Ex Parte Cuddihy et al

Patent Trial and Appeal Board

Jun 15, 2018

14551583 (P.T.A.B. Jun. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/551,583 11/24/2014
28395 7590 06/19/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Mark A. Cuddihy
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
83477926 8479
EXAMINER
SHAH, TANMAY K
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
06/19/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK A. CUDDIHY, MANOHARPRASAD K. RAO,
JIALIANG LE, and KWAKU 0. PRAKAH-ASANTE
Appeal2017-010754
Application 14/551,583 1
Technology Center 2600
Before MARC S. HOFF, ELENI MANTIS MERCADER, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-8 and 10-20, which constitute all of the claims pending in this
application. Claim 9 has been cancelled. App. Br. 12 (Claim App.). We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Appellant identifies itself, Ford Global Technologies, LLC, as the real
party in interest. App. Br. 2.
Appeal2017-010754
Application 14/551,583
THE INVENTION
The disclosed and claimed invention is directed "to a method and
apparatus for biometric data gathering and dissemination." Spec. ,r 1.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A system comprising:
a processor configured to:
determine that a vehicle accident has occurred;
connect to a detected wearable device;
request measured present biometric information from the
wearable device, in response to the accident determination;
determine device wearer consciousness based on
received measured present biometric information; and
instruct the device to send a wake-up signal to the device
wearer when the device wearer is determined to be
unconsc10us.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Murphy
Kanevsky
Mollicone
Breed
Annibale
Castillo
Cradick
US 2002/0154006 Al
US 2008/0167757 Al
US 2012/0068820 Al
US 2014/0097957 Al
US 2015/0084757 Al
US 2015/0161876 Al
US 2015/0180943 Al
2
Oct. 24, 2002
July 10, 2008
Mar. 22, 2012
Apr. 10, 2014
Mar. 26, 2015
June 11, 2015
(filed Aug. 4, 2014)
June 25, 2015
(filed May 30, 2014)
Appeal2017-010754
Application 14/551,583
REJECTIONS
Claims 1-8, 12, 13, and 17 stand rejected under 35 U.S.C. § I02(a)(l)
as being anticipated by Annibale. Final Act. 7-13. 2
Claims 10 and 11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Annibale in view of Cradick. Final Act. 14--15.
Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Annibale in view of Murphy. Final Act. 15-16.
Claim 16 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Annibale in view of Mollicone. Final Act. 16-17.
Claims 18-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Annibale in view of Kanevsky. Final Act. 17-20.
Claim 1 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Castillo in view of Breed. Final Act. 21.
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. 3
We are not persuaded by Appellant's arguments regarding claims 1-8, IO-
2 Although the header for the section identifies claims 1-9, 13, and 18-20,
the body of the Office Action discusses claims 1-8, 12, 13, and 17. Because
Appellant was aware of this discrepancy, see App. Br. 7, there was no
prejudice associated with the typographical error.
3 Rather than reiterate the entirety of the arguments of Appellant and the
positions of the Examiner, we refer to the Appeal Brief (filed February 15,
2017); the Reply Brief (filed August 14, 2017); the Final Office Action
(mailed October 5, 2016); and the Examiner's Answer (mailed June 12,
2017) for the respective details.
3
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Application 14/551,583
12, and 18-20. However, we are persuaded by Appellant's argument that,
based on the current record, the Examiner erred in rejecting claims 13-17.
Claims 1---8 and 12 (Rejections Based on Annibale)
Appellant argues the Examiner erred in finding Annibale discloses "a
processor configured to ... instruct the device to send a wake-up signal to
the [wearable] device wearer when the device wearer is determined to be
unconscious," as recited in claim 1. See App. Br. 6; Reply Br. 2. 4
According to Appellant, the Examiner's finding is erroneous because ( 1) the
call is placed from the vehicle to the call center and (2) the prior art teaches
a mobile phone, not a wearable device. Reply Br. 2.
The Examiner determines that a "wake up signal is not defined in the
claim" and the broadest reasonable construction encompasses "a ring or
vibration when the center tries to contact/call the driver," which is disclosed
in Annibale. Final Act. 4 ( citing Annibale ,r,r 58, 64); see also Ans. 5 ( citing
Annibale ,r,r 58, 64). The Examiner further finds that a call to the mobile
phone will also cause the wearable device to vibrate or wring:
It is understood that cell phone and the wearer device are in
synchronization with each other as mentioned in paragraph 53,
58. So, it is understood that the cell phone and/or wearable
device generates the vibration and/or ring when the center tried
to contact/call the driver. So, cell phone and the wearable
device combined meets the claim limitations of receiving the
wake-up signal. Again, the examiner interprets that as a wake-
4 In the Appeal Brief, Appellant also argued the Examiner erred in finding
Annibale discloses determining if a person is unconscious. App. Br. 6.
However, Appellant withdrew that argument in light of the Examiner's
finding determining a wearer's consciousness as recited in claim 1 is broad
enough to encompass determining if someone is incapacitated in Annibale.
Reply Br. 2.
4
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Application 14/551,583
up signal as applicant didn't specifically claimed in detail what
the wake-up signal is and/or how is it different than the
interpreted wake-up signal.
Ans. 5 ( emphasis added). The Examiner further concludes that the broadest
reasonable construction of the term "wearable device" is broad enough to
encompass a mobile phone worn on the human body, such as an arm or
wrist. Ans. 5---6.
We agree with and adopt the Examiner's findings and conclusions.
Contrary to Appellant's argument, Annibale discloses the center placing a
call to the mobile phone. See Annibale ,r 64. Additionally, Annibale
discloses wearable computing devices that may be synced with mobile
devices. Annibale ,r 58. Because the phone and wearable device are synced,
a call to the phone will trigger a ring or vibration on the wearable device.
Such a ring or vibration is identified in the Specification as an attempt to
wake an unconscious driver. Spec. ,r 61 ("If the user is unconscious, the
process can send a signal to the device to have the device haptically and/or
audibly attempt to wake a user."). Additionally, although the Specification
draws a distinction between traditional mobile devices like phones and a
new type of mobile device called wearable device, Spec. ,r 35, we agree with
the Examiner that the sentence does not define wearable devices and the
term is broad enough to encompass a mobile phone that can be worn, such as
on an arm band.
Accordingly, we sustain the Examiner's rejection of claim 1, along
with dependent claims 2-8 and 12, which are not separately argued.
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Claims 10 and 11 5
In addition to the arguments discussed above with regard to claim 1,
Appellant argues "Cradick never teaches that haptic feedback can be used to
end an unconscious state, and Annibale' s teachings were of emergency
services trying to contact a person, not a device providing feedback." App.
Br. 8. Therefore, according to Appellant, "Cradick does not add instructing
a device to send a signal in the form of haptic signaling to end an
unconscious state, even when combined with Annibale." Id.; see also Reply
Br. 3 ( arguing "it is irrelevant if Cradick teaches a haptic signal signaling a
phone call, because there is no incoming call in Annibale").
The Examiner finds Cradick teaches using haptic signal. Final Act.
14 (citing Cradick ,r 35); Ans. 9. The Examiner further finds that it would
have been obvious to use the haptic signal from Cradick with the teachings
of Annibale. Final Act. 14.
We are not persuaded by Appellant's arguments that the Examiner
erred. The broadest reasonable construction of the claim merely requires
sending a haptic signal as a wake-up signal. Therefore, claim 10 merely
requires sending a haptic signal to the user. Because Annibale discloses
sending a wake-up signal ( see discussion of claim 1 above) and Cradick
teaches using haptic feedback as a replacement for an audible signal, we are
not persuaded by Appellant's argument that the Examiner erred.
Accordingly, we sustain the Examiner's rejection of claim 10, and claim 11
which is not separately argued.
5 Although claim 11 does not depend from claim 10, Appellant groups
claims 10 and 11 together. Accordingly, we select claim 10 from which to
decide the appeal of claims 10 and 11. See 37 C.F.R. § 4I.37(a)(iv).
6
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Application 14/551,583
Claims 13-17
Appellant argues the Examiner erred in finding Annibale discloses "a
processor configured to ... adjust a vehicle safety system based on
information contained in the user profile," as recited in claim 13. App. Br.
7; Reply Br. 3. According to Appellant, "[t]he alleged teaching of adjusting
a safety system ([0058]) merely relates to conveyance of information to a
call center, and no actual adjustment to any vehicle system is made, safety or
otherwise." App. Br. 7. Appellant further contends the emergency protocols
are in response to a crash that has taken place and, "[ a ]t this point in time,
adjustment of vehicle safety systems would be useless and pointless. A 911
protocol is not a vehicle safety system, and engaging the protocol more
quickly is not adjusting a vehicle safety system." Id.
The Examiner finds Annibale' s disclosure of contacting EMS after an
accident is adjusting a safety system. Final Act. 12; see also Ans. 8
("Furthermore, when the crash is determined either tries to contact the
driver/user and/or sends the emergency response services as described in
paragraph 58[.] So, these activity/activities is/are considered as adjustment
of the safety system as claimed. So, the argued limitation(s) is taught by
Annibale.").
We are persuaded by Appellant's arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Annibale discloses adjusting a safety system. Contacting EMS is not the
same as adjusting a safety system. See Annibale ,r,r 58, 64.
Accordingly, we agree with Appellant the Examiner's finding that
Annibale discloses the disputed limitation is in error because it is not
supported by a preponderance of the evidence. See In re Caveney, 761 F.2d
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671, 674 (Fed. Cir. 1985) (Examiner's burden of proving non-patentability is
by a preponderance of the evidence); see also In re Warner, 379 F.2d 1011,
1017 (CCP A 1967) ("The Patent Office has the initial duty of supplying the
factual basis for its rejection. It may not, because it may doubt that the
invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in its factual basis.").
Accordingly, we are constrained on this record to reverse the
Examiner's rejection of claim 13, along with the rejection of dependent
claim 17.
Moreover, because the Examiner has not shown that Murphy or
Mollicone cures the foregoing deficiencies regarding the rejection of the
independent claims, we will not sustain the obviousness rejection of
dependent claims 14--16 (Final Act. 15-17) for similar reasons.
Claims 18-20
Appellant argues the Examiner erred in finding Annibale teaches "a
processor configured to ... determine a biometric measurement threshold
corresponding to an alert state [and] monitor biometric information received
from the wearable device ... to determine if the biometric measurement
threshold was exceeded," as recited in claim 18. App. Br. 9. According to
Appellant, "[t]here is no 'threshold' determination in the prior art, merely a
determination that if an accident indicia is present, and the user heart rate is
higher than a previously observed level (presumably, this is not actually
taught), then the accident is 'confirmed."' Id.
The Examiner finds Annibale teaches the disputed limitations. Final
Act. 18-19 (citing Annibale ,r 58). The Examiner finds Annibale teaches
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Application 14/551,583
monitoring biometric data, including heart rate and determining various
conditions, such as if an accident has taken place.
Our reviewing court guides that "the question under 35 USC§ 103 is
not merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made." Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807---08 (Fed.
Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)).
Moreover, "[ e ]very patent application and reference relies to some extent
upon knowledge of persons skilled in the art to complement that [ which is]
disclosed .... " In re Bode, 550 F.2d 656, 660 (CCPA 1977) (quoting In re
Wiggins, 488 F.2d 538, 543 (CCPA 1973)). Those persons "must be
presumed to know something" about the art "apart from what the references
disclose." In re Jacoby, 309 F.2d 513,516 (CCPA 1962). Additionally, the
skilled artisan is "a person of ordinary creativity, not an automaton." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). Furthermore, there is no
requirement in an obviousness analysis for the prior art to "contain a
description of the subject matter of the appealed claim in ipsissimis verbis."
In re May, 574 F.2d 1082, 1090 (CCPA 1978).
We are not persuaded by Appellant's arguments that the Examiner
erred. Appellant concedes that the prior art teaches a system that determines
if a heart rate has increased to determine if any event has happened. App.
Br. 9. In order to do so, the processor in the prior art must determine a
threshold heart rate and then monitor to determine if that threshold has been
exceeded. Therefore, applying the broadest reasonable interpretation of the
claim, the prior art teaches or suggests the disputed limitation.
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Appellant further argues the Examiner erred in finding Kanevsky
teaches monitoring "while a vehicle is under normal operation," as recited in
claim 18 and applying that teaching to Annibale. App. Br. 9--10. According
to Appellant, "[i]f this modification were done, however, then one of the
things Annibale would do is to communicate passenger biometric
information to a 911 operator under 'normal' conditions," which is "wholly
inappropriate." Id. at 10.
"The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference." In re Keller, 642 F.2d 413,425 (CCPA 1981). Instead, the
relevant issue is "what the combined teachings of the references would have
suggested to those of ordinary skill in the art." Id. "Combining the
teachings of references does not involve an ability to combine their specific
structures." In re Nievelt, 482 F.2d 965,968 (CCPA 1973); see also In re
Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) ("It is well-established that a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements." ( citing In re
Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en bane))). Because Appellant's
argument is premised on the bodily incorporation of the reference as
opposed to addressing the broad teachings of the reference, we are not
persuaded by Appellant's arguments the Examiner erred.
Appellant further argues "Kanevsky does not cure the fact that there is
no 'threshold' determined by Annibale nor a determination of whether that
threshold was exceeded." App. Br. 10; see also Reply Br. 3--4 ("The
threshold of Kavensky is a threshold likelihood of accident being high
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Application 14/551,583
enough to issue an alert, which is plainly not remotely a biometric
measurement threshold.").
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d at 425.
Because (1) we find no deficiency in Annibale regarding the threshold and
(2) Appellant is arguing Kanevsky individually and not in combination with
the teachings of Annibale, we are not persuaded that the Examiner erred.
Claim 1 (Section 103 Rejection)
The Examiner finds that the combination of Castillo and Breed
teaches all of the limitations of claim 1 and that a person having ordinary
skill in the art would have combined the relevant teachings of the two
references. Final Act. 21.
Appellant does not address the Examiner's findings or conclusions on
obviousness. See App. Br. 6-10.
Because Appellant has not identified any errors in the Examiner's
findings, se summarily affirm the rejection. See Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) ("If an appellant fails to present
arguments on a particular issue----or, more broadly, on a particular
rejection-----the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection.").
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DECISION
For the above reasons, we affirm the Examiner's decisions rejecting
claims 1-8, 10-12, and 18-20.
For the above reasons, we reverse the Examiner's decisions rejecting
claims 13-1 7.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See 37
C.F.R. § 4I.50(f).
AFFIRMED-IN-PART
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