Ex Parte Sebastian et al

Patent Trial and Appeal Board

Jun 19, 2017

12393537 (P.T.A.B. Jun. 19, 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.
12/393,537 02/26/2009 Richard L. Sebastian D125 1030.2 1929
118311 7590 06/21/2017
Toering Patents PLLC
1602 Village Market Boulevard
Suite 220
Leesburg, VA 20175
EXAMINER
TOTH, KAREN E
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
06/21/2017 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):
rick @ toeringpatents .com
admin@toeringpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD L. SEBASTIAN
and KENDALL L. BELSLEY1
Appeal 2016-001821
Application 12/393,537
Technology Center 3700
Before TAWEN CHANG, TIMOTHY G. MAJORS, and DAVID COTTA,
Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
system and method for remotely monitoring an individual, which have been
rejected as anticipated, obvious, and on the ground of obviousness-type
double patenting. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the Real Party in Interest as Digital Signal Corporation.
(App. Br. 3.)
Appeal 2016-001821
Application 12/393,537
STATEMENT OF THE CASE
Appellants’ “invention relates to systems and methods for remotely
monitoring physiological functions and/or physical activities of an
individual.” (Spec. 12.) Appellants disclose that “[i]n order to monitor the
individual, a range to, and/or a range rate (i.e., velocity) of, one or more
points on one or more surfaces of the individual (e.g., skin, clothing, lips,
etc.) may be determined over time.” {Id. 17.) According to the
Specification, “[t]his may enable physiological functions ... to be monitored
remotely without access or proximity to the individual.” (Id.)
Claims 1—20 are on appeal. Claim 1 is illustrative:
1. A system for remotely monitoring an individual, the
system comprising:
a laser radar system configured to:
direct a first beam of radiation and a second beam
of radiation to each of one or more points on the skin or
the clothing of the individual, wherein the first beam of
radiation is modulated by a first chirp rate,
combine a reflected portion of the first beam of
radiation with a reflected portion of the second beam of
radiation to determine a range and an instantaneous
velocity for each of the one or more points on the skin or
the clothing of the individual over a period of time,
wherein each of the respective reflected portions are
reflected from the one or more points on the skin or the
clothing of the individual; and
a monitor module that monitors one or more physiological
functions or physical activities of the individual based on the
ranges and the instantaneous velocities determined by the laser
radar system.
(App. Br. 22 (Claims App’x) (emphasis added).)
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Application 12/393,537
The claims stand rejected as follows:
I. Claims 1 and 19 under 35 U.S.C. § 102(b) by Berthelot.2
II. Claims 2—5 and 7—11 under 35 U.S.C. § 103(a) over Berthelot
and Khair.3
III. Claim 6 under 35 U.S.C. § 103(a) over Berthelot and Riaziat.4
IV. Claim 12 under 35 U.S.C. § 103(a) over Berthelot, Khair, and
Riaziat.
V. Claims 13, 14, 16, and 17 under 35 U.S.C. § 103(a) over
Antonelli,5 Pepper,6 and Tucker.7
VI. Claim 15 under 35 U.S.C. § 103(a) over Antonelli, Pepper,
Tucker, and Khair.
VII. Claim 18 under 35 U.S.C. § 103(a) over Antonelli, Pepper,
Tucker, and Riaziat.
VIII. Claim 20 under 35 U.S.C. § 103(a) over Berthelot and de
Groot.8
IX. Claims 13—18 for obviousness-type double patenting over:
(i) claim 9 of Sebastian et al., US 7,699,469; and (ii) claim 1 of
Sebastian et al., US 7,511,824.
2 Berthelot et al., US 5,477,324, issued Dec. 19, 1995.
3 Khair et al., US 6,533,729 Bl, issued Mar. 18, 2003.
4 Riaziat et al., US 6,690,965 Bl, issued Feb. 10, 2004.
5 Antonelli et al., US 7,128,714 Bl, issued Oct. 31, 2006.
6 Pepper et al., US 7,089,796 B2, issued Aug. 15, 2006.
7 Tucker et al., US 5,106,192, issued Apr. 21, 1992.
8 de Groot et al., US 5,371,587, issued Dec. 6, 1994.
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Application 12/393,537
I
The Examiner rejected claims 1 and 19 as anticipated by Berthelot.
The Examiner finds, inter alia, that Berthelot discloses a system for
remotely monitoring an individual, which directs first and second beams of
radiation onto the individual’s skin or clothing. (Ans. 4.) The Examiner
further finds Berthelot’s system “combine [s] a reflected portion of the first
beam of radiation with a reflected portion of the second beam of radiation
... to determine a range and instantaneous velocity for each of one or more
points on the skin or clothing of the individual over a period of time (column
3, lines 21—41).” (Id. at 4-5.)
Appellants argue “Berthelot fails to disclose, teach or suggest at least
‘determin[ing] a range’ for each of the one or more points.” (App. Br. 8.)
According to Appellants, “Berthelot describes determining a Doppler
velocity and two components of vibrational displacement of a surface (i.e., a
horizontal movement of the surface and a vertical movement of the
surface).” (Id.) Appellants contend Berthelot “describes how Doppler shifts
effect various modulated signals incident on the vibrating surface and how
these Doppler shifts may be used to determine the vibrational movement
(i.e., vibrational displacement) of the surface.” (Id.) But, according to
Appellants, ‘“[rjange’ in light of the Specification, even broadly interpreted,
is simply not a ‘vibrational displacement’ of a vibrating surface.” (Id. at 8—
9.)
We begin with claim construction because it is a necessary
prerequisite to comparing the claims to the prior art. During prosecution, we
give claim terms the broadest reasonable interpretation as understood by a
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person of ordinary skill in the art in light of the specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
At issue is the meaning of the term “range” as recited in the claim
phrase “to determine a range ... for each of one or more points on the skin
or clothing of the individual over a period of time.” (App. Br. 22.)
Appellants contend (or at least do not dispute) that “range” means “the
distance between a sensor and surface.” (Reply Br. 5.)9 The Examiner
likewise appears to interpret “range” as the distance between a surface and a
sensor. (Ans. 15 (“Nothing in the disclosure supports the assertion that it is
‘unreasonable’ to equate Berthelof s measurement of displacement of a
surface, that is, the distance between the surface and the sensor, with the
claimed range.”).)
The Specification supports this interpretation. Indeed, the
Specification discloses that
measuring devices may generate information related to a
distance or range of a target from the measuring device and/or a
velocity, or range rate relative to the measuring device. ... For
purposes of this application the term range rate refers to the rate
9 (See also “Interview Summary” submitted Nov. 22, 2015 at 1—2
(“Applicants’ Representative pointed out that Examiner Toth was already
interpreting ‘range’ in the claims as the distance between the surface and the
sensor . . . [and] Applicants’ Representative further indicated that Applicants
are not disputing this interpretation.”).) Appellants further indicated that
they were willing to amend the claims, if necessary, to make this
interpretation more explicit. {Id. at 2—3.)
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or change in the range between the target and the measuring
device.
(Spec. 1 6 (emphasis added).) The Specification also discloses that, in order
to monitor the individual, “a range to . . . one or more points on one or more
surfaces . . . may be determined over time.” {Id. at 17.) Based on our
review, the term “range” means the distance between a target surface and a
measuring device, and we are presented with no persuasive argument or
evidence to the contrary.
With this interpretation in mind, we turn to the teachings of Berthelot.
On the record before us, we are not persuaded that Berthelot anticipates
claims 1 or 19. The Examiner asserts that the “displacement” disclosed in
Berthelot is the claimed “range” and “distance between the surface and the
sensor” (Ans. 15), but the Examiner does not establish that this is in fact
true. The Examiner directs us to no teaching in Berthelot that, for example,
the distance between “detector 53” and point “P” on the surface is ever
determined. {See, e.g., Berthelot Fig. 1.) On the other hand, as Appellants
point out, Berthelot describes how vibrational movement and velocity at the
surface are determined based on Doppler shift of the beams and frequency
modulation of the carrier signals. (App. Br. 7—8; Reply Br. 4—6; see also
Berthelot 5:22—7:2.) The Examiner has not shown that the measurements or
calculations necessary to make these determinations in Berthelot use the
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distance between the target surface and measuring device, or that Berthelot’s
apparatus is configured to determine that distance.
For these reasons, we conclude the Examiner did not establish by a
preponderance of the evidence that Berthelot discloses the invention recited
in claims 1 and 19. We, thus, reverse Rejection I.
II-IV & VIII
Rejections II—IV and VIII rely upon or substantially repeat the
Examiner’s findings about Berthelot, which we found unpersuasive as
discussed above. (Ans. 6—10 and 14—15.) The Examiner has not asserted or
shown that the secondary references of Khair, Riaziat, or de Groot make up
for Berthelot’s deficiencies with respect to the “range” limitation10 as
discussed concerning Rejection I. (Ans. 16.) We thus also reverse
Rejections II—IV and VIII.
V
The Examiner rejected independent claim 13, and dependent claims
14, 16, and 17 as obvious over Antonelli, Pepper, and Tucker. (Ans. 11—12.)
Claim 13 is recited in the Claims Appendix to Appellants’ Brief. (App. Br.
25.) Claim 13 is directed to a system for monitoring an individual that
generates first and second laser beams from a laser source, an interferometer
that splits the first and second beams into respective first and second target
beams and oscillator beams, and also generates a respective first combined
10 Independent claim 7, along with dependent claims 8—12, are directed to a
method and recite, among other things, “determining, using a processor, a
range and an instantaneous velocity for each of the points on the skin or the
clothing of the individual.” (App. Br. 23—25.)
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target beam and second combined target beam. (Id.) Of particular
significance to the arguments here, claim 13 recites “a processor that
determines a range and an instantaneous velocity for each of one or more
points on the skin or clothing of the individual over a period of time from the
first combined target beam and the second combined target beam.” (Id.)
The Examiner finds that Antonelli discloses a monitoring system that
includes a laser source and interferometer, and which splits and combines a
first beam in the manner required in claim 13. (Ans. 11.) The Examiner
further finds Antonelli teaches
a processor that determines ranges (elements 22, 24; column 7,
lines 25-27 and 33-37) and range rates (column 7, lines 37-38,
where Antonelli differentiates measurement of movement from
velocity) of one or more points on the surface of a monitored
individual over a period of time from the combined target beam.
(Id.)
The Examiner finds Antonelli “does not disclose a second laser source
identical to the first laser source, the processor determining ranges and range
rates from a second laser source, or the second target beam being coincident
with the first target beam,” so the Examiner turns to Pepper and Tucker as
teaching use of a plurality of laser sources for monitoring surface movement
and a processor for processing signals from multiple laser sources. (Id. at
11—12.) The Examiner concludes “[i]t would have been obvious ... to have
made the system of Antonelli with a second, same, laser source, as taught by
Pepper and used the processor to process signals from both sources ... in
order to allow monitoring using lasers with different characteristics.” (Id. at
12.) The Examiner further reasons this combination would have been
obvious “in order to increase accuracy of monitoring a location with several
lasers” as taught in Tucker. (Id.)
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Appellants, after quoting the portions of Antonelli relied upon by the
Examiner, argue “nothing in these portions of Antonelli (or anywhere else in
Antonelli for that matter) describes determining a range.” (App. Br. 16.)
According to Appellants, “[t]he devices described in Antonelli determine
velocity, vibration, and/or movement via the Doppler effect, independent of,
and without the need of, determining a range.” (Id.)
We are not persuaded that the Examiner met the burden to establish
that claim 13 would have been obvious over Antonelli, Pepper, and Tucker.
With respect to element 22 of Antonelli’s Figure 1, Antonelli teaches “Laser
Doppler vibrometer 12 comprises laser source 14 capable of emitting a laser
beam 32 that travels the distance 22 from the laser source 14 to skin surface
26.” (Antonelli 5:62—66.) As Appellants point out, however, Antonelli
never indicates that this distance is measured or determined in any way.
(App. Br. 17.) Further, as Appellants argue, using the apparatus described in
Antonelli, which relies on deriving surface measurements due to Doppler
shift, there is no sufficient showing or scientific explanation on this record
why the skilled person would understand Antonelli as teaching the apparatus
“determines a range” as recited in claim 13. (Id.) Appellants cite
disclosures in Antonelli that support their interpretation of the art, as well as
a further mathematical explanation of how these measurements are
performed without requiring a determination of a “range,” which the
Examiner does not persuasively rebut. (Id. at 17—18.)
The Examiner responds that “velocity is distance versus time —
Antonelli explicitly calls for measuring a distance (that is, movement) and
plotting that distance versus time to determine velocity.” (Ans. 17; see also
id. at 18 (“the Doppler effect is a function of velocity, which itself is a
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function of distance”).) Although velocity is a distance per unit of time, we
are not persuaded the “distance” measured in Antonelli is the distance
between the source and the measuring device itself as claimed.11 The
Examiner did not provide any citation in Antonelli that teaches “plotting . . .
distance versus time to determine velocity,” and we find none. To the
contrary, Antonelli teaches plotting velocity versus time to generate a
waveform for analysis. (Antonelli 7:36-40.) And, as Appellants
persuasively argued, “velocity of a surface can be measured via the Doppler
effect without any measure of the distance between the sensor and the
surface whose velocity is measured.” (Reply Br. 9.) That, in fact, appears to
be how the apparatus (e.g., Doppler vibrometer/velocimeter) of Antonelli
determines movement and velocity at the skin surface.12
The Examiner does not assert or show that Pepper and Tucker make
up for these deficiencies in Antonelli. (Ans. 18.) Accordingly, the
preponderance of the evidence does not support the Examiner’s conclusion
that claim 13, or dependent claims 14, 16, and 17 would have been obvious
over Antonelli, Pepper, and Tucker. We thus reverse.
11 In applying Antonelli to claim 13, we have construed the term “range” as
discussed supra in connection with claims 1 and 19.
12 (See Antonelli 6:12—14 (“Detector 18 determines the velocity of the
pulsatile skin motion as derived from the Doppler shift.”) and 6:24—33
(“Detector 18 measures the Doppler frequency of the reflected beam 34 as
modulated by the movement of skin surface 26. . . . Detector 18 generates a
continuous stream of analog output voltages corresponding to the pulsation
velocity of skin surface 26.”)
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VI & VII
The Examiner rejected claim 15 over Antonelli, Pepper, Tucker, and
Khair (Rejection VI) and claim 18 over Antonelli, Pepper, Tucker, and
Riaziat. Both Rejections VI and VII rely on the Examiner’s findings about
Antonelli, which we find unpersuasive as discussed above concerning
Rejection V. The Examiner does not assert or show that Khair or Riaziat
make up for Antonelli’s deficiencies. Accordingly, we also reverse
Rejections VI and VII.
IX
The Examiner rejected claims 13—18 for obviousness-type double
patenting over: (i) claim 9 of US 7,699,469; and (ii) claim 1 of US
7,511,824.
Appellants do not provide argument related to the double-patenting
rejections. (App. Br. 7.) Those rejections are, thus, summarily affirmed.
SUMMARY
We reverse the rejections for anticipation and obviousness. We affirm
the rejections of claims 13—18 for obviousness-type double patenting.
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-IN-PART
11