Ex Parte Ginggen et al

Patent Trial and Appeal Board

Mar 2, 2017

13532359 (P.T.A.B. Mar. 2, 2017)

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.
13/532,359 06/25/2012 Alec Ginggen COD5059USCNT1 5793
33766 7590 03/02/2017
COHEN & HILDEBRAND, PLLC
2409 CHURCH ROAD
CHERRY HILL, NJ 08002
EXAMINER
DIETRICH, JOSEPH M
ART UNIT PAPER NUMBER
3762
MAIL DATE DELIVERY MODE
03/02/2017 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
Ex parte ALEC GINGGEN and YANIK TARDY
Appeal 2015-004901
Application 13/532,359
Technology Center 3700
Before JAMES P. CALVE, WILLIAM A. CAPP, and
FREDERICK C. LANEY, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-004901
Application 13/532,359
THE INVENTION
Appellants’ invention relates to a control device for an implantable
medical device. Spec. 11. Claim 1, reproduced below with paragraph
indentation added, is illustrative of the subject matter on appeal.
1, A universal external control device for permitting
wireless conditional access to functionality of an implantable
medical device by a plurality of conditional access users,
comprising:
circuitry for identifying each of the plural conditional
access users, determining functionality associated with the
implantable medical device which each of the plural conditional
access users has been assigned and restricting access for each of
the plural conditional access users to that functionality
associated with the implantable medical device based on the
determined functionality to which each of the plural conditional
access users has been assigned;
each of the plural conditional access users is assigned by the
circuitry a particular set of conditional access functions from a
non-hierarchical framework;
wherein a non-conditional access user is assigned by the
circuitry default non-conditional functional access to the
implantable medical device which functionality does not
require satisfaction of a condition in advance and is accessible
by the plural conditional access users.
The Examiner relies upon the following as evidence in support of the
THE REJECTIONS
rejections:
Miller US 3,825,898
Hickle US 2004/0039257 A1
Haghpassand US 2004/0073634 A1
Snell US 6,961,617 B1
July 23, 1974
Feb. 26, 2004
Apr. 15,2004
Nov. 1,2005
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Application 13/532,359
The following rejections are before us for review:
1. Claims 1, 3—17, and 21—24 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Hickle and Haghpassand.
2. Claim 2 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Hickle, Haghpassand, and Miller.
3. Claims 18—20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hickle, Haghpassand, and Snell.
OPINION
Unpatentability of Claims 1, 3—17, and 21—24
over Hickle and Haghpassand
Claims 1, 5, and 10
Appellants argue claims 1, 5, and 10 as a group. Br. 6—10. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv) (2016).
The Examiner finds that Hickle discloses the invention substantially
as claimed except for allowing access to the network without a system-based
user name or password, i.e., as a claimed non-conditional access user. Final
Action 4. The Examiner relies on Haghpassand as disclosing this claim
element. Id. The Examiner concludes that it would have been obvious to a
person of ordinary skill in the art at the time of the invention to modify
Hickle’s conditional access system with a default non-conditional access as
taught by Haghpassand. Id. According to the Examiner, a person of
ordinary skill in the art would have done this to allow a user to quickly
access the basic functions of the device without identification while still
providing other levels of access for those with more advanced qualifications.
Id. The Examiner further finds that such an outcome would have been
predictable. Id.
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Application 13/532,359
Appellants traverse the Examiner’s rejection by arguing that Hickle
teaches away from the claimed invention. Br. 6. Appellants argue that,
Hickle discloses in paragraph (0032] "If the personal
identification of user 13 does not correspond to the data stored
in sedation and analgesia system 22, method 100 may proceed
to finish step 107. In one embodiment of the present invention,
finish step 107 comprises placing or retaining sedation and
analgesia system 22 in a powered state where patient
monitoring and drug delivery 19 functionality are disabled.
Finish step 107 disable sedation and analgesia system 22
functionality and prevent user 13 from monitoring or delivering
drugs to patient 18. Finish step 107 further comprises fully
powering down sedation and analgesia system 22." (Paragraph
[0032](emphasis added). Thus, Hickle teaches disabling or
powering down operation if the personal identification
information does not match so that a match in personal
information is a conditional requirement to any access
whatsoever, much less, access to default non-conditional
functional access. In contrast, claims 1, 5 and 1 0 each call for
default non-conditional functional access to be accessible by the
plural conditional access users.
Id. (emphasis supplied by Appellants). Appellants emphasize that Hickle’s
disclosure is not merely one alternative, rather it expressly criticizes,
discredits or, at the very least, discourages the solution of permitting default
non-conditional access to the medical device. Id. at 7. According to
Appellants, Hickle expressly discloses that access to the medical device
should be restricted or available only by authorized and properly trained
clinicians. Id.
In response, the Examiner acknowledges that Hickle teaches an
embodiment where the system permits only authorized and properly trained
clinicians to operate the system, however, the Examiner explains that such is
referring only to operating the actual therapy. Ans. 2. According to the
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Application 13/532,359
Examiner, there is still a desire for any user to access the network and
Haghpassand teaches such a non-conditional use. Id. The Examiner
concludes:
It would have been obvious to modify the conditional access as
taught by Hickle with the default non-condition functional
access as taught by Haghpassand, since such a modification
would provide the predictable results of allowing a user to
quickly access the basic functions of the device without any
identification while still providing multiple other levels of
access for those with mo[r]e advanced qualifications.
Id.
Hickle discloses a security system integral with a sedation and
analgesia system. Hickle, Abstract. Hickle’s invention includes a computer
assisted intravenous drug infusion administration device coupled with a
secure user interface that can restrict user access to prevent unauthorized use
of the device. Id. Hickle’s system provides varying levels of access to the
device so that different users may have different levels of access to system
operations which may prevent misuse of the system, while still permitting
access to the required functionality. Id. f 25.
We do not view Hickle as teaching away from the proposed
combination. Hicks explains that:
The present invention may also incorporate a plurality of
security levels associated with different types of users. For
example, one level of access can be granted to the extent
required for maintenance only, while a greater level of access
can be granted for clinician use. Access for administrative
purposes is also feasible. The variety of access levels may
prevent accidental or intentional misuse of the drug delivery
system, while tailoring access to the required functionality.
Hickle 115 (emphasis added). Thus, Hickle expressly contemplates
providing access for administrative purposes and maintenance and,
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therefore, is not limited to providing restricted, secure access for only
therapeutic purposes. Id. We do not view Hickle as being incompatible or
inconsistent with also providing a hierarchical, lower level of non­
conditional access for non-therapeutic uses, such as the following teaching
of Haghpassand:
module 20 can create a fourth type of user account namely one
anonymous guest user account to be used in a manual launch of
the software by general users who have no system-based user
name or password.
Haghpassand 174. A person of ordinary skill in the art would understand
that the degree of access that is provided to any given user needs to be
commensurate with safety and security considerations. We do not view
Hickle as criticizing, discrediting, or discouraging the grant of access at a
level and scope that does not compromise safety and security needs.
Appellants next argue that the Examiner’s proposed combination fails
to satisfy two conditions:
(1) the default non-conditional function access to the
implantable medical device functionality does not require satisfaction
of a condition in advance; and
(2) the default non-conditional functional access to the
implantable medical device is accessible by the plural conditional
access users.
Br. 8. Appellants argue that Haghpassand fails to disclose these two claimed
conditions. Id. Appellants contend that Haghpassand’s guest user account
must be created by administrative module 20. Id. at 9. Appellants contend
that the requirement of creating access by using administrative module 20
distinguishes the guest user account from “default non-conditional
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functional access.” Id. Appellants further contend that a user under the
guest user account must still select or enter some generalized identifying
term in order to be recognized as a guest user. Id.
In response, the Examiner denies that Haghpassand’s guest user
account is “conditional” as argued by Appellants. Ans. 2—3. The Examiner
explains that Haghpassand’s guest account is for “users who have no
system-based username or password,” i.e., they have not satisfied any
conditions. Id. at 3. The Examiner takes the position that entering an
identifying item into the guest user account is not in satisfaction of a
condition, but instead merely identifies that the user has not satisfied any
condition and, therefore, their access is non-conditional, i.e., it is not
conditioned upon an pre-existing account or status. Id.
With respect to Appellants’ argument concerning non-conditional
functional access for the plurality of conditional access users, the Examiner
states that any user of Haghpassand’s system would be able to manually
launch the software as the fourth type (or guest account) user. Id.
Appellants’ arguments do not apprise us of Examiner error.
Appellants’ Specification describes “conditional” access in the context of
access to functionality of an implantable medical device. Spec. 4.1,2
Haghpassand discloses that administrative module 20:
1 “Circuitry is utilized for determining functionality associated with the
implantable medical device which each of the plural conditional access users
has been assigned and restricting access for each of the plural conditional
access users to that functionality associated with the implantable medical
device based on the detem lined functionality to which each of the plural
conditional access users has been assigned.” Id.
2 “Access to the functionality associated with the implantable medical device
for each of the plural conditional access users is then restricted based on the
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can create a fourth type of user account namely one anonymous
guest user account to be used in a manual launch of the
software by general users who have no system-based user name
or password.
Haghpassand 174. Thus, Haghpassand contemplates and makes provision
for “general users who have no system-based user name or password.” Id.
Our interpretation of a “general user” with no user name or password
is such that it satisfies Appellants’ claim language directed to a “non­
conditional access user.” See Claims App., claim 1. This is consistent with
the teaching in Appellants’ Specification that identifies the patient as an
example of a non-conditional access user. Spec. 6.* * 3 We are, furthermore,
persuaded by the Examiner’s interpretation of Haghpassand that conditional
access users who have pre-existing accounts, also have access through the
guest user account simply by accessing the system as a guest without using
their pre-existing account and user information. Ans. 3. Appellants have
given us no reason to believe that Haghpassand’s conditional access users
are denied access to whatever functionality is assigned to the guest user
account if they chose to log onto the system and access that information as a
guest without using their existing conditional user account and password
information.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
determined functionality to which each of the plural conditional access users
is permitted conditional access.” Id. at 5.
3 “[T]he patient is classified as a non-conditional access user in that no
conditions are in place to preclude access to that functionality of which the
patient has access.” Id.
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the Examiner's legal conclusion of unpatentability is well-founded. We
sustain the Examiner's unpatentability rejection of claims 1, 5, and 10.
Claims 3—17, 21, and 22
Claims 3—17, 21, and 22 are dependent claims that depend from either
claim 1, 5, or 10. Claims App. Appellants do not argue for the separate
patentability of these claims apart from arguments presented with respect to
independent claims 1, 5, and 10, which we have previously considered.
Br. 6—10. We sustain the rejection of claims 3—17, 21, and 22. See 37
C.F.R. §41.37(c)(iv).
Claim 23
Claim 23 depends from claim 1 and adds the limitation: “wherein the
default non-conditional functional access of which no conditions are in place
to preclude access to that functionality is accessible by all users.” Claims
App. The Examiner relies on paragraph 74 of Haghpassand as satisfying
this claim limitation. Final Action 4.
Appellants argue that that Haghpassand does not satisfy this limitation
because paragraph 74 requires that the guest account must first be created by
administrative module 20, which Appellants interpret as a condition. Br. 11
(“That condition, in fact, is the creation of the fourth guest user account
using the administrative module 20”). The Examiner responds by stating
that the access granted to general users is also available to conditional access
users. Ans. 3.
Appellants’ argument is essentially a reprise of their arguments
advanced with respect to the rejection of claim 1. Our analysis regarding
unconditional user access in connection with the rejection of claim 1 applies
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with equal force to Appellants’ claim 23 argument. We sustain the rejection
of claim 23.
Claim 24
Claim 24 depends from claim 1 and adds the limitation: “wherein the
default non-conditional functional access is available when no identification
access is read.” Claims App. The Examiner relies on paragraph 74 of
Haghpassand as satisfying this claim limitation. Final Action 4.
Appellants argue that Haghpassand’s general or guest user must
“inherently” provide some type of satisfaction of a generalized identification
condition. Br. 12 (“That is, the general user is required to select or enter
some identifying term (e.g., '"GUEST"") in order to be recognized as a guest
user account”). In response, the Examiner points out that Haghpassand’s
guest account is for users who have no system-based username or password.
Ans. 4. Such anonymous guest users lack any identification to provide for
the anonymous guest user account. See Haghpassand 174.
We think the fact that Haghpassand’s anonymous guest account users
can access the system without a username or password and such access
without any identification being read is sufficient to satisfy claim 24. We
sustain the rejection of claim 24.
Unpatentability of Claims 2 and 18—20
Claims 2 and 18—20 are dependent claims and are rejected over the
combination of Hickle and Haghpassand, together with other secondary
references. Final Action 4—5. Appellants do not argue for the separate
patentability of these claims apart from arguments presented with respect to
independent claims 1, 5, and 10, which we have previously considered.
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Br. 6—12. We sustain the rejection of claims 2 and 18—20. See 37 C.F.R.
§ 41.37(c)(iv).
DECISION
The decision of the Examiner to reject claims 1—24 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)(l)(iv).
AFFIRMED
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