Rhonda Shakir-Ferguson

Patent Trials and Appeals Board

Apr 28, 2021

2020005716 (P.T.A.B. Apr. 28, 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.
15/159,090 05/19/2016 Rhonda Shakir-Ferguson 55000-RA 9598
96680 7590 04/28/2021
Rhonda Ferguson
65 Vilote Fern Ln
Covington, GA 30016-3800
EXAMINER
SZAFRAN, BRIEANNA TARAH LARELL
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
04/28/2021 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RHONDA SHAKIR-FERGUSON
____________________

Appeal 2020-005716
Application 15/159,090
Technology Center 3700
____________________

Before DANIEL S. SONG, JOSIAH C. COCKS, and
CARL M. DEFRANCO JR., Administrative Patent Judges.

COCKS, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a non-final
rejection of claims 4, 7, 10, and 11 of Application 15/159,090 (“the ’090
application”). 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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 Rhonda
Shakir-Ferguson. Appeal Br. 2.
2 In this opinion, we make reference to Appellant’s Reply Brief filed August
3, 2020 (“Reply Br.”), the Examiner’s Answer mailed June 24, 2020
(“Ans.”), Appellant’s Appeal Brief filed May 4, 2020 (“Appeal Br.”), and
the Non-Final Rejection mailed February 18, 2020 (“Non-Final Rej.”)

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A. References Relied on by the Examiner
Pasfield US 5,026,084 June 25, 1991
Vidolin et al. (“Vidolin”) US 6,880,364 B1 Apr. 19, 2005
Mendes US 2006/0042139 A1 Mar. 2, 2006
“Awareness Color Definition Guide” Jan. 20153
B. Rejections on Appeal
The Examiner rejected claims 4, 7, 10, and 11 under 35 U.S.C.
§ 112(b) as being indefinite.
The Examiner rejected claims 4, 7, 10, and 11 under 35 U.S.C. § 103
as unpatentable over Mendes in view of Pasfield, Vidolin, and “Awareness
Color Definition Guide.”
C. The Subject Matter of the’090 Application
The Specification of the ’090 application characterizes the field of the
disclosed invention as follows:
The present application provides color-coded accessories
such as pillows, pillow cases, and bibs and wristbands to be
worn by a patient that indicate the medical diagnosis of the
patient to a healthcare provider. These color-coded accessories
rapidly alert the healthcare provider to the medical diagnosis of
the patient. In this manner, the number of errors administering
incorrect medicines and treatments is greatly reduced, thereby
enhancing the safety of the patient.
Spec. ¶ 2.

3 “Awareness Color Definition Guide” appears to be content of website
“https://bagwellpromotions.com/awareness-color-definition-guide/” as
captured by a web archival service “web.archive.org” on January 30, 2015.

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Claims 4 and 7 are independent. Claims 10 and 11 depend from
claim 7. Claim 4 is illustrative and is reproduced below:
4. A method of preventing an inappropriate administration
of a medication in a healthcare facility by alerting a healthcare
provider to a medical diagnosis of a patient comprising:

providing a universal chart, wherein said universal chart
enumerates a list of color codes each corresponding to a specific
medical diagnosis, said list of color codes corresponding to a
specific medical diagnosis comprising:

white corresponding to substance abuse, pink
corresponding to diabetes, yellow corresponding to human
immunodeficiency virus, blue corresponding to cancer, red
corresponding to cardiac, green corresponding to respiratory,
orange corresponding to tuberculosis, purple corresponding to
seizure, brown corresponding to psychotropic drug therapy,
black corresponding to suicide watch, and a combination of red,
white and blue corresponding to post-traumatic stress disorder;

displaying said universal chart in an at least one nurses’
station and in an at least one patient room located in said
healthcare facility;

providing a color-coded accessory, wherein said color-
coded accessory is associated with a medical diagnosis of said
patient corresponding to a color, said medical diagnosis and said
color corresponding to said universal cart:

wherein said color-coded accessory comprises a
wristband, said wristband having a first end and a second end,
said first end positioned opposite from said second end, said
wristband defining a length extending from said first end to said
second end, said wristband defining a width, said width defined
perpendicular to said length, said wristband defining a first side
and a second side, said first side positioned opposite from said
second side, said wristband comprising:

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a first hook-and-loop fastener strip, said first hook-and-
look fastener strip disposed on said first side of said wristband
proximate to said first end;

a second hook-and loop fastener strip, said second hook-
and-loop fastener strip disposed on said second side of said
wristband proximate to said second end, said second hook-and-
loop fastener strip configured to engage said first hook-and-loop
fastener strip:

wherein said color-coded accessory further comprises a
ribbon, said ribbon forming a loop extending around said width
of said wristband, said ribbon defining a second color code of
said color-coded accessory that is associated with a second
medical diagnosis of said patient;

applying said color-coded accessory to said patient by
securing said wristband around a wrist of said patient by
engaging said first hook-and-loop fastener strip with said second
hook-and-loop fastener strip;

said healthcare provider entering a room of said patient in
order to administer a medication to said patient; and

exposing said healthcare provider to said color-coded
accessory prior to administering said medication, wherein said
first color-coded accessory alerts said healthcare provider to said
first medical diagnosis of said patient, thereby preventing said
inappropriate administration of said medication in said
healthcare facility.
Appeal Br. Claims App’x 5–7.
Claim 7 is similarly directed to “[a] method of enhancing
patient safety by preventing an inappropriate administration of a
medication in a healthcare facility” and recites many of the same
features as claim 4. Id. at 7–8. Claim 7 omits features directed to the

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“wristband” and “hook-and-loop fastener” structures required by
claim 4.

II. ANALYSIS
A. Indefiniteness Rejection Under 35 U.S.C. § 112(b)
The Examiner determined that claims 4, 7, 10, and 11 are
unpatentable under 35 U.S.C. § 112(b) as being indefinite. Non-Final
Rej. 3. Those claims have been rejected as lacking antecedent basis for the
limitation “a room” appearing in claims 4 and 7. Id. Although Appellant
generally “requests consideration and reversal” of the “35 USC 112
[rejection]” (Appeal Br. 1), Appellant does not present any substantive
arguments challenging the propriety of the Examiner’s rejection under
§ 112(b) as a part of either its Appeal Brief or Reply Brief. In that regard,
Appellant provides no explanation as to why the Examiner errs in
concluding that multiple references to “room” in claims 4 and 7 lack clarity
and do not comply with the requirements of § 112(b). See Non-Final Rej. 3.
Accordingly, we summarily affirm the rejection of claims 4, 7, 10, and 11
under 35 U.S.C. § 112(b).
B. Obviousness Rejection Under 35 U.S.C. § 103
1. Overview of Mendes
Mendes is titled “ATHLETIC MEDICAL BRACELET.” Mendes
code (54). In one embodiment, Mendes describes that a medical bracelet
may be marked with medical or personal information of an individual, and
that such information may include, inter alia, an “individual’s name,

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illnesses, medical history, condition, required medications, [and]
allergies[.]” Id. ¶ 26.
Mendes’s Figure 7 is reproduced below.

Figure 7 depicts an embodiment of Mendes in which “the information may
be affixed by color-coding the bracelet [20] such that different colors
represent different information, according to a specified color-coding
scheme.” Id. ¶ 29. Illustratively, Mendes provides that “a green stripe may
indicate a person is diabetic, a red stripe may indicate a person is anemic,
etc. . . . the colors are displayed as colored stripes (70, 72) on the outer
surface (26) of the bracelet (20).” Id.
2. Overview of Pasfield
Pasfield is entitled “COLOR CARE CODED PATIENT
IDENTIFICAITON SYSTEM.” Pasfield code [54]. The reference provides
as the background of its disclosure the sentiment that “careless use of charts
can give rise to mistakes, such as providing the wrong medication or
treatment.” Pasfield 1:22–23. To remedy the disclosed problem, Pasfield

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offers “[a] color coded band, adapted to be mounted on the arm of a patient.
The band has a highly visible color code to indicate a certain care alert
condition.” Id. at code [57]. This band is coordinated with a “color coded
chart to facilitate use of . . . bands of the present invention.” Id. at 2:5–7.
Pasfield teaches that such a chart lists “various conditions that the care
provider should be alerted to . . . which would affect the care required.
Colored flags or discs [] highlights the alert condition.” Id. at 2:60–66. The
charts are taught as being “placed in convenient places where the care
providers, such as; doctors, nurses, attendants and any staff member will
become familiar with the different color coding so that they will instantly be
aware of any condition requiring special care.” Id. at 2:67–3:3.
3. Overview of Vidolin
Vidolin is entitled “FRIENDSHIP BAND WITH EXCHANGEABLE
CLOSED LOOP MEMBERS.” Vidolin code [54]. Vidolin discloses a
“band with exchangeable closed loop members[.]” Id. at code [57]. The
band with exchangeable closed loop members may incorporate hook and
loop fasteners at each end to allow for releasable closure as illustrated in
Figure 6C reproduced below. Id. at 6:35–39.

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Figure 6C illustrates a top plan view of a bracelet according to an
embodiment of Vidolin’s invention. Id. at 3:38–39. Vidolin further teaches
that closed loop members 60, 60' include indicia, which may be various
colors, and provide symbolic representation of context appropriate
information. Id. at 4:38–52.
4. Overview of “Awareness Color Definition Guide”
“Awareness Color Definition Guide” was offered by the Examiner as
teaching wristbands available in different colors where such wristbands are
additionally specifically associated with a number of medical conditions
based upon the displayed color. See Non-Final Rej. 12.

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5. Discussion
The Examiner determined that all of the features required by claims 4,
7, 10, and 11 of the ’090 application are found in the prior art and that a
person of ordinary skill in the art would have had adequate reason to
combine those prior art teachings. Non-Final Rej. 9–21. Appellant
disagrees. Appeal Br. 2–4; Reply Br. 1–2. We focus on the bases of that
disagreement.
At the outset, we discern that although Appellant generally argues that
“Mendes, Pasfield and Vidolin fails to teach each and every limitation of
claim[s] 4 and 7, 10–11,” it is not apparent what claim feature Appellant
regards as absent. Appeal Br. 2. Although the Appellant has gone to lengths
to characterize each of the applied references as individually failing to
disclose the features of each claim (see Appeal Br. 2–4), that approach does
not reflect the appropriate inquiry into obviousness. In determining
obviousness, “the combined teachings of the prior art as a whole must be
considered.” EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907
(Fed. Cir. 1985). Indeed, “[t]he test for obviousness is what the combined
teachings of the references would have suggested to one of ordinary skill in
the art.” In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991). That any single
reference taken alone may not disclose every feature required by a claim
does not end the obviousness query where, as here, multiple references have
been advanced for their combined teachings. In reviewing the Examiner’s
proposed ground of rejection based on obviousness (Non-Final Rej. 9–21), it
is not apparent what features of the claims Appellant regards as missing
from the teachings of the prior art in combination, in particular, the
combined teachings of Mendes, Pasfield, and Vidolin.

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Furthermore, it is evident that a central tenet of Appellant’s arguments
lies in the Examiner’s reasoning to combine the pertinent references, or, in
Appellant’s view, the lack thereof. In that respect, Appellant takes the
position that the Examiner has not presented adequate reasoning or
motivation to combine the teachings of the prior art. See, e.g., Appeal Br. 2
(“Examiner[’s] motivation to put [the applied references] all together lacks
reasoning. What is the motive[]?”).
Responding to Appellant, the Examiner expresses that “all of the
references are related in that they disclose/teach of a wristband method, and
are provided with colors to represent a specified color-coding scheme that
correlates to medical information/diagnosis/condition(s)/awareness[.]” Ans.
5. Specifically, the Examiner indicates that Mendes discloses a medical
wristband color-coded to represent different information to at least
emergency personnel rendering treatment to prevent inappropriate
administration of a medication. Id. Mendes unambiguously sets forth that
its disclosed medical bracelet is marked with a patient’s medical or personal
information, and that such marking may be in the form of color coding.
Mendes ¶¶ 26, 29. Although Mendes discusses use of its bracelet in the
context of “athletics,” (see, e.g., id. ¶ 16), we reject Appellant’s contention
that such disclosure removes Mendes’s teachings from other uses such as
those associated with a medical facility, especially considering that the
disclosed wristband and its color-coding scheme correlates to medical
information. See Reply Br. 1.
Pasfield is offered for its teaching of “preventing the inappropriate
administration of a medication . . . specifically in a healthcare facility with a
color-coded wristband and chart correlated combination to be recognized

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universally to doctors, nurses, attendants, and any other staff member to be
alerted to special care of a patient.” Ans. 6. To that end, Pasfield conveys
that a known problem in the medical field involves “providing the wrong
medication or treatment,” and correlates the use of wristbands that are color-
coded in conjunction with a patient’s particular condition or affliction for the
purpose of alleviating that known problem. See, e.g., Pasfield 1:22–23;
2:60–3:6.
We are persuaded by the Examiner that a skilled artisan, when
considering the teachings of Pasfield and Mendes together, reasonably
would have recognized that a wristband may employ color coding for the
purpose of signaling to a healthcare provider the appropriate medication or
treatment for a patient considering that such color coding is explicitly
disclosed. See, e.g., Non-Final Rej. 8. We also find persuasive the
Examiner’s reasoning that Appellant “provides no criticality for the method
of matching the specific medical conditions to the specific color codes” and
that “it would have been obvious to one of ordinary skill in the art . . . to
provide” the color and condition correlations recited in the claims. See Ans.
8–9 (emphasis omitted). Appellant does not offer a credible explanation that
any particular claimed color and condition association that may be selected
establishes a patentable distinction over the teachings of the prior art.
As for Vidolin, the Examiner explains that such reference is offered in
combination “to specifically teach a wristband method with further
remaining various structural details of the wristband itself[.]” Ans. 7. More
specifically, the Examiner finds that Vidolin accounts for the wristband
fastening configuration required by the claims, including the claimed “hook-
and-loop fastener” and “ribbon” structures. Non-Final Rej. 10–12. We

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understand the Examiner to reason that a skilled artisan would have
implemented Vidolin’s teachings into other wristbands “in order to provide a
releasable closure to the wristband for fitting purposes as well as further
providing closed loop members as the ribbons so that they may be
interchanged or removably separable from the wristband for exchange for
others.” Id. at 11. Appellant does not present any persuasive arguments that
the Examiner’s findings or reasoning are in error.
Finally, the Examiner references “Awareness Color Definition Guide”
as an exemplar of a comprehensive organized list associating a plethora of
colors with various human conditions. See Non-Final Rej. 12–13.4
In light of the foregoing, and having reviewed the record on appeal,
we are satisfied that the Examiner has identified all of the required features
of claims 4, 7, 10, and 11 of the ’090 application in the prior art and has
established that a person of ordinary skill in the art would have found it
obvious to combine the teachings of the prior art to arrive at the claimed
invention. Accordingly, we affirm the Examiner’s rejection of claims 4, 7,
10, and 11 for obviousness under 35 U.S.C. § 103.

4 Appellant generally seeks to discount “Awareness Color Definition Guide”
as constituting prior art to the ’090 application. Appeal Br. 4. Of record,
however, is a web capture of the “Awareness Color Definition Guide” from
January 30, 2015, indicating a published date of at least that point in time.
That January 2015 date is before Appellant’s earliest asserted priority date of
December 22, 2015. Spec. ¶ 1. The record on appeal does not provide the
panel any adequate reason to question the publishing of “Awareness Color
Definition Guide” prior to Appellant’s priority date. In any event, we
discern that the teaching value of “Awareness Color Definition Guide” is
ancillary to that already offered by the combination of Mendes, Pasfield, and
Vidolin.

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III. CONCLUSION
We have fully considered the record before us, including Appellant’s
briefing, the Examiner’s Non-Final Rejection, and the Examiner’s Answer.
For the reasons discussed above, we are not persuaded on the present record
that the Examiner was incorrect in rejecting claims 4, 7, 10, and 11 over the
prior art.
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4, 7, 10, 11 112(b) Indefiniteness 4, 7, 10, 11
4, 7, 10, 11 103 Mendes, Pasfield,
Vidolin,
“Awareness Color
Definition Guide.”
4, 7, 10, 11
Overall
Outcome
4, 7, 10, 11

IV. ORDER
The Examiner’s decision to reject claims 4, 7, 10, and 11
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