transmission, all of the messages will be cleared. 18
To simplify the HMU system, and to minimize the 19
amount of information which must be received and 20
analyzed by the host unit 27, the transmission may 21
include only one message from the message queue 22
60 per call which would be sent on a priority 23
system. The priority system may be arranged in 24
accordance with the preferences of the parole 25
customers and this will normally be the reporting 26
of departures from the premises as having the 27
highest priority or the failure of breath or voice 28
test. 29
(Williamson, col. 14, ll. 43-55). 30
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The Requester argues that the parole customers’ preferences for 1
prioritizing the transmission of data from the HMU 20 to the central host 2
unit 27 “would inherently be stored in a database or equivalent so as to be 3
readily accessible when needed to perform the prioritization processing 4
activities by the HMU.” (App. Br. Req’r 16). Therefore, the Requester 5
argues, “Williamson’s teachings relating to the ability of parole officers to 6
express priority preferences in relation to transmission of messages and the 7
associated reporting can be properly equated with the recited predetermined 8
notification method of claim 1.” (Id.) Nevertheless, as the Patent Owner 9
argues, the term “notification method” refers to a type of communication 10
and not to a method of prioritizing the content of such a communication. 11
(See Resp. Br. PO 4). 12
The Requester has not shown that Williamson teaches a monitoring 13
network including a supervising agency/subject database “for storing a 14
predetermined notification method by [a] supervising person.” Neither has 15
the Requester shown that Williamson teaches a method for using a 16
monitoring network including the step of “storing in a supervising 17
agency/subject database . . . a predetermined notification method for 18
notifying a supervising person of said supervising agency associated with 19
the human subject.” Neither the teachings of Phillips, nor the teachings of 20
Phillips and Flick, remedy this deficiency. 21
The Requester argues that Phillips teaches a blood alcohol monitoring 22
system including a blood alcohol monitor “‘attached to the subject by a 23
secure, monitored strap’ thereby allowing ‘continuous monitoring of a 24
subject’s blood alcohol level’ . . . at random intervals.” (E.g., Request 33 25
and 50 (underlining suppressed), quoting Phillips, col. 3, ll. 23-25; see also 26
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Phillips, col. 3, ll. 21-30, col. 3, ll. 42-49 and col. 4, ll. 34-66). The 1
Requester also cites Phillips as teaching a monitoring network including a 2
modem 106. (E.g., Request 32 and 49, citing Phillips, fig. 1). 3
The Requester argues that Flick “generally relates to a remote tracking 4
system in which messages are sent from a monitoring device to a central 5
monitoring station 30.” (Request 38, citing Flick, col. 1, ll. 21-23 and fig. 6
1). The Requester further argues that Flick describes “the use of ‘workflow 7
instructions’ and ‘historical data’ to modify messages to be sent” (Request 8
39, citing Flick, col. 24, ll. 24-27 and col. 25, ll. 1-4) as well as a situation 9
analyzer which “queries workflow instructions and historical data for an 10
action to be applied to a message.” (Request 39, citing Flick, col. 24, ll. 48-11
67; col. 25, ll. 22-31; and fig. 2). 12
The Requester does not explain persuasively how either Phillips or 13
Flick remedies the deficiency in the teachings of Williamson relating to the 14
limitation reciting a supervising agency/subject database “for storing a 15
predetermined notification method by [a] supervising person.” Likewise, the 16
Requester does not explain persuasively how either Phillips or Flick 17
remedies the deficiency in the teachings of “storing in a supervising 18
agency/subject database . . . a predetermined notification method for 19
notifying a supervising person of said supervising agency associated with 20
the human subject.” We sustain the Examiner’s conclusion that the 21
Requester has not shown that the subject matter of claims 1, 7, 15-20, 22 and 22
24-31 would have been obvious from the combined teachings of Williamson 23
and Phillips,; or, alternatively, over Williamson, Phillips and Flick. 24
In the interest of fully considering the Requester’s contentions, we 25
note that the Requester in the Request argued that Williamson’s data storage 26
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media 93 corresponded to the supervising agency/subject database recited in 1
claim 1. The Requester acknowledged that Williamson did not teach using 2
the data storage media 93 to store predetermined notification methods by 3
supervisory persons. Instead, the Requester argued that it would have been 4
an obvious matter of design choice to store such information there. (Request 5
43-44, 58- 59, 76-77 and 91-92). The Examiner never adopted this 6
argument. (See, e.g., Order Granting/Denying Request for Inter Partes 7
Reexamination” mailed May 20, 2011 at 3). The Requester does not appear 8
to have mentioned the argument again in any of its “Third Party Requester’s 9
Repl[ies] to the Patent Owner’s Response[s] Under 35 U.S.C. § 314(b)(2) or 10
in the Appeal Brief. 11
To the extent that the Requester’s argument gave rise to a substantial 12
new question of patentability, we are disinclined to exercise our discretion to 13
enter a new ground of rejection pursuant to our authority under 37 C.F.R. 14
§ 41.77(b) (2011). One reason is that Williamson fails to describe the data 15
storage media 93, alone or in combination with the computers 90, as 16
databases. The Requester offered no persuasive technical reasoning to 17
establish either that the data storage media 93 were databases or that one of 18
ordinary skill in the art would have had reason to modify the data storage 19
media to be databases. Apart from this, the Requester offered no persuasive 20
technical argument to explain why it would have been a mere matter of 21
design choice to store predetermined notification methods by supervisory 22
persons on the data storage media 93. Since the argument that Williamson’s 23
data storage media 93 corresponded to the supervising agency/subject 24
database recited in claim 1 was not further developed by either the Requester 25
or the Examiner, we will not address the argument further. 26
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Taking into account the entire record in this reexamination 1
proceeding, we are not convinced that a showing has been made that the 2
claims on appeal should have been rejected. As stated earlier, we sustain the 3
Examiner’s conclusion that the Requester has not shown that the subject 4
matter of claims 1, 7, 15-20, 22 and 24-31 would have been obvious from 5
the combined teachings of Williamson and Phillips,; or, alternatively, over 6
Williamson, Phillips and Flick. 7
8
DECISION 9
We AFFIRM the Examiner’s decision refusing to adopt rejections of 10
claims 1, 7, 15-20, 22 and 24-31. 11
Requests for extensions of time in this inter partes reexamination 12
proceeding are governed by 37 C.F.R. § 1.956 (2011). 13
In the event neither party files a request for rehearing within the time 14
provided in 37 C.F.R. § 41.79, and this decision becomes final and 15
appealable under 37 C.F.R. § 41.81 (2011), a party seeking judicial review 16
must timely serve notice on the Director of the United States Patent and 17
Trademark Office. See 37 C.F.R. § 1.983 (2011) and 37 C.F.R. §§ 90.1. 18
19
AFFIRMED 20

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Patent Owner:

LATHROP & GAGE LLP
2345 GRAND Boulevard
SUITE 2400
KANSAS CITY, MO 64108

Third Party Requester:

MICHAEL A. DESANCTIS
HAMILTON DESANCTIS & CHA LLP FINANCIAL PLAZA AT U
225 UNION BOULEVARD, SUITE 150
LAKEWOOD, CO 80228