Bruce Lev

Patent Trials and Appeals Board

Nov 22, 2021

2021002825 (P.T.A.B. Nov. 22, 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.
12/387,948 05/11/2009 Bruce A. Lev LEV_BRUCE.001U 3913
16424 7590 11/22/2021
Bruce A Lev
22276 N 103rd Dr
Peoria, AZ 85383
EXAMINER
MATTHEWS, CHRISTINE HOPKINS
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
11/22/2021 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):
levdoctor@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE A. LEV

Appeal 2021-002825
Application 12/387,948
Technology Center 3700
Before ANNETTE R. REIMERS, WILLIAM A. CAPP and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, 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, 2, 4, 6–13, 15, 25, 26, 30–37, 40, and
42. See Appeal Br. 36; see also Final Act. 1. Claims 38, 39, and 41 have
been withdrawn from consideration (see Final Act. 1) and claims 27 and 28
have been cancelled (see Ans. 3). 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(a). Appellant identifies the applicant as the sole real party in interest.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The application is titled “A Telemedical Apparatus, System, &
Method for Providing Medical Services Remotely.” Spec. 1. Claims 1, 37,
and 42 are independent. See Claims Appendix filed October 5, 2020
(“Claims App.”). We reproduce independent claim 1, below:
1. In a telemedical apparatus comprising
a computer module;
a data receiving and interpreting mechanism remotely
located from said computer module;
an electronic communication mechanism between and
communicating with said computer module and said data
receiving and interpreting mechanism; and
a mechanism for providing primary diagnosing, and
medical advice and services after data and information is sent by
said computer module to and is processed by said data receiving
and interpreting mechanism;
the improvements comprising
a mechanism for relaxation adapted to be connected with
said computer module and functions to stabilize a user’s
biological vital signs before said biological vital signs are
collected, included with said data and information, and said data
and information are sent by said computer module to and are
processed by said data receiving and interpreting mechanism.
Id. at 1 (emphasis added).
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REJECTIONS23
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
37 112 ¶ 1 Written Description
1, 2, 4, 6–13, 15,
25, 26, 30–37, 40,
42
112 ¶ 2 Indefinite
1, 2, 4, 6–13, 15,
25, 26, 40
101 Ineligible
1, 2, 4, 6, 15, 26,
30, 31, 37, 42
103(a) Bulat4, Alyfuku5
7, 25, 32, 40 103(a) Bulat, Alyfuku, Stone6
10–13 103(a) Bulat, Alyfuku, Patton7
OPINION
I. Written Description Rejection
The Examiner rejects claim 37 as failing to comply with the written
description requirement under 35 U.S.C. § 112, first paragraph.
Claim 37 recites, inter alia, “routing the call to an appropriate and
available health care practitioner at one of said at least one health care
practitioner computer module in order to establish a connection between one

2 The Examiner withdrew the rejection of claims 4, 30–32, 40, and 42 under
35 U.S.C. § 112, second paragraph, but maintains the rejection under that
same paragraph “in light of their dependency on independent claim 1 which
is still rejected under 35 U.S.C. 112, second paragraph.” Ans. 3.
3 The rejections of claims 27 and 28 no longer apply as these claims have
been cancelled. See Ans. 3; see also Claims App. 3–4.
4 U.S. Patent Pub. No. 2006/0293572 A1 published December 28, 2006
(“Bulat”).
5 U.S. Patent No. 5,410,471 published April 25, 1995(“Alyfuku”).
6 U.S. Patent Pub. No. 2010/0205742 A1 published August 19,
2010(“Stone”).
7 U.S. Patent Pub. No. 2005/0124851 A1 published June 9, 2005 (“Patton”).
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of said at least one patient computer module and one of said at least one
health care practitioner computer module.” Claims App. 5–6.
The Examiner determines that the Specification “provides for a call
center and ‘connecting’ a user with a medical practitioner, [but] does not
provide for receiving a call to enable a two way communication between the
user and a health care practitioner.” Final Act. 9. The Examiner further
finds that the Specification “does not provide for the user being a family
member of the patient or a second health care practitioner or a combination
thereof.” Id. (emphasis added).
Appellant responds that the Specification describes and provides
support for the claim limitation “receiving a call at the call center initiated
by one of said at least one patient computer modules.” Appeal Br. 17 (citing
Spec. 13:2–4, Fig. 4).
In response to Appellant’s argument, the Examiner explains that the
Specification “does not describe a call center, but merely notes a remotely
located call center as Fig. 4.” Ans. 6–7.
Appellant has the better argument.
Compliance with the written description requirement is a question of
fact which must be resolved on a case-by-case basis. Vas-Cath, Inc. v.
Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991). To satisfy the written
description requirement, a patent specification must describe the claimed
invention in sufficient detail that one skilled in the art can reasonably
conclude that the inventor had possession of the claimed invention. See,
e.g., Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1319 (Fed.
Cir. 2003); Vas-Cath, 935 F.2d at 1563.
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First, the Examiner fails to explain the relevance of a “family
member” or “second health care practitioner” in rejecting the claim. See
Final Act. 9. As such, the Examiner has failed to notify Appellant “[by]
stating the reasons for [its] rejection, or objection or requirement, together
with such information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.” 35 U.S.C.
§ 132. The Examiner’s finding that the Specification “does not provide for
the user being a family member of the patient or a second health care
practitioner or a combination thereof” (Final Act. 9 (emphasis added)) is not
relevant, as claim 37 does not recite language requiring the user to be a
“family member of the patient or a second health care practitioner” (see
Claims App. 5–6).
Second, we find that the Specification provides sufficient support for
the limitation. To illustrate, we reproduce Figures 4 and 5 of the
Specification, below:

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Figure 4 (top) “is a perspective view of an example of a data receiving and
interpreting mechanism formed as a remotely located call center” and
Figure 5 (bottom) is a “remotely located medical practitioner including a
mechanism for sending prescriptions electronically.” Spec. 9. The
Specification describes,
Once the user properly connects to the module and their
vital signs and necessary information have been retrieved, the
computer module connects electronically, usually via the
internet, with a data receiving and interpreting mechanism 25 on
the receiving end, as illustrated in Figure 4. This data receiving
and interpreting mechanism includes trained personnel 31
interfacing with the user, and computer modules 27 with access
to a large data base that includes previous patient information, a
library of medical information, automated medical diagnostic
tools, and a listing of medical practitioners. Once all the
necessary information and vital signs are processed and a
preliminary diagnosis is accomplished, the data receiving and
interpreting mechanism then connects the user to the appropriate
medical practitioner 40 for a primary diagnosis, as illustrated in
Figure 5, for further instructions, attention, and medical services.
Id. at 13.
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A skilled artisan reading this disclosure would have understood that
the inventor had possession of “routing the call to an appropriate and
available health care practitioner at one of said at least one health care
practitioner computer module in order to establish a connection between one
of said at least one patient computer module and one of said at least one
health care practitioner computer module.” Claims App. 5–6.
Accordingly, we reverse the Examiner’s rejection of claim 37
under 35 U.S.C. § 112, first paragraph.
II. Indefinite Rejections
The Examiner rejects claims 1, 2, 4, 6–13, 15, 25, 26, 30–37, 40,
and 42 as indefinite. Final Act. 9; see also supra n.3 (noting the cancellation
of claims 27 and 28).
The controlling statute provides that “[t]he specification shall
conclude with one or more claims particularly pointing out and distinctly
claiming the subject matter which the inventor or a joint inventor regards as
the invention.” 35 U.S.C. § 112, second paragraph. A claim is properly
rejected as indefinite under Section 112, second paragraph, if, after applying
the broadest reasonable interpretation in light of the specification, the metes
and bounds of a claim are not clear because the claim “contains words or
phrases whose meaning is unclear.” In re Packard, 751 F.3d 1307, 1310,
1314 (Fed. Cir. 2014) (per curiam) (approving, for pre-issuance claims, the
standard from MPEP § 2173.05(e)); see also Ex parte McAward,
Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (adopting the approach for assessing indefiniteness approved
by the Federal Circuit in Packard). The test for definiteness is whether
“those skilled in the art would understand what is claimed when the claim is
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read in light of the specification.” Orthokinetics, Inc. v. Safety Travel
Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted).
Rigorous application of the statutory standard to particularly point out
and distinctly claim the subject matter regarded to be the invention serve an
important public notice function. See Predicate Logic, Inc. v. Distributive
Software, Inc., 544 F.3d 1298, 1300 (Fed. Cir. 2008). During patent
prosecution when claims can be amended, ambiguities should be recognized,
scope and breadth of language explored, and clarification imposed. See In
re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). It is generally preferable to
resolve ambiguity in claims during patent prosecution rather than attempting
to resolve the ambiguity in litigation. Halliburton Energy Servs., Inc. v. M-I
LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008) (cited with approval in Nautilus,
Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). 35 U.S.C.
§ 112 places the burden of precise claim drafting on the applicant. In re
Morris, 127 F.3d 1048, 1056–57 (Fed. Cir. 1997).
A claim that omits matter disclosed to be essential to the invention
may be rejected under 35 U.S.C. § 112 as indefinite. In re Collier, 397
F.2d 1003, 158 USPQ 266 (CCPA 1968). Such essential matter may include
missing elements, steps or necessary structural cooperative relationships of
elements described by Appellant as necessary to practice the invention.
MPEP § 2172.01.
In the present case, the Examiner determines that the claims are
indefinite for the following reasons:
1. It is unclear what element “functions to stabilize a user’s
biological vital signs” (claim 1).
2. It is unclear when “before said biological vital signs are
collected, included with said data and information and, and
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said data and information is sent by said computer module”
occurs (claim 1).
3. It is unclear what is “included with” in the recitation
“included with said data and information” (claim 1).
4. The “data receiving, interpreting and preliminary diagnosing
mechanism” (claim 1) and the “data receiving, interpreting
and preliminary diagnosing means” (claim 42) invoke 35
U.S.C. § 112, sixth paragraph, yet “the written description
fails to disclose the corresponding structure, material, or acts
for performing the entire claimed function and to clearly link
the structure, material, or acts to the function.”
5. It is unclear if “hand vibrators and warmers” implies that the
vibrators and warmers are independent of each other or if each
“hand vibrator and warmer” integrates a vibrator and a
warmer (claims 8, 33, and 35).
6. It is unclear if “vibrators and cooling elements” implies that
the vibrators and cooling elements are independent of each
other or if each “vibrator and cooling element” integrates a
vibrator and a cooling element (claims 9, 34, and 36).
7. It is unclear what constitutes “in the form of meditation” and
how meditation can be connected to a computer module”
(claim 11).
8. It is unclear what constitutes “medicinal therapy” and how
medicinal therapy can be connected to a computer module
(claim 12).
9. There is insufficient antecedent basis for “said primary
computer module” (claims 33 and 34).
10. It is unclear if “a vibrator” recited at line 4 is the same or
different than “said hand vibrators” at line 2 (claim 35).
11. There is insufficient basis for the recitation “the health care
practitioner modules” (claim 37).
12. It is unclear what element “and functions” refers to (claim
37).
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Final Act. 9–13. We address each of these claimed phrases separately,
below.
a. “before said biological vital signs are collected, included with
said data and information and, and said data and information
is sent by said computer module”
The Examiner determines that it is unclear when “before said
biological vital signs are collected, included with said data and information,
and said data and information is sent by said computer module” occurs, as
recited in claim 1. Final Act. 11; see also Ans. 5 (“The claim does not
provide for when ‘said biological signs are collected’ thus it is unclear when
‘before said biological signs are collected’ would occur.”).
Appellant argues that “before” is “prior to.” Appeal Br. 14–15.
Appellant has the stronger position.
The claim requires “a mechanism for relaxation adapted to be
connected with said computer module and functions to stabilize a user’s
biological vital signs before said biological vital signs are collected.”
Claims App. 1 (emphasis added). We understand from the plain language of
the claim that the user’s biological vital signs are stabilized before, or prior
to, being collected. The Examiner has not sufficiently explained why the
claimed limitation “before” is indefinite. See Final Act. 11; see also Ans. 5;
see also 35 U.S.C. § 132. We do not find the meaning of the word “before”
as used in the limitation to be unclear. See In re Packard, 751 F.3d at 1310,
1314.
Accordingly, we do not sustain this particular rejection.
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b. “included with said data and information”
The Examiner finds that “included with said data and information” is
“grammatically incorrect” as “[i]t is not clear what element—if any—is
‘included with said data and information.’” Ans. 5.
Appellant explains that “[t]he element ‘included with said data and
information’ are the biological vital signs.” Appeal Br. 15.
We agree with Appellant.
Claim 1 recites a
mechanism for relaxation adapted to be connected with said
computer module and functions to stabilize a user’s biological
vital signs before said biological vital signs are collected,
included with said data and information, and said data and
information are sent by said computer module to and are
processed by said data receiving and interpreting mechanism.
Claims App. 1. Based on the plain meaning of the claim language, the
elements “included with said data and information” are the “user’s
biological vital signs.” We do not find the meaning of this claim language to
be unclear. See In re Packard, 751 F.3d at 1310, 1314.
Accordingly, we do not sustain this particular rejection.

c. “data receiving, interpreting and preliminary diagnosing
mechanism (or means)”
The Examiner determines that the “data receiving, interpreting and
preliminary diagnosing mechanism” (recited in claim 1) and “data receiving
and interpreting means” (recited in claim 42) invoke 25 U.S.C. § 112, sixth
paragraph, but that the “written description fails to disclose the
corresponding structure, material, or acts for performing the entire claimed
function and to clearly link the structure, material, or acts to the function.”
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Final Act. 10; see also Claims App. 1, 6. As such, the Examiner rejects
claims 1 and 42 as indefinite. Final Act. 10.
Appellant argues that “the current 112 (f) and 6th paragraph rejections
. . . fall under the ‘Jepson Claim’ format argument set forth previously, are
all ‘known’ and/or previously patented as such, and therefore should NOT
invoke 112 6th paragraph.” Appeal Br. 12. Appellant further cites to
reference numeral 25, as illustrated in Figure 4, as providing structure for the
“data receiving and interpreting means.” Id.
We agree with the Examiner.
As explained correctly by the Examiner, “35 U.S.C. 112, sixth
paragraph is not a rejection in and of itself; rather, it provides the Applicant
with information on how a claim is being interpreted/construed in light of
the specification.” Ans. 4.
“The standard [for determining whether a claim term invokes [35
U.S.C. § 112, sixth paragraph] is whether the words of the claim are
understood by persons of ordinary skill in the art to have a sufficiently
definite meaning as the name for structure.” Williamson v. Citrix Online,
LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015). There is a rebuttable
presumption that a claim term that lacks the word “means” does not
invoke Section 112, sixth paragraph. Id. at 1348–49.
As to claim 42, this claim uses the term “means” (Claims App. 6), so
a presumption exists that Section 112, sixth paragraph, applies.
Williamson, 792 F.3d at 1349. Other than pointing out that Claim 42 is
drafted as a Jepson claim, Appellant has not rebutted the presumption that
claim 42 is construed under means-plus-function format. See Appeal Br. 12.
Even if the claim is written in Jepson format, this does not relieve the claim
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from being indefinite under 35 U.S.C. § 112, second paragraph, nor does it
rebut the presumption that the claim limitation invokes 35 U.S.C. § 112,
sixth paragraph.
As to claim 1, this claim uses the term “mechanism,” but because the
claim is devoid of any language that sufficiently describes the structure, we
agree with the Examiner and conclude that the limitation should be
construed under means-plus-function format. Claims App. 1; see
also Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366,
1372 (Fed. Cir. 2015).
Having established that the limitations invoke the sixth paragraph
of 35 U.S.C. § 112, we disagree with Appellant’s position that reference
numeral 25 in Figure 4 provides the requisite structure for “data receiving
and interpreting means.” Appeal Br. 12.
Although reference numeral 25 is described as a “data receiving and
interpreting mechanism” (Spec. 13, Fig. 4 (reproduced supra II)), we do not
find a corresponding “mechanism” described in the Specification or shown
in Figure 4. Rather, the Specification describes the “data receiving and
interpreting mechanism [as] includ[ing] trained personnel 31 interfacing
with the user, and computer modules 27 with access to a large data base.”
Id. (emphasis added). We are not persuaded that a group of trained
personnel with computers and with access to a database, regardless of how
talented they may be, as providing corresponding structure for a
“mechanism” for performing the function of “data receiving and
interpreting.”
Because the means-plus-function limitation “data receiving,
interpreting and preliminary diagnosing mechanism (or means)” lacks
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corresponding structure in the Specification, we affirm the Examiner’s
rejection of independent claims 1 and 42.
d. “functions to stabilize a user’s biological vital signs”
The Examiner determines that “it is unclear what element ‘functions
to stabilize a user’s biological vital signs,’” as recited in independent
claim 1. Final Act. 9. The Examiner explains that the element “could be
interpreted as either the mechanism for relaxation functioning to stabilize a
user’s biological vital signs or the computer module functioning to stabilize
a user’s vital signs.” Ans. 4.
In response, Appellant argues that “the elements that function to
stabilize a user’s vital signs are defined above (inc. within the responses to
the 112 (f) and 6th rejections) as the ‘mechanisms for relaxation.’” Appeal
Br. 14. We agree with the Examiner.
Claim 1 recites a “mechanism for relaxation adapted to be connected
with said computer module and functions to stabilize a user’s biological
signs.” Claims App. 1. The claim language is ambiguous, and we do not
know if it is the “mechanism for relaxation” with or without the “computer
module” that “functions to stabilize a user’s biological signs.” In other
words, does the “mechanism for relaxation” function to stabilize a user’s
biological signs only when it is connected to the “computer module,” or can
it “function[] to stabilize a user’s biological signs” without it?
During patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed. See Zletz, 893 F.2d at 321. It is generally preferable
to resolve ambiguity in claims during patent prosecution rather than
attempting to resolve the ambiguity in litigation. Halliburton, 514 F.3d at
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1255. 35 U.S.C. § 112 places the burden of precise claim drafting on the
applicant. Morris, 127 F.3d at 1056–57.
Accordingly, we affirm the rejection of independent claim 1.
e. “hand vibrators and warmers”
The Examiner determines that it is unclear if “hand vibrators and
warmers” implies that the vibrators and warmers are independent of each
other or if each “hand vibrator and warmer” integrates a vibrator and a
warmer, as recited in claims 8, 33, and 35. Final Act. 11.
Appellant explains that “the respective hand warmers and vibrators
are ‘integrated’ with one another as illustrated in Figure 7 and discussed” in
the Specification. Appeal Br. 15 (citing Spec. 10:17–18, 11:9–21).
The Examiner responds that the feature is not recited in the claims,
and that limitations from the Specification are not read into the claims. See
Ans. 5 (citation omitted).
We agree with the Examiner.
The plain language of the claim recites “said mechanism for
relaxation comprises hand vibrators and warmers.” Claims App. 2, 4, 5.
The plain language does not support Appellant’s position that the “hand
vibrators and warmers” are integrated. Appellant conflates the written
description requirement with the requirements under the 35 U.S.C. § 112,
second paragraph. Even if the Specification provides written description
support for the claimed limitation, as required under 35 U.S.C. § 112, first
paragraph, the specific embodiment described in the Specification is not read
into the claim. Although the claims are interpreted in light of the
specification, limitations from the specification are not read into the claims.
In re Van Geuns, 988 F.2d at 1181 (Fed. Cir. 1993). Furthermore, we find
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nothing in the cited portion of the Specification that qualifies as a
lexicographic definition of “hand vibrators and warmers” to support
Appellant’s position that the hand warmers and vibrators recited in the
claims are integrated. See Spec. 10:17–18, 11:9–21; see also Appeal Br. 15
(citing the same). Rather, the portion of the Specification cited by Appellant
merely describes the “hand vibrators and warmers” as a particular
“embodiment.” See Spec. 11:10–11.
For the foregoing reasons, Appellant’s argument does not apprise us
of Examiner error and we affirm the Examiner’s rejection of claims 8, 33,
and 35.
f. “vibrators and cooling elements”
The Examiner determines that it is unclear if “vibrators and cooling
elements” implies that the vibrators and cooling elements are independent of
each other or if each “vibrator and cooling element” integrates a vibrator and
a cooling element, as recited in claims 9, 34, and 36. Final Act. 11.
Appellant responds that “the respective vibrators and cooling elements
are ‘integrated’ with one another,” citing the Specification. Appeal Br. 16
(citing Spec. 10:19–12:1–9). We agree with the Examiner that the claim
language is unclear.
The plain language of the claim recites “said mechanism for
relaxation comprises a head set adapted to be electrically connected to said
computer module and includes vibrators and cooling elements.” Claims
App. 2, 5. The plain language does not support Appellant’s position that the
“vibrators and cooling elements” are integrated. Even if the Specification
provides written description support for the claimed limitation, as required
under 35 U.S.C. § 112, first paragraph, the specific structure described in the
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Specification is not read into the claim limitation. Van Geuns, 988 F.2d at
1181. Furthermore, we find nothing in the cited portion of the Specification
that qualifies as a lexicographic definition of “vibrators and cooling
elements” to support Appellant’s position that the vibrators and cooling
elements recited in the claims are integrated. See Spec. 10:19–12:1–9; see
also Appeal Br. 16 (citing the same). Rather, the portion of the
Specification cited by Appellant merely describes the “vibrators and cooling
elements” as a particular “embodiment.” See Spec. 12:2–4.
For the foregoing reasons, Appellant’s argument does not apprise us
of Examiner error and we affirm the Examiner’s rejection of claims 9, 34,
and 36.
g. “in the form of meditation”
The Examiner determines that it is unclear what constitutes “in the
form of meditation” and how meditation can be connected to a computer
module, as recited in claim 11. Final Act. 11.
Appellant responds by explaining:
“meditation” is defined as “a practice where an individual uses a
technique - such as mindfulness, or focusing the mind on a
particular object, thought, or activity - to train attention and
awareness, and achieve a mentally clear and emotionally calm
and stable state.” and is capable of connecting to the computer
module since within the instant invention a user concentrates on
and meditates with odors, mist, and sounds being generated by
members 15 and 16 that are connected to computer module 10,
as illustrated in Figure 1.
Appeal Br. 16.
We agree with the Examiner.
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Despite Appellant’s explanation, we do not see how “meditation” can
be connected to a computer module. By Appellant’s own definition,
meditation is a technique such as “mindfulness” or “focusing the mind on a
particular object.” Id. It is unclear to us how the intangible characteristics
of mindfulness or focusing the mind can connect to a computer module.
Furthermore, Appellant’s cited portion of the Specification fails to address
our uncertainty and we find that “those skilled in the art would [not]
understand what is claimed when the claim is read in light of the
specification.” Orthokinetics, 806 F.2d at 1576.
For the foregoing reasons, Appellant’s argument does not apprise us
of Examiner error and we affirm the Examiner’s rejection of claim 11.
h. “medicinal therapy”
The Examiner determines that it is unclear what constitutes
“medicinal therapy” and how medicinal therapy can be connected to a
computer module, as recited in claim 12. Final Act. 12.
Appellant responds with
“medicinal therapy” constitutes “Therapies that affect physical
or biological processes of the body are known as “medical”
therapies. These therapies can include medications, alterations
in diets, changes in sleep habits, increased physical activity,
stress reduction and more”, and is capable of connecting to the
computer module, as illustrated in Figure 1, since member 17 is
connected to and between the computer module 10 and the back
of the user’s hand which can be used to transfer medicine from
the computer module to the user’s blood stream.
Appeal Br. 16.
Appellant conflates the requirements of 35 U.S.C. § 112, second
paragraph, with the written description requirement under the first
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paragraph. The Examiner determines, in part, that the claim limitation is
indefinite because it is unclear how medicinal therapy can be connected to a
computer module. Final Act. 12. If “medicinal therapies” includes
“changes in sleep habits,” “alterations in diets,” and “stress reduction,”
according to Appellant’s own definition (Appeal Br. 16), we do not see how
these particular therapies can be connected to a computer module.
Accordingly, “those skilled in the art would [not] understand what is
claimed when the claim is read in light of the specification.” Orthokinetics,
806 F.2d at 1576.
For the foregoing reasons, Appellant’s argument does not apprise us
of Examiner error and we affirm the Examiner’s rejection of claim 12.
i. “said primary computer module”
The Examiner determines that there is insufficient antecedent basis for
“said primary computer module,” as recited in claims 33 and 34. Final Act.
12.
Appellant does not address this particular rejection. See, generally,
Appeal Br.
Accordingly, we affirm the Examiner’s rejection of claims 33 and 34
as indefinite.
j. “a vibrator”
The Examiner determines that it is unclear if “a vibrator” recited at
line 4 of claim 35 is the same or different than “said hand vibrators” recited
at line 2 of that same claim. Final Act. 12.
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Appellant explains that “‘a vibrator’ is the same vibrator as in the
phrase ‘each of said hand vibrators and warmers includes . . . .” Appeal
Br. 17.
Appellant’s argument is not persuasive.
Claim 35 includes two recitations of “vibrator[s].” Claims App. 5.
The first usage recites “each of said hand vibrators” and the second usage
recites “a vibrator.” Id. By reciting “a vibrator” in the second instance,
rather than “each of said” or “each of the” hand vibrators, the claim is
indefinite. In particular, through its recitation of “a” instead of “the” or
“said,” claim 35’s second reference to “vibrator” creates confusion as to
whether or not the second “vibrator” refers to one of the first “vibrators.”
See Ans. 6 (explaining the same).
Accordingly, we affirm the rejection of claim 35 as indefinite.
k. “the health care practitioner modules”
The Examiner determines that there is insufficient basis for the claim
limitation “the health care practitioner modules,” as recited in claim 37.
Final Act. 12.
Although Appellant does not address this particular rejection (see,
generally, Appeal Br.), it appears that Claim 37 was amended to correct this
infirmity. See Claims App. 5–6. Accordingly, we do not sustain this
particular rejection.
l. “and functions”
The Examiner determines that it is unclear what element “and
functions” refers to, as recited in independent claim 37. Final Act. 13.
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Appellant argues, “the ‘mechanism for relaxation’ functions to
stabilize a user’s biological vital signs before said biological vital signs are
collected.” Appeal Br. 17.
For the same reasons discussed above in connection with claim 1, we
agree with the Examiner. See supra § II.d.
Claim 37 recites, in relevant part, “providing a mechanism for
relaxation adapted to be connected with said at least one patient computer
module and functions to stabilize a patient’s biological vital signs before
said biological vital signs are collected.” As explained above with claim 1,
we do not know if it is the “mechanism for relaxation” with or without the
“computer module” that “functions to stabilize a patient’s biological signs.”
See Ans. 4 (explaining that the limitation “could be interpreted as either the
mechanism for relaxation functioning to stabilize a user’s biological vital
signs or the computer module functioning to stabilize a user’s vital signs.”).
During patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and
clarification imposed. See Zletz, 893 F.2d at 321. It is generally preferable
to resolve ambiguity in claims during patent prosecution rather than
attempting to resolve the ambiguity in litigation. Halliburton, 514 F.3d at
1255. 35 U.S.C. § 112 places the burden of precise claim drafting on the
applicant. Morris, 127 F.3d at 1056–57.
Accordingly, we affirm the rejection of independent claim 37.
m. Summary of Indefinite Rejections
As explained above, each of the pending claims, including each of
independent claims 1, 37, and 42, recites claim language that renders the
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claim indefinite. Accordingly, we affirm the rejection of all pending claims
(that is, claims 1, 2, 4, 6–13, 15, 25, 26, 30–37, 40, and 42) as indefinite.8
III. Rejections under 35 U.S.C. §§ 101, 103
We do not reach the merits of the rejections under 35 U.S.C. §§ 101
and 103(a). Before a proper review of these rejections can be made, the
subject matter encompassed by the claims on appeal must be reasonably
understood without resort to speculation. As explained above, the claims are
indefinite for multiple reasons. See supra § II.
As to the 35 U.S.C. § 103 rejections, Appellant disputes the
Examiner’s finding that Alyfuku discloses, inter alia, “a mechanism for
relaxation . . . functions to stabilize a user’s biological vital signs before said
biological vital signs are collected . . . and . . . processed by said data
receiving and interpreting mechanism.” See Appeal Br. 17–18 (emphasis
omitted). As explained above, however, we are unable to discern the
meaning of “data receiving and interpreting mechanism” and “functions to
stabilize a user’s biological vital signs.” See supra §§ II.c, II.d, II.l. In order
to respond to Appellant’s arguments, and the Examiner’s Section 103
rejections, we would have to speculate as to the meaning of this language.
Accordingly, we reverse, pro forma, the Examiner’s rejections under 35
U.S.C. § 103(a). See In re Steele, 305 F.2d 859, 862 (CCPA 1962) (holding
that a prior art rejection cannot be sustained if the hypothetical person of

8 Claims 1, 2, 4, 6–13, 15, 25, 26, 30–37, 40, and 42 constitute all pending
claims as claims 38, 39, and 41 have been withdrawn from consideration and
claims 27 and 28 have been cancelled. See Final Act. 1; see also Ans. 3; see
also Claims App.
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ordinary skill in the art would have to make speculative assumptions
concerning the meaning of claim language).
As to the 35 U.S.C. § 101 rejection, we must determine whether the
claims recite additional elements that integrate a judicial exception into a
practical application. See MPEP § 2106.05(a)–(c), (e)–(h). As explained
above, however, we cannot discern the meaning of “data receiving and
interpreting mechanism” and “functions to stabilize a user’s biological vital
signs” to determine whether they qualify as additional elements that
integrate the judicial exception into a practical exception. See supra §§ II.c,
II.d, II.l. The reasoning of Steele applies likewise to rejections under 35
U.S.C. § 101, when, as here, the scope of the claims must be understood in
order to determine whether they encompass ineligible subject matter.
Accordingly, we reverse, pro forma, the Examiner’s rejection under 35
U.S.C. § 101.
Our decision to reverse the rejections under 35 U.S.C. §§ 101 and
103(a) is based solely on the indefiniteness of the claims, and does not
reflect on the merits of the underlying rejections.
IV. Services for Pro Se Applicants
We understand that Appellant is representing himself pro se. See
Appeal Br. 36. We also understand that Appellant expressed frustration
from the prosecution experience and seeks “[a]dvice and suggestions from
the PTAB” on the issue of proposed claim language for pro se applicants.
See id. at 11–12.
The USPTO provides a number or resources to assist pro se applicants
in prosecuting their own applications. A compilation of those resources can
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be found at: https://www.uspto.gov/patents-getting-started/using-legal-
services/pro-se-assistance-program (last visited November 4, 2021).
Further, a listing of registered patent attorneys and agents is available
at https://oedci.uspto.gov/OEDCI/ (last visited November 4, 2021).
Applicants may also obtain a list of registered patent attorneys and agents
located in their area by writing to:
Mail Stop OED
Director of the U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450.

CONCLUSION
For the foregoing reasons, we sustain the rejection of claims 1, 2, 4,
6–13, 15, 25, 26, 30–37, 40, and 42 as indefinite under 35 U.S.C. § 112,
second paragraph. We reverse the rejections under 35 U.S.C. §§ 101,
103(a), and 112, first paragraph.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
37 112 Written
Description
37
1, 2, 4, 6–13,
15, 25, 26,
30–37, 40, 42
112 Indefinite 1, 2, 4, 6–13,
15, 25, 26,
30–37, 40,
42

1, 2, 4, 6–13,
15, 25, 26, 40
101 Ineligible 1, 2, 4,
6–13, 15,
25, 26,
40
1, 2, 4, 6, 15,
26, 30, 31,
37, 42
103(a) Bulat,
Alyfuku
1, 2, 4, 6,
15, 26,
30, 31,
37, 42
7, 25, 32, 40 103(a) Bulat,
Alyfuku,
Stone
7, 25, 32,
40
10–13 103(a) Bulat,
Alyfuku,
Patton
10–13
Overall
Outcome
1, 2, 4, 6–13,
15, 25, 26,
30–37, 40,
42

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