Ex Parte Firminger et alDownload PDFPatent Trial and Appeal BoardSep 22, 201512658256 (P.T.A.B. Sep. 22, 2015) Copy Citation 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. 12/658,256 02/04/2010 Shawn P. Firminger SE1-1026-US 1530 80118 7590 09/22/2015 Constellation Law Group, PLLC P.O. Box 580 Tracyton, WA 98393 EXAMINER BURGESS, JOSEPH D ART UNIT PAPER NUMBER 3626 MAIL DATE DELIVERY MODE 09/22/2015 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 SHAWN P. FIRMINGER, JASON GARMS, RODERICK A. HYDE, EDWARD K.Y. JUNG, CHRIS DEMETRIOS KARKANIAS, ERIC C. LEUTHARDT, ROYCE A. LEVIEN, RICHARD T. LORD, ROBERT W. LORD, MARK A. MALAMUD, JOHN D. RINALDO JR., CLARENCE T. TEGREENE, KRISTIN M. TOLLE, and LOWELL L. WOOD JR. ____________ Appeal 2013-001091 Application 12/658,256 Technology Center 3600 ____________ Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and BIBHU R. MOHANTY, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 113-160 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. THE INVENTION The Appellants’ claimed invention is directed to data capture and handling techniques (Spec., 10). Claim 113, reproduced below with the numbering in brackets added, is representative of the subject matter on appeal. 113. A hardware-containing system comprising: [1] an accepter module; [2] an activator module, including a microprocessor; [3] a data accepter module; and [4] a presenter module configured to present a set of health care options at least partially based on accepting an indication of at least one attribute of an individual, activating at least one sensor, and accepting sensor data from the at least one sensor. THE REJECTIONS The following rejections are before us for review: 1. Claims 113-121, 123-138, 140-148, 153-155, 159, and 160 are rejected under 35 U.S.C. § 102(b) as anticipated by Leyde (US 2007/0150024 A1, pub. Jun. 28, 2007). 2. Claims 122 is rejected under 35 U.S.C. § 103(a) as unpatentable over Leyde. Appeal 2013-001091 Application12/658,256 3 3. Claim 139 is rejected under 35 U.S.C. § 103(a) as unpatentable over Leyde and Flaherty (US 7,901,368 B2, Mar. 8, 2011). 4. Claims 149, 150, 152, and 156 are rejected under 35 U.S.C. § 103(a) as unpatentable over Leyde and Eaton (US 2006/0136264 A1, Jun. 22, 2006). 5. Claims 151 is rejected under 35 U.S.C. § 103(a) as unpatentable over Leyde, Eaton, and Henley (US 2002/0065758 A1, May 30, 2002). 6. Claims 157 and 158 are rejected under 35 U.S.C. § 103(a) as unpatentable over Leyde and Johnson (US 2003/0046113 A1, Mar. 6, 2003). FINDINGS OF FACT We adopt the Examiners finding of facts made in the Final Rejection for claims 113, 114, 119, and 123. We have also determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence1. ANALYSIS The Appellants argue that the rejection of claim 113 is improper because the cited prior art fails to disclose claim limitations [1], [2], [3], and [4] as identified in the claim above, and that the combination would not have been obvious (Br. 40-52). In contrast, the Examiner has determined that the rejection is proper (Final Rej. 3; Ans. 4-7). 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2013-001091 Application12/658,256 4 We agree with the Examiner. The Appellants in the Appeal Brief at pages 15-40, as well as in the Reply Brief and Supplemental Reply Brief, provided an extensive outline on the framework of the legal standards of patentability which have been fully considered. Turning to the specific individual arguments made for claim 113, the Appellants have argued that all of claim limitations [1]-[4] are not shown by the prior art (App. Br. 40-52). We have reviewed the rejection of record and agree with and adopt the Examiners findings that the prior art references Leyde discloses the argued claim limitations. For example, claim limitation [1] requires an accepter module which has been disclosed by Leyde at paras 65 and 89 where a patient communication assembly accepts inputs from a patient and patient signals are taken and monitored. Claim limitation [2] requires an activator module, including a microprocessor and this has been disclosed by Leyde at paras. 78 and 133 where patient electrical stimulation and delivery of dosages are disclosed. Claim limitation [3] requires a data accepter module and this has been disclosed by Leyde at para. 64 where a patient interface assembly has temperature and biochemical sensors. Claim limitation [4] requires a presenter module configured to present a set of health care options at least partially based on accepting an indication of at least one attribute of an individual, activating at least one sensor, and accepting sensor data from the at least one sensor. This is shown by Leyde at paras 129-134 which discloses using a predicative algorithm to recommend dosages to patient. Appeal 2013-001091 Application12/658,256 5 For these reasons above, the argued claim limitation have been shown in the prior art the rejection of claim 113 is sustained. The Appellants have also argued that the rejection of claims 114, 119, and 123 are improper for failure to disclose a “physical attribute acceptor module”, a “treatment acceptor module”, and a “mental attribute acceptor” for each claim respectively (Br. 54-61). In contrast, the Examiner has determined that Leyde discloses at paras. 16 and 72 a physical attribute acceptor module; at paras. 61, 63, and 89 a treatment module acceptor; and at paras. 15 and 76 a mental attribute acceptor module (Final Rejection 3-5, 18-19; Ans. 7, 8). We agree with and adopt the Examiners findings that Leyde discloses these cited claim limitations. For example Leyde at para. 16 disclose monitoring a patient’s temperature and blood serving as a “physical attribute acceptor”; at para. 61 disclose a patient’s propensity for a seizure serving to determine dosages as a “treatment acceptor module”; and at paras. 15 and 76 disclose taking data about a patient’s neural state and brain serving as a “mental attribute acceptor” (see also para. 121). As these cited claim limitations have been shown in the prior art, the rejections of claims 114, 119, and 123 is sustained. The Appellants have presented the same arguments for the remaining claims, and the rejection of these claims is sustained as no specific arguments have been presented for them. CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting the claims as listed in the Rejection section above. Appeal 2013-001091 Application12/658,256 6 DECISION The Examiner’s rejection of claims 113-160 is sustained. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED pgc Copy with citationCopy as parenthetical citation