Ex Parte StoutDownload PDFPatent Trial and Appeal BoardMar 26, 201510524918 (P.T.A.B. Mar. 26, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte TODD STOUT ____________________ Appeal 2012-009721 Application 10/524,918 Technology Center 3700 ____________________ Before DONALD E. ADAMS, DEMETRA J. MILLS, and SCOTT E. KAMHOLZ, Administrative Patent Judges. KAMHOLZ, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the decision of the Examiner to reject claims 18, 48–60, and 64–69 under 35 U.S.C. § 103(a) as being unpatentable over Epler (7,024,370 B2, issued Apr. 4, 2006) and Schradi (US 5,860,918, issued Jan. 19, 1999). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2012-009721 Application 10/524,918 2 THE CLAIMED SUBJECT MATTER The claimed subject matter is directed to a bio-surveillance system. Claim 18, reproduced below, is illustrative of the claimed subject matter: 18. A method of activating an alert upon an occurrence of one of a plurality of events and generating and updating a trigger, the method comprising the steps of: generating a trigger based upon historical occurrences of at least one health symptom experienced by a plurality of patients, wherein the step of generating is performed by a main computer; monitoring occurrences of the at least one health symptom within a time window; comparing the occurrences of the at least one health symptom within the time window to the trigger, wherein the step of comparing the occurrences of the at least one health symptom is performed by the main computer; activating an alert indicating an occurrence of an event when the occurrences of the at least one health symptom exceed the trigger; and updating the trigger at an update frequency, wherein the step of updating includes adding new occurrences to the historical occurrences and dropping old occurrences from the historical occurrences, wherein the step of updating the trigger is performed by the main computer. ANALYSIS Appellant argues claims 18, 48–54, 57–60, 65, and 69 as a group. App. Br. 3. We select claim 18 as representative and decide the appeal as to all the grouped claims based on claim 18. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). The other rejected claims are argued separately. According to the Examiner, Epler discloses all limitations of claim 18 except dropping old occurrences from the historical occurrences. Ans. 4–5. The Examiner cites Schradi as evidence that it was known to drop old data Appeal 2012-009721 Application 10/524,918 3 from consideration as new data is collected and monitored for triggering an alert. Ans. 5 (citing Schradi 3:57–4:62, Fig. 2). According to the Examiner, Schradi teaches discarding old data due to insufficient storage capacity and also when the data is older than the time-window of interest. Ans. 5; id. at 8 (citing Schradi 7:33–43, 8:38–63). The Examiner argues that it would have been obvious to modify Epler to drop old data in view of Schradi’s disclosure that doing so allows efficient use of system memory storage. Id. at 6, 8. Appellant argues that (a) neither reference discloses dropping old occurrences to update a trigger (App. Br. 4; Reply Br. 1); (b) Epler uses multiple servers, so storage capacity would not have been a concern (id. at 5); (c) even if Epler were modified to discard old data, the Examiner has not shown that the discarding of that data would not be a factor in updating the trigger (App. Br. 5; Reply Br. 2); and (d) Epler and Schradi are “completely different and not comparable” because Schradi is a one-person event monitor with limited storage, while Epler is a population-wide monitor with limitless storage (Reply Br. 2). Appellant’s arguments do not apprise us of error in the rejection. Argument (a) is not persuasive, because it addresses the references individually rather than in the combination the Examiner presented. For example, although the data in Schradi is compared to a trigger, not used to update a trigger (see App. Br. 4; Reply Br. 1), the Examiner relies on Epler to make up for that deficiency in Schradi. As to argument (b), the Examiner responds that because Epler is tracking a large amount of data tied to events across an entire population, it may very well face storage constraints, despite being server-based. Ans. 8. Appeal 2012-009721 Application 10/524,918 4 The Examiner argues that it would have been common sense for a system designer to consider dropping old data as an alternative to buying additional storage capacity. Id. We agree with the Examiner. We also agree with the Examiner’s point that Schradi teaches discarding old data because it has fallen outside the time window of interest. Ans. 6, 8–9 (citing Schradi 8:61– 63, inter alia). Appellant’s contention that Epler has limitless storage is merely attorney argument that cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Argument (c) is unpersuasive because, as the Examiner explained, Schradi discloses dropping old data because it has fallen outside a time window of interest. Ans. 8–9 (citing Schradi 8:61–63, inter alia). We discern no error in the Examiner’s finding that this disclosure amounts to a teaching that out-of-time data is to be given no consideration in the trigger update. See id. Argument (d) amounts to an argument that Epler and Schradi are non- analogous to one another. It is unpersuasive because the evidence of record shows that Epler, Schradi, and the present application are in the same field of endeavor, namely, monitoring health data and generating an alert when a condition is triggered. Compare Epler 1:8–13 (monitoring and early detection of health problems) with Schradi 1:9–13, 2:16–17 (monitoring physiological parameters and triggering alarms) and with Specification 1:4– 6 (monitoring symptoms and triggering alerts). Appellant does not credibly explain why Schradi’s focus on monitoring a single patient makes it “completely different and not comparable” to Epler. The Examiner relies on Schradi for the limited disclosure that it was known to drop old data during time-based monitoring. Even if single-patient monitoring were a different Appeal 2012-009721 Application 10/524,918 5 field of endeavor from population monitoring, Schradi’s teachings are reasonably pertinent to the problem of monitoring symptoms over time. Epler and Schradi are not non-analogous to one another or to the claimed subject matter. For these reasons, we affirm the rejection of claim 18 and the claims grouped with it. Regarding claim 55, Appellant’s position is premised on its argument that Epler does not disclose removing old data when updating the trigger. App. Br. 5. That argument is not persuasive, for the reasons given above. The remainder of Appellant’s argument amounts to stating that neither Epler nor Schradi discloses the limitation of claim 55. Id. We require more than a bare assertion that the reference does not disclose the limitation. See 37 C.F.R. § 41.37(c)(1)(vii)(2011) (noting that an argument that merely points out what a claim recites is unpersuasive); accord In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he 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.”). The Examiner responds that Epler discloses updating the trigger. Ans. 10 (citing Ans. 5 (citing Epler 9:8–31)). We have reviewed the rejection and agree with the Examiner. Appellant’s arguments regarding claims 56, 64, 66, and 68 each amount to no more than arguing that the references do not disclose the respective limitations. App. Br. 6–7. This argument is insufficient, as explained above. The Examiner addresses these claims on pages 10 and 11 of the Answer. We have reviewed the Examiner’s reasoning as to these claims and agree with it. Appeal 2012-009721 Application 10/524,918 6 Regarding claim 67, the Examiner cites Epler, column 10, lines 37–47 as disclosing adjusting trigger sensitivity based on knowledge of anthrax outbreaks, which are identified elsewhere in Epler as national emergency threats at column 1, line 55 to column 2, line 3. Ans. 10–11. Appellant argues that the cited portions of Epler relate to how the algorithm is created, not to sensitivity adjustment. App. Br. 6–7. The Examiner “interpret[s] increasing the accuracy of the alert as stated in Epler as increasing a sensitivity of the trigger (i.e., less sensitive towards false alerts).” Ans. 10. We agree with the Examiner. The portion of Epler the Examiner cites concerns the independent setting of threshold values to trigger alerts even when alarm conditions are not met. The threshold values may be “selected freely” by the user. Epler 10:39–40. We agree with the Examiner that freely setting thresholds amounts to adjusting a sensitivity of a trigger. DECISION For the above reasons, the Examiner’s decision to reject claims 18, 48–60, and 64–69 is AFFIRMED. 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 lp Copy with citationCopy as parenthetical citation