KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jul 13, 2020

2019006671 (P.T.A.B. Jul. 13, 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.
14/436,204 04/16/2015 Harry Broers 2012P01089WOUS 5158
24737 7590 07/13/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
THOMSON, WILLIAM D
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
07/13/2020 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HARRY BROERS,
JOOST ADOLF MANS, and
VINCENT JEANNE

Appeal 2019-006671
Application 14/436,204
Technology Center 3700
____________

Before STEFAN STAICOVICI, EDWARD A. BROWN, and
MICHAEL L. HOELTER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 7–9, 13, and 15, which constitute all
the claims pending in this application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. We understand the real party in interest is
“KONINKLIJKE PHILIPS N.V.” Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to a device and a corresponding
method for obtaining vital sign information of a living being.” Spec. 1.2
Apparatus claim 1 and method claim 15 are independent. Claim 1 is
representative of the claims on appeal and is reproduced below.
1. A photoplethysmographic (PPG) device for obtaining
vital sign information of a living being, comprising:
a detector configured for receiving light in a wavelength
range, the light being reflected from a region of interest of the
living being, the detector being configured for generating a
signal from the received light;
a processor configured for processing the signal and
deriving the vital sign information of the living being from the
signal using photoplethysmography; and
an illumination unit configured for emitting the light to
illuminate the region of interest during periodic illumination
intervals, wherein the emitted light during each of the periodic
illumination intervals is dominant over an ambient light in the
wavelength range, such that the emitted light during each of the
periodic illumination intervals is optimized for deriving the
vital sign information from the signal generated by the
photoplethysmography from the received light reflected from
the region of interest, and wherein the illumination unit is
configured to emit light between the periodic illumination
intervals according to a predefined user illumination profile
stored in the PPG device.

2 Appellant’s Specification lacks both paragraph and line numbering. We
thus reference Appellant’s Specification via page number only.
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REJECTIONS3
Claims 1, 7–9, 13, and 15 are rejected under 35 U.S.C. § 112(a) as
failing to comply with the written description requirement.
Claims 1, 7–9, 13, and 15 are rejected under 35 U.S.C. § 112(b) as
indefinite.
ANALYSIS
Indefinite4
We begin our analysis with the rejection of claims 1, 7–9, 13, and 15
as being indefinite. Appellant presents separate arguments for claim 1 (see
Appeal Br. 18–19) and for claim 9 (see Appeal Br. 19–20).5 We address
both claims below, with the remaining claims standing or falling therewith.
See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 1
Regarding claim 1, the Examiner addresses the limitation of the
emitted light being “optimized,” finding that “it is unclear as to how or what
means is used to optimize the light.” Final Act. 4. Appellant contends that
“page and line numbers which describes ‘how or what means is used to
optimize the light’” have been provided and that “those skilled in the art

3 In each rejection, the Examiner also lists claim 6, but this claim has been
canceled. See Appeal Br. 22 (Claims Appendix).
4 In analyzing this rejection, we need not address whether the language “an
illumination unit configured for….” should be interpreted under 35 U.S.C.
§ 112(f) or not. See Final Act. 2–3; Appeal Br. 7–10.
5 “Appellant respectfully submits that claim 15 is allowable for at least the
reasons discussed above.” Appeal Br. 19.
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would understand what is claimed when the claim is read in light of the
specification.” Appeal Br. 19; see also Reply Br. 6.
The identified portions of Appellant’s Specification can be found on
pages 2, 7, 8, and 10 thereof. See Appeal Br. 12–14; Reply Br. 9–10. The
Examiner addresses each page but is not persuaded by their content. See
Ans. 5–6. Instead, the Examiner reiterates “that the recitation of optimizing
emitted light is considered vague and when read in light of the specification,
the scope of such a term is unclear.” Ans. 6. Further, the Examiner noted
that Appellant failed to provide “any examples of how to reach the desired
outcome of optimized light.” Ans. 5.
Investigating each cited page, we find that page 2 of Appellant’s
Specification states, “said light during said illumination intervals is
optimized for deriving vital sign information.” See also Appeal Br. 13;
Reply Br. 9. This passage conveys no guidance as to how the light is
optimized, or what parameter is addressed in doing so, only that the light is
optimized.6 We thus agree with the Examiner’s assessment of this page as
failing to “provid[e] guidelines of how to achieve this,” and hence the “term
is unclear.” Ans. 5, 6.
Addressing page 7 of Appellant’s Specification, Appellant emphasizes
the passage “wherein said light 9 during said illumination intervals is

6 However, we note that page 3 of Appellant’s Specification states, “the
light, in particular the light spectrum and/or intensity, is optimal for the vital
signs monitoring measurement.” From this passage, we understand that
“spectrum and/or intensity” parameters of the light are most desirable for
measuring (monitoring) vital signs, but no further discussion ensues as to
how, and to what degree, these (or other) parameters are employed so that
the light can become “optimized for deriving the vital sign information” as
recited.
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optimized for deriving vital sign information 7.” Appeal Br. 13 (emphasis
omitted); Reply Br. 9. This page also states that illumination unit 8 is
“preferably controllable in brightness and/or frequency spectrum of the
emitted light” (and addresses a “practical implementation” which comprises
LEDs). Spec. 7. However, as with page 2 (and 3) above, the Examiner
finds that the passages identified by Appellant (see Appeal Br. 13) do not
disclose in what way the light is optimized, i.e., what are the properties
and/or characteristics of the optimized light, and hence “is unclear.” Ans. 5,
6.
Page 8 of Appellant’s Specification is noted by Appellant as stating
that “illumination unit 8 [controls] the period of optimal illumination for
measurement of input signals that are optimal for deriving desired vital sign
information [therefrom].” See also Appeal Br. 13; Reply Br. 9. Hence, in
addition to spectrum/frequency and intensity/brightness discussed above,
“the period of optimal illumination” appears to also be controlled. But, as
before, no additional discussion is forthcoming as to any criteria these
parameters are to have, or how each may contribute to optimization.
Lastly, Appellant highlights page 10 of Appellant’s Specification,
which discusses controlling the emission of “light during said illumination
intervals that is dominant over the ambient light in a[t] least the wavelength
range in which the detection unit 3 receives light 4.” Appeal Br. 14; Reply
Br. 10. This page discusses “light having an amplitude such that the
variation in the ambient light conditions is insignificant.” See also Appeal
Br. 14. However, as the Examiner points out, this passage “fails to set forth
the scope of the term ‘dominant’ nor the wavelength ranges referred to and
fails to provide any examples of amplitudes.” Ans. 5. In short, Appellant
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provides no instruction or teaching as to how the various light parameters
are to be manipulated, or what their desired values might be, in order for the
light to become “optimized” as claimed.
In view of the above, and the paucity of disclosure on this point, we
are not persuaded the Examiner erred in stating that even should one skilled
in the art review Appellant’s Specification, “it is unclear as to how or what
means is used to optimize the light.” Final Act. 4; see also Ans. 6
(“optimizing emitted light is considered vague and when read in light of the
specification, the scope of such a term is unclear”). Accordingly, we are not
persuaded the Examiner erred in concluding that claim 1 is indefinite on this
point.
Claim 9
The Examiner addresses the claim 9 limitation directed to the
illumination unit being “configured to emit high frequency light pulses in a
visible spectral range.” The Examiner finds this claim “vague and indefinite
in that the term ‘high’ is a relative term, and the scope of such a term has not
been defined and is therefore unclear.” Final Act. 4.
Appellant disagrees relying on pages 4 and 10 of Appellant’s
Specification. See Appeal Br. 19–20. However, neither page provides any
guidance or direction that might address the Examiner’s concerns, i.e., what
does the relative term “high” mean and what might be the scope of its
boundaries. See Ans. 6 (“Appellant fails to provide any examples of
frequency of light pulses [that] would be considered as ‘high’”).
We agree with the Examiner that a skilled person, seeking to
understand Appellant’s recitation to “high frequency light pulses” would be
left in a quandary as to whether a certain frequency is “high” or not, because
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Appellant provides no aid in determining what its boundaries might be. We
have been instructed that patents with claims involving terms of degree
“must provide objective boundaries for those of skill in the art” in the
context of the invention. See Interval Licensing LLC v. AOL, Inc., 766 F.3d
1364, 1371 (Fed. Cir. 2014)); Seattle Box Co., v. Indus. Crating & Packing,
Inc., 731 F.2d 818, 826 (Fed. Cir. 1984) (“When a word of degree is used
the district court must determine whether the patent’s specification provides
some standard for measuring that degree.”). Because, in the present case,
Appellant’s Specification lacks any such standard or boundaries, we agree
with the Examiner that this relative term recited in claim 9 “is therefore
unclear,” and hence indefinite. Final Act. 4.
In summation, and based on the above, we sustain the Examiner’s
rejection of all the claims (i.e., claims 1, 7–9, 13, and 15) as being indefinite.
Written Description
Addressing now the written description rejection of all the claims.
The Examiner, in rendering this rejection, focuses upon (a) the emitted light
being “optimized” (as discussed above) and (b) a predefined user profile
being “stored in the PPG device.” See Final Act. 3–4. Because we have
already ascertained that Appellant’s usage of “optimized” renders this
portion of the claim indefinite, we do not additionally address its parallel
rejection as also lacking written description support.
Regarding the recited storage of a user profile “in the PPG device,”
both independent claims 1 and 15 include this limitation. See Appeal Br. 22,
23 (Claims Appendix). On this point, the Examiner contends, “[t]he
[S]pecification, as originally filed, fails to disclose” such storage. Final Act.
4.
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Appellant references (and highlights) pages 5 and 7 of Appellant’s
Specification as providing support for this limitation. See Appeal Br. 17.
However, both pages are silent as to any storage of the user defined profile
“in the PPG device” as claimed. Regardless, Appellant states that a skilled
person “would readily recognize that because the illumination unit 8 is a part
of the device 1a, the illumination profile may be stored in the device 1a.”
Appeal Br. 17. The Examiner addresses Appellant’s statement finding that
“[t]he fact that it could be stored in the device also means it could be stored
elsewhere.” Ans. 6. Thus, according to the Examiner, “it is not inherent in
the system as disclosed” and that “inclusion of such a limitation constitutes
new matter.” Ans. 6.
Appellant contends, “the Examiner only discusses whether or not the
claimed limitation is ‘inherent’” and that, instead, possession can be
ascertained “through express, implicit, or inherent disclosure.” Reply Br.
14 (referencing MPEP § 2163). As such, “Appellant notes that the
specification at least implicitly or inherently discloses” this limitation.
Reply Br. 14–15. However, when an explicit limitation in a claim is not
present in the written description it must be shown that a person of ordinary
skill would have understood that the description requires that limitation.
Hyatt v. Boone, 146 F.3d 1348, 1353 (Fed. Cir. 1998). Here, despite
Appellant’s contentions, a review of cited pages 5 and 7 of Appellant’s
Specification at best addresses the implementation of a user profile during
operation and not the location where it is stored. See Spec. 5 (“according to
a user defined illumination profile”). In fact, Appellant’s Specification is
wholly silent as to where such profile is stored or drawn from. As Appellant
does not adequately explain that the illumination profile requires that it be
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stored on the photoplethysmographic (PPG) device, as opposed to an
externally located device, Appellant has not persuasively shown that the
original disclosure supports the limitation of a “predefined user illumination
profile stored in the PPG device.”
Thus, in view of the record presented, we do not find the Examiner
erred in additionally rejecting claims 1, 7–9, 13, and 15 as “failing to comply
with the written description requirement.” Final Act. 3. We sustain the
Examiner’s rejection of these claims.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 7–9, 13,
15
112(b) Indefinite 1, 7–9, 13,
15

1, 7–9, 13,
15
112(a) Written Description 1, 7–9, 13,
15

Overall
Outcome
1, 7–9, 13,
15

No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED