Ex Parte Cassel et al

Board of Patent Appeals and Interferences

Sep 1, 2010

09767413 (B.P.A.I. Sep. 1, 2010)

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.
09/767,413 01/23/2001 Cynthia L. Cassel 887 2467
33055 7590 09/01/2010
PATENT, COPYRIGHT & TRADEMARK LAW GROUP
4199 Kinross Lakes Parkway
Suite 275
RICHFIELD, OH 44286
EXAMINER
PHAM, TOAN NGOC
ART UNIT PAPER NUMBER
2612
MAIL DATE DELIVERY MODE
09/01/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CYNTHIA L. CASSEL
and ROBERT H. CASSEL, JR.
____________

Appeal 2010-005764
Application 09/767,413
Technology Center 2600
____________

Before ROBERT E. NAPPI, KENNETH W. HAIRSTON, and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.
HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2010-005764
Application 09/767,413

2
DECISION ON APPEAL
This is an appeal under 35 U.S.C. §§ 6(b) and 134(a) from the final
rejection of claims 1 to 11. We will affirm.
The disclosed invention relates to a combination breathing monitor
alarm and audio baby alarm that comprises a transmitter forming a main
body of a linearly elongated, pliable strap of a soft and formable material
that is easily wrapable about the chest of an infant, and a receiver for
receiving signals transmitted by the transmitter (Figs. 1-3; Spec. 5-8, 12, and
13; Abstract).
Claim 1 is the only independent claim on appeal, and it reads as
follows:
1. A combination breathing monitor alarm and audio baby alarm
comprising:
an attachable transmitter forming a main body of a linearly elongated,
pliable chest strap of a soft and formable material that is easily wrapable
about the chest of an infant; and
a receiver housing receiver control circuitry for receiving signals
transmitted by said transmitter.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Montgieux US 4,696,307 Sep. 29, 1987
Tao US 4,862,144 Aug. 29, 1989
O’Dwyer US 5,928,157 July 27, 1999
Teodorescu US 6,011,477 Jan. 4, 2000
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Application 09/767,413

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The Examiner rejected claims 1, 2, and 4 under 35 U.S.C. § 103(a)
based upon the teachings of Montgieux.
The Examiner rejected claims 3 and 6 to 9 under 35 U.S.C. § 103(a)
based upon the teachings of Montgieux and Teodorescu.
The Examiner rejected claims 10 and 11 under 35 U.S.C. § 103(a)
based upon the teachings of Montgieux, Teodorescu, and O’Dwyer.
The Examiner rejected claim 5 under 35 U.S.C. § 103(a) based upon
the teachings of Montgieux and Tao.
The Examiner indicates that:
Montgieux discloses a breathing detection device
and alarm comprising an attachable transmitter
placed inside the box (1) and attached to an
abdominal belt (29), that is elastic; the transmitter
is connected with a portable receiver carried by the
person monitoring the child. Montgieux does not
use the term “pliable chest strap of a soft and
formable material”; however, the elastic strap as
disclosed by Montgieux is obviously soft and
formable, since the strap is wrapped around the
contour body of the child and elasticity is
expanded to form fit the child’s body (col. 4, lines
39-66). Although Montgieux discloses wrapping
the monitoring device around the abdominal of the
child; thus, whether the breathing monitor is
wrapped around the chest or the abdominal is
merely one’s preference to monitor the breathing
movement; since both areas moves [sic] when a
person breathes.
(Final Rej. 2, 3)
Appellants argue that the obviousness rejection of claims 1, 2, and 4 is
inappropriate because:
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Application 09/767,413

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Montgieux fails to teach a pliable chest strap of a
soft and formable material being easily wrapable
about the chest of an infant. In contrast,
Montgieux teaches a rigid element connected to a
stiff, moveable strap. In addition, Montgieux fails
to teach a first resonant sensor for detecting
respiration and movement of the infant and a
second resonant sensor spaced laterally apart from
the first resonant sensor for detecting heart rate
pulse.

Furthermore, Montgieux fails to teach a receiver
comprising a lighting means.
(App. Br. 8).
Based upon the foregoing, we must determine whether the Examiner
erred by finding that Montgieux teaches or suggests a pliable chest strap of a
soft and formable material that is easily wrapable about the chest of an
infant.
Inasmuch as Montgieux describes the belt 29 as an elastic belt that
wraps around an infant (col. 4, ll. 39 to 66), we agree with the Examiner’s
statement (Final Rej. 2) that the elastic strap as disclosed by Montgieux “is
obviously soft and formable” since the strap wraps around the contour of the
child, and elastically form fits the child’s body.
With respect to the teaching in Montgieux that the belt is wrapped
around the abdomen of an infant, we also agree with the Examiner’s
statement (Final Rej. 2, 3) that it would have been obvious to the skilled
artisan to wrap the belt around the chest of an infant to monitor breathing
since both the abdomen and the chest move when a person breathes.
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Application 09/767,413

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Appellants’ other arguments are not commensurate in scope with
claims 1, 2, and 4 since neither claim includes first and second resonant
sensors, and a lighting means.
In summary, the obviousness rejection of claims 1, 2, and 4 is
sustained because the Examiner did not err in finding that Montgieux
teaches or suggests a pliable chest strap of a soft and formable material that
is easily wrapable about the chest of an infant.
Turning next to the obviousness rejection of claims 3 and 6 to 11, we
agree with the Examiner’s finding (Final Rej. 3) that “Teodorescu et al.
discloses a respiration and movement monitoring system including a
resonant sensor (50) and may be used interchangeably with first sensor (12)
and second sensor (18) to monitor the respiration and movements of an
infant (14) (col. 3, lines 55-61; col. 4, lines 34-54).” Based on the teachings
of Teodorescu, we agree with the Examiner’s contention (Final Rej. 4) that it
would have been obvious to the skilled artisan to provide Montgieux with a
second sensor as taught by Teodorescu to make the Montgieux breathing
detection system into a more “effective fail-safe monitoring system.”
Appellants’ arguments (App. Br. 9) concerning “a second resonant sensor
which detects heart rate or pulse” and “a lighting means” are not
commensurate in scope with representative claim 3. Thus, the obviousness
rejections of claims 3 and 6 to 11 are sustained.
Turning lastly to the obviousness rejection of claim 5, Appellants’
argument (App. Br. 9) concerning “an incandescent illumination panel
which functions as a night light, thereby illuminating continuously during
infant sleeping periods” is not commensurate in scope with claim 5 which
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Application 09/767,413

6
merely recites “a lighting means.” Appellants’ argument (App. Br. 9) that
Tao “teaches a visual alarm designed to illuminate upon cessation of
movement” is not convincing of the nonobviousness of the claimed
invention since claim 5 does not preclude such an operation by the lighting
means in Tao.
In summary, the Examiner’s articulated reasoning in the rejections
supports a legal conclusion of obviousness. KSR Int’l v. Teleflex, Inc., 550
U.S. 398, 418 (2007).
The decision of the Examiner is affirmed.
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)(v).

AFFIRMED

KIS

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