Ex Parte Grilliot et al

Patent Trial and Appeal Board

Jun 22, 2016

12485491 (P.T.A.B. Jun. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/485,491 06/16/2009
93730 7590 06/24/2016
HONEYWELL/WOOD PHILLIPS
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
William L. Grilliot
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
H0023517/8364/l 08483/2800 3320
EXAMINER
LIEU, JULIE BICHNGOC
ART UNIT PAPER NUMBER
2684
NOTIFICATION DATE DELIVERY MODE
06/24/2016 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):
ksanderson@woodphillips.com
patentservices-us@honeywell.com
docketing@woodphillips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM L. GRILLIOT, MARY I. GRILLIOT, and
MICHAEL A. SCHUBERT
Appeal2014-006703
Application 12/485,491
Technology Center 2600
Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
HUNG H. BUI, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants 1 have filed a Request for Rehearing under 37 C.F.R.
§ 41.52 for reconsideration of our Decision on Appeal mailed March 22,
2016 ("Decision"). In that Decision, we affirmed the Examiner's Final
Rejection of claims 1-5, 7, 8, 10, and 11under35 U.S.C. § 103(a). We have
considered the arguments presented by Appellants in the Request for
Rehearing ("Req. Reh'g"), but we are not persuaded that any points were
misapprehended or overlooked by the Board in issuing the Decision. We
1 According to Appellants, the real party in interest is Honeywell
International, Inc. App. Br. 2.
Appeal2014-006703
Application 12/485,491
have provided herein additional explanations, but decline to change our
decision in view of Appellants' arguments.
ANALYSIS
The applicable standard for a Request for Rehearing is set forth in
37 C.F.R. § 41.52(a)(l), which provides in relevant part, "[t]he request for
rehearing must state with particularity the points believed to have been
misapprehended or overlooked by the Board."
In this case, Appellants request a rehearing not on the basis of any
points believed to have been misapprehended or overlooked by our
Decision, but on the basis of Appellants' continuing disagreement regarding
the Examiner's combination of LeBoeuf and Kiff teaches or suggests control
circuits in a wearable, personal communications unit to "receive ambient
information ... from a plurality of ambient condition sensors in the ambient
region ... external to the [wearable, personal communications] unit" as
recited in claim 1. In addition, Appellants request the Board to consider a
new argument raised for the first time in the Rehearing Request that "the
Examiner's proposed modification would clearly reduce the functionality of
the wearable device 10 with respect to its intended purpose of providing
temperature readings experienced by the wearer of LeBoeuf s device 10."
Req. Reh'g 3 (emphasis in original). However, neither of Appellants'
arguments is an appropriate basis for a rehearing request. A request for a
rehearing is not an opportunity to make further briefings before the Board.
As such, no further discussion is necessary. Nevertheless, we address
Appellants' arguments raised in the Request for Rehearing as follows.
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Application 12/485,491
First, Appellants assert the Board's decision ( 1) "is not supported with
any evidence" and (2) "ignores the indisputable fact that LeBoeuf's entire
disclosure is directed towards what is being experienced by the wearer of
LeBoeuf wearable monitoring device 1 O" and, as such, there is no evidence
or reasoning to support a finding:
that a temperature monitor that is located remote from the wearer
of LeBoeufs wearable device 10 is somehow more accurate or
an improvement over one that is part of the wearable device 10,
which will indisputably provide the most accurate value of
temperature that is experienced by the wearer of the wearable
device 10.
Req. Reh'g 1-2 (emphasis in original). According to Appellants, using "the
remote temperature sensor taught by Kiff can and will be located many feet
from the wearer of the device 10 ... can and will provide very inaccurate
information of the temperature that is actually experienced by the wearer of
the wearable device 10 of LeBoeuf." Id. at 2 (emphasis in original).
We disagree with Appellants' characterization. The Examiner's
proposed combination is not based on the use of one or more environmental
temperature sensors or other types of sensors external to a wearable device
to monitor what Appellants characterize as being "actually experienced by
the wearer of the wearable device 10 of LeBoeuf." Rather, these external
sensors are used for:
monitoring the ambient environment of the general region or area
where the user is located [i.e., external to the monitoring device]
to determine if the surrounding condition may aggravate or cause
undesirable discomfort or danger to the wearer of the monitoring
device
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Appeal2014-006703
Application 12/485,491
as suggested by the Examiner and evidenced from Kiff. Final Act. 3--4
( citing Kiff ii 11 ).
Second, and based on the incorrect characterization of the Examiner's
proposed combination, Appellants argue for the first time because:
the temperature experienced by a wearer of LeBoeuf s device 10
is the temperature "next to the wearer's skin" ... the Examiner's
proposed modification would clearly reduce the functionality of
the wearable device 10 with respect to its intended purpose of
providing temperature readings experienced by the wearer of
LeBoeufs device 10.
Req. Reh'g 3 (emphasis in original). According to Appellants, adding:
temperature sensors of Kiff ... in order to monitor the
environmental impacts on the wearer ... would require the
increased cost and complication [and would] further complicate
the device 10 of LeBoeuf and further reduce its functionality by
adding a potential failure point in the communication between
the multiple remotely located temperature sensors of Kiff
(multiple sensors would be required for the intended purposes
of LeBoeuf s device 10) and the wearable device 10 of LeBoeuf
et al.
Req. Reh'g 3-5.
At the outset, we note Appellants have not shown "good cause" for
the Board to consider these new arguments. In the absence of a showing of
good cause by Appellants, we decline to consider new arguments raised for
the first time in the Rehearing Request. See 37 C.F.R. § 41.37(c)(l)(vii)
(2011) (second sentence); In re Hyatt, 211F.3d1367, 1373 (Fed. Cir. 2000)
(noting that an argument not first raised in the brief to the Board is waived
on appeal); Exparte Borden, 93 USPQ2d 1473, 1477 ( BPAI 2010)
(informative) ("[p ]roperly interpreted, the Rules do not require the Board to
take up a belated argument that has not been addressed by the Examiner,
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Appeal2014-006703
Application 12/485,491
absent a showing of good cause."). We further note in passing that
Appellants' new arguments are predicated upon an incorrect characterization
of the Examiner's combination and are contrary to the very use of these
external sensors (e.g., smoke sensors, gas sensors, thermal sensors, toxin
sensors etc.) as disclosed by Appellants. See Figure 1 of Appellants'
Specification.
CONCLUSION
We have considered the arguments raised by Appellants in the
Request, but find none of these arguments persuasive that our original
Decision misapprehended or overlooked any points raised by Appellants
resulting in error. It is our view Appellants have not identified any points
the Board misapprehended or overlooked. We decline to grant the relief
requested. This Decision on Appellants' "REQUEST FOR REHEARING"
is deemed to incorporate our earlier Decision by reference. See 37 C.F.R. §
41.52(a)(l).
DECISION
We have granted Appellants' request to the extent that we have
reconsidered our Decision, but we deny the request with respect to making
any changes therein. The Examiner's decision rejecting claims 1-5, 7, 8, 10,
and 11under35 U.S.C. § 103(a) remains AFFIRMED.
REHEARING DENIED
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