Valencell, Inc.

Patent Trials and Appeals Board

Jun 15, 2021

2020006343 (P.T.A.B. Jun. 15, 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.
14/328,107 07/10/2014 Steven Francis LeBoeuf 9653-3TSCT6 1813
20792 7590 06/15/2021
MYERS BIGEL, P.A.
PO BOX 37428
RALEIGH, NC 27627
EXAMINER
STEINBERG, AMANDA L
ART UNIT PAPER NUMBER
3792
NOTIFICATION DATE DELIVERY MODE
06/15/2021 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):
myersbigel_pair@firsttofile.com
uspto@myersbigel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN FRANCIS LEBOEUF,
JESSE BERKLEY TUCKER, and MICHAEL EDWARD AUMER

Appeal 2020-006343
Application 14/328,107
Technology Center 3700
____________

Before MICHAEL L. HOELTER, GEORGE R. HOSKINS, and
MICHAEL L. WOODS, 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 1–8, 10–18, and 33–35, which
constitute all the claims pending in this application. See Appeal Br. 2. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the Examiner’s rejections of these claims.

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
“Valencell, Inc.” Appeal Br. 2.
Appeal 2020-006343
Application 14/328,107

2
CLAIMED SUBJECT MATTER
The disclosed subject matter “relates generally to health and
environmental monitors and, more particularly, to wireless health and
environment monitors.” Spec. 1:13–15. Apparatus claim 1 is the sole
independent claim. See Appeal Br. 11–14 (Claims Appendix). Claim 1 is
illustrative of the claims on appeal and is reproduced below.
1. A network for monitoring and communicating
physiological information, the network comprising:
a portable telecommunication device;
an apparatus adapted to be worn by a subject, the
apparatus comprising:
a plurality of sensors configured to sense electrical,
mechanical, electromagnetic radiation, and/or acoustical
information from the subject, wherein each sensor of the
plurality of sensors is configured to produce a signal
indicative of the information sensed thereby;
a transmitter configured to transmit the signals
produced by the plurality of sensors to the portable
telecommunication device; and
an audible device configured to provide audible
information to the subject;
a memory device; and
at least one signal processor in communication with
memory device and the plurality of sensors, wherein the at least
one signal processor is configured to process the signals
produced by the plurality of sensors to generate an extracted
signal that comprises information about at least one of the
following: sleeping, organ functioning, cardiovascular
performance, pulmonary performance, stress, and emotional
states, wherein the at least one signal processor is further
configured to download wirelessly a specialized algorithm into
the memory device from a source that is remote from the at
least one signal processor, wherein the at least one signal
processor is configured to download the specialized algorithm
responsive to a preference indicated by the subject, and wherein
Appeal 2020-006343
Application 14/328,107

3
the specialized algorithm is configured to focus processing
resources of the at least one signal processor on identifying a
signature of at least one pulse of the subject over monitoring
another physiological characteristic of the subject.
EVIDENCE
Name Reference Date
Abbott et al. (“Abbott”) US 2001/0040591 A1 Nov. 15, 2001
Yoo US 2005/0058456 A1 Mar. 17, 2005
Aceti US 2005/0059870 A1 Mar. 17, 2005
Kehr et al. (“Kehr”) US 2013/0218588 A1 Aug. 22, 2013
REJECTIONS
Claims 1–6, 8, 15–17, and 33–35 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kehr, and Aceti.2
Claims 7 and 10–13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kehr, Aceti, and Abbott.
Claims 14 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Kehr, Aceti, and Yoo.
ANALYSIS
The rejection of claims 1–6, 8, 15–17, and 33–35
as unpatentable over Kehr, and Aceti
As an initial matter, Appellant contends that the Examiner’s analysis
is “Based on a Faulty Interpretation of Claim Terms.” Appeal Br. 4; see

2 The Examiner included claim 9 but claim 9 was canceled. See Final
Act. 6. The Examiner also failed to include claims 34 and 35, but these two
claims were addressed in the body of the rejection. See Final Act. 6, 11, 12.
Appellant understands that the claims on appeal are claims 1–8, 10–18, and
33–35. See Appeal Br. 2.
Appeal 2020-006343
Application 14/328,107

4
also Ans. 4. Specifically, Appellant addresses the Examiner’s interpretation
of “pulse signature” because, as per the Examiner, the scope of this term
“could be referring to any information associated with heart rate that is not a
literal instantaneous heart rate number.” Final Act. 5–6. Appellant contends
that “what the term ‘could’ mean or what a term ‘could’ be referring to is not
a permissible interpretation.” Appeal Br. 4.
The claim limitation in question is a recitation that applies processing
resources “on identifying a signature of at least one pulse of the subject.”3
Appellant contends that “a sense of distinctiveness or identifiability is
associated with signature.” Appeal Br. 5, Reply Br. 2. We agree with
Appellant that “the term being interpreted is ‘pulse signature,’ not merely
‘pulse.’” Appeal Br. 5. Appellant’s Specification buttresses this point
stating “the final energy spectrum 802 and waveform 803 contain cleaner
information about the test subject’s pulse rate. In fact, the signature of each
pulse can even be identified.” Spec. 35:11–13; see also id. at Fig. 8; Reply
Br. 3.
Thus, as per Appellant’s contentions, we understand “pulse signature”
to mean more than just a subject’s pulse, and instead is understood to mean a
distinctive or an identifying characteristic of that subject. However, this is
the same concept the Examiner seems to be addressing when interpreting
“‘pulse signature’ to mean information associated with pulse that is not
pulse,” and also that “pulse signature” “could be referring to any information
associated with heart rate that is not a literal instantaneous heart rate

3 To be clear, none of the claims on appeal employ the exact term “pulse
signature,” but we understand the Examiner and Appellant to be referring to
this limitation in abbreviated form.
Appeal 2020-006343
Application 14/328,107

5
number.” Final Act. 5–6. As a consequence, it would appear that the
Examiner and Appellant are both addressing the same topic, i.e., certain
characteristics related to a subject’s pulse that can be employed to identify or
distinguish a subject’s pulse. In other words, as understood, a “pulse
signature” is more than just the numeric value of the subject’s pulse or heart
rate number.
In summation, because Appellant’s Specification lacks a more
detailed description that would provide further information regarding the
metes and bounds of “pulse signature,” we are not persuaded that the
Examiner’s interpretation is improper, or that it is inconsistent with
Appellant’s Specification. As a consequence, we are not persuaded by
Appellant’s contention that, because of the Examiner’s claim construction,
“the entirety of the Action is prima facie deficient and rejections therein
should be reversed.” Appeal Br. 5; see also Reply Br. 4.
Addressing now the 35 U.S.C. § 103(a) rejection of claims 1–6, 8, 15–
17, and 33–35 as unpatentable over Kehr and Aceti, the Examiner primarily
relies on Kehr for teaching these limitations, except for, as expressed by the
Examiner, “the form factor of the apparatus worn by the patient” as well as
specific information related to sensors. Final Act. 7. The Examiner relies
on Aceti for such teachings, and also provides reasons for their combination.
See Final Act. 8. Appellant argues these claims (i.e., claims 1–6, 8, 15–17,
and 33–35) together. See Appeal Br. 6–9. We select independent claim 1
for review, with the remaining claims standing or falling therewith. See 37
C.F.R. § 41.37(c)(1)(iv) (2019).
After initially replicating claim 1 and discussing the teachings of Kehr
(see Appeal Br. 6–7), Appellant contends that Kehr is not “a device that
Appeal 2020-006343
Application 14/328,107

6
downloads a specialized algorithm that is configured to focus processing
resources.” Appeal Br. 7. The issue here is not so much the downloading
capability of Kehr because Appellant understands that “medical treatment
regimens (called ‘specific programming data’) can be downloaded to the
device. (Kehr, [0087]).” Appeal Br. 7; see also Kehr ¶ 105 (describing an
embodiment that “performs both downloading and uploading”). The issue,
instead, appears to be the downloading of “a specialized algorithm that is
configured to focus processing resources” in the manner claimed. Appeal
Br. 7; see also id. at 8.
The Examiner identifies paragraph 122 of Kehr for such teachings.
See Final Act. 7; Ans. 5. Paragraph 122 of Kehr discusses monitors such as
a “pulse oximetry monitor” and/or an “EKG monitor” that “are applied to
the patient.” See also Reply Br. 5. This paragraph teaches that these
“various monitors interface with the medical monitoring device, which
contains a series of algorithms for analyzing data collected from the
monitors and coordinating the appropriate treatment and communication
procedures.” Kehr ¶ 122; see also Ans. 5. Kehr provides examples of such
coordination stating, for instance, that if the received data indicates
“increased blood pressure,” the “algorithm analyzes the data and activates
the pulse oximetry monitor” as well as triggers other actions. Kehr ¶ 122.
Another example provided is if the data “determines a heart attack is
underway,” then the device “activates a medication discharge device that
administers a drug to block the heart attack.” Kehr ¶ 122.
Despite the above, Appellant contends that Kehr’s algorithms are not
“configured to focus processing resources . . . over monitoring another
physiological characteristic of the subject.” Appeal Br. 8. Appellant states
Appeal 2020-006343
Application 14/328,107

7
that “common dictionary definitions of ‘over’ include ‘above in authority,
rank, power, etc.’” as well as “above in place or position.” Reply Br. 6
(citation omitted). According to Appellant, “the Examiner appears to
interpret ‘over’ as ‘instead of.’” Reply Br. 7.
The Examiner acknowledges that claim 1 requires “that ‘processing
resources’ are ‘focused’ on one physiological characteristic ‘over’ another
physiological characteristic.” Ans. 7. However, as stated by the Examiner,
“[t]his doesn’t require that other physiological characteristics are not
monitored simultaneously, just that processing resources are devoted more
to one than another.” Ans. 7; see also Reply Br. 5.
We believe the Examiner has the better position. Appellant appears to
understand Kehr’s teaching that should certain patient conditions arise,
certain actions are taken. Appellant does not explain how this is not a
disclosure of Kehr pursuing one action “over” another. Thus, Appellant
does not adequately explain how Kehr fails to teach this limitation. See
Appeal Br. 8; Reply Br. 7.
Appellant further contends that there is no teaching or suggestion of
focusing these resources “on identifying a signature of at least one pulse of
the subject” as recited. Appeal Br. 8. However, paragraph 116 of Kehr
discusses a monitoring device that assesses pulse data (along with other
data), in order “to analyze and correlate physiological and physical data . . .
and develop a complete picture of the patient’s health and treatment
progress,” which “may comprise a single data element, a particular sequence
of data elements, or a particular combination of data elements.” It is not
explained how this teaching of employing pulse data to develop a picture of
the patient’s health is not also at least a suggestion of teaching the aforesaid
Appeal 2020-006343
Application 14/328,107

8
pulse “signature,” which likewise employs a subject’s pulse to develop “a
sense of distinctiveness or identifiability” associated with the subject.
Appeal Br. 5.
Appellant also contends that “there is no discussion or suggestion that
the monitoring device and sensors of Kehr are positioned within the ear
canal.” Appeal Br. 9; Reply Br. 7. As such, “the advantage found in Aceti
of enhanced comfort from a device is not needed in the system of Kehr.”
Appeal Br. 9. What is lacking from Appellant’s analysis is the fact that
Aceti teaches use of the same type of sensors as employed by Kehr (i.e., “a
pulse oximetry sensor 302, an electrocardiogram sensor 304” (Aceti ¶ 20)),
but Aceti employs them in the ear canal for such beneficial reasons as
comfort and efficiency. See Aceti ¶¶ 4, 35. As such, Appellant does not
explain how the Examiner’s use of such sensors in the ear canal for the
benefits expressed by Aceti is faulty or otherwise lacks articulated reasoning
with rational underpinning. See Final Act. 8.
Appellant further contends that “[t]he monitoring devices of Kehr
already have speakers to communicate information to the patient (Kehr,
[0079]), and as such the inclusion of a speaker in the sensor devices of Kehr
would be redundant.” Appeal Br. 9. There is merit to Appellant’s
contention that both Kehr and Aceti employ speakers and as such, the
combination of Aceti’s speaker with that of Kehr would be redundant. The
Examiner acknowledges this stating “Appellant correctly points out that the
Examiner erroneously stated that Kehr did not teach a speaker.” Ans. 8. To
remedy this, the Examiner states, “[t]herefore, the modification, would not
require adding the speaker of Aceti.” Ans. 8. Appellant does not further
pursue this matter.
Appeal 2020-006343
Application 14/328,107

9
Accordingly, and based on the record presented, we sustain the
Examiner’s rejection of claims 1–6, 8, 15–17, and 33–35 as being obvious
over Kehr and Aceti.
The rejections of: (a) claims 7 and 10–13 over Kehr, Aceti, and Abbott, and
(b) claims 14 and 18 over Kehr, Aceti, and Yoo
Regarding the rejections of these claims, Appellant states that “the
additionally cited reference(s) do not cure the deficiencies of the references
cited against” independent claim 1. Appeal Br. 9–10. As noted above, we
are not persuaded there are deficiencies with respect to the combination of
Kehr and Aceti. Accordingly, we likewise sustain the Examiner’s rejections
of claims 7, 10–14, and 18 as being obvious in view of Kehr, Aceti, and the
additionally cited art.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–6, 8, 15–
17, 33–35
103(a) Kehr, Aceti 1–6, 8, 15–
17, 33–35

7, 10–13 103(a) Kehr, Aceti,
Abbott
7, 10–13
14, 18 103(a) Kehr, Aceti,
Yoo
14, 18
Overall
Outcome
1–8, 10–18,
33–35

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
Appeal 2020-006343
Application 14/328,107

10
AFFIRMED