Ex Parte Pompei et al

Patent Trial and Appeal Board

Oct 22, 2013

11728956 (P.T.A.B. Oct. 22, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte FRANCESCO POMPEI, JANETTE H. LEE, and
JASON N. JARBOE1
__________

Appeal 2011-012016
Application 11/728,956
Technology Center 3700
__________

Before DEMETRA J. MILLS, JACQUELINE WRIGHT BONILLA, and
JOHN A. EVANS, Administrative Patent Judges.

BONILLA, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims directed to a
method or device for collecting temperature data of a plurality of
individuals, such as athletes. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 Appellants identify the Real Party in Interest as Exergen Corporation
(App. Br. 3).
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STATEMENT OF THE CASE
The Specification describes an apparatus for collecting temperature
data and an identifier (Spec. 6). Generally, “an identifier of an individual is
determined and the individual’s temperature is taken with a temperature
detector,” and the data are transmitted over a wireless communications path
to a processor (id. at 2). An individual’s unique “identifier,” such as a bib
number used by marathon runners, may be determined by an identification
reader, such as a scanner or bar code reader (id.).
Claims 1, 3-11, and 13-24 are on appeal. Independent claims 1 and 11
are representative and read as follows:
1. A method of collecting temperature data of a plurality of
competitive athletes participating in a race, comprising:
determining an identifier of each of the plurality of competitive
athletes using an identification reader included in a temperature
detector;
detecting body temperature data of each of the plurality of
competitive athletes associated with the identifier using the
temperature detector; and
transmitting the body temperature data and the identifier over a
wireless communications path to a processor using a transmitter in the
temperature detector.
11. An apparatus for collecting a temperature data, comprising:
a temperature detector;
an identification reader in the temperature detector, the
identification reader arranged to read an identifier from each of a
plurality of individuals; and
a transmitter in the temperature detector that transmits body
temperature data and identifiers of the plurality of individuals from
the temperature detector over a wireless communications path to a
processing unit.
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The claims stand rejected as follows:
I. Claims 1, 3-6, 8-10, and 22 under 35 U.S.C. § 103(a) as obvious
over Yarden2 in view of Mosher3 and Case;4
II. Claims 11 and 13-21 under 35 U.S.C. § 103(a) as obvious over
Yarden in view of Mosher;
III. Claims 23-24 under 35 U.S.C. § 103(a) as obvious over Yarden in
view of Mosher and Case, and further in view of Armstrong;5 and
IV. Claim 7 under 35 U.S.C. § 103(a) as obvious over Yarden in view of
Mosher and Case, and further in view of Pompei.6
Rejections I and II
The Examiner rejects claims 1, 3-6, 8-10, and 22 as obvious over
Yarden in view of Mosher and Case (Ans. 3). The Examiner also rejects
claims 11 and 13-21 as obvious over Yarden in view of Mosher (id.).
Appellants do not argue claims 3-6, 8-11, and 13-22 separately from
independent claim 1 (App. Br. 9-10), and therefore these claims stand or fall
with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Yarden teaches all elements of claim 1,
except that it does not describe using the same reader for a plurality of
individuals (Ans. 4). We similarly find that Figures 2-4, as well as column
8, line 52 - column 9, line 50, in Yarden discloses an apparatus comprising a

2 Yarden et al., US 7,479,116 B1, issued Jan. 20, 2009
3 Mosher, Jr. et al., US 2003/0173408 A1, issued Sept. 18, 2003.
4 Case, Jr. et al., US 2006/0136173 A1, issued Jun. 22, 2006.
5 Pompei, US 2004/0152991 A1, issued Aug. 5, 2004.
6 Armstrong, et al., Heat and Cold Illnesses During Distance Running,
America College of Sports Medicine Position Stand 1-22 (1995).
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temperature detector including an identification reader and a transmitter that
transmits the data and identifiers over a wireless communications path to a
processing unit. For instance, Yarden discloses a “reader 12” that reads
information such as “ID information,” as generated from a bar code reader,
and measures human body temperature (see, e.g., Yarden, col. 9, ll. 13-35).
In addition, we agree with the Examiner’s finding that “Mosher
teaches a temperature and bar code scanning method in which the same
reader (Figures 34A-C) is used to read multiple temperatures and barcodes
in order to track multiple people in the same environment (Figure 37)” (Ans.
4). Paragraphs [0102] – [0107] in Mosher, which discuss Figures 34 and 37,
indicate that Mosher discloses a device, such as a biometric turnstile system,
that reads/measures data from multiple individuals using the same device.
We likewise find that Case, in paragraphs such as [0030], [0042], and
[0048], teaches “monitoring and transmitting vitals such as body
temperatures for runners in a race via a wristwatch in order to determine the
relationship of physiological characteristics with optimal athletic
performance” (Ans. 4-5).
Under KSR, there must be “an apparent reason to combine the known
elements in the fashion claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007). KSR explains that a reason might be found in “interrelated
teachings of multiple patents; the effects of [design or marketplace] demands
. . . and the background knowledge possessed by a person having ordinary
skill in the art.” Id. KSR notes that obviousness can be determined with
reference to “the inferences and creative steps that a person of ordinary skill
in the art would employ.” Id.
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Here, the Examiner sufficiently establishes that it “would have been
obvious in view of Mosher to employ one reader device in Yarden in order
to track multiple individuals in the same environment” and it “would have
been obvious in view of Case to track body temperatures in runners in a race
in order to determine optimal athletic performance” (Ans. 4-5). An ordinary
artisan would have had reason to combine the above-mentioned elements to
track the type of data described in Yarden (e.g., ID information and body
temperature) in multiple individuals using the biometric turnstile system
described in Mosher, for example, to assess the temperature of athletes when
monitoring athletic performance, as described in Case (see also Case, Fig. 1
and [0039] (disclosing a “body temperature” monitor)).
Appellants argue that because “Yarden obtains its temperature data
from each individual user using an individually assigned patch, its
temperature detector is inappropriate for screening of a plurality of
individuals” (App. Br. 7). According to Appellants, because a patch would
only be used by a single individual, it could not provide identifiers and
temperatures of a plurality of individuals (id.). The Examiner persuasively
notes, however, that Figure 4 in Yarden discloses a temperature detector,
i.e., a “single detector 12,” such as a touch pen (as recited in Appellants’
claim 3), that could be used to detect more than one person’s information
(Ans. 8). Yarden teaches “reader 12 may include a means for isolating
reader from direct contact with patch 10” (Yarden, col. 9, ll. 18-21). In other
words, it is “reader 12” in Yarden, not “patch 10,” that corresponds to the
recited temperature detector including an identification reader, which can
detect more than one person’s information (Ans. 8). Appellants have
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provided no rebuttal evidence that the reader of Yarden is not capable of
detecting more than one person’s information.
Regarding Mosher, Appellants argue that this reference describes a
“wearable appliance,” such as a wrist band or patch, having a sensor, which
a user must carry or wear (App. Br. 7). By contrast, according to
Appellants, Mosher’s turnstile does not include a heat sensor (id. at 7-8).
Along these lines, Appellants contend in their Reply Brief that Mosher does
not disclose a device that comprises an identification reader included in a
temperature detector, as required in the claims (Reply Br. 3-4). More
specifically, according to Appellants, Mosher does not disclose a
temperature detector and a bar code reader in the same device (id. at 4-5).
Such arguments, however, disregard the fact that Yarden describes a
temperature detector and identification reader in the same device. In column
9 of Yarden, as flagged by the Examiner (Ans. 4), this reference teaches that
“reader 12 may include an ID reading means, such as a bar code reader,” and
reader 12 can be used to measure body temperature (Yarden, col. 9, ll. 28-
42). Appellants do not suggest that one could not include, or had no reason
to include, such a reader in the biometric turnstile system described in
Mosher.
Regarding Case, Appellants contend that this reference “requires a
personalized device to be attached to or carried by a user (i.e., a portable
device), its use over a large group of people and for an event such as a race
is not sustainable or cost effective” (App. Br. 8). Similarly, in relation to a
“hypothetical system combining the teachings of Yarden, Mosher, and
Case,” Appellants argue that the “requirement that each person have an
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individual detector makes the hypothetical system inappropriate for cost
effectively screening of many individuals at an event” (id. at 9).
As noted by the Examiner, a lack of cost effectiveness would not have
meant that an ordinary artisan had no other practical reasons to combine
elements in the cited references (Ans. 8). A given course of action often has
simultaneous advantages and disadvantages, and this does not necessarily
obviate reasons to combine teachings. See Winner Int’l Royalty Corp. v.
Wang, 202 F.3d 1340, 1349 n. 8 (Fed. Cir. 2000) (“The fact that the
motivating benefit comes at the expense of another benefit, however, should
not nullify its use as a basis to modify the disclosure of one reference with
the teachings of another. Instead, the benefits, both lost and gained, should
be weighed against one another.”)
Here, even assuming such a combination would not have been cost
effective, the Examiner sufficiently establishes that the combination would
have provided other advantages supporting a rationale to combine elements,
as discussed above. In any event, we note that Appellants provide no
evidence that the Examiner’s combination would have been cost ineffective.
For example, Appellants do not explain how it would be more cost effective
to have a technician scan “thousands of individuals” (App. Br. 8-9), rather
than having individuals wear a personalized device that provides
identification and temperature information to a detector, such as reader 12
disclosed in Yarden, as part of the biometric turnstile system as described in
Mosher. Likewise, Appellants do not explain how it would not be cost
effective to use a detector, such as reader 12 in Yarden, to detect
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temperature, such as by scanning across the temporal artery, and to read an
identifier, such as a bar code on a running bib.
The Examiner establishes a prima facie case of obviousness regarding
claims 1, 3-6, 8-11, and 13-22. Appellants do not persuade us with evidence
or argument, when considering the “totality of the record,” that the
preponderance of the evidence fails to establish that the claims are obvious
over the cited references. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992).
Rejection III
The Examiner rejects claims 23 and 24 as obvious over Yarden in
view of Mosher and Case, and further in view of Armstrong (Ans. 3, 7). The
Examiner notes that Yarden, Mosher, and Case do not teach determining
high and low body temperatures and physiological behavior (id. at 7). The
Examiner finds that “Armstrong teaches measuring body temperatures of
runners at the end of a race and indicates that high and low temperatures are
indicative of dehydration, heat stroke and hypothermia” (id.) The Examiner
states that it “would have been obvious in view of Armstrong to determine
the high and low body temperatures in Yarden modified by Mosher and
Case at the end of the race to ensure proper thermoregulation and recovery
of runners” (id.).
Appellants respond by stating that the “limitations of Yarden, Mosher,
and Case are not cured by Armstrong” because Armstrong “does not teach
an identification reader or a wireless transmitter included in a temperature
detector” (App. Br. 10).
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As discussed above, Yarden in view of Mosher and Case teach or at
least suggest the method of independent claim 1. The Examiner sufficiently
establishes that an ordinary artisan also would have a reason to “determin[e]
high or low body temperatures” as recited in claim 23, and “determin[e]
physiological behavior” as recited in claim 24, based on the understanding,
as described in Armstrong, that distance runners can experience “heat
exhaustion, heatstroke, hypothermia, and frostbite,” which can be prevented
by, inter alia, “measuring environmental stress” (Armstrong , pp. 44, 39).
The Examiner establishes by a preponderance of the evidence that claims 23
and 24 are obvious over the cited references.
Rejection IV
The Examiner rejects claim 7 as obvious over Yarden in view of
Mosher and Case, and further in view of Pompei (Ans. 5). The Examiner
acknowledges that Yarden, Mosher, and Case do not “expressly teach
detecting body temperature at the temporal artery” (id.). The Examiner
states, however, that “Pompei teaches taking body temperature
measurements by scanning the temporal artery due to its ease of locating and
contacting, as well as its relatively stable blood flow” (id.). According to the
Examiner, it “would have been obvious, in view of Pompei, to measure
temperature with Varden [sic] modified by Mosher and Case at the temporal
artery in order to increase precision and accuracy of the measurement of
internal body temperature” (id. at 5-6).
Appellants respond that Pompei does not “cure” the deficiencies of
the other references because Pompei “does not teach an identification reader
or a wireless communication path” (App. Br. 11).
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As discussed above, Yarden in view of Mosher and Case teach or at
least suggest the method of independent claim 1. The Examiner sufficiently
establishes that an ordinary artisan would have a reason to detect
temperature in athletes using a sensor that scans across the temporal artery,
for the reasons described in paragraph [0012] of Pompei. Appellants
provide no reason why one would not use a sensor, such as reader 12
disclosed in Yarden, as part of the biometric turnstile system as described in
Mosher, where the reader measures temperature by scanning across a
temporal artery and determines an identifier, e.g., reads a bar code on a
runner’s bib, on a plurality of competitive athletes. The Examiner
establishes by a preponderance of the evidence that claim 7 is obvious over
the cited references.
SUMMARY
We affirm the obviousness rejections of: (I) claims 1, 3-6, 8-10, and
22 over Yarden in view of Mosher and Case; (II) claims 11 and 13-21 over
Yarden in view of Mosher; (III) claims 23-24 over Yarden in view of
Mosher and Case, and further in view of Armstrong; and (IV) claim 7 over
Yarden in view of Mosher and Case, and further in view of Pompei.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED
cdc