DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Arguments
Applicant’s arguments concerning the § 103 rejections have been fully considered but are not persuasive.
Applicant first argues that Rankers’ disclosure of entering an identifier for a recipient is for alarm/alert routing, not for transmission of real-time sensor information, and thus even if combined with Talbot it would fail to disclose the features of claim 1. The Examiner respectfully disagrees. Rankers is only relied upon in the rejection of claim 1 for supplying the limitation of “receive, via the user interface, an identifier of a recipient associated with a second wireless device.” Talbot teaches the remainder of the claimed limitations, including the transmission of real-time sensor data between devices. The rejection does not assert that Rankers also teaches those same limitations already taught by Talbot, nor does it need to in order to be proper. Applicant’s argument mischaracterizes the nature of how Rankers is being used in the rejection, e.g. by stating “incorporating the alarm/alert routing of Rankers into Talbot” when the rejection did not propose incorporating the substance of Rankers’ data transmission into Talbot. Rankers is solely used in the rejection of claim 1 to address how to choose/designate a recipient for data of interest, not for any teaching related to the specific substance of what data is transmitted.
Applicant’s next argument concerning the “other paragraphs” of Rankers is moot because those sections were not cited or discussed in the rejection of claim 1. The brief remark against Donaldson and Rivas is moot for the same reason.
Applicant next argues against the reliance on Official Notice for the same feature taught by Rankers in claim 1 discussed above, and for the limitations concerning Bluetooth and/or Internet connections with regard to claims 2-3 (which are also taught in Rankers as discussed in the rejections). However, Applicant doesn’t appear to take issue with the facts that were actually asserted to be well known under Official Notice. Rather, Applicant argues that the Official Notice fails to show that the entire combination of limitations and context of each claim is not notoriously well-known. The Examiner respectfully asserts that this line of argument is moot because the Official Notice never asserted that the entirety of claim 1 (or claims 2-3, as they also include all of the limitations of claim 1 by virtue of dependency) was notoriously well-known. Just as was discussed with regard to the combination with Rankers above, Talbot already teaches nearly all of the limitations of claim 1; the Official Notice is merely used to show the well-known nature of the additional limitation of inputting the recipient identifier (as in claim 1), as well as for the additional limitations of claims 2-3. It is not necessary for the noticed facts to also supply the limitations and the exact specific context which were already present in Talbot.
Concerning a proper traverse of Official Notice, it is noted in MPEP §2144.03(C) that “To adequately traverse a finding based on official notice, an applicant must specifically point out the supposed errors in the examiner’s action, which would include stating why the noticed fact is not considered to be common knowledge or well-known in the art” (emphasis added). However, Applicant did not challenge the facts that were actually the subject of the Official Notice. Specifically, the actual noticed facts were as follows:
Claim 1: “it is extremely well known in the art to send data from a first computing device (e.g. a mobile computing device such as a smartphone) to a second computing device (e.g. another mobile computing device such as another smartphone) via inputting an identifier of the recipient in the UI of the first device. Examples of this would include forwarding emails, text messages, and the like, which require specifying a recipient using some kind of identifier (e.g. an address, number, etc.).”
Claims 2-3: “… both of these [Bluetooth and/or internet] are incredibly well-known wireless communication protocols. The Examiner also takes official notice that it was known to utilize Bluetooth for shorter range wireless communications and internet for longer range wireless communications”
Applicant’s reply did not challenge that the stated facts (i.e., at the level of specificity asserted by the Examiner) above are well-known. For example, Applicant did not challenge that Bluetooth and internet are incredibly well-known wireless communication protocols known for shorter-range and longer-range wireless communications, respectively. Rather, Applicant only challenged that all of claim 1 in combination with the facts above was not collectively notoriously well-known, which is a position that was never taken by the Examiner in the Official Notice. As such, Applicant’s traversal was not adequate as to the actual noticed facts listed above, and as instructed in MPEP § 2144.03(c), those facts are now taken to be admitted prior art.
Finally, throughout both lines of argument above, Applicant appears to be arguing that even if the noticed facts/limitations above are well known generally (per the Official Notice) and/or are taught in a slightly different context (as in Rankers), they would not have been obvious to implement in Talbot. For instance, in the remarks against the Official Notice, Applicant argues that “nor does [the Office Action] provide a reasoned explanation why one of ordinary skill would have modified Talbot's auxiliary-display arrangement to include such recipient/device-identification and second-connection functionality.” The Examiner respectfully disagrees.
Concerning claim 1, the rejection states that such a modification would have been obvious “because it would advantageously allow a user to designate who receives the displayable sensor information.” In this context, the advantage of allowing a user to designate a recipient identifier is effectively the same as in the other contexts, e.g. the same as in Rankers or in the Official Notice examples of sending text messages and emails; in all of these contexts, it allows data-of-interest to be selectively delivered to the proper recipient as desired by the user. There is nothing unusual or unexpected about Applicant’s use of such a limitation in the claimed context here – it simply achieves the same benefit as it does in all other contexts.
Similarly for claims 2-3, as noted in the rejection, Talbot already teaches multiple connections and teaches in Para. 99 that “many different wireless communication protocols may be used”; the rejection merely sets forth how Bluetooth and internet were well-known for short- and long-range communications, respectively, and thus it would be obvious to choose them for those purposes in Talbot because it would achieve the same benefits as choosing them in all other contexts. Just as in the discussion of claim 1, there is nothing unusual or unexpected about the use of Bluetooth and/or internet in the claimed context here.
Information Disclosure Statement
Applicant should note that the large number of references in the attached IDS have been considered by the examiner in the same manner as other documents in Office search files are considered by the examiner while conducting a search of the prior art in a proper field of search. See MPEP 609.05(b). Applicant is requested to point out any particular references in the IDS which they believe may be of particular relevance to the instant claimed invention in response to this office action. Please see MPEP 2004, which in part provides guidance as follows:
It is desirable to avoid the submission of long lists of documents if it can be avoided. Eliminate clearly irrelevant and marginally pertinent cumulative information. If a long list is submitted, highlight those documents which have been specifically brought to applicant’s attention and/or are known to be of most significance. See Penn Yan Boats, Inc. v. Sea Lark Boats, Inc., 359 F. Supp. 948, 175 USPQ 260 (S.D. Fla. 1972), aff ’d, 479 F.2d 1338, 178 USPQ 577 (5th Cir. 1973), cert. denied, 414 U.S. 874 (1974). But cf. Molins PLC v. Textron Inc., 48 F.3d 1172, 33 USPQ2d 1823 (Fed. Cir. 1995).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-5 and 11-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US 2006/0025663 A1 to Talbot et al. (hereinafter “Talbot”) in view of US 2008/0300572 A1 to Rankers et al. (hereinafter “Rankers”).
Regarding Claims 1, 11, 13, and 17, Talbot teaches an analyte sensor system, comprising:
a transcutaneous analyte sensor (100); and
sensor electronics (120; see e.g. FIGS. 2B and 2I) coupled to the transcutaneous analyte sensor, wherein the sensor electronics is configured to: generate sensor data based on a current generated by the transcutaneous analyte sensor, establish a first wireless connection with a first wireless device (200), and transmit the sensor data to the first wireless device via the first wireless connection (see e.g. FIGS. 2B and 2I, specifically the connection between 120 and 200; see e.g. Para. 99),
wherein:
the first wireless device (200) comprises a first display, a first transceiver, a memory comprising a first set of executable instructions, and a processor in data communication with the memory (see e.g. Paras. 71 and 99);
the processor is configured to execute the first set of executable instructions to cause the first wireless device to:
receive, via the first transceiver, the sensor data from the sensor electronics (see connection between 120 and 200);
obtain real-time sensor information from the sensor data (see e.g. Para. 64);
generate a user interface on the first display (see e.g. Para. 71);
establish, via the first transceiver, a second wireless connection with the second wireless device for transmission of at least some of the real-time sensor information to the second wireless device (see connection between devices 200 and 300, e.g. in FIGS. 2B and 2I; also see e.g. Para. 99), wherein
the first wireless connection and the second wireless connection are different (see e.g. FIGS. 2B and 2I; there is a connection between 120 and 200, and another connection between 200 and 300; these two connections are distinct from each other, and are thus “different”);
upon obtaining the real-time sensor information, transmit, via the first transceiver, one or more data packets comprising at least some of the real-time sensor information via the second wireless connection to the second wireless device (again see connection between 200 and 300 in e.g. FIGS. 2B and 2I); and
the second wireless device comprises a second display and is configured execute a second set of software instructions to display information associated with the at least some of the real-time sensor information on the second display (see e.g. Para. 72),
wherein the second display is not directly connected to the sensor electronics (see e.g. FIGS. 2B and 2I; in these and some other embodiments, second device 300 and sensor electronics 120 are not directly connected)
Talbot fails to specifically teach that the first wireless device performs the step “receive, via the user interface, an identifier of a recipient associated with a second wireless device.” First, the Examiner previously took Official Notice that it is extremely well known in the art to send data from a first computing device (e.g. a mobile computing device such as a smartphone) to a second computing device (e.g. another mobile computing device such as another smartphone) via inputting an identifier of the recipient in the UI of the first device. Examples of this would include forwarding emails, text messages, and the like, which require specifying a recipient using some kind of identifier (e.g. an address, number, etc.). Applicant’s subsequent reply did not adequately traverse the Examiner's assertion of official notice; therefore, the facts under official notice are now taken to be admitted prior art. See MPEP § 2144.03(C). Furthermore, as an example of this shown in the art, attention is directed to Rankers which teaches transmitting data from one device to another (see e.g. Para. 40) including the step of inputting the recipient identifier in a user interface of the sending device (see e.g. Para. 172). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Talbot to receive, via the user interface, an identifier of a recipient associated with a second wireless device, as seen in Rankers, because it would advantageously allow a user to designate who receives the displayable sensor information.
Regarding Claims 2-3, Talbot teaches in Para. 99 that “Many different wireless communication protocols may be used” but fails to specify Bluetooth and/or internet. However, the Examiner previously took official notice that both of these are incredibly well-known wireless communication protocols. The Examiner also previously took official notice that it was known to utilize Bluetooth for shorter range wireless communications and internet for longer range wireless communications. Applicant’s subsequent reply did not adequately traverse the Examiner's assertion of official notice; therefore, the facts under official notice are now taken to be admitted prior art. See MPEP § 2144.03(C). As further evidence of these protocols being known, attention is directed to Rankers which teaches both of these (see e.g. Paras. 39, 44, and 73). It would have been obvious to one of ordinary skill at the time of the invention to modify Talbot to use Bluetooth and/or Internet connections because these are both incredibly well known suitable wireless communication protocols.
Regarding Claim 4, this claim is always met since it specifies two alternatives which collectively encompass all possibilities (with or without additional processing – one of them must be true).
Regarding Claim 5, in the modification for claim 1 above, Rankers uses various types of identifiers that are inherently associated with certain devices types (e.g. a telephone number is inherently associated with a device that can communicate on that protocol, an email address is inherently associated with a device that can access email, etc.).
Regarding Claim 12, the second wireless connection (i.e. the internet) is fully capable of being used for communicating the information over a period of a day or more.
Regarding Claim 14, see the rejection of claim 3 above. The second wireless connection can be the internet which would not require the second device to be close to the sensor electronics. Additionally, the second device is seen in the relied-upon embodiments communicating only with the first device, and thus does not need to be in close proximity to the sensor electronics.
Regarding Claim 15, there is no indication in Talbot that the first device retransmits any packets.
Regarding Claim 16, Rankers teaches that it was known to use multiple communication protocols for transmitting data between devices (see e.g. Para. 39: “In practice, network communications between monitor 108 and network devices 110 may be routed by two or more different types of data communication networks using known or proprietary network interfacing techniques”). It would have been obvious to one of ordinary skill in the art at the time of the invention to use two or more communication protocols for the communication between the first and second devices since this was a known wireless communication methodology for effectively establishing such a transmission of data.
Regarding Claims 18-20, see e.g. FIGS. 2C and Para. 79 of Talbot (“the user interface 200 may be in communication with more than one auxiliary device 300. The auxiliary devices 300 may be in communication with each other and/or in communication with the user interface 200 and/or sensor electronics 120”).
Claim 6 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Talbot in view of Rankers as applied to claim 1 above, and further in view of US 2007/0043596 A1 to Donaldson et al. (hereinafter “Donaldson”).
Regarding Claim 6, Talbot as modified teaches claim 1 as discussed above but fails to teach that the second instructions comprise a mobile app. Another reference, Donaldson, teaches an analogous setup where the second device (i.e. patient monitor) is embodied as a mobile device such as a phone to allow a physician to monitor a patient while the physician is mobile (see e.g. Para. 25). The software operating on such a mobile device necessarily amounts to a “mobile app.” It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify Talbot to provide a mobile device with mobile app(s) as the second device, since it would advantageously allow the patient data to be viewed while the reviewer (e.g. physician) is mobile.
Claims 7-10 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Talbot in view of Rankers as applied to claim 1 above, and further in view of US 2006/0226991 A1 to Rivas (hereinafter “Rivas”).
Regarding Claim 7, Talbot as modified teaches claim 1 above but fails to teach querying between the sensor electronics and first wireless device. Another reference, Rivas, teaches querying sensor electronics with a mobile device for sensor data (see Para. 28). It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify Talbot to include querying as seen in Rivas since this was a known criteria to use for sending such data, and thus the modification would amount to a merely simple substitution of one known method (automatically sending sensor data) for another (second data based on querying) to obtain predictable results.
Regarding Claim 8, Talbot as modified above teaches claim 7 but fails to specify that the first wireless connection comprises magnetic induction that is used for the queries. Rankers teaches that data may be communicated from one device to another using magnetic induction (see Para. 41, 73). It would have been obvious to one of ordinary skill in the art at the time of the invention to further modify Talbot to utilize magnetic induction for the querying communication since Rankers teaches that this is a known suitable wireless communication protocol.
Regarding Claims 9-10, see the rejections of claims 1 and 3 above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN R DOWNEY whose telephone number is (571)270-7247. The examiner can normally be reached Monday-Friday 8:30am-5:00pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, NIKETA PATEL can be reached at (571)-272-4156. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN R DOWNEY/Primary Examiner, Art Unit 3792
Prosecution Insights