Verily Life Sciences LLC

Patent Trials and Appeals Board

Sep 2, 2021

2021001703 (P.T.A.B. Sep. 2, 2021)

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.
15/380,704 12/15/2016 Frank Honor¿ 101146-1062959-190US4 9627
139501 7590 09/02/2021
Verily / Kilpatrick Townsend & Stockton LLP
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309
EXAMINER
WEARE, MEREDITH H
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
09/02/2021 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK HONORÉ, BRIAN OTIS, and
ANDREW NELSON
Appeal 2021-001703
Application 15/380,704
Technology Center 3700
Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
WOOD, 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 31–60. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as Verily Life Sciences LLC.
Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The Specification describes an “ophthalmic sensing platform”
including a sensor, control electronics and an antenna situated on a substrate
embedded in a polymeric material (e.g., a contact lens). Spec. ¶¶ 21–22.
The ophthalmic sensing platform can be configured to measure glucose
levels in tear fluid and, via an RFID tag, transmit the data to a reader. Id.
¶¶ 23–24. The reader can then “store, process, and/or communicate the data
using [a] Bluetooth interface [or other protocol] to another device, such as
[a] display device.” Id. ¶ 26. The display device can “forward and/or
bridge” the data to one or more other devices, such as a server. Id. ¶ 89.
Claims 31, 41, and 51 are independent. Claim 31, reproduced below,
is illustrative of the claimed subject matter:
31. A method, comprising:
interrogating, via a wireless protocol and from a mobile
device having a display, a body-mounted device for analyte
concentration data based on electrochemical sensor
measurements indicative of analyte levels of a person;
bridging, by the mobile device, the analyte concentration
data between the body-mounted device and a computer server
running a cloud data collection application;
comparing, by the mobile device, the analyte concentration
data against a set of range thresholds to identify a particular
range within which an analyte level of the person is in;
responsive to identifying the particular range, selecting a
feedback action; and
presenting the feedback action at the mobile device.

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REFERENCES
Name Reference Date
Cohen US 2003/0144582 A1 July 31, 2003
Yang US 2005/0027175 A1 Feb. 3, 2005
Rasch-Menges US 2006/0161212 A1 July 20, 2006
Jina US 2008/0312518 A1 Dec. 18, 2008
Say US 2009/0216101 A1 Aug. 27, 2009
Saffer US 2009/0221890 A1 Sept. 3, 2009
Hayter US 2011/0160544 A1 June 30, 2011

REJECTIONS
Claims Rejected 35 U.S.C. § References
31–35, 41–45, 51–55 103 Jina, Hayter
36, 46, 56 103 Jina, Hayter, Rasch-Menges
37, 47, 57 103 Jina, Hayter, Rasch-Menges,
Cohen
38, 48, 58 103 Jina, Hayter, Saffer
39, 49, 59 103 Jina, Hayter, Say
40, 50, 60 103 Jina, Hayter, Yang

OPINION
Claims 31–35, 41–45, and 51–55—§ 103—Jina, Hayter
Appellant argues the claims subject to this rejection as a group.
Appeal Br. 5–9. We select claim 31 as representative of the group, and
decide the appeal of this rejection on the basis of claim 31 alone. 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner finds that Jina teaches claim 31 substantially as
claimed, but acknowledges that “Jina does not expressly teach the method
further comprises bridging, by the mobile device, the analyte concentration
data between the body-mounted device and a computer server running a
cloud data collection application,” although “Jina does disclose transmitting
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the concentration data to a server.” Final Act. 3–4 (citing Jina ¶¶ 12, 28, 62,
65, 95, 96, 99). The Examiner therefore relies on Hayter for this limitation.
Id. at 4 (citing Hayter ¶ 7).
Appellant disputes that Hayter teaches the bridging limitation.
Appellant asserts that the Specification “explicitly distinguishes ‘bridging’
data between devices from ‘forwarding’ data from one device to another,”
and thus the Examiner erred in “construing ‘bridging’ to encompass
‘forwarding.’” Appeal Br. 6 (citing Spec. ¶ 89). Appellant submits that:
“Bridging ... data between [two devices]” means operating a
device as a conduit (e.g., a bridge) that is simultaneously
connected to a source device and a destination device and an
[sic] allow data to flow from the source device to the
destination device through the bridging device. In contrast, in
the “forwarding” scenario, the intermediary device is connected
to the source device, but cannot transfer data to the destination
device, e.g., because it is not connected to the destination
device. To enable data transfer to the destination in such a case,
the intermediary device operates as a dropbox to receive and
store data from the source device and until a later time when the
destination device is able to receive it.
Id. at 7. Applying its construction for “bridging,” Appellant contends that
“Hayter simply explains that a user may upload data from its device to a
remote server, such as through a web portal,” and therefore “lacks any
disclosure of bridging.” Id. at 8 (citing Hayter ¶ 59).
The Examiner responds that “[t]he ‘explicit distinction’ of the terms
bridging and forwarding has not been ignored,” but rather, “the distinction is
not clear.” Ans. 4. The Examiner asserts that “the specification uses the
phrase ‘forward and/or bridge’” (see Spec. ¶ 89), but “there is no further
explanation as to the difference between these terms in the application as
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filed.” Ans. 4. The Examiner further asserts that Appellant “has not
provided any evidence” supporting its proffered definitions of these terms.
Id. The Examiner contends that, on the contrary, other evidence in the
record indicates that Appellant’s proffered “definitions and/or distinctions”
are “inconsistent with the state of the art.” Id. For example, the Examiner
contends that a reference titled Top-Down Network Design teaches that
“bridge devices, such as a network bridge[], are by definition store-and-
forward devices.” Id. at 5 (citing Priscilla Oppenheimer, Top-Down
Network Design 203 (Cisco Press 2011)).
According to the Examiner, “Appellant appears to be arguing that the
distinction being made is ‘bridging’ is forwarding data immediately, while
‘forwarding’ is forwarding data at some later time (i.e., ‘when the
destination device is able to receive it’).” Ans. 5 (quoting Appeal Br. 7).
The Examiner asserts, however, that “no such distinction between the terms
is found in the application as filed,” and “[t]here is no factually-supported
objective evidence suggesting that one of ordinary skill in the art would
recognize one of these techniques as ‘bridging’ and the other as
‘forwarding.’” Id. at 5–6.
Although it may appear that, on its face, the statement in paragraph 89
of Appellant’s Specification, i.e., “[i]n embodiments utilizing Protocol 3,
display device 350 can be used to forward and/or bridge data with the one or
more other devices,” might suggest that to “forward” and to “bridge” are
different, the Specification does not explain how these terms are different.
Ans.3. Indeed, the Specification does not otherwise mention these terms. If
anything, the Specification indicates that there is considerable overlap in
their meanings. For example, “forwarding” and “bridging” are performed
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by the same structure (display device 350) using the same protocol
(“Protocol 3,” e.g., RFID protocol, Bluetooth, Wi-Fi, etc.), to achieve the
same result (the collection of data from eye-mountable device 210 via reader
180, and receipt of that data by “one or more other devices”). Spec. ¶¶ 70,
88–89.
In any event, we need not parse the precise difference between the
two terms; instead, the issue is whether Appellant has shown error in the
Examiner’s finding that Hayter teaches “bridging, by a mobile device, the
analyte concentration data between the body-mounted device and a
computer server running a cloud data collection application.” Final Act. 4;
see Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
1999) (“[O]nly those [claim] terms need be construed that are in
controversy, and only to the extent necessary to resolve the controversy.”).
Having considered Appellant’s arguments, we not persuaded of Examiner
error in this regard, for essentially those reasons expressed in the Final
Action and Answer. We add the following primarily for emphasis.
Appellant’s contention that Hayter does not teach the bridging
limitation relies on construing “bridging . . . data” between two devices to
mean “operating a device as a conduit (e.g., a bridge) that is simultaneously
connected to a source device and a destination device” and allowing “data to
flow from the source device to the destination device through the bridging
device.” Appeal Br. 7; see Reply Br., second page2 (asserting that “bridge”
as used in the Specification “covers allowing data to flow unimpeded from
the source to the remote server across the bridge device – as opposed to

2 The pages of the Reply Brief are not numbered.
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‘forwarding,’ which covers the indefinite storage of data by the intermediate
device until it is able to connect to the recipient to offload the data”).
However, Appellant has not identified anything in the Specification that
supports the requirement that the bridging device be “simultaneously
connected to a source device and a destination device,” or that “bridging”
excludes temporary storage of data prior to its transmission. That the
Specification may suggest a difference between “bridging” and
“forwarding” does not establish the specific constructions that Appellant
proposes, or rule out the possibility that the meanings of the terms overlap.
Moreover, evidence submitted by the Examiner indicate that
Appellant’s construction is too narrow. As the Examiner notes (Final
Act. 12; Ans. 5), Top-Down Network Design states that a network “bridge”
is “a store-and-forward device,” which means that “the bridge receives a
complete frame, determines which outgoing port to use, prepares the frame
for the outgoing port, calculates a cyclic redundancy check (CRC), and
transmits the frame when the medium is free on the outgoing port.” Top-
Down Network Design 203 (emphasis added). This excerpt indicates that
data may be stored before it is transmitted, and that the transmission may not
be immediate.
Appellant responds: “That a single reference uses a term in a way not
contemplated by the present application does not change the fact that the
present application distinguishes between ‘bridging’ and ‘forwarding’ and
that distinction must be adhered to when construing the term ‘bridging.’”
Reply Br., third page. While this excerpt may not contradict Appellant’s
position that the two terms have different meanings, it does contradict
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Appellant’s position that storage before forwarding is outside the scope of
“bridging.”
Appellant further responds that while “[t]he claimed ‘bridging’
functionality . . . necessarily includes transient storage to allow data received
from the body-mounted device to be transmitted to the cloud data collection
application . . . this transient storage is entirely different from storing data
until such time as the destination device is able to retrieve it.” Appeal Br. 8.
Appellant relies on an excerpt from Top-Down Network Design that states,
in part, that “[i]f the bridge has learned where the destination station resides
(by looking at source addresses in previous frames), it can forward the frame
to the correct port.” Appeal Br. 7–8.
The excerpt from Top-Down Network Design on which Appellant
relies teaches that the bridge must learn the destination station before it can
forward the frame to the correct port; i.e., learning the destination station is a
necessary condition before the bridge can forward the frame. It does not
teach that learning the destination station is a sufficient condition to permit
forwarding of the frame, i.e., that transmission occurs immediately after the
destination station is learned. Indeed, as noted above, Top-Down Network
Design also teaches that the bridge transmits the frame “when the medium is
free on the outgoing port.”
The Examiner further relies on David D. Rowlands, et al., Linking
Sensor Data to a Cloud-based Storage Server Using a Smartphone Bridge,
371–18 (IARIA 2012) (“Rowlands”), for determining “the ordinary and
customary meaning of bridging as utilized in the prior art.” Final Act. 12;
see Ans. 6–7. According to the Examiner:
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Rowlands et al. (“Rowlands”) uses a mobile device
(smartphone) as a bridge. Rowlands indicates bridging (or
using a smartphone as a bridge) can be performed in various
ways: “A simple implementation of a bridging application may
involve a persistent connection with an external system with
collected data streamed immediately across;” or, “Use of WiFi
can aid this situation by only uploading when a network
connection is available and reserving the cellular network for
emergency use. Applying a method such as this will involve
the use of temporary storage of data on the mobile phone, so
storage capacity must be considered when deciding how long
data may be allowed to accumulate before utilizing the cellular
network” (pg. 318). The first, “simple” application disclosed by
Rowlands appears to fall within Appellant’s provided definition
of “bridging.” The second application disclosed by Rowlands
appears to fall within Appellant’s provided definition of
“forwarding.” However, Rowlands refers to each of these
applications as a bridge/bridging with a mobile device.
Additionally, Rowlands more broadly suggests a smartphone
bridge generally provides a platform to link standalone sensors
with a cloud-based server (pg. 317).
Ans. 6–7 (quoting Rowlands 317–18). While Appellant responds that
Rowlands describes two different approaches (Reply Br., second page–third
page), Appellant does not expressly dispute the Examiner’s statement that
Rowlands refers to both approaches as “a bridge/bridging with a mobile
device.” Id.
As we are not persuaded by Appellant’s narrow construction of the
“bridging” limitation, and Appellant has not otherwise shown error in the
Examiner’s finding that Hayter teaches this limitation, we sustain the
Examiner’s rejection of claim 31, as well as claims 32–35, 41–45, and
51–55, as unpatentable over Jina and Hayter.
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Remaining Rejections
Appellant does not separately argue the patentability of the remaining
claims on appeal, but relies on arguments made in support of the
patentability of claim 31, which we found unpersuasive. Appeal Br. 8–9.
Accordingly, we sustain the rejection of claims 36, 46, and 56 as
unpatentable over Jina, Hayter, and Rasch-Menges; claims 37, 47, and 57 as
unpatentable over Jina, Hayter, Rasch-Menges, and Cohen; claims 38, 48,
and 58 as unpatentable over Jina, Hayter, and Saffer; claims 39, 49, and 59
as unpatentable over Jina, Hayter, and Say; and claims 40, 50, and 60 as
unpatentable over Jina, Hayter, and Yang.
CONCLUSION
The Examiner’s rejections are affirmed.

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
31–35, 41–
45, 51–55
103 Jina, Hayter 31–35, 41–
45, 51–55

36, 46, 56 103 Jina, Hayter,
Rasch-Menges
36, 46, 56
37, 47, 57 103 Jina, Hayter,
Rasch-Menges,
Cohen
37, 47, 57
38, 48, 58 103 Jina, Hayter, Saffer 38, 48, 58
39, 49, 59 103 Jina, Hayter, Say 39, 49, 59
40, 50, 60 103 Jina, Hayter, Yang 40, 50, 60
Overall
Outcome
103 31–60

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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED