Akibah Health Corporation

Patent Trials and Appeals Board

Dec 21, 2020

2020000184 (P.T.A.B. Dec. 21, 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.
15/586,737 05/04/2017 Spencer Crawford LF18-GLCE-48 9328
20322 7590 12/21/2020
SNELL & WILMER L.L.P. (Main)
400 EAST VAN BUREN
ONE ARIZONA CENTER
PHOENIX, AZ 85004-2202
EXAMINER
WALLENHORST, MAUREEN
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
IPDOCKET@swlaw.com
chauff@swlaw.com
dgiancaterin@swlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SPENCER CRAWFORD and MICHAEL LANDIS
____________

Appeal 2020-000184
Application 15/586,737
Technology Center 1700
____________

Before JO-ANNE M. KOKOSKI, MONTÉ T. SQUIRE, and JEFFREY R.
SNAY, Administrative Patent Judges.

SNAY, 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 rejecting claims 1–3 and 5–22. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies Akibah Health Care Corporation as the real
party in interest. Appeal Br. 2.
Appeal 2020-000184
Application 15/586,737

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BACKGROUND
The invention relates to a smartphone protective cover housing a
blood constituent monitor and testing implements. Spec. ¶ 2. Claim 1 is
illustrative of the subject matter on appeal:
Claim 1. A blood measurable constituent monitoring device
comprising:
a test strip storage compartment storing a plurality of test
strips, wherein the test strip storage compartment is removably
coupled to a cover;
a lancet storage compartment storing a plurality of
lancets, wherein the lancet storage compartment is removably
coupled to said cover;
a lancet striker on said cover;
a biohazard material receptacle having a re-sealable
opening for storing by a human at least one used test strip and
at least one used lancet, wherein the biohazard material
receptacle is removably coupled to the cover; and
a power source connector,
wherein the cover houses a smartphone.
Appeal Br. 10 (Claims Appendix).

REJECTIONS2
I. Claims 1–3, 5–20, and 22 stand rejected under 35 U.S.C. § 112, first
paragraph, for lack of written description.
II. Claims 1–3, 5–9, 15, 17, and 18 stand rejected under 35 U.S.C. § 112,
second paragraph.

2 The Examiner’s non-statutory double patenting rejection is withdrawn.
Ans. 10.
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III. Claims 1–3, 5–19, 21, and 22 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Kauhaniemi3 and Henning.4

OPINION
Rejection I: written description
The Examiner finds the “re-sealable opening” recited in connection
with the biohazard material receptacle in each of claims 1, 10, and 20, and in
connection with the lancet storage compartment in claim 22, lacks adequate
written description in the Specification. Final Act. 2–3. According to the
Examiner, “the specification only teaches or discloses that the test strip
storage compartment and the lancet striker have a re-sealable closure that
can be opened and closed.” Id. at 3.
Appellant argues adequate description of the foregoing features is
found in the Specification’s drawings. Appeal Br. 6–7. Particularly,
Appellant contends Figures 7 and 8 depict a nail pull tab used for opening
the test strip storage compartment, and Figure 6 similarly shows a nail pull
tab provided on each of the biohazard receptacle and lancet storage
compartment. Id.
The Examiner acknowledges the Specification’s disclosure of a
movable closure on each of the biohazard material and lancet storage
compartments. Ans. 11 (finding the Specification discloses “closures in the
form of doors . . . that can be opened and closed”). However, the Examiner
takes the position that the recited “re-sealing” feature requires “a tight or
perfect closure of an object and prevents the passage of any gases or fluids,”

3 US 6,159,424, issued December 12, 2000.
4 US 2006/0278545 A1, published December 14, 2006.
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Application 15/586,737

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and the disclosed closures are not described as providing such level of
sealing. Id.
“[T]he test for sufficiency [of written description] is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (en banc). To show possession, “the specification must
describe an invention understandable to [the] skilled artisan and show that
the inventor actually invented the invention claimed.” Id. at 1351.
Nevertheless, “the description requirement does not demand any particular
form of disclosure . . . or that the specification recite the claimed invention
in haec verba . . . .” Id. at 1352 (internal citations omitted).
Here, as noted, the Examiner acknowledges the Specification
describes similar door closures for the biohazard material, lancet, and test
strip storage compartments. Final Act. 3; Ans. 11. The Examiner’s finding
that the door closure for the test strip storage compartment is descriptive of a
re-sealable opening, Final Act. 3, supports a determination that the same
type door closures similarly provide re-sealable openings for the biohazard
and lancet storage compartments. We are not directed to evidence of any
substantive distinction between the described closures of the different
storage compartments. Nor does the Examiner provide evidence to support
a limiting interpretation of the term re-sealable to require prevention of
passage of gases or fluids.
For the foregoing reasons, we are persuaded the Examiner has not
identified evidence sufficient to support a finding of lack of written
description. Rejection I is not sustained.
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Rejection II: indefiniteness
The Examiner finds claim 1 is indefinite because “it is not clear where
the power source connector is located in the monitoring device.” Final Act.
3. Claim 1 recites, in part, a “blood measurable constituent monitoring
device comprising . . . a power source connector.” Thus, the recited power
source connector is identified as a component of the monitoring device. The
Examiner does not provide a reason why the failure to specify a particular
location of the power source connector renders the claim indefinite. With
regard to claims 9 and 15, the Examiner proposes grammatical changes
without presenting findings of indefiniteness absent the proposed changes.
Id. The Examiner identifies no indefiniteness in claims 2, 3, 5, and 8 apart
from the dependence of these claims from claim 1. Rejection II as applied to
claims 1–3, 5, 8, 9, and 15, is not sustained.
The Examiner finds claims 6 and 7 are indefinite because the phrase,
“the power source,” in each of those claims lacks antecedent basis. Id. The
Examiner finds claim 17 is indefinite because the phrase “storage container”
is ambiguous in relation to the storage compartments recited in parent claim
10. Id. Appellant does not challenge these findings and, accordingly, does
not identify error. Rejection II as applied to each of claims 6, 7, and 17 is
sustained. Claim 18 depends from claim 17. Rejection II as applied to
claim 18 therefore is sustained for the same reasons as claim 17.

Rejection III: obviousness
Relevant to Appellant’s argument on appeal, the Examiner finds
Kauhaniemi discloses a glucose monitoring system which includes a
compartment for storing used test strips, and finds Henning would have
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provided a reason to modify Kauhaniemi’s used test strip storage
compartment to additionally accommodate used lancets. Final Act. 7–8
(citing Henning Fig. 2).
Appellant argues Henning “only speaks of storing used test strips.”
Appeal Br. 9. Appellant further argues Henning teaches providing a
separate unit 50 for storing test lancets. Id.
Appellant’s argument is not persuasive of reversible error. Henning
teaches container 40 depicted in Henning’s Figure 2 “is configured to
receive and contain a used lancet, a used test strip, and/or a used integrated
lancing test strip.” Henning ¶ 36. In the embodiment referenced by
Appellant’s argument, container 50 likewise is disclosed as configured to
receive both used lancets and used test strips. Id. ¶ 39 (“The one way
opening 58 is configured to receive and retain lancets, test strips, and/or
integrated lancing test strips.”). See also id. ¶ 43 (characterizing container
50 as sized to store a plurality of used test strips and a plurality of used
lancets). Appellant’s argument that Henning teaches only separate storage
compartments for used test strips and lancets is contrary to the foregoing
disclosures in Henning.
For the foregoing reasons, Appellant does not identify error in the
Examiner’s obviousness rejection. Rejection III is sustained.

CONCLUSION
The Examiner’s decision rejecting claims 1–3, 5–19, 21 and 22 is
affirmed. The Examiner’s decision rejecting claim 20 is reversed.

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Application 15/586,737

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DECISION SUMMARY

In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–20,
22
112, first
paragraph
1–3, 5–20,
22
1–3, 5–9,
15, 17, 18
112, second
paragraph
6, 7, 17,
18
1–3, 5, 8,
9, 15
1–3, 5–19,
21, 22
103(a) 1–3,
5–19, 21,
22

Overall
Outcome
1–3,
5–19, 21,
22
20

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).

AFFIRMED-IN-PART