Ex Parte Schmitt

Patent Trial and Appeal Board

Feb 27, 2017

13635989 (P.T.A.B. Feb. 27, 2017)

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.
13/635,989 09/19/2012 Ruediger Schmitt 2010P00171WOUS 8161
24737 7590 03/01/2017
PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS
EXAMINER
465 Columbus Avenue SKRIPNIKOV, ALEX
Suite 340
Valhalla, NY 10595 ART UNIT PAPER NUMBER
2416
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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 RUEDIGER SCHMITT1
Appeal 2016-006586
Application 13/635,989
Technology Center 2400
Before ALLEN R. MacDONALD, ERIC B. CHEN, and
DAVID J. CUTITTAII, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—20, all pending claims of the application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is Koninklijke
Philips Electronics N.V. Appeal Br. 1.
Appeal 2016-006586
Application 13/635,989
STATEMENT OF THE CASE
According to Appellant, the application relates to timely and energy
efficient acquisition of accurate neighborhood access network information
for a patient physiologic monitoring system. Spec. 1, 2.2 Claims 1, 10, and
18 are independent. Claims 1,3, and 7 are illustrative and are reproduced
below:
1. A method of transferring a patient monitoring device
between radio access technology (RAT) networks, comprising:
establishing a first communication link between a multi-mode
patient monitoring device and a first access point over a first
RAT network (RAT-1), wherein the patient monitoring device
communicates with a hospital Internet protocol (IP) network via
the first access point;
collecting, with a scanning device located remotely from the
multi-mode patient monitoring device, information regarding
one or more other candidate networks (RAT-2) over which the
patient monitoring device is capable of communicating with the
hospital IP network;
transmitting the candidate network information from the
scanning device to the patient monitoring device; and
establishing a second communication link between the patient
monitoring device and a second access point for the hospital IP
network.
2 Throughout this Opinion, we refer to: (1) Appellant’s Specification filed
September 19, 2012 (Spec.); (2) the Final Office Action (Final Act.) mailed
June 30, 2015; (3) the Appeal Brief (Appeal Br.) filed November 24, 2015;
(4) the Examiner’s Answer (Ans.) mailed April 21, 2016; and (5) the Reply
Brief (“Reply Br.”) filed June 16, 2016.
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Application 13/635,989
3. The method according to claim 1, wherein the collected
information includes quality of service information comprising
one or more of signal quality information, bandwidth availability
information, and link reliability information, and wherein only
networks having access points providing a quality of service
better than a quality of service for the first communication link
are selected as candidate networks.
7. The method of claim 1, wherein the collected candidate
network information is transmitted to the patient monitor device
using layer 2 frames adapted to carry the information, in response
to a request from the patient monitoring device.
Appeal Br. 30-31 (Claims App’x).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Ward et al. (“Ward”)
Barber
Bahl et al. (“Bahl”)
Kotzin
Chung et al. (“Chung”)
Soomro et al. (“Soomro”)
US 5,542,097
US 2004/0196812 Al
US 2005/0239497 Al
US 2006/0040656 Al
US 7,586,876 B2
WO 2007/138530 A2
July 30, 1996
Oct. 7, 2004
Oct. 27, 2005
Feb. 23, 2006
Sept. 8, 2009
Dec. 6, 2007
REJECTIONS
Claims 1, 2, 6, 9, 10, 14, 15, and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Soomro and Chung. Final
Act. 3-11.
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Application 13/635,989
Claims 3,12, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Soomro, Chung, and Ward. Final
Act. 11-12.
Claims 4, 5, and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Soomro, Chung, and Kotzin. Final
Act. 12-14.
Claims 7, 8, 16, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Soomro, Chung, and Bahl. Final
Act. 14-15.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Soomro, Chung, and Barber. Final Act. 16.
Our review in this appeal is limited only to the above rejections and
issues raised by Appellant. We have not considered other possible issues
that have not been raised by Appellant and which are, therefore, not before
us. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Does the Examiner err in finding the combination of Soomro and
Chung teaches or suggests “establishing a first communication link between
a multi-mode patient monitoring device and a first access point over a first
RAT network (RAT-1), wherein the patient monitoring device
communicates with a hospital Internet protocol (IP) network via the first
access point,” as recited in claim 1?
2. Does the Examiner err in finding the combination of Soomro and
Chung teaches or suggests “collecting, with a scanning device located
remotely from the multi-mode patient monitoring device, information
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Application 13/635,989
regarding one or more other candidate networks (RAT-2) over which the
patient monitoring device is capable of communicating with the hospital IP
network,” as recited in claim 1?
3. Does the Examiner err in finding Ward teaches or suggests
wherein the collected information includes quality of service
information comprising one or more of signal quality information,
bandwidth availability information, and link reliability information,
and wherein only networks having access points providing a quality of
service better than a quality of service for the first communication link
are selected as candidate networks,
as recited in claim 3?
4. Does the Examiner err in finding Bahl teaches or suggests
“wherein the collected candidate network information is transmitted to the
patient monitor device using layer 2 frames adapted to carry the
information, in response to a request from the patient monitoring device,” as
recited in claim 7?
ANALYSIS
We have reviewed the Examiner’s rejections in light of the
Appellant’s arguments that the Examiner has erred. We disagree with
Appellant’s contentions and we adopt as our own: (1) the findings and
reasons set forth by the Examiner in the Office Action from which this
appeal is taken (Final Act. 3—15) and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief
(Ans. 15—21). We concur with the findings and conclusions reached by the
Examiner, and we highlight the following for emphasis.
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Application 13/635,989
Issue 1: Claims 1, 2, 9, 10, 14, 15, and 18
Appellant argues the Examiner errs in rejecting claim 1 under
35 U.S.C. § 103(a) as unpatentable over the combination of Soomro and
Chung because “the subject claim is distinguished from the cited references
at least in that the patient monitoring device communicates with a hospital
IP network” that is a “wired hospitals [sic] IP network” and because “[t]he
subject claim recites the patient monitoring device only communicates with
the hospital IP network.” Appeal Br. 8 (emphasis added).
We find this argument unpersuasive. Claim 1 recites no limitation
concerning a “wired hospital IP network.” Instead, the claim recites “a
hospital IP network.” Claim 1 also fails to limit the patient monitoring
device to only communicate with the hospital IP network. Accordingly,
Appellant argues for patentability on the basis of limitations that are not
recited in the claim. Limitations not appearing in the claims cannot be relied
upon for patentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Appellant argues the Examiner’s interpretation of the claim term
“hospital IP network” as a network located in a hospital is in error. Appeal
Br. 8. Instead, according to Appellant, hospital IP network “describes a
particular type of network with a specific set of rules, frequency spectrums,
and the like, that distinguish the hospital IP network from other networks.”
Id. We disagree because Appellant argues limitations that are not in the
claim. We find the Examiner’s interpretation to be consistent with
Appellant’s Specification and the plain meaning of the claim language. We
also agree with the Examiner’s conclusion that the word “hospital” in
“hospital IP network” is “non-functional descriptive material. . . .[and] is
merely a label given to the IP network, yet the claims do not show how
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‘hospital[] IP network’ affects the collecting, establishing, communicating
and transmitting steps.” Ans. 17—18. In response, Appellant argues “one of
skill in the art would recognize that the communication links recited in the
claims would be implemented in the hospital.” Reply Br. 3. We find this
argument unpersuasive because this interpretation is inconsistent with the
scope of claim 1, which merely indicates the links are used for the patient
monitoring device to communicate with a hospital IP network via a first or
second access point. Moreover, even taking Appellant’s position, for the
sake of argument, Appellant still fails to establish how the preferred
interpretation results in non-obviousness over the teachings of Soomro and
Chung.
Issue 2: Claims 1, 2, 9, 10, 14, 15, and 18
The Examiner relies on Soomro to teach or suggest “collecting, with a
scanning device located remotely from the multi-mode patient monitoring
device, information regarding one or more other candidate networks (RAT-
2) over which the patient monitoring device is capable of communicating
with the hospital IP network.” Final Act. 4 (citing Soomro 9:7—19, 8:4—10,
8:21-9:6, 6:5-12 and Fig. 7A).
In response, Appellant argues
Soomro only teaches that the AP reporting apparatus 700
collects information regarding one or more candidate networks
over which the ST A is capable of communicating. In other
words, the AP reporting apparatus of Soomro finds candidate
networks, regardless of environment, that the STA is capable of
communication with [sic]. If the invention of Soomro were
implemented in a hospital environment, then: (1) additional
communications infrastructure may be required for the AP
reporting apparatus to properly function within the hospital IP
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network; and (2) the AP reporting apparatus can pick up other
candidate networks with which the ST A can communicate
(such as a WiFi network in a neighboring building, a cellular
phone “hot spot” from a parking lot, and the like). Soomro
does not disclose that the AP and ST A are confined to a
defined network (i.e., a hospital IP network). Accordingly,
Soomro fails to teach every feature of the subject claim.
Appeal Br. 10 (emphasis added).
We find this argument unpersuasive because the claimed patient
monitoring device is not limited to only communicate with the hospital IP
network. Appeal Br. 30. Hence, Appellant argues for patentability on the
basis of limitations that are not recited in the claim. Self, 671 F.2d at 1348.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 1. We also sustain the Examiner’s § 103(a) rejection of
independent claims 10 and 18, which are argued with independent claim 1,
for similar reasons. Appeal Br. 12—18. Dependent claims 14, 15, 19, 20, 22,
23, 26, 28—34, 37—41, and 46-49, are either nominally argued separately, or
are not argued separately, and fall with their respective independent claims.
Appeal Br. 7—11.
Issue 3: 35 U.S.C. § 103: Claims 3, 12, and 19
In the rejection of claim 3 under 35 U.S.C. § 103(a), the Examiner
relies on Ward to teach or suggest the “collected information includes
quality of service information comprising one or more of signal quality
information, bandwidth availability information, and link reliability
information, and wherein only networks having access points providing a
quality of service better than a quality of service for the first communication
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Application 13/635,989
link are selected as candidate networks,” as recited in claim 3. Final Act. 12
(citing Ward col. 3,11. 10-30).
Appellant argues the Examiner errs in rejecting claim 3 under
35 U.S.C. § 103(a) because “[tjhere is nothing in this cited portion of Ward
related to the collected information includes quality of service information
comprising one or more of signal quality information, bandwidth availability
information, and link reliability information.” Appeal Br. 18.
We find Appellant’s argument unpersuasive because we agree with
the Examiner’s finding that Ward’s disclosure of ranking cells based on
signal strength suggests “signal quality information,” as claimed. Final
Act. 12; Ans. 21. We also agree Ward’s disclosure that “the [mobile station
controller] is provided with a ranked candidate list of target cells that are
believed to be better servers, together with a handoff request” (Ward col. 3,
11. 20—22) teaches or suggests “wherein only networks having access points
providing a quality of service better than a quality of service for the first
communication link are selected as candidate networks,” as claimed.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 3. We also sustain the Examiner’s § 103(a) rejection of claims 12
and 19, which are argued with claim 3, for similar reasons. Appeal Br. 19—
21.
Issue 4: 35 U.S.C. § 103: Claims 7, 8, 16, 17, and20
In the rejection of claim 7 under 35 U.S.C. § 103(a), the Examiner
relies on the combination of Soomro, Chung, and Bahl to teach or suggest
“wherein the collected candidate network information is transmitted to the
patient monitor device using layer 2 frames adapted to carry the information,
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Application 13/635,989
in response to a request from the patient monitoring device,” as claimed.
Final Act. 14—15.
Appellant argues the Examiner errs in rejecting claim 7 because
“[tjhere is nothing in this cited portion of Bahl regarding transmitting the
collected candidate network information to the patient monitor device using
layer 2 frames adapted to carry the information, in response to a request
from the patient monitoring device.” Appeal Br. 22—23 (emphasis omitted).
We find Appellant’s argument unpersuasive because we agree with
the Examiner’s finding that by reproducing and arguing a different
paragraph than that cited by the Examiner, Appellant’s arguments fail to
address the Examiner’s finding. Ans. 22 (citing Bahl 1117).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 7. We also sustain the Examiner’s § 103(a) rejection of claims 8,
16, 17, and 20, which are argued with claim 7, for similar reasons. Appeal
Br. 22-28.
Claim 6
In response to the rejection of claim 6, Appellant argues “Soomro
does not teach storing candidate network information [] in a database of the
hospital IP network, as recited in claim 6.” Appeal Br. 11.
Such a conclusory statement, however, amounting to little more than a
paraphrasing of the claim language and a general denial, is unpersuasive to
rebut the prima facie case produced by the Examiner. Cf. 37 C.F.R.
§ 41.37(c)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”);
see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that
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Application 13/635,989
the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir.
1991) (“It is not the function of this court to examine the claims in greater
detail than argued by an appellant, looking for [patentable] distinctions over
the prior art.”). We, therefore, also sustain the rejection of claim 6.
Claims 4, 5, and 13
In arguing claims 4, 5, and 13, Appellant repeats the substance of the
arguments made for claim 1. Appeal Br. 21—22. As discussed above we
find these arguments to be unpersuasive. Appellant contends Kotzin fails to
overcome the deficiencies of Soomro and Chung. We find this contention
unpersuasive of error because Appellant does not identify error in the
rejection of claim 1. Accordingly, we sustain the rejections of claims 4, 5,
and 13.
Claim 11
In arguing claim 11, Appellant repeats the substance of the arguments
made for claim 1. Appeal Br. 28. As discussed above we find these
arguments to be unpersuasive. Appellant contends Barber fails to overcome
the deficiencies of Soomro and Chung. We find this contention
unpersuasive of error because Appellant does not identify error in the
rejection of claim 1. Accordingly, we sustain the rejection of claim 11.
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DECISION
We affirm the Examiner’s decision rejecting claims 1—20 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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