Ex Parte Fein et alDownload PDFPatent Trial and Appeal BoardOct 24, 201412202282 (P.T.A.B. Oct. 24, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte GENE FEIN and EDWARD MERRITT __________ Appeal 2012-004729 Application 12/202,282 Technology Center 3700 __________ Before LORA M. GREEN, JEFFREY N. FREDMAN, and CHRISTOPHER G. PAULRAJ, Administrative Patent Judges. FREDMAN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal1 under 35 U.S.C. § 134 involving claims to a method of analyzing medical data. The Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Party in Interest as Empire Technology Development, LLC (App. Br. 3). Appeal 2012-004729 Application 12/202,282 2 Statement of the Case Background “The present disclosure relates to, medical data analysis systems. In particular, to systems that utilize a cloud computing resource to analyze medical data” (Spec. 1 ¶ 1). The Claims Claims 1–46 are on appeal. Claim 1 is representative and reads as follows: 1. A method of analyzing medical data, comprising: sensing at least one medical parameter of a patient to provide sensed medical data; transmitting the sensed medical data to a cloud computing resource via a middleware for processing in at least near real time, the middleware including an application engine, a user interface application linked to the application engine by a user programming interface, a business component operatively connected to the application engine, and a hardware abstraction layer linked to the business component by a system application programming interface, the hardware abstraction layer being situated between the application engine and the business component and a middleware hardware; receiving analysis results from the cloud computing resource; and transmitting the analysis results to a user interface device. The Issues A. The Examiner rejected claims 1–12, 18–29, and 31–46 under 35 U.S.C. § 103(a) as obvious over Uchikubo2 and McAlinden3 (Ans. 5–10). 2 Uchikubo et al., US 2005/0166239 A1, published July 28, 2005. 3 McAlinden et al., US 7,539,994 B2, issued May 26, 2009. Appeal 2012-004729 Application 12/202,282 3 B. The Examiner rejected claims 13–17 under 35 U.S.C. § 103(a) as obvious over Uchikubo, McAlinden, and Gottesman4 (Ans. 10). C. The Examiner rejected claim 30 under 35 U.S.C. § 103(a) as obvious over Uchikubo, McAlinden, and Krause5 (Ans. 10–11). A. 35 U.S.C. § 103(a) over Uchikubo and McAlinden The Examiner finds Uchikubo teaches a method of analyzing medical data, but the Examiner acknowledges that “Uchikubo is silent regarding a middleware” as required by claim 1 (Ans. 5). The Examiner finds that McAlinden teaches “a similar middleware architecture including an application engine, a business component and a hardware abstraction layer” (id.). The Examiner finds it obvious to “modify Uchikubo’s operating middleware layer according to the architecture taught by McAlinden because McAlinden presents an alternative way to improve computing/energy resources when executing applications within a processing system” (id.). The issue with respect to this rejection is: Does the evidence of record support the Examiner’s conclusion that Uchikubo and McAlinden suggest middleware including an application engine, a user interface application linked to the application engine by a user programming interface, a business component operatively connected to the application engine, and a hardware abstraction layer linked to the business component by a system application programming interface, the hardware abstraction layer being situated between the application engine and the business component and a middleware hardware as required by claim 1? 4 Gottesman et al., US 2006/0122864 A1, published June 8, 2006. 5 Krause et al., US 2004/0039259 A1, published Feb. 26, 2004. Appeal 2012-004729 Application 12/202,282 4 Findings of Fact 1. Figure 1 of Uchikubo is reproduced below: “FIG. 1 is a diagram showing the entire structure of the operation support system” (Uchikubo 2 ¶ 32). 2. McAlinden teaches that “APRIs may be implemented and exposed to applications via any suitable system elements, such as middleware (MW) 110, the operating system (OS) 120, and/or a hardware abstraction layer (HAL) 130” (McAlinden, col. 6, ll. 45–48). 3. McAlinden teaches that “MW 110 may comprise software performing one or more functions that lie between, and possibly overlap with functions performed by, applications 102/104 and the OS 120” (McAlinden, col. 6, ll. 55–57). Appeal 2012-004729 Application 12/202,282 5 4. Figure 2 of McAlinden is reproduced below: “FIG. 2 is a block diagram of an architectural model of a system or platform 100 to provide performance and resource management” (McAlinden, col. 3, ll. 55–57). Principles of Law “The protocol of giving claims their broadest reasonable interpretation during examination does not include giving claims a legally incorrect interpretation. This protocol is solely an examination expedient, not a rule of claim construction.” In re Skvorecz, 580 F.3d 1262, 1267 (Fed. Cir. 2009). Appeal 2012-004729 Application 12/202,282 6 Analysis The Examiner “has broadly interpreted the claim element ‘middleware’ as a combination of software and hardware; thus, the combination of Uchikubo and McAlinden is sufficient to meet ‘middleware’” (Ans. 15). The Examiner specifically identifies all of the components in Figure 2 as comprising the middleware required by claim 1, where Application 102 is both an “application engine” and as a “user interface application,” APRI 104 is a “user programming interface,” Device Driver 140 is a “business component,” hardware abstraction layer 130 is a “hardware abstraction layer,” operating system 120 is a “system application programming interface,” and hardware 150 is “middleware hardware” (Ans. 15–16). Appellants contend that McAlinden’s “use of the term middleware in describing McAlinden’s item 110, but not item 100, indicates that McAlinden’s item 100 is not middleware. While McAlinden does disclose, generally, a middleware (McAlinden’s item 110), McAlinden fails to teach or suggest middleware that ‘includes’ or ‘provides’ elements of Applicant’s claims” (Reply Br. 3). We find that Appellants have the better position. We interpret claim terms in light of the Specification as understood by one of ordinary skill in the art. See In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (“Although the PTO must give claims their broadest reasonable interpretation, this interpretation must be consistent with the one that those skilled in the art would reach.)” Here, the Examiner does not identify any teaching in McAlinden or provide any other basis to interpret the entire system or platform 100, rather than only element 110, as “middleware.” Appeal 2012-004729 Application 12/202,282 7 Even if we interpret middleware as encompassing the functions of elements 102/104 and 120 in Figure 2 of McAlinden (FF 3), the remaining elements of platform/system 100 are not taught or suggested as falling within the scope of middleware. While we recognize the Examiner’s mapping of different components in McAlinden’s Figure 2 to the claim elements (see Ans. 15–16), the Examiner has failed to establish that the inclusion of all of these components would have reasonably led the ordinary artisan to consider the entire system or platform 100 to qualify as middleware. Indeed, that contention is contradicted by McAlinden’s labeling of a separate component (110) as the middleware. Conclusion of Law The evidence of record does not support the Examiner’s conclusion that the combination of Uchikubo and McAlinden suggests a “middleware” in the manner required by claim 1. B–C. 35 U.S.C. § 103(a) rejections These rejections rely upon the underlying obviousness rejection over Uchikubo and McAlinden. Having reversed the rejection of claim 1, we also necessarily reverse these obviousness rejections because none of the additionally cited prior art is relied upon to teach the middleware as required by independent claim 1, upon which all of the rejected claims depend. SUMMARY In summary, we reverse the rejection of claims 1–12, 18–29, and 3146 under 35 U.S.C. § 103(a) as obvious over Uchikubo and McAlinden. We reverse the rejection of claims 13–17 under 35 U.S.C. § 103(a) as obvious over Uchikubo, McAlinden, and Gottesman. Appeal 2012-004729 Application 12/202,282 8 We reverse the rejection of claim 30 under 35 U.S.C. § 103(a) as obvious over Uchikubo, McAlinden, and Krause. REVERSED cdc Copy with citationCopy as parenthetical citation