Ex Parte NanikashviliDownload PDFPatent Trial and Appeal BoardSep 11, 201511144891 (P.T.A.B. Sep. 11, 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. 11/144,891 06/03/2005 Reuven Nanikashvili 40007139-0003-002 3184 26263 7590 09/11/2015 DENTONS US LLP P.O. BOX 061080 CHICAGO, IL 60606-1080 EXAMINER JIAN, SHIRLEY XUEYING ART UNIT PAPER NUMBER 3769 MAIL DATE DELIVERY MODE 09/11/2015 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 REUVEN NANIKASHVILI ____________ Appeal 2013-002747 Application 11/144,8911 Technology Center 3700 ____________ Before STEFAN STAICOVICI, EDWARD A. BROWN, and LEE L. STEPINA, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Reuven Nanikashvili (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting under 35 U.S.C. § 103(a) claims 1–4, 6, and 34–43 as unpatentable over Mazar (US 2004/0117204 A1, pub. June 17, 2004) and Cosentino (US 2004/0102685 A1, pub. May 27, 2004). 2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 According to Appellant, the real party in interest is Life Watch Technologies Ltd. Br. 3. 2 Claims 5 and 7–33 have been canceled. Id. Appeal 2013-002747 Application 11/144,891 2 SUMMARY OF DECISION We AFFIRM-IN-PART. INVENTION Appellant’s invention “relates to systems and methods for monitoring the health of one or more multiple persons, especially within a building that includes multiple rooms.” Spec. ¶ 1. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. A terminal comprising: a wireless transmitter; a wireless receiver, adapted to receive processed physiological data; wherein the processed physiological data is wirelessly transmitted by a wireless telemeter that wirelessly receives physiological data collected by at least one sensor and processes the physiological data to provide the processed physiological data; a power line transmitter, coupled to the wireless receiver; a terminal controller, coupled to the power line transmitter and the wireless receiver, for controlling the power line transmitter and the wireless receiver; wherein the terminal controller is adapted to at least partially process the processed physiological data; wherein the process comprises performing health event detection; wherein the terminal controller is further adapted to determine whether to transmit said processed physiological data over the at least one power line or to wirelessly transmit said processed physiological data over a wireless connection; wherein the wireless transmitter is arranged to wirelessly transmit the processed physiological information if it is determined to wirelessly transmit the processed information; and wherein the power line transmitter is arranged to transmit, over the at least one power line the processed Appeal 2013-002747 Application 11/144,891 3 physiological information if it is determined to wirelessly transmit the processed information over the at least one power line. ANALYSIS Claims 1–4, 6–38, 41, and 42 Appellant has not presented arguments for the patentability of claims 2–4, 6–38, 41, and 42 apart from claim 1. See Br. 10–13. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(iv) (2014), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2–4, 6–38, 41, and 42 standing or falling with claim 1. The Examiner finds that Mazar discloses most of the limitations of claim 1, but “fails to disclose power line transmission.” Final Act. 4 (citations omitted). Nonetheless, the Examiner finds that “Cosentino . . . discloses power line carrier transmission . . . as a suitable wired communication method” for transmitting physiological data. Id. (citing Cosentino ¶ 44). The Examiner thus concludes that it would have been obvious for a person of ordinary skill in the art “to use known methods such as power line carrier transmission as disclosed by Cosentino with [the] system of Mazar to provide the expected results of transmitting data from one location to another.” Id. Appellant argues that because Cosentino’s electronic scale communicates solely with a wired modem, a wireless connection or a power line, Cosentino teaches away from having a terminal controller coupled to and controlling both a wireless receiver and a power line transmitter, as called for by claim 1. Br. 10–11. Appeal 2013-002747 Application 11/144,891 4 Appellant’s arguments are not commensurate with the Examiner’s rejection. The Examiner used the disclosure of Mazar, and not Cosentino, to disclose a terminal controller adapted to process processed physiological data, perform health event detection, and to determine whether to transmit physiological data over a wired connection or over a wireless connection. See Final Act. 3 (citing Mazar, ¶¶ 40, 42, 46, 56, 90, and 105). As such, the Examiner is not proposing to include Cosentino’s electronic scale in the system of Mazar, but rather using a power line carrier transmission, as taught by Cosentino, as an alternative to a wireless or wired transmission in the system of Mazar to transmit physiological data. Cosentino does not “criticize, discredit or otherwise discourage” using a power line carrier transmission in addition to a wireless transmission. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Moreover, Mazar specifically discloses an interrogator/transceiver unit 108 that “functions in a hybrid form utilizing wireless communication when available and defaulting to a local wireless portal or a wired connection when the wireless communication becomes unavailable.” Mazar, ¶ 42 (emphasis added). Hence, the Examiner’s modification is an improvement to Mazar’s system to add Cosentino’s power line carrier transmission, to lead to the predictable result of having an additional communication method, and the modification is well within the skill of one having ordinary skill in this art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”). Appeal 2013-002747 Application 11/144,891 5 In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of independent claim 1, and claims 2–4, 6–38, 41, and 42 falling with claim 1, as unpatentable over Mazar and Cosentino. Claim 39 Claim 39 depends from claim 1 and adds the limitation that the claimed terminal is adapted to determine, in response to multi-path interference, whether to transmit physiological data over a power line or over a wireless connection. See Br. 16. The Examiner finds that although “Mazar and Cosentino fail to disclose evaluating communication interference apart from evaluating signal strength and communication availability,” nonetheless, “it would have been obvious to one of ordinary skill in the art of data transmission to evaluate communication interference to provide the expected results of choosing optimal communication paths.” Final Act. 5. Appellant argues that the Examiner’s conclusion is based on “forbidden hindsight” because “Mazar explicitly states that the ITU can automatically fail-back to wired communication when there may be a compromised communication (paragraph [0046]).” Br. 13. Thus, according to Appellant, “even in the presence of multi-path interference a change to wired communication will not occur unless the communication is compromised.” Id. Once more, Appellant’s arguments are not commensurate with the Examiner’s rejection. The Examiner recognizes that Mazar’s system, as modified by Cosentino, fails to disclose evaluating communication interference. See Final Act. 5. However, the Examiner correctly finds that Appeal 2013-002747 Application 11/144,891 6 Mazar’s ITU 108 “performs self-diagnostic tests for checking its wireless capabilities . . . including checking wireless availability, wireless signal strength and bandwidth, and provides a solution scheme for reverting to wired communication in the presence of a wireless issue.” Ans. 10–11 (citing Mazar, ¶¶ 46 and 115). As such, because “multi-path interference is a type of wireless communication error” (see Ans. 11), we agree with the Examiner’s conclusion that it would have been obvious for a person of ordinary skill in the art to further modify the terminal of Mazar, as modified by Cosentino, “to evaluate communication interference to provide the expected results of choosing optimal communication paths.” Final Act. 5. Appellant has not shown error in the Examiner’s reasoning. Therefore, we are not persuaded that the Examiner relied on impermissible hindsight, as Appellant contends. Hence, we likewise sustain the rejection of claim 39 over the combined teachings of Mazar and Cosentino. Claims 40 and 43 Claims 40 and 43 require, inter alia, that the claimed terminal either wirelessly relays or wirelessly receives physiological information to or from another terminal. See Br. 16–17. The Examiner finds that “Mazar discloses in paragraphs 0094 – 0097 that ITU [108] has data repeater capabilities and thus is capable of wirelessly receiving data from other ITUs to retransmit to a central server.” Final Act. 5. Thus, according to the Examiner, “it is inherent that an ITU, having the transmission capabilities as disclosed in Mazar, would be capable of Appeal 2013-002747 Application 11/144,891 7 communicating and relaying physiological data to and from another ITU.” Ans. 10 (emphasis added). Appellant argues that Mazar’s “data repeater is limited to exchanging data between itself and medical devices (not other repeaters) and to itself and the repository (paragraph [0100]).” Br. 12 (emphasis omitted). We agree with Appellant’s position as the Examiner is relying on a theory of inherency to establish that Mazar’s repeater device 610 is capable of communicating and relaying physiological data to and from another repeater device. “Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted). Although the Examiner is correct that Mazar’s repeater device 610 can communicate and relay data with other devices, this is no way demonstrates that Mazar’s repeater device 610 is capable of communicating and relaying data to and from another repeater device. Just because Mazar’s repeater device 610 communicates with medical device 604 and with data repository 614 does not necessarily mean that it is capable of communicating with another repeater device 610, as the Examiner finds. See Mazar, ¶¶ 95, 97, and Fig. 5. As such, although Mazar’s repeater device 610 communicates and exchanges information with medical device 604 and with data repository 614, this does not necessarily mean that Mazar’s repeater device 610 is adapted to wirelessly relay or wirelessly receive physiological information to or from another repeater device 610. Therefore, we do not sustain the rejection under 35 U.S.C. § 103(a) of claims 40 and 43 as unpatentable over Mazar and Cosentino. Appeal 2013-002747 Application 11/144,891 8 SUMMARY The Examiner’s decision to reject claims 1–4, 6, and 34–43 is affirmed as to claims 1–4, 6, 34–39, 41, and 42 and reversed as to claims 40 and 43. 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-IN-PART rvb Copy with citationCopy as parenthetical citation