Ex Parte Spector

Board of Patent Appeals and Interferences

Jun 30, 2011

10949987 (B.P.A.I. Jun. 30, 2011)

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.
10/949,987 09/24/2004 Donald Spector ATI0071-03CP 5284
25889 7590 06/30/2011
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
BROWN, VERNAL U
ART UNIT PAPER NUMBER
2612
MAIL DATE DELIVERY MODE
06/30/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte DONALD SPECTOR
________________

Appeal 2009-008751
Application 10/949,987
Technology Center 2600
__________________

Before CARLA M. KRIVAK, THOMAS S. HAHN, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant invokes our review under 35 U.S.C. § 134(a) from the final
rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

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Application 10/949,987

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STATEMENT OF THE CASE
Introduction
Appellant claims an apparatus to transmit signals from a monitor
(audio/visual) observing an individual. The signals are transmitted to a
remote site (e.g., a mobile telephone or computer) when sounds of distress
emanate from the individual.1 Illustrative independent claim 1 reads as
follows:
1. Apparatus installable in an area occupied by an individual,
the apparatus comprising:

A) a microphone or a video camera to provide sounds generated
by the individual or an image of the individual;

B) an audio or video transceiver connected to the microphone
or video camera to transmit a signal from the microphone or the video
camera that is intercepted by a video or audio monitor, a mobile
telephone, or a computer so that the signal can be heard or seen by an
observer at a site remote from the area occupied by the individual; and

C) means responsive to sounds of distress emanating from the
individual to activate at least one of the video or audio monitor, the
computer, or the mobile telephone of the observer, wherein when a
distress sound begins at least one of the following responses occurs:

1) the distress sound or the image are transmitted to the video
or audio monitor so that they can be seen or heard by the
observer at the remote site; or

1 See generally Abstract; Spec. 4:9-14; 11:4-12; 16:4-15; 21:10-15; 22:8-15;
31:4-6, 12-19; Figs. 1-4.
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2) the distress sound or the image are transmitted to the mobile
telephone or the computer of the observer.

Rejections on Appeal
The Examiner relies on the following prior art to show
unpatentability:2
Zisholtz US 4,640,034 Feb. 3, 1987
Stasz US 5,311,875 May 17, 1994
Kim US 5,505,199 Apr. 9, 1996
Ray US 6,192,257 B1 Feb. 20, 2001
Yoshimi US 6,280,392 B1 Aug. 28, 2001
Kolarovic US 6,679,830 B2 Jan. 20, 2004
Thompson US 7,009,520 B2 Mar. 7, 2006
The Examiner, under 35 U.S.C. § 103(a), rejected:
1. Claims 1, 5, 6, and 11 as unpatentable over Kim and Ray (Ans. 3-4);
2. Claim 2 as unpatentable over Kim, Ray, and Zisholtz (Ans. 4-5);
3. Claim 3 as unpatentable over Kim, Ray, and Stasz (Ans. 5);
4. Claim 4 as unpatentable over Kim, Ray, Stasz, and Thompson (Ans.
6);
5. Claims 7-9 as unpatentable over Kim, Ray, and Yoshimi (Ans. 6-7);
and
6. Claim 10 as unpatentable over Kim, Ray, and Kolarovic (Ans. 7).

2 Effective filing dates for cited prior art precede Appellant’s earliest
effective filing date and are not at issue.
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Appellant’s Contention
Appellant separately argues the patentability of independent claim 1
(App. Br. 11-15; Reply Br. 2-4) and relies on these arguments to contend
patentability for the dependent claims 2-11 (App. Br. 15). We, accordingly,
select claim 1 as representative pursuant to our authority under 37 C.F.R.
§ 41.37(c)(1)(vii).
Appellant asserts that Kim and Ray alone or in combination fail to
teach or suggest “means responsive to sounds of distress emanating from an
individual to activate at least one of . . . video or audio monitor[s], [a]
computer or [a] mobile telephone . . .” as is recited in claim 1 (App. Br. 10).
Appellant further contends that Kim teaches an infant sudden death
syndrome monitor that determines blood oxygen saturation and detects
infant movement (App. Br. 10); whereas Ray teaches “receiving and
transmitting audio or video signals” (App. Br. 11). Relying on these
contentions, Appellant asserts that the “modification of Kim with the
transceiver of Ray would result in a device that is unsuitable for its intended
purpose” (App. Br. 13).

Issue on Appeal
Did the Examiner err in rejecting representative claim 1 because Kim
and Ray alone or in combination fail to teach or suggest the recited “means
responsive to sounds of distress emanating from [an] individual”?

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ANALYSIS
Reviewing the record (see App. Br. 11-15; Reply Br. 2-4), we
disagree with Appellant’s conclusions.
Kim, we find, teaches an infant sudden death syndrome monitor that
determines blood oxygen saturation and detects infant movements
(Abstract). Ray discloses “a wireless communication terminal [mobile
telephone] arranged for receiving and transmitting large amounts of data in a
wireless communication system” (Ray col. 1, ll. 7-11). Ray further discloses
that a taught telephone set/video system has utility as a baby monitor (Ray
col. 3, ll. 7-27).

I
The Examiner finds that Kim teaches all of the claim 1 limitations
except for a “means responsive to sounds of distress emanating from the
individual,” which the Examiner finds is taught in Ray (Ans. 3-4). In
response to Appellant’s argument premised from the recited “means
responsive to sounds of distress” (App. Br. 11-12; Reply Br. 3-4), the
Examiner finds that the disputed “distress sound” is not defined in
Appellant’s Specification and reasons that the Ray monitor “will pick up any
sound including distress sound” (Ans. 8). Further, the Examiner finds and
concludes that “Ray teaches a communication device for transmitting audio
and video signals (col. 3 lines 28-35) and the detecting of an audio signal by
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a device such as a microphone is considered as the activation of the audio
detection device” (id.).
Appellant acknowledges that “distress sound” is not defined, but
contends that the “term does not require any definition other than the
ordinary meaning of such term” (Reply Br. 3). Then, Appellant provides as
examples an infant crying and an adult “thrashing around or dropping
something” (Reply Br. 3-4). These arguments are unavailing because no
distinction between what is supposed to be a “distress sound” and any other
sound has been provided in the Specification or the submitted arguments.
Therefore, we agree with the Examiner’s finding that Ray teaches “pick[ing]
up any sound including distress sound” (Ans. 8) and “the detecting of an
audio signal by . . . a [Ray] microphone is considered as the activation of the
audio detection device” (id.).

II
The Examiner reasons that “[i]t would have been obvious to one of
ordinary skill in the art to modify the monitoring system of Kim as disclosed
by Ray because the transceiver provide[s] a means of transmitting the video
and audio signal over a larger distan[ce] to the monitor” (Ans. 4).
Appellant asserts that Kim merely teaches an infant blood
oxygenation sensor with a video system to monitor movement (App. Br. 11),
whereas Ray teaches a mobile telephone set capable of transmitting audio
and video data (App. Br. 11). Relying on these assertions, Appellant argues
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that modifying Kim to monitor infant produced sound is inconsistent with
providing a sudden infant death syndrome monitor that utilizes determined
blood oxygenation and infant movement monitoring, because an infant with
low blood oxygen that is not moving or breathing would not make any
sound (App. Br. 14).
The Examiner does not disagree with Appellant as to what Kim and
Ray teach. However, the Examiner further finds that Ray discloses use of a
video/telephone set as a baby monitor (Ans. 9). We agree with this finding
by the Examiner (see supra). Relying on this finding, the Examiner reasons:
modification of Kim with the transceiver of Ray would therefore not
result in a device that is suitable [sic, unsuitable] for its intended
purpose because the invention of Ray can be used for the same
purpose of Kim of monitoring an infant and actually would constitute
an improvement in the same type of system

(Ans. 9).
Appellant does not argue or respond in the Reply Brief does not
address Ray’s teaching the use of a video/telephone set as a baby monitor
and merely repeats the argument that “there is no articulated reason why one
skilled in the art would modify Kim with a microphone” (Reply Br. 3).
Based on our review of the record, we agree with the Examiner.
Adding a Ray audio system to Kim we conclude does not render Kim
unsuitable for its intended purpose of providing a sudden infant death
syndrome monitor. Instead, the addition provides an improvement to the
sudden infant death syndrome monitor. We also agree with the Examiner’s
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reliance on Ray teaching an improved audio system for a baby monitor,
because
if a technique has been used to improve one device [i.e., a baby
monitor], and a person of ordinary skill in the art would recognize that
it would improve similar devices [i.e., the Kim sudden infant death
syndrome monitor] in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.

KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
We find no evidence or argument in the record to contest that an
ordinarily skilled artisan would fail to recognize that Kim would be
improved by the Ray video/telephone set or that its application would be
beyond the artisan’s skill.
For the foregoing reasons we sustain the rejection of representative
claim 1 and we also sustain the rejections of dependent claims 2-11, which
are not separately argued.

CONCLUSIONS
1. The Examiner did not err under 35 U.S.C. § 103(a) in combining Kim
and Ray and concluding the combination renders representative claim
1 obvious.
2. On this record, claims 1-11 are not patentable.

ORDER
The rejections of claims 1-11 are affirmed.
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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).

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