Brent Gutekunst et al.

Patent Trials and Appeals Board

May 1, 2020

2019000057 (P.T.A.B. May. 1, 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.
15/356,342 11/18/2016 Brent GUTEKUNST TCHD/0002USC01 2235
26290 7590 05/01/2020
PATTERSON + SHERIDAN, L.L.P.
24 Greenway Plaza, Suite 1600
Houston, TX 77046
EXAMINER
ROSE, DERRICK V
ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
05/01/2020 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):
PSDocketing@pattersonsheridan.com
jcardenas@pattersonsheridan.com
pair_eofficeaction@pattersonsheridan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRENT GUTEKUNST, DARIN OKUDA, LAURIE BABB, and
VIC MARKARIAN

Appeal 2019-000057
Application 15/356,342
Technology Center 2400
Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
LARRY J. HUME, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 55–58, 60–63, 66–76, 79–81, 83,
and 842. Appellant has canceled claims 1–54, 64, 65, 77, and 78. With no
outstanding rejections, objections, indication of allowance, or cancellation of
record, claims 59 and 82 are not before us on Appeal. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as TouchDX,
Inc. Appeal Br. 3.
2 See TABLE 1, infra, for clarification of the pending and rejected claims.
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STATEMENT OF THE CASE3
The Invention
The claims are directed “to medical surveillance testing, assessing,
and monitoring.” Spec. ¶ 2. In particular, Appellant’s disclosed
embodiments and claimed invention relate “to apparatus, systems, and
articles of manufacture for configuring general purpose portable
communication devices for medical surveillance testing, assessing,
monitoring, and processing information received from such devices.” Id.
Exemplary Claim
Claim 55, reproduced below, is representative of the subject matter on
appeal (emphases added to contested prior-art limitations):
55. A method for sharing medical data between
applications on a user device, the method comprising:
maintaining a data store on the user device;
executing an initialization application on the user device,
the initialization application being configured to manage a
plurality of configuration files corresponding to a plurality of
applications on the user device, each of the configuration files
comprising one or more key value pairs, each key value pair
comprising identifying data matched with data that defines an
operating parameter for at least one of the plurality of
applications;
executing a first application of the plurality of
applications based on a first configuration file of the plurality of

3 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Apr. 26, 2018); Reply Brief (“Reply Br.,” filed Oct. 1, 2018); Examiner’s
Answer (“Ans.,” mailed Aug. 13, 2018); Non-Final Office Action (“Non-
Final Act.,” mailed Dec. 7, 2017); and the original Specification (“Spec.,”
filed Nov. 18, 2016).
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configuration files, the first configuration file including a first
key value pair that defines an access level to the data store;
executing a second application of the plurality of
applications based on a second configuration file of the
plurality of configuration files, the second application being
different than the first application, the second configuration file
including a second key value pair that defines an access level to
the data store;
storing, by the first application, medical data in the data
store based on the access level defined by the first key value
pair;
accessing, by the second application, the medical data in
the data store based on the access level defined by the second
key value pair;
performing a medical test for a user with the user device;
determining a metric based on the medical test; and
triggering an event based on a comparison of the medical
test to a threshold, wherein the event comprises sending
information indicative of the comparison to a computing
device.

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Application 15/356,342

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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Panasik et al. (“Panasik”) US 2005/0208925 A1 Sept. 22, 2005
Garza-Gonzalez et al.
(“Garza-Gonzalez”)
US 2006/0130150 A1 June 15, 2006
Aggarwal et al. (“Aggarwal”) US 2007/0100987 A1 May 3, 2007
Sklovsky et al. (“Sklovsky”) US 2009/0247077 A1 Oct. 1, 2009
Nolan et al. (“Nolan”) US 2009/0326980 A1 Dec. 31, 2009
Chene et al. (“Chene”) US 2010/0049874 A1 Feb. 25, 2010
Cohen et al. (“Cohen”) US 2010/0286488 A1 Nov. 11, 2010
Rofougaran US 2010/0321304 A1 Dec. 23, 2010
Yoo et al. (“Yoo”) US 2011/0025611 A1 Feb. 3, 2011
Jung et al. (“Jung”) US 2012/0164613 A1 June 28, 2012
Rejections on Appeal4
The Examiner makes several typographical errors and/or omissions in
the Non-Final Action. To clarify the various rejections and claims before us
on Appeal, TABLE 1 is provided below:

4 Although claims 59 and 82 were included in the list of rejected claims
55–84 on the Non-Final Office Action Summary page, we find no detailed
statement of rejection to review for claims 59 and 82 in the Non-Final
Action, mailed Dec. 7, 2017, from which this Appeal is taken. Nor does the
Examiner indicate in the record that claims 59 and 82 are allowable or
objected to. Therefore, the status of claims 59 and 82 is unclear on appeal,
and we have no jurisdiction under 35 U.S.C. §6(b) as to any claims that were
not rejected. Accordingly, claims 59 and 82 are not before us on appeal. We
further bring to the Examiner’s attention that claim 82 is an independent
claim.
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TABLE 1 — CLARIFICATION OF CLAIM STATUS
Rej.
No.
Claims
Expressly
Rejected5
Detailed
Rejection6
Claims
Without
Detailed
Rejection7
Canceled
Claims
Claims not
Rejected or
Canceled8
R1
55-58, 60-
62, 64, 70-
76, 83
55-58, 60, 61,
66, 70-74, 79,
83, 84
62, 64, 75,
76
1-54, 64,
65, 77, 78
59, 82
R2 62, 75 62, 75
R3 63, 76 63, 76
R4 67, 80 67, 80
R5 68, 81 68, 81
R6 69, 83 69, 839
R1. Claims 55–58, 60, 61, 66, 70–74, 79, 83, and 8410 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Chene, Cohen, Sklovsky, Aggarwal, and Garza-Gonzalez.
Non-Final Act. 2.

5 “Claims Expressly Rejected” are claims indicated as being rejected by the
Examiner in the express statement (heading) of the rejection, but where no
relevant findings are provided within the body of the detailed rejection.
6 “Detailed Rejection” refers to claims for which a detailed rejection is
provided in the Non-Final Action, whether or not these claims are addressed
in the express statement of the rejection.
7 “Claims Without Detailed Rejection” refers to claims not rejected within
the detailed rejection, but included in the express statement (heading) of the
rejection.
8 See n.3, supra, regarding why claims 59 and 82 which are not rejected nor
canceled are not before us on Appeal.
9 We note claim 83 is twice rejected, under both Rejections R1 and R6.
10 Claims listed in the express statement of the rejection (heading) by the
Examiner are corrected to match those in the body of the rejection.
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R2. Claims 62 and 75 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chene, Cohen, Sklovsky,
Aggarwal, Garza-Gonzalez, and Rofougaran. Non-Final Act. 7.
R3. Claims 63 and 76 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chene, Cohen, Sklovsky,
Aggarwal, Garza-Gonzalez, and Panasik. Non-Final Act. 9.
R4. Claims 67 and 80 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chene, Cohen, Sklovsky,
Aggarwal, Garza-Gonzalez, and Nolan. Non-Final Act. 11.
R5. Claims 68 and 81 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chene, Cohen, Sklovsky,
Aggarwal, Garza-Gonzalez, and Yoo. Non-Final Act. 12.
R6. Claims 69 and 83 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chene, Cohen, Sklovsky,
Aggarwal, Garza-Gonzalez, and Jung. Non-Final Act. 14.
ISSUES AND ANALYSIS
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellant with respect
to claims 55–58, 60–63, 66–76, 79–81, 83, and 84 for the specific reasons
discussed below. We highlight and address specific findings and arguments
for emphasis as follows.
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1. § 103 Rejection R1 of Claims 55–58, 60, 61, 66, 70–74, 79, 83, 8411
Issue 1
Appellant argues (Appeal Br. 23; Reply Br. 2–3) the Examiner’s
rejection of claims 55, 72, and 84 under 35 U.S.C. § 103(a) as being obvious
over the combination of Chene, Cohen, Sklovsky, Aggarwal, and Garza-
Gonzalez is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method for sharing medical data between applications on a
user device that includes, inter alia, the step of “storing, by the first
application, medical data in the data store based on the access level defined
by the first key value pair,” as recited in claim 55, and as similarly recited in
each of independent claims 72 and 84?
ANALYSIS
The Examiner finds Chene, Cohen, Sklovsky, and Aggarwal “are
silent where the first and second configuration files including a first and
second key value pair that defines access levels to the data store.” Non-
Final Act. 4. Instead, the Examiner finds “Garza-Gonzales remedies this
deficiency.” Id. (citing Garza-Gonzales ¶¶ 2, 24–25, 32).
With respect to arguments submitted regarding the Examiner’s failure
to address certain of Appellant’s contentions, Appellant submits:
[T]he Examiner fails to show that the cited art discloses
“storing, by the first application, medical data in the data store
based on the access level defined by the first key value pair” or

11 Claim 84 was not included in the rejection heading of Rejection R1, but is
included in the body of the rejection. Non-Final Act. 2–3.
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“accessing, by the second application, the medical data in the
data store based on the access level defined by the second key
value pair,” as recited in claim 55 and similarly claims 72 and
84. By failing to address each and every limitation of the
claims, the Examiner fails to make a prima facie case of
obviousness.
Appeal Br. 23 (“Unaddressed Claim Limitations”) (emphasis added).
We disagree with the Examiner because, for the reasons set forth by
Appellant, we do not find the cited portions of Garza-Gonzales teach or
suggest the disputed limitation, i.e., “storing, by the first application,
medical data in the data store based on the access level defined by the first
key value pair,” as recited in claim 55 (emphasis added).
We disagree with the Examiner because we find Garza-Gonzales
provides no teaching or suggestion that the first application stores medical
data based on an access level defined by the first key value pair.
Therefore, for essentially the same reasons argued by Appellant, we
reverse the Examiner’s rejection of independent claim 55, and also of
independent claims 72 and 84, rejected on the same basis, and which recite
the disputed limitation in commensurate form.12 Because we have reversed
independent claims 55 and 72 under Rejection R1, we also reverse
dependent claims 56–58, 60, 61, 66, 70, 71, 73, 74, 79, and 83, which
variously and ultimately depend from independent claims 55 and 72.

12 Because we agree with at least one of the dispositive arguments advanced
by Appellant, we need not reach the merits of Appellant’s other arguments.
See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
(finding an administrative agency is at liberty to reach a decision based on “a
single dispositive issue”).
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2. § 103 Rejections R2–R6 of Claims 62, 63, 67–69, 75, 76, 80, 81, 83
Because we have reversed Rejection R1 of independent claims 55, 72,
and 84, we also reverse Rejections R2–R6 of independent claims 62, 63, 68,
69, 75, 76, and 81, which all recite the disputed limitation in commensurate
form, and which all rely upon the disclosure of Garza-Gonzales to teach or
suggest the disputed limitation. In light of our reversal of independent
claims 55 and 72, supra, we also reverse obviousness Rejections R4 and R6
of dependent claims 67, 80, and 83, which variously and ultimately depend
from independent claims 55 and 72, and which stand therewith.
On this record, the Examiner has not shown how the additionally cited
references in Rejections R2 through R6 overcome the aforementioned
deficiencies with Garza-Gonzales, as discussed above regarding claim 55.
CONCLUSION
The Examiner erred with respect to obviousness Rejections R1–R6 of
claims 55–58, 60–63, 66–76, 79–81, 83, and 84 under 35 U.S.C. § 103(a)
over the cited prior art combinations of record, and we do not sustain the
rejections. Claims 59 and 82 have not been rejected by the Examiner and
therefore are not before us on Appeal. See n.3, supra.

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DECISION SUMMARY
Claims
Rejected
35
U.S.C
§
Basis/
References
Affirmed Reversed
55-58, 60, 61,
66, 70-74, 79,
83, 84
103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez
55-58, 60, 61,
66, 70-74, 79,
83, 84
62, 75 103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez,
Rofougaran
62, 75
63, 76 103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez,
Panasik
63, 76
67, 80 103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez, Nolan
67, 80
68, 81 103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez, Yoo
68, 81
69, 83 103(a) Obviousness
Chene, Cohen,
Sklovsky, Aggarwal,
Garza-Gonzalez, Jung
69, 83
Overall
Result
55–58, 60–
63, 66–76,
79–81, 83, 84
REVERSED