Honeywell International Inc.

Patent Trials and Appeals Board

Jun 23, 2020

14701953 - (D) (P.T.A.B. Jun. 23, 2020)

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.
14/701,953 05/01/2015 Hai D. Pham H0049069-1456.1214101 6217
90545 7590 06/23/2020
HONEYWELL/STW
Patent Services
115 Tabor Road
P.O. Box 249
MORRIS PLAINS, NJ 07950
EXAMINER
BROWN, VERNAL U
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
06/23/2020 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):
Honeywell.USPTO@STWiplaw.com
patentservices-us@honeywell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HAI D. PHAM and JARED FABER
____________________

Appeal 2019-002755
Application 14/701,953
Technology Center 2600
____________________

Before CATHERINE SHIANG, BETH Z. SHAW, and
JAMES W. DEJMEK, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1–8 and 11–21. Appellant has canceled claims 9 and 10. See Amdt 3
(filed April 24, 2018). We have jurisdiction over the remaining pending
claims under 35 U.S.C. § 6(b).
We affirm.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies
Honeywell International Inc. as the real party in interest. Appeal Br. 2.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to the
use of a body area network (BAN) in a security access system. Spec. ¶¶ 1,
10. According to the Specification a BAN “is a wireless network of
computing devices that are associated with a particular human body or a
particular person.” Spec. ¶ 2. As an example, the Specification describes
that intelligent physiological sensors may be implanted in the body and may
communicate desired information to an external device. Spec. ¶ 7.
Information transmitted from an implanted device may include information
identifying the device and/or the person in whom the device is implanted.
Spec. ¶ 14. In a disclosed embodiment, this information may be used by a
security access system to open a door (i.e., provide access). Spec. ¶ 14.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A system comprising:
a computer processor configured to:
receive body area network (BAN) data; and
operate a point of entry as a function of the BAN data;
wherein the BAN data are generated by a body area
network comprising a wireless network of physiological sensing
devices worn by or embedded in a person;
wherein the BAN data comprise identification data for the
person associated with the BAN, and the identification data are
used to operate the point of entry;
wherein the identification data comprise data relating to
an implanted device in the person; and
wherein the data relating to the implanted device in the
person comprise data that identify the implanted device.
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The Examiner’s Rejections
1. Claims 1, 2, 5–8, 11, 12, 15–18, 20, and 21 stand rejected under
35 U.S.C. § 103 as being unpatentable over Moriarty et al. (US
2013/0194092 A1; Aug. 1, 2013) (“Moriarty”); Falck et al. (US
2011/0280224 A1; Nov. 17, 2011) (“Falck”); and Chandra et al. (US
2014/0273829 A1; Sept. 18, 2014) (“Chandra”). Final Act. 3–9.
2. Claims 3, 13, and 19 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Moriarty, Falck, Chandra, and Amento et al. (US
8,908,894 B2; Dec. 9, 2014) (“Amento”). Final Act. 9–10.
3. Claims 4 and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moriarty, Falck, Chandra, Amento, and Benoit et al. (US
2015/0067792 A1; Mar. 5, 2015) (“Benoit”). Final Act. 11.

ANALYSIS2
In rejecting claim 1, the Examiner finds Moriarty teaches, inter alia, a
system to receive body area network (BAN) data, wherein the BAN data are
generated by a body area network comprising a network of physiological
devices worn by or embedded in a person and, further, wherein the BAN
data comprise identification data for a person associated with the BAN, the
identification data comprising data relating to an implant in a person. Final
Act. 3 (citing Moriarty ¶¶ 27–28, 30, 48). The Examiner relies on Falck to
teach expressly the use of wireless sensors in a BAN network (Final Act. 3

2 Throughout this Decision, we have considered the Appeal Brief, filed
September 18, 2018 (“Appeal Br.”); the Reply Brief, filed February 19, 2019
(“Reply Br.”); the Examiner’s Answer, mailed December 19, 2018 (“Ans.”);
and the Final Office Action, mailed July 5, 2018 (“Final Act.”), from which
this Appeal is taken.
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(citing Falck ¶¶ 5, 62)) and Chandra to teach the use of BAN data for
operating a point of entry and providing identification data that identify the
device in the person (Final Act. 3 (citing Chandra ¶¶ 12, 15, 26, 34)).
Appellant disputes the Examiner’s finding that Chandra teaches
identification data that identify the implanted device in the person. Appeal
Br. 10. In particular, Appellant asserts that Chandra does not relate to
implanted devices, but rather describes an ingested device (i.e., a pill
comprising a transmitter). Appeal Br. 10. Appellant argues that even under
a broadest reasonable interpretation, the claimed implanted device is not
taught by Chandra’s ingested device. Appeal Br. 10; Reply Br. 2 (disputing
the Examiner’s proposed broadest reasonable interpretation).
Regardless of whether Chandra teaches an ingested device or an
implanted device, we note that the Examiner finds Moriarty teaches an
implanted device. Final Act. 3 (citing Moriarty ¶¶ 27–28); Ans. 4
(explaining the Examiner’s position that Moriarty is relied to teach the use
of an implanted BAN device and that such implantation is a conventional
practice (citing Moriarty ¶¶ 28, 35)). We agree with the Examiner that
Moriarty teaches an implanted BAN device. See, e.g., Moriarty ¶¶ 28
(describing “implant modules”), 31–32 (“[t]he patient 102 may have internal
or external sensors 140 . . .”), 35 (“a wide variety of different types of
internal or external sensors may be utilized at different parts of the patient’s
body”).
Moreover, the Examiner finds, and we agree, Moriarty teaches the
BAN devices (i.e., the implanted devices) may transmit information
identifying the person associated with the BAN device. Final Act. 3 (citing
Moriarty ¶ 48 (describing that “medical data and other information (e.g.,
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identity information, contact information, etc.)” may be transmitted by the
device and received by an external device)); see also Moriarty ¶ 49
(describing various levels and types of information transmitted from the
BAN device).
Non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Keller, 642 F.2d 413, 426
(CCPA 1981). Rather, the test for obviousness is whether the combination
of references, taken as a whole, would have suggested the patentee’s
invention to a person having ordinary skill in the art. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
We understand the Examiner’s rejection to rely on the combined
teachings of, inter alia, Moriarty and Chandra. See Final Act. 3. In
particular, Moriarty teaches an implanted device that transmits information
identifying the person associated with the BAN device as well as other
information, and Chandra teaches that a device internal to the body transmits
information to identify the device itself. See Final Act. 3 (citing Moriarty
¶¶ 27–28, 48; Chandra ¶ 12). Thus, we find that the combined teachings of
Moriarty and Chandra teach or reasonably suggest an implanted device that
transmits information (i.e., identification data) comprising data related to an
implanted device in the person (as taught Moriarty) and that the data relating
to the implanted device comprise data to identify the device itself (as taught
by Chandra).
For the first time in the Reply Brief, Appellant belatedly asserts that
Moriarty “is specifically directed towards medical monitoring and not the
use of a BAN to control external systems.” Reply Br. 2. As such, Appellant
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argues the Examiner has not shown the prior art (i.e., Moriarty) teaches an
implanted device that includes identification data and that can be used to
operate a point of entry. Reply Br. 3. In addition, Appellant belatedly
argues for the first time in the Reply Brief that there is no reason that one of
ordinary skill in the art would modify Moriarty’s system with Chandra’s
device to operate a point of entry. Reply Br. 3. Instead, Appellant asserts
that the Examiner has impermissibly relied on hindsight reasoning in support
of the proposed combination. Reply Br. 3.
These argument were not made in the Appeal Brief, but could have
been, and are not responsive to any new evidence or finding set forth by the
Examiner in the Answer. In the absence of a showing of good cause by
Appellant, this argument is untimely and deemed waived.
Any argument raised in the reply brief which was not raised in
the appeal brief, or is not responsive to an argument raised in the
[E]xaminer’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.
37 C.F.R. § 41.41(b)(2); see also Ex parte Nakashima, 93 USPQ2d 1834,
1837 (BPAI 2010) (informative) (explaining that arguments and evidence
not presented timely in the principal brief, will not be considered when filed
in a Reply Brief, absent a showing of good cause explaining why the
argument could not have been presented in the principal brief); Ex parte
Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply
brief [is not] an opportunity to make arguments that could have been made
in the principal brief on appeal to rebut the Examiner’s rejections, but were
not.”).
Moreover, even if we were to consider Appellant’s untimely
arguments, we do not find them persuasive of Examiner error. As an initial
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matter, whether Moriarty is used for a different purpose is not persuasive.
Our reviewing court guides it is irrelevant that the prior art and the present
invention may have different purposes. See Nat’l Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) (“A finding
that two inventions were designed to resolve different problems . . . is
insufficient to demonstrate that one invention teaches away from another.”).
That is, it is sufficient that references suggest doing what Appellant did,
although the Appellant’s particular purpose was different from that of the
references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re
Gershon, 372 F.2d 535, 538–39 (CCPA 1967)). “Obviousness is not to be
determined on the basis of purpose alone.” In re Graf, 343 F.2d 774, 777
(CCPA 1965). “Common sense teaches . . . that familiar items may have
obvious uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007); see also KSR, 550 U.S. at 421 (“A person of ordinary skill is also a
person of ordinary creativity, not an automaton.”).
Further, although the Examiner determines an ordinarily skilled
artisan would have been motivated to modify Moriarty’s system of
transmitting BAN data to a remote device with the particular application
environment of Chandra (i.e., transmitting BAN data for security access)
(see, e.g., Final Act. 3–4), we also note that one of ordinary skill in the art
would have been motivated to modify the Chandra’s system of gaining
access to a controlled entry point using a body area network to transmit
identification information of an ingested transmitter device (see Chandra ¶
34) with the implanted BAN device of Moriarty (see Moriarty ¶ 28). See In
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re Bush, 296 F.2d 491, 496 (CCPA 1961) (“where a rejection is predicated
on two references each containing pertinent disclosure which has been
pointed out to the applicant, we deem it to be of no significance, but merely
a matter of exposition, that the rejection is stated to be on A in view of B
instead of B in view of A”). As Chandra describes, an issue with the
ingested devices is that they are only operational for a short period of time
(i.e., five to seven minutes). Chandra ¶ 38. By using an implanted device
(as taught by Moriarty), this issue may be mitigated. See KSR, 550 U.S. at
420 (explaining that “any need or problem known in the field of endeavor at
the time of invention and addressed by the patent can provide a reason for
combining” references); see also Bush, 296 F.2d at 496 (explaining that
changing the order of the references does not constitute a new ground of
rejection (citing In re Cowles, 156 F.2d 551, 554 (CCPA 1946)).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 103. For similar reasons, we also sustain the Examiner’s
rejection of independent claims 11 and 17, which recite commensurate
limitations and were not argued separately. See Appeal Br. 11; see also
37 C.F.R. § 41.37(c)(1)(iv). Additionally, we sustain the Examiner’s
rejection of claims 2–8, 12–16, and 18–21, which depend directly or
indirectly therefrom and were not argued separately. See Appeal Br. 11; see
also 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–8 and 11–21
under 35 U.S.C. § 103.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5–8,
11, 12, 15–
18, 20, 21
103 Moriarty, Falck,
Chandra
1, 2, 5–8,
11, 12, 15–
18, 20, 21

3, 13, 19 103 Moriarty, Falck,
Chandra, Amento
3, 13, 19
4, 14 103 Moriarty, Falck,
Chandra, Amento,
Benoit
4, 14
Overall
Outcome
1–8, 11–21

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)(iv). See
37 C.F.R. § 41.50(f).

AFFIRMED