Ex Parte Brown

Board of Patent Appeals and Interferences

Mar 10, 2011

11451546 (B.P.A.I. Mar. 10, 2011)

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.
11/451,546 06/12/2006 Stephen J. Brown 7553.00004 / 06-0433 2668
60683 7590 03/10/2011
HEALTH HERO NETWORK, INC.
2400 GENG ROAD, SUITE 200
PALO ALTO, CA 94303
EXAMINER
RAJAN, KAI
ART UNIT PAPER NUMBER
3769
MAIL DATE DELIVERY MODE
03/10/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEPHEN J. BROWN
____________

Appeal 2009-012545
Application 11/451,546
Technology Center 3700
____________

Before LINDA E. HORNER, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-012545
Application 11/451,546

2
STATEMENT OF THE CASE
Stephen J. Brown (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 8-27. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.
THE INVENTION
Appellant’s claimed invention relates to “a networked system for
remotely monitoring individuals and for communicating information to the
individuals through the use of script programs.” Spec. 2, ll. 4-6. Claim 8,
reproduced below, is representative of the subject matter on appeal.
8. A system for remotely monitoring an individual,
comprising:
(a) a server,
(b) a remote apparatus including (i) a processor for executing a
first script to present one or more queries to the individual, (ii) a
first user interface through which the individual can input one
or more responses to the one or more queries and (iii) a second
user interface dedicated to sending a panic signal; and
(c) a communications network connecting the remote apparatus
with the server.2

2 Independent claim 12 recites a method for remote monitoring of an
individual’s health and providing a panic response, including sending
monitored data to an apparatus, the apparatus having a panic button to send a
panic signal, and in response to the individual triggering the panic button,
sending the panic signal to a remote server.
Appeal 2009-012545
Application 11/451,546

3
THE REJECTIONS
Appellant seeks review of the following rejections:
1. The Examiner rejected claims 8-25 and 27 under 35 U.S.C. § 103(a)
as being unpatentable over Walker (US 6,302,844 B1; issued October
16, 2001) and Schulze (US 6,443,890 B1; issued September 3, 2002).
2. The Examiner rejected claim 26 under 35 U.S.C. § 103(a) as being
unpatentable over Walker, Schulze, and Maystre (US 6,032,036;
issued February 29, 2000).
CONTENTIONS AND ISSUES
Appellant contends the Examiner erred in rejecting system claim 8
because Walker does not disclose the claimed remote apparatus including a
processor for executing a first script to present one or more queries to the
individual. App. Br. 8. Appellant further contends the Examiner erred in
rejecting method claim 12 because incorporating the Call 911 button of
Schulze into Walker would not result in sending a panic signal to the central
server. App Br. 9. Appellant further contends the Examiner erred in
rejecting dependent claims 9-11 and 13-26 because “[t]he Examiner has
provided no arguments to support a rejection of the dependent claims (other
than a citation to one of the reference).” App. Br. 11.
The issues presented in this appeal are:
Does Walker disclose a remote apparatus including a processor for
executing a first script to present one or more queries to the individual?
Would the method of claim 12 have been obvious to a person having
ordinary skill in the art in view of the combined teachings of Walker and
Appeal 2009-012545
Application 11/451,546

4
Schulze including sending a panic signal to a remote server in response to
the individual triggering a panic button on an apparatus?
Has the Examiner provided sufficient reasoning with rational
underpinning to support the obviousness rejection of claims 9-11 and 13-26?
ANALYSIS
Claim 8
Claim 8 calls for the system to comprise “a remote apparatus
including (i) a processor for executing a first script to present one or more
queries to the individual.”
Appellant’s Specification describes:
Each remotely programmable apparatus 26 is designed to
execute assigned script programs 40 received from the server
18. The script programs 40 may include queries, reminder
messages, informational statements, useful quotations, or other
information of benefit to the patient.
Spec. 9, ll. 26-31. The server 18 includes a monitoring application 48 that
includes a script generator 50, which is designed to generate the script
programs 40. Spec. 12, ll. 21-27. The script program 40 includes display
commands to display the queries and response choices and input commands
to receive responses to the queries. Spec. 15, ll. 18-26. Appellant’s
Specification describes with reference to Figure 11a:
In step 216, the server 18 uses the patient identification
code to retrieve from the table 46 the pointer to the script
program assigned to the patient. The server 18 then retrieves
the assigned script program from the database 38. In step 218,
the server 18 transmits the assigned script program to the
patient’s remotely programmable apparatus through the
Appeal 2009-012545
Application 11/451,546

5
communication network 24.
Spec. 18, l. 33 – Spec. 19, l. 5; fig. 11A.
Appellant’s Specification further describes that apparatus 26 includes
a microprocessor 76 and a memory 80, which stores script programs 40
received from server 18. Spec. 11, ll. 2-6. The microprocessor stores
firmware which includes a script interpreter which interprets script
commands that are executed by the microprocessor. Spec. 11, ll. 9-13; see
also Spec. 19, ll. 20-29; figs. 12A, 12B. Once the microprocessor 76
receives a script program from the server 18, the microprocessor 76 prompts
the patient on the display to press a button to start answering the queries,
waits for a reply to the prompt from the patient, and then when a reply is
received, displays the queries and response choices on the display and
receives responses to the queries, and stores the responses in memory 80.
Spec. 20, ll. 3-16 and ll. 25-26; fig. 12A.
Walker discloses a system 100 including a patient telemetry device
120, which is capable of monitoring at least one physiological parameter of a
patient and communicating data representative of the monitored parameter to
a central server 200 via a data path P1. Walker, col. 4, ll. 8-18; fig. 1. The
central server 200 includes a communication port 210, a processor 220, a
memory 230, support circuitry 240, and a storage device 250, which
includes a reaction database 300. Walker, col. 7, ll. 15-18 and l. 31; fig. 2.
The patient telemetry device 120 includes an input/output circuit 125,
support circuitry 123, a processor 124, a memory 126 including a control
program, and a data link 127. Walker, col. 4, ll. 49-52 and col. 5, ll. 62-63;
Appeal 2009-012545
Application 11/451,546

6
fig. 1. Walker discloses that processor 124 of patient telemetry device 120
can perform an analysis of the received physiological information to
determine if monitored parameters of the patient are within appropriate
boundaries, and may be programmed via a control program within memory
126 to issue an alert to the central server 200 in the event the monitored
parameters are outside appropriate boundaries. Walker, col. 5, ll. 58-66.
Walker further discloses that patient telemetry device 120 and central server
200 can communicate bi-directionally, so that parameter threshold levels are
updated via data path P1 or other means such that patient monitoring may be
calibrated to the changing needs of a patient, e.g., the patient can
communicate to the server 200 via a keypad 145 that the patient is about to
exercise. Walker, col. 6, ll. 3-15. In Walker, when a patient telemetry
device 120 provides alert information to the central server 200, the server
uses a table 305 in reaction database 300 to provide an appropriate system
response to the alert. Walker, col. 8, ll. 6-17; fig. 3. The system responses
in system reaction field 320 of table 305 include, for example, in the case of
an alert of tachycardia or acutely high blood pressure, querying the patient as
to the patient’s present activity level (e.g., was the patient climbing stairs,
playing basketball, watching television and the like). Walker, col. 8, ll. 24-
39; fig. 3.
Thus, the central server and the telemetry device of Walker’s system
communicate bi-directionally in the same manner as the apparatus and
server described in Appellant’s Specification. Further, the telemetry device
of Walker’s system queries the user based on queries provided by the central
Appeal 2009-012545
Application 11/451,546

7
server in the same manner as Appellant’s apparatus executes scripts
provided by the server to display queries to patients, as described in
Appellant’s Specification. As such, we agree with the Examiner’s findings
that Walker discloses querying a patient, and that based on the system
disclosed in Walker, this querying would necessarily involve presentation of
a query to the patient via the processor of the patient telemetry device by
executing code or a program, i.e., a script, run by the processor. Ans. 13.
Claim 12
Claim 12 calls for a method for remote monitoring an individual’s
health and providing a panic response including sending monitored data
from a monitoring device to an apparatus, where the apparatus has a panic
button to send a panic signal, and in response to the individual triggering the
panic button, sending the panic signal to the server. The Examiner found
that Walker discloses using its keypad 145 to send a medical emergency
signal to the central server 200, which is equivalent to an interface that sends
a panic signal. Ans. 7 (citing Walker, col. 5, ll. 1-25). The Examiner further
found that Walker does not explicitly disclose a dedicated panic button to
send a panic signal in response to the individual triggering the panic button.
Ans. 7. The Examiner found that Schulze teaches a keypad with a
dedicated, preset emergency panic button that allows emergency calls to be
made simply by pressing a button. Ans. 7-8 (citing Schulze, fig. 3, element
76, and col. 2, ll. 62-65, and col. 6, ll. 28-32). We agree with these findings
and adopt them as our own.
Appeal 2009-012545
Application 11/451,546

8
Walker’s system 100 is designed so that in the case of an emergency,
the patient can send an emergency signal to the central server 200 via the
patient’s telemetry device 120. Walker’s device 120 is cumbersome,
however, because it requires the patient, while in distress, to enter a message
using a keypad 145. Schulze’s system teaches an improved technique for
allowing a patient to indicate an emergency situation, using a dedicated
panic button. In the case of Schulze, the “Call 911” panic button is set up to
“speed dial” a 911 operator. We find that if a person having ordinary skill in
the art were to implement the technique of a panic button, as disclosed in
Schulze, in the system of Walker so as to improve Walker’s system in the
same way, such a person would have added a panic button to the keypad 145
of Walker so as to automatically send a panic signal to the central server
200, rather than requiring the patient to key in the message during the
occurrence of the emergency. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007) (“A person of ordinary skill is also a person of ordinary
creativity, not an automaton.”). The combination of Walker with Schulze
does not remove Walker’s function of sending a medical emergency
message to the server, and thus implementation of Schulze’s teaching to use
a separate dedicated emergency button into the invention of Walker, meets
the claim limitations of “the apparatus having a panic button to send a panic
signal” and “in response to the individual triggering the panic button,
sending the panic signal to the server.” Ans. 15-16. See KSR, 550 U.S. at
417 (““[I]f a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
Appeal 2009-012545
Application 11/451,546

9
devices in the same way, using the technique is obvious unless its
application is beyond his or her skill.”).
Claims 9-11 and 13-25
The Examiner found that the elements called for in dependent claims
9-11, 13-15, 21-25, and 27 are disclosed in the primary reference to Walker.
Ans. 6 and 8-12. As such, the Examiner’s rejection of these claims did not
call for any further modification of the system of Walker with the teachings
of Schulze, beyond the proposed modification to reach the elements of
independent claims 8 and 12. Thus, no further reason to combine the
teachings of Walker and Schulze was required to support an obviousness
rejection for these dependent claims. Accordingly, we affirm the rejection
of claims 9-11, 13-15, 21-25, and 27.
In the rejection of dependent claims 16-20, the Examiner relied on the
secondary reference to Schulze to teach the recited claim elements. Ans. 9-
10. Claims 16-20 depend from claim 8 and further recite certain features of
the panic button of claim 8. For example, claim 16 recites “wherein said
panic button has a physical characteristic that draws special attention of the
individual to said panic button.” Likewise, claims 17-19 call for further
specific physical characteristics to the panic button. Claim 20 recites, “the
processor of the remote apparatus automatically dials a preset phone number
in response to the panic button being activated.” In this case, the Examiner
already provided a reason to modify the system of Walker with the panic
button of Schulze in the articulation of the rejection of claim 8. The
Examiner’s rejection of these dependent claims is based on the additional
Appeal 2009-012545
Application 11/451,546

10
findings that Schulze’s panic button, as incorporated into Walker’s system,
possesses these claimed features. As such, no further articulation of a reason
to combine, beyond that provided in the rejection of base claim 8, was
required. Accordingly, we affirm the rejection of claims 16-20.
Appellant raised two additional arguments for patentability of claims
9 and 10 for the first time in the Reply Brief. Reply Br. 7; compare App.
Br. 11 (where Appellant relied on arguments made for independent claim 8
to support patentability of claims 9 and 10). The Board’s rules require an
appellant to raise arguments for separate patentability of claims in the appeal
brief.3 As such, the Board is not required to consider the arguments for
patentability for claims 9 and 10 first raised in the Reply Brief.
To the extent the Board has already considered the argument raised
for claim 9 in its analysis supra of the rejection of claim 12, we address it
here. Appellant argues that the combination of Walker and Schulze would
not result in a panic signal being sent to the server. Reply Br. 7. For the
same reasons provided supra in our analysis of claim 12, we agree with the
Examiner’s determination that it would have been obvious in light of the
combined teachings of Walker and Schulze to modify Walker’s system to
add a dedicated panic button and to maintain the portion of Walker’s system
that sends the panic signal to Walker’s central server. As such, we find
Appellant’s arguments unpersuasive of error as to the rejection of claim 9.

3 See 37 C.F.R. § 41.37(c)(1)(vii) (“Notwithstanding any other provision of
this paragraph, the failure of appellant to separately argue claims which
appellant has grouped together shall constitute a waiver of any argument that
the Board must consider the patentability of any grouped claim separately.”).
Appeal 2009-012545
Application 11/451,546

11
With regard to claim 10, Appellant merely recites the limitations of
the claim, and then states generally that “[t]he combination of references
provides no such limitation.” Reply Br. 7. In addition to being raised for
the first time in the Reply Brief, this argument suffers from another
procedural defect in that it provides no explanation as to the error in the
Examiner’s findings or reasoning upon which the rejection is based, and thus
does not amount to an argument for separately patentability of claim 10.4 As
such, we find Appellant’s argument unpersuasive of error as to the rejection
of claim 10.
Claim 26
The Examiner rejected dependent claim 26 based on the combination
of Walker and Schulze as articulated for claim 12, and further in view of
Maystre. Ans. 12. In the articulation of this rejection, the Examiner found
that Maystre teaches an alarm and emergency call system where the button
for initiating an alarm and an emergency call is red. Id. The Examiner
concluded that it would have been obvious to modify the panic button of
Walker, as modified by Schulze, to make it red, as taught by Maystre
“because it is commonly known in the art that the color red is associated
with emergency functions.” Id. Appellant does not challenge the rationale
provided by the Examiner; rather, Appellant asserts that “[t]he Examiner has
provided no arguments to support a rejection of the dependent claims (other

4 See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely points out
what a claim recites will not be considered an argument for separate
patentability of the claim.”).
Appeal 2009-012545
Application 11/451,546

12
than a citation to one of the references).” App. Br. 11 (emphasis added).
The Examiner, however, clearly provided findings and a reason for
combining the references in this case where an additional reference was
added. See Ans. 16. As such, we affirm the Examiner’s rejection of claim
26 under 35 U.S.C. § 103(a).
CONCLUSIONS
Walker discloses a remote apparatus including a processor for
executing a first script to present one or more queries to the individual.
The method of claim 12 would have been obvious to a person having
ordinary skill in the art in view of the combined teachings of Walker and
Schulze including sending a panic signal to a remote server in response to
the individual triggering a panic button on an apparatus.
The Examiner provided sufficient reasoning with rational
underpinning to support the obviousness rejection of claims 9-11 and 13-26.
DECISION
The decision of the Examiner to reject claims 8-27 is AFFIRMED.

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
nlk

HEALTH HERO NETWORK, INC.
2400 GENG ROAD, SUITE 200
PALO ALTO CA 94303