AirWatch LLC

Patent Trials and Appeals Board

Mar 15, 2022

2021001057 (P.T.A.B. Mar. 15, 2022)

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. 16/250,363 01/17/2019 Erich Peter Stuntebeck W084.C1 (500102-1241) 1162 152577 7590 03/15/2022 Thomas | Horstemeyer, LLP (VMW) 3200 Windy Hill Road, SE Suite 1600E Atlanta, GA 30339 EXAMINER IQBAL, KHAWAR ART UNIT PAPER NUMBER 2643 NOTIFICATION DATE DELIVERY MODE 03/15/2022 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): docketing@thomashorstemeyer.com ipadmin@vmware.com uspatents@thomashorstemeyer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ERICH PETER STUNTEBECK, KAR FAI TSE, and CHEN LU ____________ Appeal 2021-001057 Application 16/250,3631 Technology Center 2600 _______________ Before CAROLYN D. THOMAS, JASON V. MORGAN, and HUNG H. BUI, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks our review under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, 4-9, and 11-22. Appeal Br. 14- 19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.2 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. AirWatch, LLC is identified as the real party in interest. Appeal Br. 2. 2 We refer to Appellant’s Appeal Brief filed August 24, 2020 (“Appeal Br.”); Reply Brief filed November 30, 2020 (“Reply Br.”); Examiner’s Answer mailed September 30, 2020 (“Ans.”); Final Office Action mailed March 23, 2020 (“Final Act.”); and Specification filed January 17, 2019 (“Spec.”). Appeal 2021-001057 Application 16/250,363 2 STATEMENT OF THE CASE Appellant’s Claimed Invention Appellant’s claimed invention seeks to “plac[e] restrictions on mobile device usage when the user of a mobile device [shown in Figure 1] is driving a vehicle.” Spec. ¶ 11. Figure 1 is reproduced below: Figure 1, as reproduced above, depicts vehicle environment 106, where user 103 is shown driving behind steering wheel 106 of a vehicle and, in response to detecting that user 103 is driving, display 115 of mobile device 112 renders a message “Use Restricted While Driving.” Spec. ¶ 115. In other words, mobile device 112 can restrict user 103 from checking notifications, sending a text message, or performing any number of other potentially dangerous functions via display 115. Id. Representative Claim Claims 1, 9, and 14 are independent. Representative claim 1 is reproduced below with disputed limitations emphasized: Appeal 2021-001057 Application 16/250,363 3 1. A method, comprising: receiving, by a mobile device from a server, information indicating one or more restrictions to a functionality of the mobile device; detecting, by at least one computing device comprising the mobile device, that the mobile device is in use by a driver within an active vehicle by detecting a signal emitted by the active vehicle, wherein the signal emitted by the active vehicle indicates that the driver is a sole seated occupant of the active vehicle; and applying, by the at least one computing device, the one or more restrictions to the functionality of the mobile device in response to detecting that the mobile device is in use by the driver within the active vehicle. Appeal Br. 14 (Claims App.). REJECTIONS AND REFERENCES (1) Claims 1, 2, 4, 5, 7, and 8 are rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Tadayon et al. (US 2011/0195699 A1; published Aug. 11, 2011; “Tadayon”) and Cuddihy et al. (US 10,261,755 B1; issued Apr. 16, 2019; “Cuddihy”). Final Act. 8-10. (2) Claims 9 and 11-20 are rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Tadayon and Guba et al. (US 2013/0316737 A1; published Nov. 28, 2013; “Guba”). Final Act. 10-15. (3) Claims 6 and 21 are rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Tadayon, Cuddihy, and Guba. Final Act. 15-17. (4) Claim 22 is rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Tadayon, Guba, and Cuddihy. Final Act. 17-18. Appeal 2021-001057 Application 16/250,363 4 ANALYSIS Claims 1, 2, 4, 5, 7, and 8 In support of the obviousness rejection, the Examiner finds Tadayon teaches most limitations of Appellant’s claim 1, including: (1) “receiving. . . information indicating one or more restrictions to a functionality of the mobile device;” (2) “detecting. . . that the mobile device is in use by a driver within an active vehicle by detecting a signal emitted by the active vehicle,” and (3) “applying. . . restrictions to the functionality of the mobile device in response to detecting that the mobile device is in use by the driver within the active vehicle.” Final Act. 8 (citing Tadayon ¶¶ 45, 48, 58, 103-105, 221, 247, Figs. 1-23). For example, Tadayon teaches controlling mobile device features, such as SMS, while a user is in a vehicle to avoid a traffic accident, including, for example, limiting/disabling the use of the mobile device (e.g., the texting ability of the mobile device), while the user is in a vehicle. Tadayon ¶¶ 11-12. According to Tadayon, transmitters/receivers 204, 230, 232, 234, 236 are placed on vehicle 200, shown in Figure 2, to track mobile device 220, 222, 224, 226. Figure 2 is reproduced below: Appeal 2021-001057 Application 16/250,363 5 Figure 2, as reproduced above, depicts transmitters/receivers 204, 230, 232, 234, 236 located at different sections of vehicle 200 to track mobile device 220. Tadayon ¶ 58. In addition, sensors or transmitters located in vehicle 200 are arranged to detect the presence of a driver or passenger in a particular seat of a vehicle. Tadayon ¶¶ 174-75, 247. In one embodiment, in each region of the car, there is a set of sensors or transmitters, to detect the presence of a passenger on that area or seat. That will give a binary (Yes/No) answer for the “presence” variable for each seat. This way the passengers for each seat are determined locally. In one embodiment, the passengers [including a driver] for each seat are determined globally, from all the sensors in the car, using the distances or ratios, for example, for intensities, to determine who is in what seat, or which seats are unoccupied. Appeal 2021-001057 Application 16/250,363 6 Tadayon ¶ 175 (emphasis added). Tadayon also teaches “different methods are used to verify the identity of a person or show the presence of the person, as the driver, passenger, or other users,” via “antennas, reflection, transmission, detectors, or receivers . . . to locate a person in the car or on specific seat.” Tadayon ¶ 200. While not necessary, the Examiner also relies upon Cuddihy for teaching the disputed wherein clause: “the signal emitted . . . indicates that the driver is a sole seated occupant of the active vehicle” to support the conclusion of obviousness. Final Act. 8-9 (citing Cuddihy 7:5-25, Fig. 3). Appellant does not dispute the Examiner’s findings regarding Tadayon. Nor does Appellant challenge the Examiner’s reasons to combine the references. Instead, Appellant disputes the Examiner’s finding regarding Cuddihy. In particular, Appellant contends “[t]he cited portion of Cuddihy appears to disclose determining whether a passenger seat is empty or occupied” but does not teach the disputed limitation: “the signal emitted by the active vehicle indicates that the driver is a sole seated occupant of the active vehicle” recited in Appellant’s claim 1. Appeal Br. 6. According to Appellant, Cuddihy teaches multiple antennas arranged for near-field communication (“NFC”) to determine if “the passenger seat is occupied,” but do not “account for all seats in the vehicle, much less determining that ‘the driver is a sole seated occupant.’” Id. In other words, “Cuddihy fails to show or suggest using such sensors to determine that all of the rear seats are empty, much less determining that all passenger seats are empty.” Id. at 7. Appellant’s contentions are not persuasive of Examiner error. Instead, we find the Examiner’s findings, including the Examiner’s Appeal 2021-001057 Application 16/250,363 7 responses to Appellant’s contentions, are supported by a preponderance of the evidence on this record. Ans. 4-8. As such, we adopt the Examiner’s findings provided therein. Id. For additional emphasis, we note the test for obviousness is not whether the claimed invention is expressly disclosed in the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). In an obviousness analysis, it is not necessary to find precise disclosure directed to the specific subject matter claimed because inferences and creative steps that a person of ordinary skill in the art would employ can be taken into account. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In this regard, “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 421. As the U.S. Supreme Court has stated, obviousness requires an “expansive and flexible” approach that asks whether the claimed improvement is more than a “predictable variation” of “prior art elements according to their established functions.” Id. at 415, 417. Here, in contrast to that approach, Appellant’s contentions rigidly focus on a narrow reading of Tadayon and Cuddihy without taking full account of an ordinarily skilled artisan’s “knowledge, creativity, and common sense.” Randall Mfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013). As correctly recognized by the Examiner, Tadayon’s sensors or transmitters located in a vehicle are deployed to detect the presence of a driver or passenger in a particular seat of a vehicle and determine “who is in what seat, or which seats are unoccupied.” Ans. 5 (citing Tadayon ¶¶ 175, 200). According to Tadayon, “different methods are used to verify the Appeal 2021-001057 Application 16/250,363 8 identity of a person or show the presence of the person, as the driver, passenger, or other users,” via “antennas, reflection, transmission, detectors, or receivers . . . to locate a person in the car or on specific seat [including a driver on a driver seat].” Tadayon ¶ 200. While not necessary, Cuddihy is only cited by the Examiner for teaching an example technique using near field communication system to determine occupant information at a driver seat or a passenger seat. Cuddihy Abstr. For example, Cuddihy’s seat sensors 201, 203 are arranged at the front and back of a driver seat, shown in Figure 2, to detect whether the driver is “a sole seated occupant of the active vehicle,” while seat sensors 205, 207 are arranged at a passenger seat to detect if the passenger seat is empty. Id. at 7:5-25. As recognized by the Examiner, Cuddihy’s system can determine if the driver seat or the passenger seat is occupied. Ans. 6-7. Based on the teachings of Tadayon and Cuddihy, we agree with the Examiner that Tadayon and Cuddihy, whether taken in combination or individually, teaches or suggests the disputed wherein clause of Appellant’s claim 1: “the signal emitted by the active vehicle indicates that the driver is a sole seated occupant of the active vehicle.” Ans. 7 (emphasis added). Certainly, a person skilled in the art would have the “knowledge, creativity, and common sense” to implement Tadayon’s sensors or transmitters located in a vehicle to detect the presence of a driver or passenger in a particular seat of a vehicle and to determine “who is in what seat, or which seats are unoccupied” by way of signals emitted from these sensors or transmitters to the mobile device, including the signal emitted by the active vehicle [that] Appeal 2021-001057 Application 16/250,363 9 indicates that the driver is a sole seated occupant of the active vehicle” as recited in Appellant’s claim 1. For these reasons, Appellant does not persuade us of Examiner error. Accordingly, we sustain the Examiner’s rejection of claim 1 and of their dependent claims 2, 4, 5, 7, and 8, which are not argued separately. Claims 9 and 11-20 Claim 9 differs from Appellant’s claim 1, and recites from a perspective of a mobile device configured to, among others: selectively enable the one or more restrictions based at least in part on the current time by determining whether the current time is within a periodic time window associated with the one or more restrictions; determine that the mobile device is in use by a driver who is a sole seated occupant within an active vehicle; and restrict a functionality of the mobile device according to the one or more restrictions based at least in part on determining that the mobile device is in use by the driver within the active vehicle. Appeal Br. 16 (emphasis added). In support of the obviousness rejection, the Examiner finds Tadayon teaches most of the limitations of Appellant’s claim 9, including the disputed limitation: “determine that the mobile device is in use by a driver who is a sole seated occupant within an active vehicle.” Final Act. 10-11 (citing Tadayon ¶¶ 42, 48, 52-53, 58, 103-105, 321). The Examiner then relies on Guba for teaching “determining whether the current time is within a periodic time window associated with the one or more restrictions” to support the conclusion of obviousness. Id. at 11 (citing Guba ¶¶ 29, 50, 89, 159). Appellant does not dispute the Examiner’s findings regarding Guba. Nor does Appellant challenge the Examiner’s reasons to combine the Appeal 2021-001057 Application 16/250,363 10 references. Instead, Appellant disputes the Examiner’s findings regarding Tadayon. In particular, Appellant contends Tadayon “fails to show or suggest determining ‘that the mobile device is in use by a driver who is a sole seated occupant within an active vehicle’” as recited in Appellant’s claim 9. Appeal Br. 8. We are not persuaded by Appellant’s contention. As correctly recognized by the Examiner, Tadayon’s sensors or transmitters located in a vehicle are used to detect the presence of a driver or passenger in a particular seat of a vehicle and to determine “who is in what seat, or which seats are unoccupied.” Ans. 9 (citing Tadayon ¶¶ 175, 200). A person skilled in the art would understand that Tadayon’s determining “who is in what seat, or which seats are unoccupied” would necessarily include determining that “the mobile device is in use by a driver who is a sole seated occupant within an active vehicle” as recited in Appellant’s claim 9 (emphasis added). Moreover, determining if the driver is a sole seated occupant within a vehicle would not have been “uniquely challenging or difficult for one of ordinary skill in the art” or would not have “represented an unobvious step over the prior art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007); cf. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 60 (1969). For these reasons, Appellant does not persuade us of Examiner error. Accordingly, we sustain the Examiner’s obviousness rejection of claim 9 and its dependent claims 11-13, which are not argued separately. Claims 14-20 Claim 14 is broader than Appellant’s claim 9, and recites a mobile device configured, among others, to: Appeal 2021-001057 Application 16/250,363 11 determine that the mobile device is in use by a driver within an active vehicle; and automatically enable a restricted version of an application in the mobile device in lieu of an unrestricted version of the application based at least in part on determining that the mobile device is in use by the driver within the active vehicle and the one or more restrictions. Appeal Br. 17. The Examiner relies upon Guba for teaching the disputed limitation: “automatically enable a restricted version of an application in the mobile device in lieu of an unrestricted version of the application based at least in part on determining that the mobile device is in use by the driver within the active vehicle and the one or more restrictions.” Final Act. 13 (citing Guba ¶¶ 29, 50, 89-93, 159). Appellant contends Guba does not teach or suggest the disputed limitation of claim 14, including “multiple versions of an application, i.e., a ‘restricted version’ and an ‘unrestricted version,’ as claimed, much less enabling the restricted version in lieu of the unrestricted version.” Appeal Br. 9-10. We do not agree with Appellant. The disputed terms “restricted version” and “non-restricted version” of an application are described by Appellant’s Specification in the context of altering various types of functionality of a mobile device, as specified in the compliance rules, as shown in Figure 5. Spec. ¶ 66. Given these various alterations of a mobile device’s functionality, we agree with the Examiner that the disputed terms “restricted version” and “non-restricted version” of an application can be broadly, but reasonably interpreted to encompass Tadayon’s different alterations of an application, Appeal 2021-001057 Application 16/250,363 12 including, for example: (1) deactivation/disabling range, i.e., when the mobile device is within or not within the deactivation/disabling range (Ans. 13-14 (citing Tadayon ¶¶ 105-106)); (2) dialing 911 (or emergency number) in a restriction mode (id. at 15 (citing Tadayon ¶ 309)); and (3) restriction software to activate and limit phone or text usage (id. at 15-16 (citing Tadayon ¶ 311)). Like Tadayon, the disputed terms “restricted version” and “non- restricted version” of an application can be broadly, but reasonably interpreted to encompass Guba’s various alterations of a mobile device application to selectively control and limit use of the functionality of a mobile device, including the restrictions of the mobile device usage when the user is driving a vehicle, i.e., when the vehicle is in motion. Guba ¶¶ 2- 7, 10, 29, 37, 50, 89-93, 159. For these reasons, Appellant does not persuade us of Examiner error. Accordingly, we sustain the Examiner’s obviousness rejection of claims 14 and of its dependent claims 15-20. For the same reason, we also sustain the Examiner’s obviousness rejections of (1) claims 6 and 21 over the combined teachings of Tadayon, Cuddihy, and Guba, and (2) claim 22 over the combined teachings of Tadayon, Guba, and Cuddihy. CONCLUSION On this record, Appellant does not show the Examiner erred in rejecting (1) claims 1, 2, 4, 5, 7, and 8 as obvious over the combined teachings of Tadayon and Cuddihy; (2) claims 9 and 11-20 as obvious over the combined teachings of Tadayon and Guba; (3) claims 6 and 21 as obvious over the combined teachings of Tadayon, Cuddihy, and Guba; and Appeal 2021-001057 Application 16/250,363 13 (4) claim 22 as obvious over the combined teachings of Tadayon, Guba, and Cuddihy. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 5, 7, 8 103 Tadayon, Cuddihy 1, 2, 4, 5, 7, 8 9, 11-20 103 Tadayon, Guba 9, 11-20 6, 21 103 Tadayon, Cuddihy, Guba 6, 21 22 103 Tadayon, Guba, Cuddihy 22 Overall Outcome 1, 2, 4-9, 11-22 TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2019). AFFIRMED