Mark C. Estes

Patent Trials and Appeals Board

Aug 1, 2019

14094185 - (D) (P.T.A.B. Aug. 1, 2019)

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.
14/094,185 12/02/2013 MARK C. ESTES 41986-0080001 1034
26191 7590 08/01/2019
FISH & RICHARDSON P.C. (TC)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
SHAH, NILAY J
ART UNIT PAPER NUMBER
3783
NOTIFICATION DATE DELIVERY MODE
08/01/2019 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MARK C. ESTES
__________

Appeal 2019-000153
Application 14/094,185
Technology Center 3700
__________

Before JOHN C. KERINS, STEFAN STAICOVICI, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Bigfoot Biomedical, Inc.,1 appeals under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 18, 36, 40–44
and 47–50. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Bigfoot Biomedical, Inc. is the applicant and is identified as the sole real
party in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
The Specification
Appellant’s disclosure “relates to an infusion pump system, such as a
portable infusion pump system for dispensing insulin or another medicine.”
Spec. 1:2–3.
The Rejected Claims
Claims 18, 36, 40–44 and 47–50 are pending and all are rejected.
Final Act. 1. No other claims are pending. Id. at 2; Appeal Br. 16–19.
Claims 18, 43, and 49 are independent. Appeal Br. 16–18. Claims 18 and
43 are illustrative and reproduced below.
18. A method of controlling a portable infusion pump
system, comprising:
receiving a voice input from a user that is indicative of a
task associated with using a portable infusion pump system by a
smartphone including a microphone, wherein the voice input
comprises a user estimate of an amount of carbohydrates that
has been or will be consumed by the user and an instruction to
deliver a bolus;
analyzing the received voice input to determine at least
one textual transcript corresponding to the voice input;
identifying, using the at least one textual transcript, at
least one of (i) a food item indicated by the voice input, and (ii)
a numerical value of the amount of carbohydrates that has been
or will be consumed by the user;
calculating, in response to receiving the voice input, a
suggested bolus dosage using the user estimate of the amount of
carbohydrates and information about a recent blood glucose
level, insulin sensitivity, insulin-on-board, and food-on-board
for the user;
in response to receiving the voice input, displaying, via
the smartphone, the suggested bolus dosage and the identified
at least one of (i) the food item indicated by the voice input, and
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(ii) the numerical value of the amount of carbohydrates that has
been or will be consumed by the user, wherein the suggested
bolus dosage and the at least one of (i) the food item indicated
by the voice input, and (ii) the numerical value of the amount of
carbohydrates that has been or will be consumed by the user are
displayed simultaneously as part of a single user interface
display;
prompting the user via the smartphone to either confirm
the initiation of the suggested bolus dosage or to deny the
delivery of the suggested bolus dosage through manual
interaction with a touchscreen or one or more buttons of the
smartphone, wherein if the user denies the suggested bolus
dosage the user is presented with an option to manually input or
verbally speak a specific number of units for a bolus dosage via
the smartphone; and
controlling the portable infusion pump system to initiate
the confirmed suggested bolus dosage or the manually input or
verbally spoken bolus dosage,
wherein the smartphone is configured to wirelessly
communicate with a wireless communication device connected
to control circuitry of a pump drive system.

43. A method of controlling a portable infusion pump
system, comprising:
receiving by a smartphone a voice input from a user that
includes an instruction to deliver a bolus and a user estimate of
an amount of carbohydrates for one or more food items that has
been or will be consumed;
determining a suggested bolus dosage that corresponds to
the information about the one or more food items using at least
the user estimate of an amount of carbohydrates and
information about a recent blood glucose level, insulin
sensitivity, insulin-on-board, and food-onboard for the user;
in response to receiving the voice input, displaying, by
the smartphone, the suggested bolus dosage and at least one of
(i) a food item indicated by the voice input, and (ii) the
numerical value of the amount of carbohydrates, wherein the
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suggested bolus dosage and the at least one of (i) the food item
indicated by the voice input, and (ii) the numerical value of the
amount of carbohydrates are displayed simultaneously as part
of a single user interface display;
prompting a user via the smartphone to confirm or deny
the suggested bolus dosage through manual interaction with a
touchscreen or one or more buttons of the smartphone, wherein
if the user denies the suggested bolus dosage the user is
presented with an option to manually input or verbally speak a
specific number of units for a bolus dosage via the smartphone;
and
wirelessly communicating said bolus dosage to control
circuitry in the portable infusion pump system from said
smartphone once said bolus dosage is confirmed by the user to
deliver the bolus dosage to the user based upon the voice input.
Id. at 16–18.
The Appealed Rejections
The following rejections are before us for review:
1. claims 40 and 41 under 35 U.S.C. § 112(d) (Final Act. 3);
2. claims 18, 36, and 40–42, under 35 U.S.C. § 103, as
unpatentable over Reinke,2 Hayter,3 Galley,4 and Wise5 (id. at 4); and
3. claims 43, 44, and 47–50, under 35 U.S.C. § 103, as
unpatentable over Reinke, Hayter, and Galley (id. at 12).

2 US 2011/0124996 A1, published May 26, 2011 (“Reinke”).
3 US 2010/0298685 A1, published Nov. 25, 2010 (“Hayter”).
4 US 2003/0028089 A1, published Feb. 6, 2003 (“Galley”).
5 US 2007/0118364 A1, published May 24, 2007 (“Wise”).
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DISCUSSION
Rejection 1
The Examiner rejected dependent claims 40 and 41, under 35 U.S.C.
§ 112(d), for being improper dependent claims. Final Act. 3. Section 112(d)
recites that “a claim in dependent form shall contain a reference to a claim
previously set forth and then specify a further limitation of the subject matter
claimed.” 35 U.S.C. § 112(d). Claims 40 and 41 do not contain a reference
to a claim previously set forth. Rather, they each contain a reference to
“claim 39,” which is canceled. Appeal Br. 17. Appellant does not argue
against this rejection, and we summarily affirm it.
Rejection 2
The Examiner rejected claims 18, 36, and 40–42, under 35 U.S.C.
§ 103, as unpatentable over Reinke, Hayter, Galley, and Wise. Final Act. 4.
Independent claim 18 recites:
analyzing the received voice input to determine at least
one textual transcript corresponding to the voice input;
identifying, using the at least one textual transcript, at
least one of (i) a food item indicated by the voice input, and (ii)
a numerical value of the amount of carbohydrates that has been
or will be consumed by the user;
Appeal Br. 16 (emphasis added). Claim 36 and 42 depend from claim 18,
and claims 40 and 41, which depend from canceled claim 39, were deemed
to depend from claim 18 for examination purposes. Appeal Br. 17; Final
Act. 3.
In rejecting independent claim 18, the Examiner first articulated a
combination of Reinke and Hayter, and then conceded that their combined
teachings are “silent regarding analyzing the received voice input to
determine at least one textual transcript corresponding to the voice input;
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identifying, using at least one textual transcript, at least one of (i) a food
item indicated by the voice input, and (ii) a numerical value of the amount of
carbohydrates that has been or will be consumed by the user.” Final Act. 8.
Thus, the Examiner turned to Wise, which he found teaches (1) “generating
closed captions [by] analyzing the received voice input to determine at least
one textual transcript corresponding to the voice input” and (2) “identifying,
using at least one textual transcript at least one of the features . . . for the
purpose of appropriately using the voice input from the user to perform the
necessary operations.” Id. (citing Wise ¶¶25)). The Examiner concluded as
follows:
Therefore, it would have been prima facie obvious to one of
ordinary skill in the art, to modify the method of using the voice
input of Reinke and Hay[]ter to incorporate analyzing the
received voice input to determine at least one textual transcript
corresponding to the voice input; identifying, using at least one
textual transcript, at least one of the features as taught by Wise
for the purpose of appropriately using the voice input from the
user to perform the necessary operations (paragraph 0026).
Id. at 9.
Wise clearly teaches “analyzing the received voice input to determine
at least one textual transcript corresponding to the voice input,” as recited in
claim 18. See Wise ¶25 (“The speech recognition engine 12 receives an
audio signal 18 and generates text transcripts 22 corresponding to one or
more speech segments from the audio signal 18.”). Wise further teaches
“identify[ing] an appropriate context 17 associated with the text transcripts
22 generated by the speech recognition engine 12.” Id. ¶26. However, Wise
does not, as Appellant argues (see Appeal Br. 6–7), teach identifying the
“appropriate context” of a text transcript using the text transcript. See Wise
¶26. Wise merely teaches that a context is identified. Id. If anything, Wise
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implies that the context is identified based on audio input, not a text
transcript. See id. (providing, as examples of context identification, “voice
identification engine 30” and “non-speech models to help identify sounds
from the environment or setting (explosion, music, etc.).”).
For the foregoing reasons, we reverse the rejection of claim 18 as
unpatentable over Reinke, Hayter, Galley, and Wise. For the same reason,
we also reverse the rejection of dependent claims 36 and 40–42. See In re
Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) (“Dependent claims are
nonobvious under section 103 if the independent claims from which they
depend are nonobvious.”).
Rejection 3
The Examiner rejected claims 43, 44, and 47–50, under 35 U.S.C.
§ 103, as unpatentable over Reinke, Hayter, and Galley. Final Act. 12.
Appellant does not argue the patentability of these claims over
Reinke, Hayter, and Galley. See generally Appeal Br. Instead, Appellant
asserts that a subset of these claims, namely, claims 43, 44, 49, and 50 are
patentable over Reinke, Hayter, Galley, and Wise. See id. at 13. Claims 47
and 48 are not specifically argued but they depend from claim 43.
Independent Claims 43 and 49 (and Dependent Claims 47 and 48)
Appellant’s entire argument in support of the patentability of claims
43 and 49 (and dependent claims 47 and 48) is the following statement:
“Independent claims 43 and 49 contain similar features to those discussed
above with respect to claim 18 and are therefore allowable for the same
reasons discussed above.” Appeal Br. 13 (emphasis added). This
conclusory argument is insufficient to persuade us of error. Merely asserting
that claims 43 and 49 “contain similar features” as claim 18, which was
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subject to a different ground of rejection, is insufficient. By Rule, an
appellant’s “arguments shall explain why the examiner erred as to each
ground of rejection contested by appellant.” 37 C.F.R. § 41.37(c)(iv).
Additionally, Appellant’s conclusory assertion about the similarity of claims
43 and 49 to claim 18 is also misplaced. See id. (“Each ground of rejection
contested by appellant must be argued under a separate heading.”).
Because the Appeal Brief fails to explain why the Examiner allegedly
erred in rejecting claims 43 and 47–49, we affirm the rejection of these
claims, under 35 U.S.C. § 103, as unpatentable over Reinke, Hayter, and
Galley.
Dependent Claims 44 and 50
Appellant does present specific arguments with respect to claims 44
and 50 and does so under a separate heading, albeit one that misidentifies the
rejection. See Appeal Br. 13 (“C. Allowability of Claims 36, 44, and 50
over Reinke in view of Hayster, Galley, and Wise” (emphasis added)).
There, Appellant points out that claims 44 and 50 both recite “wherein the
voice input comprises a specific name or type of food that the user will
consume.” Id. Appellant then argues the following:
Reinke discloses, at best, that a user scrolls through food items
listed in the food database and “select[s] a food item from the
food database 110, enter[s] a date and time of consumption and
how many servings he or she consumed.” Reinke at [0042]-
[0043]. Therefore, the form of the input is button presses or other
similar input to scroll through the food items listed in the food
database and to indicate selection of one of the displayed food
items. There is simply no disclosure or suggestion in Reinke of
any input received by Reinke’s system (voice input or otherwise)
that includes “a specific name or type of food that the user will
consume” as required by claims 36, 44, and 50. For at least this
additional reason, claims 36, 44, and 50 are allowable.
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Id.
Appellant’s argument is not persuasive because the rejection of claims
44 and 50 was not based only on Reinke. For the limitation at issue, the
Examiner explicitly relied on a combination of Reinke and Hayter. See
Final Act. 17–18; see also In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.”).
For the foregoing reasons, we affirm the rejection of claims 44 and 50,
under 35 U.S.C. § 103, as unpatentable over Reinke, Hayter, and Galley.
DECISION
The Examiner’s rejection of claims 40 and 41 under 35 U.S.C.
§ 112(d) is affirmed.
The Examiner’s rejection of claims 18, 36, and 40–42, under 35
U.S.C. § 103, as unpatentable over Reinke, Hayter, Galley, and Wise is
reversed.
The Examiner’s rejection of claims 43, 44, and 47–50, under 35
U.S.C. § 103, as unpatentable over Reinke, Hayter, and Galley is affirmed.

TIME PERIOD
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