Ex Parte Leyvi

Patent Trial and Appeal Board

Oct 28, 2016

12525914 (P.T.A.B. Oct. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/525,914 08/05/2009 Evgeniy Leyvi
38107 7590 11/01/2016
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2007P00078WOUS 2436
EXAMINER
DUBASKY, GIGI L
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
11/01/2016 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):
marianne.fox@philips.com
debbie.henn@philips.com
patti.demichele@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EVGENIY LEYVI
Appeal2015-006351
Application 12/525,914
Technology Center 2400
Before KRISTEN L. DROESCH, JOHN P. PINKERTON, and
NORMAN H. BEAMER, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 7, 8, 10, 11, 19, 20, 24, and 30-38. Claims 1---6, 9,
12-18, 21-23, and 25-29 are canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Koninklijke Philips Electronics NV, as the real party
in interest. App. Br. 1.
Appeal2015-006351
Application 12/525,914
STATEivIENT OF THE CASE
Introduction
Appellant's disclosed and claimed invention is generally directed to a
medical information delivery system configured for operation in conjunction
with an entertainment device configured to present an entertainment
audio/video content datastream, which system includes means for selecting
patient-specific content for insertion into the datastream. Spec. 2: 11-16.2
Claims 10 and 32 are representative and reproduced below (with the
disputed limitations emphasized):
10. A medical information delivery system comprising:
a television configured to present an entertainment
audio/video content datastream;
a multiplexor configured to insert additional content into
the entertainment audio/video content datastream as one or
more of (i) video displayed in a sub window, (ii) a scrolling
banner, and (iii) superimposed text;
one or more sensors configured to acquire patient
physiological measurements of a patient in real time while the
patient is viewing an entertainment audio/video content
datastream presented by the television;
a selection controller configured to select patient specific
content for insertion by the multiplexor into the entertainment
audio/video datastream presented by the television; and
a data analyzer configured to analyze the one or more
patient physiological measurements and to cause the selection
controller to select patient specific medical advice content in
2 Our Decision refers to the Final Office Action mailed June 25, 2014
("Final Act."); Appellant's Appeal Brief filed Nov. 25, 2014 ("App. Br.")
and Reply Brief filed June 11, 2015 ("Reply Br."); the Examiner's Answer
mailed Apr. 17, 2015 ("Ans."); and, the original Specification filed Aug. 5,
2009 ("Spec.").
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Application 12/525,914
real time in accordance with the analyzed patient physiological
measurements;
wherein the one or more sensors, data analyzer, selection
controller, and multiplexor are configured to present patient
specific medical advice content in real time in accordance with
the analyzed patient physiological measurements on the
television as one or more of (i) video displayed in a sub
window, (ii) a scrolling banner, and (iii) superimposed text.
32. A medical information delivery system comprising:
a television configured to present a multi-channel
entertainment audio/video content datastream;
one or more sensors configured to acquire patient
physiological measurements of a patient in real-time while the
patient is viewing a channel of the multi-channel entertainment
audio/video content datastream presented by the television;
a selection controller configured to cause the television to
switch to a channel; and
a data analyzer configured to analyze the one or more
patient physiological measurements and to cause the selection
controller to svvitch the channel of the mi1lti-channel
entertainment audio/video content datastream presented by the
television based on the analysis of the patient physiological
measurements.
Rejections on Appeal
Claims 10, 11, 19, 20, 24, 37, and 38 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Brown (US 6,375,469 Bl; issued Apr.
23, 2002) and Kehr et al. (US 2003/0036683 Al; published Feb. 20, 2003)
("Kehr"). Final Act. 4--10.
Claims 7 and 36 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Kehr, as applied to claim 10, and further in
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Application 12/525,914
view of Klosterman (US 2012/0266194 Al; published Oct. 18, 2012). Final
Act. 11, 17-18.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Kehr, as applied to claim 10, and further in
view of Kahn (US 2002/0118299 Al; published Aug. 29, 2002). Final
Act. 12.
Claims 30 and 31 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Kehr, as applied to claim 10, and further in
view ofRamadas et al. (US 2007/0167689 Al; published July 19, 2007)
("Ramadas"). Final Act. 13.
Claims 32-34 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Ramadas. Final Act. 14--16.
Claim 35 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brown and Kehr, as applied to claim 10, and further in
view of Dahlin et al. (US 2004/0260577 Al; published Dec. 23, 2004)
("Dahlin"). Final Act. 16-17.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments in the Briefs and are not persuaded the Examiner has erred.
Unless otherwise noted, we adopt as our own the findings and reasons set
forth by the Examiner in the Office Action from which this appeal is taken
(Final Act. 4--18) and in the Examiner's Answer (Ans. 3-8), and we concur
with the conclusions reached by the Examiner. For emphasis, we consider
and highlight specific arguments as presented in the Briefs.
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Application 12/525,914
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Regarding claim 10, Appellant argues the Office Action conflates the
two different embodiments of Brown-"the web page embodiment for
which spatial overlaying is used, versus the television embodiment in which
temporal splicing is used"-to teach a multiplexor configured to insert
additional content into a television entertainment datastream "as one or more
of (i) video displayed in a sub window, (ii) a scrolling banner, and (iii)
superimposed text" and present patient specific medical advice content in
real time on the television "as one or more of (i) video displayed in a sub
window, (ii) a scrolling banner, and (iii) superimposed text." App. Br. 10-
12; Reply Br. 3. With respect to the Examiner's finding that a person of
ordinary skill in the art would appreciate that the word "preferably" in
Brown's description of the television embodiment does not exclude other
alternative embodiments, Appellant argues "the mere insertion of the word
'preferably' does not provide enabling disclosure for the modification of
Brown contemplated by the Examiner." Reply Br. 3--4. Appellant further
argues Kehr fails to disclose acquiring patient physiological measurements
in real time "while the patient is viewing an entertainment audio/video
datastream presented by the television" and the television of Kehr functions
as a user interface for the medical monitoring device, rather than for
presenting an entertainment datastream. App. Br. 12-13; Reply Br. 5.
We are not persuaded by Appellant's arguments that the Examiner
erred. The Examiner finds, and we agree, that in the web page embodiment,
3 We decide the rejection of claims 10, 11, 19, 20, 24, 37, and 38, which are
rejected under the first-stated ground of rejection, on the basis of
representative claim 10. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/525,914
Brown teaches the composite of the entertainment content and health content
is displayed "preferably in a spatial composite," with the health content in
sub-windows. Ans. 3--4 (citing Brown Fig. 2, col. 3, 11. 1-5, col. 4, 11. 51-
55). The Examiner also finds, and we agree, Brown teaches, in the
embodiment with television programming as the source of entertainment,
"the composite is preferably a temporal composite." Id. at 4 (citing Brown,
col. 8, 11. 55-57). The Examiner further finds that one of ordinary skill in
the art would appreciate that a preferred alternative does not exclude other
alternatives. Id. at 4. In other words, the Examiner finds, and we agree,
Brown's preference for a temporal composite in the television programming
embodiment does not exclude the use of Brown's spatial composite in the
television programming embodiment. Thus, we are not persuaded by
Appellant's argument that the Examiner conflates the web page and
television embodiments of Brown.
We also are not persuaded by Appellant's argument that Brown does
not provide an enabling disclosure for the modification of Brown
contemplated by the Examiner. See Reply Br. 4. Here, claim 10 stands
rejected as being obvious over Brown and Kehr, and the proper standard
under 35 U.S.C. § 103(a) is "what the combined teachings of the references
would have suggested to those of ordinary skill in the art." In re Keller, 642
F.2d 413, 425 (CCPA 1981). Furthermore, under§ 103, "a reference need
not be enabled; it qualifies as a prior art, regardless, for whatever is
disclosed therein." Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d
1313, 1357 (Fed. Cir. 2003).
We also are not persuaded by Appellant's arguments that Kehr fails to
teach acquiring patient physiological measurements in real time "while the
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Application 12/525,914
patient is viewing an entertainment audio/video datastream presented by the
television" because the television of Kehr functions as a user interface for
the medical monitoring device, rather than for presenting an entertainment
datastream. These arguments attack the teachings of Kehr individually,
whereas the rejection is based on the combined teachings of Brown and
Kehr. App. Br. 12-13; Reply Br. 5. "Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references." In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). The relevant inquiry is whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of the references. See In re Keller,
642 F.2d at 425. Here, the Examiner relies on Brown as teaching acquiring
patient physiological measurements while the patient is viewing
entertainment content. Ans. 4 (citing Brown, col 5, 1. 1---col. 6, 1. 22, col. 7,
11. 1-39). The Examiner relies on Kehr as teaching
one or more monitors and sensors acquire and analyze patient
physiological measurements of a patient in real time [citing
Kehr i-fi-159---68, 85, 228] to select and provide in real-time the
patient-specific medical advice content, emergency action or
medical advertisements in accordance with the patient's in-real-
time analyzed measurements as prompted messages [citing
Kehr i-fi-1 86---68, 171, 180, 319-320].
Ans. 4.
Appellant has not provided persuasive evidence or arguments to rebut
these findings and, therefore, we agree with them and adopt them as our
own. For these reasons, and based upon a preponderance of the evidence,
we are not persuaded the Examiner erred in ( 1) finding the combined
teachings of Brown and Kehr teach or suggest the disputed limitations of
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claim 10 and (2) concluding that the combination of Brown and Kehr
renders the subject matter of claim 10 obvious under 35 U.S.C. § 103(a).
Accordingly, we sustain the Examiner's rejection of claim 10, as well as
independent claim 24, and dependent claims 11, 19, 20, 37, and 38, which
are not argued separately. See App. Br. 14. For the same reasons discussed
supra regarding claim 10, we also sustain the Examiner's rejections of
claims 7, 8, 30, 31, 35, and 36, which are not separately argued and for
which reversal is urged for the reasons argued with respect to claim 10. Id.
at 17-18.
Rejection of Claim 32 under§ 103(a)
In the Appeal Brief, Appellant argues Ramadas does not mention a
television or a multi-channel entertainment audio/video content datastream,
much less switching a channel of the datastream presented by the television.
App. Br. 15. Appellant argues that "Ramadas fairly suggests modifying the
flow of content presented by the entertainment device in response to a
measured physiological state[, b Jut changing the channel of a television ...
does not merely modify the flow content-rather, it changes the content
entirely, to a different channel." Id. at 16.
We are not persuaded by Appellant's arguments the Examiner has
erred. First, Appellant's arguments are not persuasive because they attack
Ramadas individually, whereas the Examiner relies on the combined
teachings of Brown and Ramadas. See In re Merck, 800 F .2d at 1097. The
Examiner finds Brown teaches a television, a multichannel datastream, a
selection controller to switch channels of the datastream presented by the
television, and a data analyzer to analyze the one or more patient
physiological measurements and to cause the selection controller to select
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Application 12/525,914
medical content in accordance with the analyzed patient physiological
measurements to be presented while the patient is viewing a channel of the
datastream. See Final Act. 14. The Examiner finds Ramadas teaches
acquiring physiological measurements of a patient in real-time by one or
more sensors to determine the emotional state or the physiological condition
of the user/patient and to alter a channel having gentle contents or exciting
contents in accordance with the current physiological measurements of the
user/patient. Id. at 14--15 (citing Ramadas i-fi-f 17, 20, 21 ). Appellant has not
provided persuasive evidence or arguments to rebut these findings and,
therefore, we agree with them and adopt them as our own. We also agree
with the Examiner that the combination of Brown and Ramadas teaches or
suggests the disputed limitation of claim 32 because the teaching of
Ramadas of changing the content flow of a multi-media playback device
based on the inferred emotional state of the user at least suggests changing
the channel of the datastream of the television of Brown based on the
analysis of the patient physiological measurements. The Supreme Court
guides: the "combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'l v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
a puzzle" because the skilled artisan is "a person of ordinary creativity, not
an automaton." KSR, 550 U.S. at 420-21. This reasoning is applicable here.
Thus, we find a preponderance of the evidence supports the Examiner's
finding that the combined teachings of Brown and Ramadas would have
taught or suggested the disputed limitation of claim 32. Because we are not
persuaded of error regarding the Examiner's legal conclusion of
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obviousness, we sustain the Examiner's rejection of claim 32. We also
sustain the rejection of claim 33 which is not argued separately. In regard to
claim 34, Appellant's arguments regarding the limitation reciting a
multiplexor to insert content into the datastream "as one or more of (i) video
displayed in a sub-window, (ii) a scrolling banner, and (iii) superimposed
text," are the same as those presented in regard to claim 10. For the same
reasons stated supra regarding claim 10, we also sustain the Examiner's
rejection of claim 34.
DECISION
We affirm the Examiner's rejections of claims 7, 8, 10, 11, 19, 20, 24,
and 30-38 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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