Ex Parte Grauds et al

Patent Trial and Appeal Board

Jan 2, 2018

14415430 (P.T.A.B. Jan. 2, 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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/415,430 01/16/2015 Juris Alex Grauds 2012P01755WOUS 7287
24737 7590 01/04/2018
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue MIKELS, MATTHEW
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2876
NOTIFICATION DATE DELIVERY MODE
01/04/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patti. demichele @ Philips, com
marianne. fox @ philips, com
katelyn.mulroy @philips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JURIS ALEX GRAUDS, MARK DAVID ST. GERMAIN, and
ROBERT ALFRED FEUERSANGER
Appeal 2017-003520
Application 14/415,43c1
Technology Center 2800
Before KAREN M. HASTINGS, JULIA HEANEY, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner’s
rejections adverse to the patentability of claims 1—14, 26, and 33—37.
We have jurisdiction under 35 U.S.C. § 6.
We affirm.
1 Appellant is the Applicant, Koninklijke Philips N.V., which is stated to be
the real party in interest. App. Br. 1.
Appeal 2017-003520
Application 14/415,430
SUBJECT MATTER
Independent claim 1 is illustrative of the subject matter on appeal, and
is copied below with key limitations at issue in this appeal italicized for
emphasis:
1. An accessory enabled device, comprising:
a first device including a selectively activated feature;
said first device including an interrogation source
configured to interrogate an accessory device, such that,
responsive to an interrogation, feedback from the accessory
device is measured to determine compatibility between the first
device and the accessory device;
the selectively activated feature being enabled to perform
a task only when a specified compatibility exists between the first
device and the accessory device;
wherein the device is configured to determine that the
specified compatibility exists only when the first device and the
accessory device are in proximity for the interrogation source of
the first device to interrogate the accessory device and the first
device and the accessory device have a predetermined spatial
relationship with respect to each other, said spatial relationship
ensuring proper alignment of the accessory enabled device and
the accessory device for a procedure to be performed by the
accessory enabled device.
App. Br. 19 (emphasis added).
REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:
Podaima US 2009/0043253 A1 Feb. 12, 2009
Hensel US 2012/0211566 A1 Aug. 23, 2012
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Application 14/415,430
REJECTIONS
Claims 1, 5, 10-14, 26, and 33—36 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Podaima (Final Act. 2-4; Ans. 2-4), and claims
2-4, 6—9, and 37 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Podaima in view of Hensel (Final Act. 4—5; Ans. 4—5).
OPINION
The Anticipation Rejection
We address the claims separately to the extent they are so argued by
Appellant. 37 C.F.R. § 41.37(c)(l)(iv).
Claims 1, 14, and 26
The Examiner finds that Podaima discloses each of the limitations of
independent claims 1, 14, and 26. Final Act. 2—3. In finding that Podaima
anticipates the subject matter of independent claims 1, 14, and 26, the
Examiner maps Podaima’s disclosure of a smart medical device 110, such as
a smart syringe, to correspond to the recited “first device,” and RFID reader
116 to correspond to the claimed “accessory device.” Final Act. 2—3, citing
Podaima 1116. See also Podaima 1100 (exemplifying “smart syringes” as a
possible “smart medical device”). Appellant does not dispute these findings.
See Appeal Br. generally, Reply Br. generally.
Appellant first argues that Podaima fails to disclose proper alignment
of the smart device 110 with the wristband tag 107 or the patient 106 prior to
scanning. App. Br. 9.2 This argument is unpersuasive, however, because it
is irrelevant to the rejection that was made by the Examiner. Specifically,
2 Appellant repeats this argument in the Reply Brief. Reply Br. 4. We find
this argument unpersuasive for the same reason.
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Application 14/415,430
the Examiner does not rely on any alignment of elements 106 or 107 with
device 110 in rejecting the claims. Final Act. 2—3. Rather, the Examiner
relies on the alignment of elements 110 and 116 to satisfy the limitation
requiring “proper alignment.” Id.
Appellant contends further that Podaima discloses that device 110 can
be in “any alignment” with the RFID reader3 as long as device 110 “is ‘close
enough’ ... in proximity to receive the signal from the RFID reader.” App.
Br. 9. Appellant contends that the Examiner’s claim construction of the
term “alignment” is “overbroad” and “would vitiate the claim term ‘in
proximity’ which is also recited in claim 1.” Id. at 10. Appellant, however,
does not point to an alternative definition of the term “alignment” in the
Specification. App. Br. 7—10, 11—13.
In the Answer, the Examiner indeed points out that the Specification
sets forth no special definition for the term “alignment” that would be
inconsistent with its plain meaning as the “proper or desirable coordination
or relation of components.” Ans. 6. The Examiner also determines that the
scope of the terms “proximity” and “alignment” “overlap significantly.” Id.
at 7. The Examiner then identifies additional disclosure to establish how
Podaima’s RFID reader may be either a) simultaneously in proximity to and
aligned with, or b) in proximity to and not aligned with, a specified target.
Id. at 7—8 citing Podaima 191 (explaining that distances of less than 1cm,
while “in proximity,” are not “in alignment” because such distances are
3 Appellant erroneously refers to RFID reader as element 106 multiple times.
App. Br. 9-10. Podaima’s RFID reader is, however, listed as element 116.
Because Appellant refers to “reader (106),” we treat this as a typographical
error and determine the merits of the argument as if Appellant correctly
refers to the RFID reader as element 116. See Podaima 1116.
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undesirable due to violating certain protocols, but that distances between
lcm and lm are both proximal and aligned).
In response, Appellant does not address, much less direct us to any
error in, the Examiner’s additional findings regarding Podaima’s RFID
being both “in proximity” and “aligned” with a target when at a distance
between lcm and lm. See Podaima 191. Rather, Appellant provides a box­
stacking analogy4 and discusses the embodiment of Figure 2. Reply Br. 3—5.
Thus, on this record, there is an undisputed finding that Podaima 191
discloses each of the “in proximity” and “alignment” limitations recited in
claims 1, 14, and 26. Notwithstanding the Examiner’s uncontested finding
regarding how Podaima 191 discloses the disputed “proximity” and
“alignment” limitations, we also observe that Appellant has not directed us
to any error in the Examiner’s proffered definition of “alignment”— i.e., a
“proper or desirable coordination or relation of components.” Final Act. 7;
Ans. 6. Specifically, Appellant has not challenged the Examiner’s definition
of this term as being incorrect by, for example, providing an alternative
definition of “alignment” that is not met by the disclosure of Podaima.
Rather, Appellant has merely alleged that the Examiner’s construction is
overbroad. App. Br. 9—10. Such conclusory assertions lack substance and
4 We decline to consider Appellant’s box-stacking analogy with respect to
the term “alignment” because it is untimely. Appellant has not shown good
cause why this argument could not have been presented in the Appeal Brief
regarding claims 1, 14, and 26. 37 C.F.R. § 41.41(b)(2). We emphasize
here that the box-stacking analogy was only presented in the Appeal Brief
with respect to claim 34 which recites “lateral alignment.” Even if we were
to consider this argument, however, it would be unpersuasive for the reasons
expressed by the Examiner. Ans. 9 (explaining how “the alleged alignment
of different boxes is irrelevant” to the claimed subject matter).
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Application 14/415,430
fail to identify reversible error. We furthermore observe that Appellant has
provided no explanation regarding how the Figure 2 embodiment relied
upon in the Briefs does not fall within the Examiner’s construction of the
term “alignment.” See Appeal Br. 8—10; Reply Br. 3—5.
Because Appellant makes no additional arguments regarding the
rejection of claims 1,14, and 26, Appellant fails to reveal any error in the
rejection of these claims. We, therefore, sustain the anticipation rejection of
claims 1,14, and 26 for the reasons expressed by the Examiner and above.
Claim 12
Claim 12 depends from claim 1, and additionally requires that “the
feedback from the accessory device is employed to measure one of a
distance or position of the first device relative to the accessory device.”
The Examiner finds that Podaima discloses this limitation in
paragraph 120. Final Act. 3^4. Appellant argues that the rejection of claim
12 is improper at least because it depends from claim 1, and further because
Podaima fails to disclose measuring the distance of the first device relative
to the accessory device. App. Br. 10—11.
In response, the Examiner relies on reasoning already provided with
respect to claims 1, 14, and 26 (explaining how Appellant’s arguments are
unpersuasive “at least for the reasons set forth above”). Ans. 8. The
Examiner further defines the claim term “to measure” as “to estimate or
determine.” Id. Appellant contends that while “Podaima discloses
determining a proximity between the two devices[,] [tjhis does not
necessarily mean the distance is ‘measured’”. Reply Br. 6. Appellant
disagrees with the Examiner’s definition of “measure,” but fails to provide
an alternative definition of this term. Id.
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We are not persuaded by Appellant’s arguments regarding claim 12.
First, we observe that claim 12 requires the feedback to “measure one of a
distance or position of the first device relative to the accessory device”
(emphasis added). Appellant’s arguments, however, focus only on how
Podaima does not disclose a distance measurement. App. Br. 11.
The Examiner finds, and Appellant does not dispute, that Podaima
discloses an RFID device that couples with a target at distances between
lcm and lm, which “allow[s] the functionality of the RFID device without
compromising the protocol of the practitioner.” Ans. 7 citing Podaima 191.
Keeping in mind the Examiner’s definition of “to measure” as “to
estimate or determine” (Ans. 8), Appellant has not explained how the
feedback from Podaima’s RFID device (i.e., the recited “accessory device”)
at distances between lcm and lm fails to measure the distance or position of
the target to be coupled (e.g., a smart syringe). We find the Examiner’s
position expressed in the Answer to be correct in such a situation — “the
proximity of the devices serves to measure the distance.” Ans. 8.5 In other
words, when Podaima’s RFID device is coupled to a target within the
disclosed distance of between lcm and lm, the distance is determined (i.e.,
“measured”) to be within this range. The same can be said for the
positioning of Podaima’s RFID device relative to the target — when the
RFID device is within Podaima’s specified range of lcm to lm to “allow for
5 We disagree, however, with the Examiner’s additional assertion that “when
Podaima’s devices are out of range, it is determined that the distance is too
far.” Ans. 8. Claim 1, from which claim 12 depends, recites that the
feedback from the accessory device is “responsive to an interrogation.” The
Examiner has not shown how feedback that is “responsive to an
interrogation” can occur when the devices are “out of range.”
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the functionality of the RFID device,” the feedback from the RFID device
(i.e., the “accessory device”) determines (i.e., “measures”) the position
(within 1cm and lm of distance) of the target (i.e., the “first device”) relative
to it.
It follows that we sustain the anticipation rejection of claim 12.
Claims 33—3 66
Claim 33 depends from claim 1, and further requires that the
predetermined spatial relationship includes ensuring one or more of the
following: “proper lateral alignment,”7 “an operational distance,” and
“proper orientation” “between the accessory enabled device and the
accessory device for the procedure to be performed by the accessory
device.” Claims 34—36 each depend from claim 14 and individually recite
the “proper lateral alignment,” “an operational distance,” and “proper
orientation” limitations, respectively, as set forth in claim 33.
6 Appellant argues the patentability of these claims separately. App. Br. 13—
17. We, therefore, have considered the patentability of these claims
separately, but combine our discussion of them for the sake of brevity.
7 We observe that the term “lateral alignment” does not appear to have
written description support in the portions of the Specification relied upon
by Appellant, i.e., Spec 10, 11, and Fig. 2. See Amendment filed January
26, 2016. We decline to enter a new ground of rejection in this application,
but, should prosecution continue, we leave it to the Examiner to determine
anew the appropriateness of entering a rejection of claims 33 and 34 under
35 U.S.C. § 112, first paragraph for lack of written description support of
this term. See Ex parte Frye, 2010 WL 889747 at *6 (BPAI) (precedential)
(“Our decision is limited to the fmding[s] before us for review. . . . [T]he
Board’s primary role is to review adverse decisions of examiners including
the findings and conclusions made by the examiner.”).
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The Examiner finds that Podaima’s disclosure in paragraph 116
anticipates these claims. Final Act. 4.
Appellant argues that the rejection of claim 33 is improper at least
because it depends from claim 1, and further because Podaima fails to
disclose any of the recited limitations. App. Br. 13—14. Specifically,
Appellant urges that “[t]he mere practical requirement in Podaima that the
RFID tags must be in sufficiently close proximity to enable the RFID tag
interrogation does not disclose . . . these limitations.” Id. at 13. Appellant
urges that the Examiner erred in taking the position that the terms
“alignment,” “lateral alignment,” “operational distance,” and “orientation”
are synonymous.8,9 Id. at 14.
Regarding claim 34, Appellant provides a box-stacking illustration to
contend that proximity and lateral alignment are distinct concepts. App. Br.
14—15. Regarding claim 35, Appellant urges that Podaima fails to teach the
8 Throughout the Briefs, Appellant’s counsel repeatedly characterizes the
Examiner’s claim construction as “nonsense” or “nonsensical.” App. Br. 14,
15, 16; Reply Br. 4, 6. We do not find such disparaging comments to be
appropriate, persuasive, or helpful in determining the propriety of the
rejections on appeal. We caution Appellant’s counsel that 37 C.F.R.
§ 41.1(c) requires “courtesy and decorum in all proceedings before the
Board.” See also id. at § 1.3. We furthermore emphasize that violation of
this duty may result in the non-entry of future filings with the Board. Id.
9 It does not escape our attention that, after disparaging the Examiner’s
alleged position that the terms “alignment,” “lateral alignment,” “operational
distance,” and “orientation” are interchangeable as “nonsense” (App. Br.
14), Appellant then relies upon the same box-stacking illustration in an
attempt to demonstrate how similar the concepts of “alignment,” “lateral
alignment,” and “orientation” are. App. Br. 14, 16; Reply Br. 3, 4, 6, 7.
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recited “operational distance,” but even if it did, Podaima’s “operational
distance would be . . . for reading the RFID tag — it would not be the
operational distance for . . . the procedure to be performed by the accessory
enabled device. Id. at 16. Appellant again relies on the box-stacking
illustration in support of claim 36. Id. at 16—17.
We have considered each of Appellant’s arguments separately, and
are unpersuaded of any reversible error in the Examiner’s finding of
anticipation. Rather, we agree with the Examiner for the reasons well-
expressed in the Final Action and, in particular, pages 8—11 of the Answer.
We, therefore, sustain the anticipation rejection of claims 33—36.
The Obviousness Rejection
In contesting the obviousness rejection of claims 2-4, 6—9, and 37,
Appellant solely relies on the same deficient arguments advanced against the
anticipation rejection of claims 1 and 14. Such arguments are unpersuasive,
so we sustain the obviousness rejection as well.
SUMMARY
The Examiner’s final decision to reject claims 1—14, 26, and 33—37 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)(1).
AFFIRMED
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