KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Nov 12, 2021

2021000271 (P.T.A.B. Nov. 12, 2021)

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.
16/525,783 07/30/2019 Declan Patrick KELLY 2014P01631US 1861
24737 7590 11/12/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
1600 Summer Street
5th Floor
Stamford, CT 06905
EXAMINER
JARRETT, LORE RAMILLANO
ART UNIT PAPER NUMBER
1797
NOTIFICATION DATE DELIVERY MODE
11/12/2021 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):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DECLAN PATRICK KELLY
and WEI ZHONG CHEN

____________

Appeal 2021-000271
Application 16/525,783
Technology Center 1700
____________

Before GEORGE C. BEST, MERRELL C. CASHION, JR., and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–20.2 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM IN PART.

1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42. The
Appellant identifies Koninklijke Philips N.V. as the real party in interest.
Appeal Brief filed May 5, 2020 (“Appeal Br.”), 3.
2 Final Office Action entered December 26, 2019 (“Final Act.”), 1.
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CLAIMED SUBJECT MATTER
Independent claim 9 illustrates the subject matter on appeal, and reads
as follows:
9. A system, comprising:
a colorimetric sensor device having a colorimetric sensor
and a reference color display, wherein the colorimetric sensor
is configured to change color in response to exposure to one or
more pollutants, and wherein the reference color display is
static and includes a range of colors indicative of a range of a
level of concentrations of the one or more pollutants;
at least one computing device having one or more
processors and memory storing instructions;
wherein an execution of the instructions by the one or
more processors causes the at least one computing device to:
capture an electronic image of a device having a
colorimetric sensor and a reference color display, the
colorimetric sensor being configured to change color in
response to exposure to one or more pollutants, wherein a
degree of change of the color of the colorimetric sensor is
dependent on a concentration of the one or more pollutants;
determine a color of the colorimetric sensor in the
electronic image;
determine a modified color of the colorimetric sensor in
the electronic image based on the color of the colorimetric
sensor in the electronic image and based on one or more image
colors of the reference color display in the electronic image;
and
determine a pollution value for the one or more pollutants
based on an electronic mapping of the pollution value to the
modified color of the colorimetric sensor in the electronic
image.
Appeal Br. 36 (Claims Appendix) (emphasis added); see also Appeal Br 8–
9.
Similar to claim 9, independent claim 1 recites a device having a
colorimetric sensor and a reference color display where “the reference color
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display is static and includes a plurality of colors indicative of a range of a
level of concentrations of the one or more pollutants,” and independent
claim 18 recites a device comprising a plurality of colorimetric sensors and
“a static reference color display of a range of colors indicative of a range of
levels of concentration of pollutants associated with the static reference
color display.” Appeal Br. 33, 39–40 (Claims Appendix); see also Appeal
Br. 7–8, 9–10.
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered August 21, 2021 (“Ans.”):
I. Claims 18–20 under 35 U.S.C. § 112(b) as being indefinite;
II. Claims 1, 7–9, 15–18, and 20 under 35 U.S.C. § 102(a)(1) as
anticipated by Jeppesen (US 2013/0096030 A1, published April 18, 2013);
III. Claims 2–6 and 10–14 under 35 U.S.C. § 103 as unpatentable
over Jeppesen in view of Schroder (US 2005/0207950 A1, published
September 22, 2005); and
IV. Claim 19 under 35 U.S.C. § 103 as unpatentable over Jeppesen
in view of Morrow (US 2013/0330831 A1, published December 12, 2013).
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of the Appellant’s contentions, we affirm the Examiner’s rejection of
claims 18–20 under 35 U.S.C. § 112(b) because the Appellant does not
contest this rejection, and we reverse the Examiner’s rejection of claims 1,
7–9, 15–18, and 20 under 35 U.S.C. § 102(a)(1), and rejections of claims 2–
6, 10–14, and 19 under 35 U.S.C. § 103, for reasons set forth in the Appeal
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and Reply Briefs, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each issue the Appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Rejection I
We summarily sustain the Examiner’s rejection of claims 18–20 under
35 U.S.C. § 112(b) as being indefinite because the Appellant does not
contest this rejection. Appeal Br. 12–31; 37 C.F.R. § 41.37(c)(1)(iv); see
also Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. Jan.
2018) (“If a ground of rejection stated by the examiner is not addressed in
the appellant’s brief, appellant has waived any challenge to that ground of
rejection and the Board may summarily sustain it, unless the examiner
subsequently withdrew the rejection in the examiner’s answer.”).
Rejection II
We turn next to the Examiner’s rejection of claims 1, 7–9, 15–18, and
20 under 35 U.S.C. § 102(a)(1) as anticipated by Jeppesen. We need address
only independent claims 1, 9, and 18, which each recite, in part, a device
including a colorimetric sensor and a static reference color display.
Jeppesen discloses an array of chemo-selective compounds applied to
a solid support, which Jeppesen refers to as a “multisensory array,” in which
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each compound in the array incorporates a dye that changes color when the
compound is exposed to a specific analyte, such as a particular pollutant.
Jeppesen ¶¶ 7, 8, 12, 38, 42, 101. Jeppesen explains that such a color
change occurs as a result of a selective intermolecular interaction or reaction
between the dye and the analyte (pollutant). Jeppesen ¶¶ 42,117. Jeppesen
discloses that such a color change can be detected by transmission or
reflection measurements taken using a standard ccd camera or a flatbed
scanner. Jeppesen ¶¶ 38, 116.
Jeppesen describes using the multisensory array to detect and identify
one or more analytes present in a liquid or gas by obtaining a first digital
image of the array before exposure to the liquid or gas, exposing the array to
the liquid or gas, obtaining a second digital image of the array following
exposure to the analyte(s), and analyzing a difference between the first and
second images. Jeppesen ¶¶ 106–110. Jeppesen discloses that the first
digital image “will record the environmental background of interfering
substances,” while the second image “records the change caused by the
presence of the analyte or analytes plus the background.” Jeppesen ¶ 117.
Jeppesen discloses that “[d]igital imaging of the dye array before and after
exposure to the analytes creates a color difference map which composes a
unique fingerprint for each analyte.” Id.
The Appellant argues that Jeppesen does not disclose a device having
a static reference color display, as required by independent claims 1, 9, and
18. Appeal Br. 12, 14, 17, 20; Reply Br. 9–17.
In response to the Appellant’s argument, the Examiner determines that
“the term ‘reference color display’ has no special definition in Appellant’s
specification, and thus ‘reference color display’ is interpreted under the
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broadest reasonable interpretation standard.” Ans. 4. The Examiner finds
that each digital image shown in Jeppesen’s Figure 4 constitutes a static
reference color display. Ans. 4, 6. The Examiner explains that “[t]he
‘before exposure’ image is a reference color display because it provides a
reference recording of the colorimetric sensor array before exposure to the
analyte(s), which is the recording of the environmental background of
interfering substances,” and “[t]he ‘after exposure’ image is also a reference
color display because it provides a reference recording of the colorimetric
sensor array after exposure to the analyte(s), which is the recording of the
color change(s) caused by the presence of the analyte(s).” Ans. 4. The
Examiner determines that each image shown in Jeppesen’s Figure 4 “is static
because each individual picture does not change.” Ans. 6.
As the Appellant points out, however, contrary to the Examiner’s
assertion, one of ordinary skill in the art would understand the instant
Specification to describe the meaning of a “static reference color display” as
the term is used in the context of the present independent claims. Reply Br.
12–13. Specifically, the Specification describes a colorimetric sensor device
that includes both a static reference color display and one or more
colorimetric sensors. Spec. ¶¶ 6, 10. The Specification discloses that the
static reference color display may take the form of a longitudinally
extending strip that includes a range of colors that vary along a length of the
strip, or may be circular and have a range of colors that vary along the radius
and/or circumference of the circle. Spec. ¶¶ 46, 47. The Specification
discloses that each colorimetric sensor of the colorimetric sensor device is
configured to react with one or more elements of a particular gaseous
pollutant, and changes color in response to the reaction. Spec. ¶ 48. The
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Specification indicates that, in contrast, the static reference color display
“does not react in the same manner as colorimetric sensors when exposed to
pollutants.” Spec. ¶ 47 (reference numerals omitted). The Specification
indicates that, instead, the static reference color display is used “as a
reference in determining pollution levels based on one or more images of the
colorimetric sensor device.” Spec. ¶ 47.
The Specification describes capturing an image of the colorimetric
sensor device that shows both the static reference color display and one or
more colorimetric sensors. Spec. ¶ 54. The Specification explains that the
static reference color display is used “as a reference to adjust the color of the
colorimetric sensor” shown in the image to accommodate varying lighting
conditions and varying digital camera sensors. Spec. ¶ 55. The
Specification describes two approaches for using the image of the static
reference color display to adjust the color of the colorimetric sensor shown
in the obtained image in order to determine a “modified” sensor color. Spec.
¶¶ 56, 57. The two approaches involve comparing the image of the static
reference color display to either an anticipated color of the colorimetric
sensor, or to the actual color of the colorimetric sensor shown in the
obtained image. Id. The Specification describes determining a pollution
value for the one or more pollutants based on an electronic mapping of the
pollution value to the modified color. Spec. ¶ 15.
The Specification thus indicates that a static reference color display as
recited in the independent claims is an element or component of a
colorimetric sensor device that “does not react in the same manner as
colorimetric sensors when exposed to pollutants,” but instead serves as a
reference for modifying the color of a colorimetric sensor included in a
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digital image that shows both the static reference color display and the
colorimetric sensor.
As discussed above, the Examiner determines that the “before
exposure” and “after exposure” digital images shown in Jeppesen’s Figure 4
each constitute a “static reference color display” under the broadest
reasonable interpretation of this term. Ans. 4. The Examiner’s
interpretation of a “static reference color display,” however, is inconsistent
with how this term is used in the Appellant’s Specification. Specifically,
unlike the “static reference color display” described in the Appellant’s
Specification, the digital images shown in Jeppesen’s Figure 4 are not
components or elements of Jeppesen’s multisensory array that do not react
in the same manner as chemo-selective compounds (colorimetric sensors)
configured to change color in response to analyte exposure. Rather, the
“before” image shown in Jeppesen’s Figure 4 is simply a digital image of an
array of chemo-selective compounds immediately after immobilization of
the compounds on a silica gel support, and the “after” image is a digital
image of the array after exposure to gas-phase explosives (analytes).
Jeppesen ¶ 163. Neither of these images constitutes a “static reference color
display” as described in the Appellant’s Specification that serves as a
reference for modifying the color of a colorimetric sensor included in a
single digital image that shows both the static reference color display and the
colorimetric sensor.
Consequently, on the record before us, the Examiner does not provide
a sufficient factual basis to establish that Jeppesen discloses a device
including a colorimetric sensor and a static reference color display, under a
broadest reasonable interpretation of a “static reference color display” that is
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consistent with the Appellant’s Specification. In re Baker Hughes, Inc., 215
F.3d 1297, 1303 (Fed. Cir. 2000) (the PTO cannot adopt a construction that
is “beyond that which was reasonable in light of the totality of the written
description” in the Specification); In re Morris, 127 F.3d 1048, 1054–55
(Fed. Cir. 1997) (“While the Board must give the terms their broadest
reasonable construction, the construction cannot be divorced from the
specification and the record evidence.”); In re Smith Int’l, Inc., 871 F.3d
1375, 1382–83 (Fed. Cir. 2017) (“The correct inquiry in giving a claim term
its broadest reasonable interpretation in light of the specification is not
whether the specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an interpretation
that is not inconsistent with the specification. It is an interpretation that
corresponds with what and how the inventor describes his invention in the
specification, i.e., an interpretation that is ‘consistent with the
specification.’” (quoting Morris, 127 F.3d at 1054)).
We, accordingly, do not sustain the Examiner’s rejection of
independent claims 1, 9, and 18, and claims 7, 8, 15–17, and 20, which each
depend from either claim 1, 9, or 18, under 35 U.S.C. § 102(a)(1) as
anticipated by Jeppesen.
Rejection III
We turn now to the Examiner’s rejection of claims 2–6 and 10–14
under 35 U.S.C. § 103 as unpatentable over Jeppesen in view of Schroder.
Because the Examiner does not rely on Schroder for any disclosure that
remedies the deficiencies of the Examiner’s reliance on Jeppesen (discussed
above), we do not sustain this rejection. Final Act. 7.
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Rejection IV
Finally, we turn to the Examiner’s rejection of claim 19 under
35 U.S.C. § 103 as unpatentable over Jeppesen in view of Morrow. Because
the Examiner does not rely on Morrow for any disclosure that remedies the
deficiencies of the Examiner’s reliance on Jeppesen (discussed above), we
do not sustain this rejection. Final Act. 7–8.
DECISION SUMMARY
Claims

35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
18–20 112(b)  Indefiniteness 18–20
1, 7–9, 15–18,
20

102(a)(1) 

Jeppesen
1, 7–9, 15–18,
20
2–6, 10–14 103  Jeppesen,
Schroder
2–6, 10–14
19 103 Jeppesen,
Morrow
19
Overall
Outcome
18–20 1–17

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 IN PART