Ex Parte Stout

Patent Trial and Appeal Board

Mar 26, 2015

10524918 (P.T.A.B. Mar. 26, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TODD STOUT
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Appeal 2012-009721
Application 10/524,918
Technology Center 3700
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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.

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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
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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.
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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
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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.
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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
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