Gordon, Brian Michael. et al.

Patent Trials and Appeals Board

May 11, 2020

2019005654 (P.T.A.B. May. 11, 2020)

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.
14/716,006 05/19/2015 Brian Michael Gordon TTS-0001-US 1055
23550 7590 05/11/2020
HOFFMAN WARNICK LLC
540 Broadway
4th Floor
Albany, NY 12207
EXAMINER
JANG, CHRISTIAN YONGKYUN
ART UNIT PAPER NUMBER
3791
NOTIFICATION DATE DELIVERY MODE
05/11/2020 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):
PTOCommunications@hoffmanwarnick.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte BRIAN MICHAEL GORDON,
HOWARD SCHLOSSBERG, and
HERBERT REICH
__________

Appeal 2019-005654
Application 14/716,006
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 9–16, and 19–23, which constitute
all the claims pending in this application. Non-Final Act. 1 (Office Action
Summary). Claims 8, 17, and 18 have been canceled. See Appeal Br. 4.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “H D L
Enterprises, LLC.” Appeal Br. 1.
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We have jurisdiction under 35 U.S.C. § 6(b). For the reasons explained
below, we do not find error in the Examiner’s rejections. Accordingly, we
AFFIRM the Examiner’s rejections.

CLAIMED SUBJECT MATTER
The disclosed subject matter “relates generally to pulse monitoring.”
Spec. 1. System claim 1, method claim 11, apparatus claim 16, and program
product claim 20 are independent. Claim 1 is illustrative of the claims on
appeal and is reproduced below.
1. A pulse monitoring system comprising:
a monitoring device for monitoring a pulse of an
individual, the device being operable to detect a pulse and
transmit data related to the detected pulse;
a communication device operable to receive data from the
monitoring device and initiate a communication; and
a program product which, when executed, is operable to
carry out a method comprising:
receiving data related to the detected pulse;
analyzing the data related to the detected pulse and
determining either or both of a heart rate or a heart beat
regularity;
determining whether the data are indicative of a
heart rate or heart beat regularity outside a predetermined
parameter;
in the case that the data are indicative of a heart rate
or heart beat regularity being outside a predetermined
parameter, initiating a visual alert to the individual on the
communication device, the visual alert indicating that the
heart rate or heart beat regularity is outside the
predetermined parameter; and
forcing a persistent display on the external
communication device, the persistent display including
data related to the detected pulse.

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REFERENCES RELIED ON BY THE EXAMINER
Webb US 6,599,250 B2 July 29, 2003
King US 2006/0152373 A1 July 13, 2006
Mastrototaro US 2008/0139910 A1 June 12, 2008
LaLonde US 8,970,392 B2 Mar. 3, 2015
Larvenz US 2015/0164390 A1 June 18, 2015

THE REJECTIONS ON APPEAL2
Claims 1–7, 9, 11–16, 19, and 20 are rejected under 35 U.S.C. § 103
as unpatentable over King, Larvenz, and Webb. Non-Final Act. 5.
Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable over King,
Larvenz, Webb, and LaLonde. Non-Final Act. 8.
Claims 21–23 are rejected under 35 U.S.C. § 103 as unpatentable over
King, Larvenz, Webb, and Mastrototaro. Non-Final Act. 8.
ANALYSIS
The rejection of claims 1–7, 9, 11–16, 19, and 20
as obvious over King, Larvenz, and Webb
Appellant argues claims 1–7, 9, 11–16, 19, and 20 together. Appeal
Br. 6–8. We select claim 1 for review, with independent claims 11, 16, and
20, and dependent claims 2–7, 9, 12–15, and 19, standing or falling with
claim 1. See 37 C.F.R. § 1.37(c)(1)(iv).
Claim 1 recites a case wherein data is “indicative of a heart rate or
heart beat regularity being outside a predetermined parameter.” In such
event, a program product carries out the step of “initiating a visual alert to
[an] individual on [a] communication device, the visual alert indicating that

2 The rejection of claims 1–7, 9–16, and 19–23 under 35 U.S.C. § 101 as
being directed to patent ineligible subject matter has been withdrawn. See
Ans. 3; Non-Final 2–4.
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the heart rate or heart beat regularity is outside the predetermined
parameter.” The program product is also recited as including the step of
“forcing a persistent display on [an] external communication device,[3] the
persistent display including data related to the detected pulse.” Appeal Br. 9
(Claims App.).
Appellant contends, “[t]he only mention in King of using a visual alert
is in the context of an emergency center operator being advised of a distress
signal” and thus, King’s “alert is made to someone other than the device user
and using a mechanism other than a user’s communication device.” Appeal
Br. 6. However, the Examiner correctly points out that
King teaches a system which comprises of two separate units (60
and 70). The measuring unit 60 can be placed directly on the
user. The second unit 70 can be located elsewhere (e.g. such as
a pocket of the user). The two devices are communicably
connected, which can be both wired or wireless ([0042]). King
teaches the use of alarms such as using LED lights ([0031]) as
well as audible/visible alarms to the end user ([0045]).
Ans. 4 (emphasis added); see also King Fig. 2. Because King’s visual alarm
can be in the form of an LED light, which can reside on a second unit that
communicates with a first unit and can be placed in the pocket of a user,
thereby alerting the user, Appellant’s contention that King’s “alert is made
to someone other than the device user and using a mechanism other than a
user’s communication device” is without merit. We note that King’s Figure
2 depicts a second unit 70 that appears to be a mobile phone, i.e., an
“external communication device.”4

3 We note that “the external communication device” lacks antecedent basis.
4 Additionally, even should King’s alert be “made to someone other than the
device user,” as Appellant asserts above, Paragraph 45 of King expressly
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However, even crediting Appellant’s argument that King does not
disclose an alert that is made to the device user using the user’s
communication device, Larvenz discloses these features because, as the
Examiner points out, Larvenz discloses
a wearable sensor device (8) [that] interacts with various devices
with a display ([0136]). Some of the devices taught include a
dedicated receiver (16), a smartphone (18), wearable devices
(21), or a small display device ([0079]). All of these devices
include a display for displaying information. Similarly, all these
devices can communicate wirelessly with the sensor device, and
can be considered a communication device ([0077]). The cited
portion of Larvenz ([0109]) states that information received from
the sensor system by the wearable device is displayed on the
display until the user presses a button that the information has
been viewed and may persist even when the wearer
acknowledges having viewed the information. Thus, the device
forces a persistent display on the communication device.
Ans. 4–5 (emphasis added); see also Larvenz Fig. 1. Notably, Larvenz
discloses that “display device 18 is a general purpose smartphone” (Larvenz
¶ 79) and further that
[i]t is understood that any other user equipment (e.g. computing
devices) configured to at least present information (e.g., a
medicament delivery information, discrete self-monitoring
analyte readings, heart rate monitor, caloric intake monitor, and
the like) can be used in addition or instead of those discussed
with reference to FIG. 1.
Larvenz ¶ 81 (emphasis added).
Accordingly, such “other user equipment” or “computing equipment”
thus includes display devices 14, 16, 18, and 20, which are depicted in

states that the recipient thereof “will attempt to establish contact with the
user via any communication device.” We note that claim 1 does not require
the alert be sent only directly to the user with no intermediary recipient.
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Figure 1 as including at least a smartphone 18 and a desktop computer 20.
See Larvenz ¶ 77; Fig. 1. In this regard, Larvenz discloses that an alert is
made to the device user employing a user’s communication device such as a
smartphone or a desktop computer.5 “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references []. [The reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986). Accordingly, Appellant attacks the references individually rather
than consider the combination of references as a whole, and thus does not
apprise us of Examiner error.
Appellant also contends, “[t]he Examiner has, for whatever reason,
read ‘on the external communication device’ out of the claims.” Appeal Br.
7. Appellant argues that Larvenz “do[es] not cure the conceded deficiencies
of King” because “Appellant claims ‘initiating a visual alert to the individual
on the communication device’ and ‘forcing a persistent display on the
external communication device.’” Appeal Br. 7.
This argument is unpersuasive in that we fail to see why King’s
second unit 70 and Larvenz’s various devices––which includes a smart

5 Appellant’s contention that “the portion of Larvenz cited in the rejection
describes delivering information (which the Examiner equates with a
persistent display) to the wearable device” (Appeal Br. 7) is unpersuasive
for the reasons discussed above. More specifically, referring to Paragraph
109 of Larvenz, the Examiner notes that information is received from the
sensor system by the wearable device rather than information is transmitted
to and displayed on the wearable device 21. See Ans. 4–5.
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phone––as discussed above, cannot be considered as satisfying these
limitations.
Appellant additionally argues that “there is absolutely no mention in
Webb of visually displaying information on a communication device.”
Appeal Br. 7. Webb was relied on for the display of data (see Final Act. 7),
while King and Larvenz were relied on for the display occurring on a
communication device (see above). Here, the Examiner correctly responds
that “Webb was brought in to show that a visual alert can be given in
response to cardiovascular parameters exceeding a threshold.” Ans. 5. In
other words, Appellant again attacks the references individually rather than
considering the combination of references as a whole.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as being unpatentable
over King, Larvenz, and Webb. Accordingly, we sustain the Examiner’s
rejection of claims 1–7, 9, 11–16, 19, and 20.

The rejection of claim 10
as being obvious over King, Larvenz, Webb, and LaLonde
The rejection of claims 21–23
as being obvious over King, Larvenz, Webb, and Mastrototaro
Appellant does not provide any substantive arguments for these
rejections and, instead, relies on the arguments provided for parent claims 1,
11, and 20. See Appeal Br. 8. Because we find no deficiencies in the
Examiner’s rejection of independent claims 1, 11, and 20 as being obvious
over King, Larvenz, and Webb, we likewise sustain the Examiner’s
rejections of claim 10 and 21–23 as being obvious over the various
combinations of cited art.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9,
11–16, 19,
20
103 King, Larvenz, Webb 1–7, 9,
11–16, 19,
20

10 103 King, Larvenz, Webb,
LaLonde
10
21–23 103 King, Larvenz, Webb,
Mastrototaro
21–23
Overall
Outcome
1–7, 9–16,
19–23

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