Ex Parte Brown

Patent Trial and Appeal Board

Feb 29, 2016

11668102 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/668,102 01129/2007
60683 7590 02/29/2016
Robert Bosch Healthcare Systems, Inc.
2400 GENG ROAD, SUITE 200
PALO ALTO, CA 94303
FIRST NAMED INVENTOR
Stephen J. Brown
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
06-0634 3254
EXAMINER
SALAD,ABDULLAHIELMI
ART UNIT PAPER NUMBER
2456
MAILDATE DELIVERY MODE
02/29/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN J. BROWN
Appeal2014-000682
Application 11/668, 102
Technology Center 2400
Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR., and
MICHAEL M. BARRY, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1-20 under 35
U.S.C. § 134(a). Appeal Brief 5-12. We have jurisdiction under 35 U.S.C.
§ 6(b) (2012).
We affirm-in-part.
Introduction
The invention is directed to "communication systems for remote
monitoring of individuals, and in particular to a networked system for
remotely monitoring individuals and for communicating information to the
individuals through the use of script programs." Specification 1.
Appeal2014-000682
Application 11/668, 102
Representative Claim (disputed limitations emphasized)
1. A communications network for remote interaction with an individual, said
network comprising:
a communications channel;
a remote interface device that generates a set of messages and queries
to be communicated to said individual; and
a server that generates one or more computer executable commands
as a script based on said set of queries generated by said remote interface
device, wherein said computer-executable commands generate human-
readable text and said human-readable text comprises any of queries,
instructions, and messages, wherein said server generates said script based
on information from said remote interface device, wherein said server
assigns said script based on said information to a remote system, and
wherein said script comprises identification information to identify said
remote system, wherein said remote system comprises a visual indicator for
visually notifYing unanswered queries stored in said remote system to said
individual, wherein said script comprises of a script identification code and
individual identification code, wherein said script is generated based on a
template;
wherein said remote system is in wireless communication with said
server through said communications channel, wherein said remote system
executes said one or more computer executable commands based on said
script, to display said human-readable text, and interact with an environment
remotely located from said server in response to said computer-executable
commands, wherein said remote system comprises a processor that allows
said individual to interact with said remote system, and a modem to
operatively connect with said server for interaction, wherein said remote
system transmits responses and measurements to said server, and wherein
said server transmits said responses and said measurements to said remote
interface device.
Rejections on Appeal
Claims 1, 4, 7, 8, and 14 stand rejected under 35 U.S.C. §103(a) as
being unpatentable over Iliff (US Patent Application Publication Number
2008/0051638 Al; published February 28, 2008) and Cohen (US Patent
Number 6,014,626; issued January 11, 2000). Final Rejection 4--7.
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Application 11/668, 102
Claims 2, 3, 5, 6, 9-13, and 15-20 stand rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Iliff, Cohen and David (US Patent
Number 5,544,649; issued August 13, 1996). Final Rejection 7-8.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed April 23, 2013), the Reply Brief (filed
October 8, 2013), the Answer (mailed August 8, 2013) and the Final
Rejection (mailed January 17, 2013) for the respective details. We have
considered in this decision only those arguments Appellant actually raised in
the Briefs.
Claim 1
Appellant argues Iliff discloses wherein the script engine 2194 is part
of the MD A TA [medical diagnostic and treatment advice] system and
"therefore the script is generated within the MDAT A system itself, which is
in complete contrast to the claimed structure" wherein "the remote interface
device is a different physical entity from the server whereby the remote
interface device generates the queries/messages for generation of the script
by the server." Appeal Brief 13. However, Iliff discloses that the script
engine 2194 part of the MDATA system is an alternative to passing the
script 2296 to the gateway process that is part of the MDATA network
server via the patient/user script engine 2358. Iliff paragraph 680.
Claim 1 recites, "a server that generates one or more computer
executable commands as a script based on said set of queries generated by
said remote interface device." Appellant's Specification discloses, "It will
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Application 11/668, 102
be apparent to one skilled in the art that the server 18 may comprise a single
stand-alone computer or multiple computers distributed throughout a
network." Specification i-f 41. Therefore we do not find Appellant's
argument persuasive because Iliff discloses a remote interface device
(patient/user script engine 2356) that passes the script 2296 to the gateway
process as part of the server distributed throughout the network. Iliff Figure
28; paragraph 680.
Appellant argues the claims require "that the server receives
measurements and response from the remote system, and transmits the
measurements and responses to the remote interface device," whereas Iliff
merely discloses:
a user's computer 2114/2116 accesses a MDATA program by
utilizing a browser 2120 during an online mode, communication
of visual symptoms through a video camera 2122 optionally
connected to the computer 2116, and measurement of patient's
vital signs 774 by use ofMDATA system Home Diagnostic and
Treatment Kit, \'l1hich is connected to the patient computer
2114/2116 (remote system), but completely fails to teach or
suggest transmission of the responses and measurements from
the remote system to the server and from the server to the remote
interface device, thereby teaching away from claimed subject
matter of Appellant.
Appeal Brief 15.
We do not find Appellant's argument persuasive because Appellant
has not provided any evidence that Iliff teaches away from the claimed
subject matter. 1 Further, Iliff discloses "upload[ing] medical data collected
1 "A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
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Application 11/668, 102
by MDATA scripts from patients" and also discloses "[a]s the user proceeds
through a diagnostic process, information on the user's medical condition is
communicated to the MDATA system by completing or answering screen-
displayed forms or by pointing at an item on the display and clicking with a
mouse." Iliff, paragraphs 606 and 671.
Appellant argues that, "the Appellant claims a visual indicator for
visually notifying unanswered queries stored in remote system and further
claims an individual identification code and a script identification code,
wherein the script is generated based on a template, which is completely
different in structure or function from Iliff and Cohen." Appeal Brief 16.
We do not find Appellant's arguments persuasive because Iliff uses a GUI
(graphic user interface) as a visual indicator of specified data based upon the
patient. Iliff, paragraphs 590, 595-596, 598, 610-614, and 634. Further, the
claimed script based upon a template shown on a visual indicator is not
patentably distinct because it is merely data streamed across visual means
without any structural modification to the visual means to accommodate the
data.
Appellant argues "where Iliff, on one hand makes no mention of a
remote interface device that generates messages and queries for a server to
be processed into script commands; Cohen, on the other hand, merely relates
to a remote device being connected to a user and not to a server which
makes commands from the queries and assigns them based on identification
information." Appeal Brief 1 7. We do not find Appellant's arguments
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant." In re Kahn, 441F.3d977, 990 (Fed.
Cir. 2006) (citations and internal quotation marks omitted).
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Application 11/668, 102
persuasive because Iliff [Figure 28; element 2358] discloses a remote
interface that generates messages and queries for a server to be processed
into script commands in accordance to with Appellant's Specification
[paragraph 41] and Cohen discloses in Figure 5 a remote patient system 500
connected to a database server 560 via a remote interface device server 530.
Therefore we sustain the Examiner's obviousness rejection of claim 1.
Claim 4
Appellant argues, "[t]here is nothing in []Iliff that teaches or
reasonably suggests, 'wherein the interaction with said individual comprises
providing educational training for said individual by the execution of said
any of queries, instructions, and messages' as provided in the Appellant's
claim 4." Appeal Brief 20. Claim 4 recites a network and details a process
of interaction with an individual, however claim 4 does not further limit the
structure of the network recited in claim 1. Therefore we do not find
Appellant's argument persuasive and sustain the Examiner's rejection of
claim 4.
Claim 7
Appellant argues:
Appellant's claim 7 depends on claim 1, which indicates that the
interaction with the individual occurs with the remote system,
and whereby the remote system includes a modem for interaction
with the server, which then interacts with the remote interface
device. Conversely, in Iliff the interaction of the caller through
audio interactions occurs directly with the MDATA system ....
Appeal Brief 21.
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Application 11/668, 102
Claim 7 recites "wherein the interaction with said individual
comprises any of audio and video interactions." We do not find Appellant's
argument persuasive because claim 7 does not further limit the structure of
the network in claim 1. Further, Iliff discloses various audio and video
devices used to interact within the network. See Iliff Figure 25A. Therefore
we sustain the Examiner's obviousness rejection of claim 7.
Claim 8
Appellant argues "that in claim 8, information from a remote interface
device comprises messages and queries" however Iliff discloses that the
script is generated within the MD A TA system itself. Appeal Brief 22.
Claim 8 recites, "a remote interface device that generates a set of messages
and queries to be communicated [sic] a user" and "a server that transmits
data and generate one or more computer executable commands as a script
based on said set of queries generated by said remote interface device." Iliff
discloses the claimed configuration in Figure 28. Appellant is referencing
the embodiment wherein the script engine 2194 is part of the MDAT A
system and fails to reference the disclosure of Iliff in which the script 2296
is passed to the gateway process that is part of the MDAT A network server
via the patient/user script engine 2358. Iliff paragraph 680. Appellant
further argues that Iliff' s MD AT A system 100 "merely generates queries
based on the received responses for the queries for the user/patient
computer" and conversely, "Appellant claims that the server
generates/assigns the script to the remotely programmable apparatus based
on information from the remote interface device." Appeal Brief 23. We do
not find Appellant's arguments persuasive because Appellant does not cite
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to any portion of Iliff to support the arguments other than reciting the
elements' identification numbers.2 Also, the description provided by
Appellant of the claimed invention (Appeal Brief 23) and Iliff does not show
a patentable distinction because the claimed server generates computer
executable commands that generate human-readable text in the same manner
as Iliff. See Claim 8; see also Iliff, paragraphs 603---613.
Claim 14
Appellant makes essentially the same arguments for independent
claim 14 as with independent claims 1 and 8. Appeal Brief 26-31. We
sustain the Examiner's rejection for the same reasons articulated in
association with claims 1 and 8 that are commensurate in scope.
Claims 2, 5, 9, 11, 13, 15, 17, 19, and 20
Appellant argues the Examiner's rejection of claims 2, 5, 9, 11, 13,
15, 17, 19 and 20 is erroneous because the Examiner indicated that it would
have been obvious to modify Sellers by incorporating the teachings of David
and nowhere within the Final Rejection is there "any citation to a reference
entitled Sellers provided." Appeal Brief 31-37. We find Appellant's
argument persuasive because the Examiner refers to Sellers in both page 6 of
the Final Rejection and page 6 of the Answer without pointing out how this
reference is applicable. Further, in the Examiner's Response to Argument
2 Attorney "argument ... cannot take the place of evidence." In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974). See also, e.g., In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (attorney arguments or conclusory statements
are insufficient to rebut a prima facie case).
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section in the Answer (pages 13-14 ), the reference to Sellers is not
addressed, in spite of Appellant's arguments. Therefore, we are constrained
by the record to reverse the Examiner's obviousness rejection of claims 2, 5,
9, 11, 13, 15, 17, 19 and20.
Claims 3, 10, and 16
Appellant argues that the obviousness rejection of dependent claims 3,
10, and 16 is erroneous because the obviousness rejection of independent
claims 1, 8 and 14 is erroneous. Appeal Brief 32-33. We do not find
Appellant's arguments persuasive because claims 3, 10 and 16 simply
require a sleep surveillance system and Appellant failed to establish that
David did not teach a sleep surveillance system. See Answer 6. Therefore,
we sustain the Examiner's obviousness rejection of claims 3, 10, and 16.
Claims 6, 12 and 18
Appellant argues that the Examiner's obviousness rejection of claims
6, 12, and 18 is erroneous because David monitors an individual and the
claims recite monitoring an environment. Appeal Brief 34--35. We do not
find Appellant's argument persuasive because David discloses monitoring a
patient in a home environment. See David Abstract. Therefore we sustain
the Examiner's obviousness rejection of claims 6, 12, and 18.
DECISION
The Examiner's obviousness rejections of claims 1, 3, 4, 6-8, 10, 12,
14, 16 and 18 are affirmed.
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Application 11/668, 102
The Examiner's obviousness rejection of claims 2, 5, 9, 11, 13, 15, 17,
19, and 20 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See 37
C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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