Ex Parte Gerlitz et al

Patent Trial and Appeal Board

Jan 26, 2018

12883063 (P.T.A.B. Jan. 26, 2018)

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.
12/883,063 09/15/2010 Yonatan Gerlitz 20007.005US01 4083
67559 7590 01/26/2018
Parsons Behle & Latimer
Attn: Docketing
800 W. Main Street, Suite 1300
Boise, ID 83702
EXAMINER
LIU, CHU CHUAN
ART UNIT PAPER NUMBER
3735
MAIL DATE DELIVERY MODE
01/26/2018 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 YONATAN GERLITZ and ALEXANDER OSTRITSKY
____________

Appeal 2017-0023981
Application 12/883,063
Technology Center 3700
____________

Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and
RYAN H. FLAX, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This appeal involves claims directed to a method of non-invasively
measuring a substance in a body. The Examiner rejected the claims under
35 U.S.C. § 101 as directed to patent ineligible subject matter and under
35 U.S.C. § 103 as obvious. We have jurisdiction under 35 U.S.C. § 6(b).
The § 101 rejection is affirmed; the § 103 rejection is reversed. All claims
remain rejected as unpatentable.
We affirm.

1 The real party in interest is identified in the Appeal Brief (“Appeal Br.”) as
GlucoVista, Inc. Appeal Br. 3.
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STATEMENT OF THE CASE
Claims 1–18 and 21–24 stand rejected by the Examiner as follows:
1. Claims 1–18 and 21–24 under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more.
Examiner’s Answer (“Ans.”) 2.
2. Claims 1–18, 21, 22, and 24 under pre-AIA 35 U.S.C. § 103(a) as
obvious and unpatentable in view of U.S. Pat. No. 5,900,632, issued May 4,
1999 (“Sterling”), U.S. Pat. No. 6,198,949 B1, issued Mar. 6, 2001
(“Braig”), and U.S. Pat. Pub. No. 2005/0043630 A1, pub. Feb. 24, 2005
(“Buchert”). Ans. 5.
3. Claim 23 under pre-AIA 35 U.S.C. § 103(a) as obvious and
unpatentable in view of Sterling, Braig, Buchert, and U.S. Pat. Pub. No.
2002/0133065 A1, pub. Sept. 19, 2002 (“Lucassen”). Ans. 13
Claim 1 is representative and is reproduced below:
1. A method comprising:
decreasing a temperature of a surface of a body from a
first temperature to a second temperature less than the first
temperature;
thereafter, recovering to the first temperature by
increasing the temperature of the surface of the body from the
second temperature to the first temperature;
measuring a first amount of infrared radiation absorbed
or emitted from the body in a first wavelength band at
predetermined time intervals during the recovery increasing the
surface of the body from the second temperature to the first
temperature, the first wavelength band being a wavelength band
or bands in which a substance in the body emits or absorbs
infrared radiation;
measuring a second amount of infrared radiation
absorbed or emitted from the body in a second wavelength band
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at predetermined time intervals during the recovery increasing
the surface of the body from the second temperature to the first
temperature;
measuring a temperature of the surface of the body;
measuring an ambient temperature;
calculating a normalized ratio parameter based on the
first amount, the second amount, the body surface temperature,
and the ambient temperature; and
determining a concentration of a substance in the body
non-invasively by using a correlation with the normalized ratio
parameter.

SECTION 101 REJECTION
The Examiner found that the claims are directed to a judicial
exception to patentability as being directed to a law of nature, natural
phenomenon, or abstract idea “without significantly more.” Final Office
Action (“Final Act.”) 2. The Examiner found the claim involved routine
data collection and generic processing functions and steps which do not add
anything significantly more to the mathematical relationship (id.) between
the concentration of the substance in the body and the measured infrared
radiation and temperatures.
Appellants contend that the claims improve the technological field
“by affirmatively determining concentration of a substance in a body using
IR radiation,” distinguishing the claims from those in Parker v. Flook, 437
U.S. 584 (1978) found to be ineligible for a patent because they were
directed to a mathematical equation with insignificant post-solution activity
for updating an alarm limit. Appeal Br. 7, 13. Appellants also contend that
the claims are distinguished from those held in Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66 (2012), found by the Supreme Court to
“‘simply tell a doctor about the relevant natural laws.’” Appeal Br. 7.
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Instead, Appellants contend that the claims are like those found to be
patent eligible in Diamond v. Diehr, 450 U.S. 175 (1981), because there is a
physical change of “decreasing surface temperature followed by recovering
surface temperature during measurement of infrared radiation.” Appeal
Br. 9. Appellants also argue that the claims “do something significant
beyond merely stating a law of nature” by modifying “measurement
conditions in a manner that improves application of that law to yield a
concentration value for the substance in the body.” Id. at 9, 11, 12
(identifying steps in claims said to qualify as “‘significantly more’” under
PTO Guidelines. With respect to claim 24, Appellants further ague that it is
eligible for a patent because it is directed to a data product. Id. at 9.

Discussion
A two-step analysis has been promulgated by the U.S. Supreme Court
to determine whether a claim is eligible for a patent under 35 U.S.C. § 101.
The test is set forth in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
2347, 2355 (2014):
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts [, e.g., a law of nature,
natural phenomenon, or abstract idea]. If so, we then ask, what
else is there in the claims before us? . . . We have described
step two of this analysis as a search for an inventive concept—
i.e., an element or combination of elements that is sufficient to
ensure that the patent in practice amounts to significantly more
than a patent upon the ineligible concept itself.
Id. (alterations, citations, and quotation marks omitted).
Claim 1 involves decreasing the temperature of a body, and
“thereafter,” increasing it. The claim further requires measuring first and
second amounts of radiation absorbed or emitted from a body. The radiation
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is measured during the “recovery” when the temperature is increasing. A
“normalized ratio parameter” is calculated based on the measured amounts
of 1) first and 2) second radiation, 3) the body surface temperature, and 4)
the ambient temperature. The final step of the claim is “determining a
concentration of a substance in the body non-invasively by using a
correlation with the normalized ratio parameter.” Independent claims 11,
21, and 24 have similar requirements.
The calculation of the ratio parameter and the subsequent step of
using it to determine the concentration of substance in the body constitutes
an abstract idea, namely a mathematical relationship, because it is statement
of the correlation between infrared radiation and body temperature, each
themselves natural phenomena, with the presence and concentration of a
substance in the body. The mathematical relationship is an “abstract idea”
and a judicial exception to Section 101, because it is not associated with a
concrete object, but rather it is a mathematical process that uses measured
values to determine a correlation based on a lookup table (Spec. ¶ 42).
In Digitech Image Technologies, LLC v. Electronics for Imaging, Inc.,
758 F.3d 1344, 1351 (Fed. Cir. 2014), the claims were directed to “a process
of taking two data sets and combining them into a single data set, the device
profile,” where the two data sets were “generated by taking existing
information—i.e., measured chromatic stimuli, spatial stimuli, and device
response characteristic functions—and organizing this information into a
new form.” The Digitech court found, relying on Flook, that the method
claims were drawn to “an abstract idea because it describes a process of
organizing information through mathematical correlations and is not tied to a
specific structure or machine.” Id. at 1350.
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The claims in this case are analogous to those at issue in Digitech
because they merely cover the selection of data (temperature, radiation)
obtained from known and existing technology and then using the data to
make a correlation. The determination and application of the normalized
ratio parameter has no relationship to specific structure or machine, and does
not change how the temperature and infrared radiation measurements are
made. “If a claim is directed essentially to a method of calculating, using a
mathematical formula, even if the solution is for a specific purpose, the
claimed method is nonstatutory.” Parker, 437 U.S. at 595 (internal
quotations omitted).

Diehr
Appellants contend that the claims are eligible for a patent for the
same reason as in Diamond v. Diehr (“Diehr”), namely, there is a
transformation to a different state. Appeal Br. 9, 11. This argument does
not persuade us that the Examiner erred.
In Diehr, the claims were directed to a method of operating a rubber-
molding press to mold a compound by curing it in a mold cavity.
Application of Diehr, 602 F.2d 982, 983–84 (CCPA 1979) (“Application of
Diehr”; lower court decision; Diehr did not reproduce the claims, but
Application of Diehr did.) The temperature in the mold during the rubber-
molding process was constantly determined and provided to a digital
computer. Id. The computer calculated the Arrhenius equation for the
reaction time during the cure to determine when the compound was cured
and to automatically open the press. Id.
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Although the claim recited a mathematical algorithm, the Arrhenius
equation, the Court held that the claim was eligible for a patent.
[W]hen a claim containing a mathematical formula implements
or applies that formula in a structure or process which, when
considered as a whole, is performing a function which the
patent laws were designed to protect (e. g., transforming or
reducing an article to a different state or thing), then the claim
satisfies the requirements of § 101.
Diehr, 450 U.S. at 192–93.
In this case, while it is not a litmus test for patent eligibility, unlike in
Diehr, we fail to see a transformation to “a different state or thing” as a part
of the claimed invention. It is true that the claims require “changing the
surface temperature” as argued by Appellants (Appeal Br. 11), but such a
change is not the same as transforming a product into another state by curing
it as in Diehr. In Diehr, an uncured product was transformed into a cured
product when raising the temperature caused a chemical change in the
physical state of the product. Here, the temperature of the skin is changed
when the skin is “recover[ed]” to a first temperature, but the change is only
transient and does not involve a chemical change to a different physical state
as was the case in Diehr.
In addition, Diehr did not implicate underlying preemption concerns
because Diehr addressed a specific rubber-molding process. However, the
instant claims are broadly drawn to any body, not even limited to an
organism but encompassing any object, and functioning to detect the
concentration of any substance in that body. “[P]reemption may signal
patent ineligible subject matter.” Ariosa Diagnostics, Inc. v. Sequenom, Inc.,
788 F.3d 1371, 1379 (Fed. Cir. 2015). Therefore, Diehr does not offer an
analogous set of facts for the appealed claims.
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Does the claim accomplish significantly more than the mathematical
relationship?
A claim is eligible for a patent when combination of steps in the claim
are “‘sufficient to ensure that the patent in practice amounts to significantly
more than a patent upon the [ineligible concept] itself.’” Alice, 134 S. Ct. at
2355. Appellants contend that the rejected claims do significantly more than
just describe a law of nature. Appeal Br. 12–13. Appellants argue that the
“combination of elements imposes meaningful limits in that the later
mathematical operations are applied to improve an existing technology.” Id.
at 13. Appellants identify these elements as including a critical measuring
step of measuring the change in surface temperature of the body,
determining the concentration of a substance using infrared radiation, and
using four measured parameters to calculate a normalized ratio parameter.
Id. at 11.
This argument is not persuasive. With respect to the contention that
the claims improve an existing technology, even if an improvement is
embodied by the claim, we do not find that this “improves” how the
technology operates, but rather is an improvement in the application of the
mathematical relationship in determining substance concentration, which is,
itself, an abstract idea.
“[W]e continue to ‘treat[ ] analyzing information by steps people
[could] go through in their minds, or by mathematical algorithms, without
more, as essentially mental processes within the abstract-idea category.’”
Synopsys, Inc. v. Mentor Graphics Corp. 839 F.3d 1138, 1146–47 (Fed. Cir.
2016) (quoting Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350,
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1354 (Fed. Cir. 2016) (citations omitted)); see also Electric Power Group,
830 F.3d at 1353 (“collecting information, analyzing it, and displaying
certain results of the collection and analysis” “fall[s] into a familiar class of
claims ‘directed to’ a patent-ineligible concept,” that of the abstract idea).
The Federal Circuit has recognized that “a claim for a new abstract idea is
still an abstract idea.” Synopsys, 839 F.3d at 1151.
Specifically, the Specification teaches that “it is known that glucose
and other blood constituents have strong and distinguishable absorption.”
Spec. ¶ 19. The Specification further explains that the “average ratio of the
two radiation measurements after normalization for a black body reading is
correlated to the concentration of the desired substance in the body, such as
the concentration of glucose in the bloodstream of a human body, for
example.” Id. ¶ 23. Paragraph 43 of the Specification, referenced by
Appellants as support for the normalized ratio (Appeal Br. 3–4), describes
performing the measurements, calculating a normalized ratio, and then
correlating the ratio with the ambient temperature and the body surface
temperature using a lookup table. Appellants have not explained how these
steps, which constitute the use of an algorithm to determine a concentration,
in any way effect the underlying technology used to change and measure
temperature and measure infrared application. Rather, the evidence points to
any such improvement as being made to the abstract idea and natural law of
correlating infrared radiation to substance concentration, a relationship
admitted by Appellants to be a natural law (id. at 12). The steps of
measuring body surface temperature and infrared radiation are routine and
conventional as shown in the Sterling and Braig publications discussed
below.
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Does the asserted improvement establish patent eligibility?
Appellants contend that their claims are patent eligible under 2015
USPTO guidelines because they improve the technological field. Appeal Br.
7.
This argument is not persuasive. In Amdocs (Israel) Limited v.
Openet Telecom, Inc., 841 F.3d 1288, 1300–01 (Fed. Cir. 2016), the claims
were found to be patent eligible under 35 U.S.C. § 101 because “the claim’s
enhancing limitation necessarily requires that these generic components
[network devices, etc.] operate in an unconventional manner to achieve an
improvement in computer functionality.” However, here the improvement
asserted by Appellants is not to a device, but rather to the mathematical
relationship between the four natural occurring parameters used to determine
the concentration to the substance in the body, particularly the infrared
radiation measurements made the heating step.
The rejected claims are also distinguishable from those in Bascom
Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350–
51 (Fed. Cir. 2016). In Bascom, the court held the claims eligible for a
patent because:
The claims do not merely recite the abstract idea of
filtering content along with the requirement to perform it on the
Internet, or to perform it on a set of generic computer
components. Such claims would not contain an inventive
concept. . . . [Rather] the patent describes how its particular
arrangement of elements is a technical improvement over prior
art ways of filtering such content.”
Id.
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In this case, Appellants have not explained nor provided evidence that
the mathematical relationship embodied in the claim is a technological
improvement to a device or element used to carry out the claims as it was in
Bascom and Amdocs. Indeed, the broadest claim 1 does not even require a
specific device or element for implementing the claimed method.

Claim 24
Claim 24, inter alia, adds the limitations of using a memory device
configured to store the information utilized to calculate the correlation and
of using a processor “operably associated with the memory device so as to
access the lookup table therefrom.” Appellants contend that the “data
product” stored on a memory device further makes the claim eligible for
patent. Appeal Br 9.
We do not agree. The storage of information on a memory device is
merely a computer implementation of the claimed method; i.e., using generic
computer hardware in its routine and customary way. As held in Alice,
“‘simply implementing a mathematical principle on a physical machine,
namely a computer, [i]s not a patentable application of that principle.’”
Alice, 134 S. Ct. at 2357–58.

Claim 11
Appellants contend that independent claims 11 is patent eligible
because it is tied a specific device, an IR detector, and additionally “selects a
specific wavelength (the wavelength characteristic of the substance) and the
specific conditions of collection (during temperature recovery) to apply the
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laws of nature in a particular circumstance and to achieve a useful result.”
Appeal Br. 14.
This argument is not persuasive. The IR detector is unaffected by
how the algorithm operates. There is no evidence it is used in any way other
than the routine and customary way IR detectors are used. Thus, there is no
improvement or change in the function of the device.

Dependent claims
Appellants contend that certain dependent claims are separately patent
eligible. Id. at 13–14. However, other than listing the additional limitations
in the claims, Appellants have not explained how the recited elements confer
patent eligibility on the claims. Merely stating the different limitations of
dependent claims does not constitute separate argument. See 37 C.F.R.
§ 41.37(c)(1)(vii); In re Dance, 160 F.3d 1339, 1340 n.2 (Fed. Cir. 1998)

Summary
The rejection of 1–18 and 21–24 as unpatentable under 35 U.S.C.
§ 101 is affirmed.

OBVIOUSNESS REJECTIONS OVER STERLING AND BRAIG
Claim 1 involves decreasing the temperature of a body, and
“thereafter,” increasing it. The infrared radiation is measured during the
“recovery” when the temperature of the surface of the body is increasing. A
“normalized ratio parameter” is calculated based on the measured amounts
of 1) first and 2) second infrared radiation, 3) the body surface temperature,
and 4) the ambient temperature. The final step of the claim is “determining
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a concentration of a substance in the body non-invasively by using a
correlation with the normalized ratio parameter.”
The Examiner found that substantially all the steps of the claimed
method are described in Sterling, but acknowledged that Sterling does not
describe measuring the infrared radiation during the recovery step when the
body surface is increasing. Final Act. 6. Rather, the Examiner found
Sterling teaches measuring infrared radiation when the body surface is
decreasing during cooling. Id. To reach the “increasing” limitation of the
claim, the Examiner relied upon the following teaching in Braig in which
optical energy is measured after a heater is “momentarily” energized:
A typical operating sequence is shown below.
Step 1. Bring chilled thermal mass window in contact
with patient’s forearm.
Step 2. Energize heater momentarily.
Step 3. Optical energy is detected, selected, and
analyzed by the system signal processor to determine glucose
concentration per the algorithm discussed in at least one of the
incorporated references.
Step 4. Allow chilled thermal mass to re-cool patient’s
forearm.
Step 5. (Optional, where more than one cycle is required
to effect an accurate reading.) Repeat steps 2 through 4 above
until the requisite number of separate glucose determinations
have been made.
Braig, col. 12, ll. 53–67.
Appellants contend that the Examiner interpreted the cited passage “in
isolation, abstracted from the remainder of Braig and from the additional
prior art incorporated therein by reference.” Appeal Br. 16. Appellants
contend that, when this passage is considered in the context of the full
disclosure of Sterling and Braig, one of ordinary skill in the art would not
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have understood it to mean that optical energy is measured when the body
surface temperature is increasing.
Appellants point out that Sterling, as acknowledged by the Examiner,
teaches measuring infrared radiation during the cooling period, not when the
body surface temperature is increased as recited in all the rejected claims.
Appeal Br. 18–19. In this regard, Sterling teaches:
The spectrometric method taught therein for the
noninvasive generation and capture of thermal gradient spectra
from living tissue comprises the steps of:
cooling an infrared transmissive mass;
placing the infrared transmissive mass into a conductive
heat transfer relationship with the tissue thereby to generate a
transient temperature gradient in the tissue;
detecting infrared emissions emanating from the tissue
and passing through the infrared transmissive mass;
providing output signals proportional to the detected
infrared emissions; and
sampling the output signals as the transient temperature
gradient progresses into the tissue.
Sterling, col. 10, l. 65–col. 11, l. 11 (emphasis added).
The present invention employs cooling to promote “self-
absorption” by letting the temperature gradient propagate to
selected layers typically between 40 and 150 microns below the
surface. When the temperature gradient has sufficiently
propagated, the present technique can, non-invasively, deliver
absorption spectra of the tissue, blood, and interstitial fluid
containing glucose or other analytes.
Id. at col. 14, ll. 18–24.
Braig, in its Background section, references the cooling method of
Sterling (cited as “U.S. Ser. No. 08/820,378”). Braig, col. 2, ll. 45–64.
Braig also describes the black body infrared radiation that underlies the
technology as arising from the natural condition in which “[t]here is a
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temperature gradient within a body, the deeper layers being warmer than the
outer layers, which causes further deviation from the theoretical black body
emissions.” Id. at col. 1, ll. 54–57. Thus, the non-invasive technology of
measuring the concentration of a substance in a body is based on the skin
surface being natural colder than the deeper layers. Cooling of the skin is
used to enhance the temperature gradient. Sterling, col. 14, ll. 18–24; Braig,
col. 2, ll. 5–67.
The only reference to heating followed by an infrared radiation
measuring step, as acknowledged by the Examiner, is the passage at column
12 of Braig reproduced above. However, as discussed by Appellants, this
same passage is followed by disclosure of measuring the infrared emission
during the cooling phase, the same technology described in the Background
section of the Braig patent and in Sterling. Specifically, Braig discloses:
The contact between cold window 208, chilled by conductive
heat loss to thermal mass window 200, and the skin of the
patient transfers heat conductively from the patient's skin to
thermal mass window 200. This generates a temperature
differential between the skin and the interior of the patient, and
over the course of the measurement cycle, this temperature
differential propagates into the patient's arm in the form of a
“cold wave”. As the “cold wave” propagates into the patient's
arm, the infrared emissions from the arm vary as described in at
least one of the incorporated references.
Braig, col. 14, l. 66–col. 15, l. 9.
Based on these disclosures, Appellants state that it is unreasonable to
conclude that Braig suggests detecting optical energy during a period when
the surface temperature is increasing as claimed. Appeal Br. 16. Rather,
Appellants argue that the reference to momentarily energizing the heater
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does not actually state that rewarming of the body surface is accomplished
and that
Even if energizing occurs before detecting optical energy, other
reasons for the timing in doing so include keeping “surfaces of
the [measurement] window free of condensate,” as described in
column 6, lines 13-16 and also discussed in column 9, lines 9-
12 [of Braig].
Appeal Br. 17. Appellants also stated that there would have no reasonable
expectation of success because “carrying out the modified method since the
modified teaching of Braig inferred by the Office changes the foundational
theory for operating in Sterling.” Id. Appellants argue:
[T]he proposed modification of Sterling with Braig thwarts the
basic assumption under which Sterling operates that “deep
infrared emissions pass through layers of tissue that are at a
lower temperature” (column 14, lines 6-13). Modification of
Braig also thwarts the basic assumption for operation of Braig
“per the algorithm discussed in at least one of the incorporated
references,” as indicated in column 12.
Id. at 20.
The Examiner did not dispute that Braig describes in its background
measuring infrared emissions during cooling. Ans. 23. The Examiner also
did not dispute Appellants’ explanation that, in view of the disclosure of
measuring infrared during in the Background of the Braig patent and at
columns 14–15 of detecting infrared during the cold wave, “momentarily”
energizing the heater would include heating to keep the detection window of
the device free of condensate. Appellants’ explanation is reasonable because
the heater is turned only “momentarily” and is not described as heating the
tissue to create a gradient during which infrared emission is measured —
which is contrary to the express disclosure elsewhere in Braig that emission
is measured during the cold wave.
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Furthermore, it is unclear what the purpose of performing a “chilling”
step would be, if not to measure the infrared radiation during it as described
in both Sterling and Braig. Appeal Br. 20. Braig expressly teaches that
chilling is utilized to enhance the temperature gradient during infrared
measurement:
In one embodiment of the present invention, heat exchanger
210 is a hollow structure, defining cavity 220. Cavity 220 is
provided with a continuous flow of chilled water by means of a
pair of water fittings, one of which is shown at 222. Thermal
mass window 300 is chilled by heat exchanger body 210. In
one preferred embodiment this cooling is to approximately
10° C., but other temperatures may, with equal facility, be
implemented for certain metrologic reasons in some
applications. This depressed temperature provides an enhanced
temperature gradient at the measurement site to enhance the
infrared signal to allow detection by detectors . . . .
Braig, col. 8, ll. 17–28.
The Examiner did not provide another reason to have measured the
infrared radiation during the heating step as recited in the claim, rather than
during cooling as expressly described in both Sterling and Braig.
The Buchert publication is cited by the Examiner for its teaching of
measuring ambient temperature (Final Act. 7) and, thus, does not make up
for the deficiency discussed above in the combination of Sterling and Braig.
Lucassen is cited by the Examiner for its teaching of positioning an
optical system (id. at 14) and, thus, does not make up for the deficiency
discussed above in the combination of Sterling and Braig.
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability. If
that burden is met, the burden of coming forward with evidence or argument
shifts to the applicant.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)
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(emphasis added). Accordingly, for the foregoing reasons, we conclude that
the Examiner did not meet the burden of establishing the obviousness of
independent claims 1, 11, 21, and 24, each of which require measuring
infrared radiation when increasing the temperature of the body surface.
Accordingly, the obviousness rejections of independent claims 1, 11, 21, and
24, and dependent claims 2–10, 12–18, 22, and 23 are reversed.

TIME PERIOD
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