Ex Parte Vu et al

Board of Patent Appeals and Interferences

Feb 14, 2011

10907807 (B.P.A.I. Feb. 14, 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.
10/907,807 04/15/2005 Sonny Vu AGAM.P-023 4807
57381 7590 02/14/2011
Larson & Anderson, LLC
P.O. BOX 4928
DILLON, CO 80435
EXAMINER
SMITH, FANGEMONIQUE A
ART UNIT PAPER NUMBER
3736
MAIL DATE DELIVERY MODE
02/14/2011 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 SONNY VU, GARY TSAI, JOSEPH FLAHERTY, STUART
BLITZ, and EILEEN HUANG
____________________

Appeal 2009-009706
Application 10/907,807
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, STEFAN STAICOVICI, and FRED A.
SILVERBERG, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the "MAIL DATE"
(paper delivery mode) or the "NOTIFICATION DATE" (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009706
Application 10/907,807
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting under § 103(a) claims 1 and 3 as unpatentable over
Bylund (US 2003/0212379 A1, pub. Nov. 13, 2003) and Ferguson (US
6,454,708 B1, iss. Sep. 24, 2002) and claims 2, 4, and 5 as unpatentable over
Bylund, Ferguson, and Poslinski (US 2006/0045470 A1, pub. Mar. 2, 2006).
We have jurisdiction under 35 U.S.C. § 6(b).
Claim 1, reproduced with added emphasis below, is illustrative of the
claimed subject matter:
A method for use with a test meter, the test meter comprising a
display, the test meter comprising a test strip containing an electrochemical
cell disposed to analyze a bodily fluid for a property of interest, the method
comprising the steps of:
responding to application of the bodily fluid to the electrochemical
cell by commencing an analysis of the bodily fluid for the property of
interest; and
while the analysis is in progress, changing the display no less often
than once per half second throughout the analysis to reflect the progress
of the analysis, and
displaying a test result on the display of the test meter.

SUMMARY OF DECISION
We REVERSE.

Appeal 2009-009706
Application 10/907,807
3
OPINION
Claim 1 recites a method for use with a test meter (e.g., a blood
glucose meter) with a step of commencing an analysis of bodily fluid and
then "changing the display no less often than once per half second
throughout the analysis to reflect the progress of the analysis." The
Examiner found that Bylund describes a system and method for controlling a
monitoring device that analyzes bodily fluid and displays the result, but is
silent as to "how frequently the display changes throughout the analysis."
Ans. 3. The Examiner then found that Ferguson describes a patient
telemonitoring system that obtains readings and updates the readings every
40 msec. Ans. 4. Therefore, the Examiner concluded that it would have
been obvious to modify the monitoring device of Bylund to include
frequently changing the display, as taught in Ferguson, to provide another
way to show a test in progress. Id.
Appellants argue, in relevant part, that the portions cited by the
Examiner in Ferguson to teach updating the display are not, in fact, related
to the display frequency. Appeal Br. 3. The Examiner responds that
Ferguson "display[s] continuous data" and that "[d]uring a continuous
monitoring mode, this reading is taken at the disclosed frequency and the
event data is sent to the display for review." Ans. 5-6. Appellants
subsequently reply that making measurements at close time intervals (e.g.,
continuously) "says nothing about the frequency at which the display is
updated." Reply Br. 2.
Therefore, the dispositive issue in this appeal is whether the Examiner
has properly demonstrated that the combined teachings of Bylund and
Ferguson render obvious "changing the display no less often than once per
half second throughout the analysis to reflect the progress of the analysis."
Appeal 2009-009706
Application 10/907,807
4
Reviewing the Examiner's findings, we do not find a discussion of the
display rate, let alone "changing … no less often than once per half second
throughout the analysis to reflect the progress of the analysis." While data in
certain instances may be collected at a rate faster than 2 Hz (see, e.g.,
Ferguson, col. 10, ll. 11-20), it is not discussed how fast the remote
monitoring stations change the display (see, e.g., id., col. 13, ll. 38-40). Just
because data is displayed "continuously" does not mean that the data is
necessarily displayed at any particular speed. Thus, what the Examiner's
rejection is lacking is a finding regarding conventional refresh rates for
displays. Consequently, the Examiner's rejection does not have a sufficient
factual basis to properly conclude that the disclosures of Bylund, in view of
Ferguson, render obvious the subject matter of claim 1. See In re Warner,
379 F.2d 1011, 1017 (CCPA 1967) (the examiner has the initial duty of
supplying the requisite factual basis and may not, because of doubts that the
invention is patentable, resort to speculation, unfounded assumptions, or
hindsight reconstruction to supply deficiencies in the factual basis).

DECISION
For the above reasons, we reverse the Examiner's decision.

REVERSED
Appeal 2009-009706
Application 10/907,807
5
hh

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