Altierre Corporation

Patent Trials and Appeals Board

Sep 16, 2020

2019003698 (P.T.A.B. Sep. 16, 2020)

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.
14/795,739 07/09/2015 Anurag Goel 364930-991240 4970
26379 7590 09/16/2020
DLA PIPER LLP (US )
2000 UNIVERSITY AVENUE
EAST PALO ALTO, CA 94303-2248
EXAMINER
PERSAUD, AMARNAUTH G
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
09/16/2020 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):
PatentDocketingUS-PaloAlto@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANURAG GOEL and
SUNIT SAXENA
Appeal 2019-003698
Application 14/795,739
Technology Center 2400

Before ALLEN R. MacDONALD, CAROLYN D. THOMAS, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–12. Final Act. 1. We have jurisdiction under 35
U.S.C. § 6(b). We AFFIRM.

1 We refer to the Specification, filed July 9, 2015 (“Spec.”); Final Office
Action, mailed November 3, 2017 (“Final Act.”); Appeal Brief, filed
December 3, 2018 (“Appeal Br.”); Examiner’s Answer, mailed February 7,
2019 (“Ans.”); and the Reply Brief, filed April 8, 2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Altierre
Corporation. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
According to Appellant “[t]he disclosure relates generally to range
configurable beacons and in particular to a system that uses range
configurable beacons to choose whether to broadcast information and what
information to broadcast in their vicinity.” Spec. 1, ll. 9–11. Independent
claim 1, reproduced below with a disputed limitation emphasized in italics,
is representative of the claimed subject matter:
1. An apparatus, comprising:
a plurality of beacons situated in an area, wherein each
beacon is situated in a region within the area;
a beacon manager, coupled to each of the plurality of
beacons, that programmatically determines a configuration for
each of the plurality of beacons based on the region in which the
plurality of beacons are situated, wherein the configuration for
each beacon includes a range of the beacon selected from a first
range and a second range; and
each beacon receives the configuration from the beacon
manager for the beacon so that each beacon has a range
configured for the region within the area in which the beacon is
situated.
REFERENCES
The Examiner cites the following prior art:
Name Reference Date
Schuster US 2007/0198222 A1 Aug. 23, 2007
DelMain US 2008/0255636 A1 Oct. 16, 2008
Fernandez US 2013/0226704 A1 Aug. 29, 2013
Koskela US 2014/0016478 A1 Jan. 16, 2014

REJECTION
Claims 1, 4, 5, and 7 stand rejected under 35 U.S.C. § 102(a)(2) as
being anticipated by Fernandez. Final Act. 3–7.
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Claims 8 and 11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Fernandez and Schuster. Final Act. 7–11.
Claims 2 and 3 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Fernandez and DelMain. Final Act. 12–14.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Fernandez, Schuster, and DelMain. Final Act. 15–17.
Claim 6 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Fernandez and Koskela. Final Act. 18.
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Fernandez, Schuster, and Koskela. Final Act. 18–19.

OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
We select claim 1 as the representative claim for the rejection.
Appellant does not argue separate patentability for claims 2–12. Except for
our ultimate decision, we do not address the rejections of claims 2–12
further herein.
Having reviewed Appellant’s arguments regarding the 35 U.S.C.
§ 102(a)(2) rejection, we are not persuaded the Examiner erred. We agree
with and adopt the Examiner’s findings and reasoning in the Final Office
Action and the Answer as our own and add any additional findings of fact
appearing below for emphasis.
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EXAMINER’S FINDINGS
The Examiner finds Fernandez’s proximity event system including
zone sensors distributed throughout sections of an establishment, the sensors
having configurable beacons transmitting radio signals to nearby user
devices, discloses the plurality of beacons recited by claim 1. Final Act. 3
(citing Fernandez Fig. 1, 2; ¶ 53). The Examiner further finds Fernandez’s
server including a beacon manager, sensor management module, and action
management module discloses the recited beacon manger. Id. at 3–4 (citing
Fernandez Fig. 6; ¶¶ 71, 78). According to the Examiner, Fernandez’s
description of user selection of beacon coverage shape and range discloses
determining a configuration of the beacons based on the region in which the
beacon situated, the configuration including selection of a range as recited
by claim 1. Id. at 4 (citing Fernandez Fig. 17; ¶ 75). The Examiner finds
Fernandez’s description of a server process setting beacon transmission
range discloses that the configuration is determined programmatically. Id.
(citing Fernandez Fig. 6; ¶¶ 71, 78). Finally, the Examiner finds
Fernandez’s action management module’s configuring of sensors wherein
each establishment may have multiple sensors place so as to define multiple
zones discloses the final clause of claim 1 reciting that each beacon receives
the configuration from the beacon manager. Id. at 5.
APPELLANT’S CONTENTIONS AND EXAMINER’S RESPONSE
In contending claim 1 is distinguishable over Fernandez’s proximity
event system, Appellant emphasizes the claim requirement that beacon
configuration be determined programmatically. Directing attention to the
language of claim 1, Appellant argues “[the] claim recites ‘a beacon
manager, coupled to each of the plurality of beacons, that programmatically
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determines a configuration for each of the plurality of beacons based on the
region in which the plurality of beacons are situated . . . ’.” Appeal Br. 6.
Appellant argues
[I]n Fernandez . . . the ranges in the configuration are
predetermined and are not a “configuration for each of the
plurality of beacons based on the region in which the plurality of
beacons are situated, wherein the configuration for each beacon
includes a range of the beacon selected from a first range and a
second range” and the configuration is not programmatically
determined.
Id.at 6–7.
The Examiner responds, finding “that the configuration of ranges in
the configuration of the beacons/sensors can be programmatically
determined” is disclosed by Fernandez’s (i) sensor configuration parameters
that are defined and/or updated by the server during sensor operations, (ii)
server control of transmitter ranges and spread of signal transmitted by a
beacon, (iii) dynamic sensor range control, and (iv) sensor management
module control and management of sensors. Ans. 21 (citing Fernandez Fig.
6; ¶¶ 62, 65, 66, 78, 137). According to the Examiner, the argued
programmatic configuration of beacon range neither requires “a dynamic
process that is performed automatically whenever the beacon is relocated to
a different region” nor excludes initial beacon configuring upon installation.
Id. at 22. In particular, the Examiner concludes:
The claims do not distinguish between the configuration of a
beacon range at initial set up (i.e. predetermined) or dynamically
updating the configuration range when a beacon location/region
changes. In both situations, the configuration range is
programmatically determined as the beacon manager receives
input (location information), either manually or via software
input (e.g. a received signal) and determines the configuration
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range, but may also be predetermined if the locations of the
beacons are fixed and manual intervention is required to update
the beacon manager each time a beacon is relocated.
Id. at 22–23. Furthermore, according to the Examiner,
Fig. 4 and paragraphs [0066], [0069], and [0071] [of Fernandez]
disclose[] [a] configuration for each of the plurality of beacons
based on the region in which the plurality of beacons are situated,
wherein the configuration for each beacon includes a range of the
beacon selected from a first range and a second range. The
argument posed here is that these ranges for the configuration of
the beacons/sensors are predetermined. As argued above, the
claims could be interpreted to mean that the ranges of beacons in
the configuration are predetermined ranges when the entire
process is not automatic and not dynamic.
Id. at 23 (bracketed paragraph numbers in original).
In reply, Appellant argues the cited portions of Fernandez fail to
disclose the subject matter of claim 1 either expressly or inherently arranged
as required by the claim:
The examiner cites to paragraphs 0062, 0065, 0066, 0078 and
0137 of Fernandez that disclose[] that the transmission range of
the beacon signal may be configured by manipulating server data
associated with the sensor or programming the internal memory
of the sensor. [Ans. 20–21.] However, these portions of
Fernandez still fail[] to disclose that any element that
“determines a configuration for each of the plurality of beacons
based on the region in which the plurality of beacons are
situated” and “a range of the beacon selected from a first range
and a second range” since Fernandez merely discloses the
configuration of beacons and the range of the beacons.
Reply Br. 4.
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ANALYSIS
Determining whether claims are anticipated involves a two-step
analysis. In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012). The
first step involves construction of the claims at issue. Id. The second step of
an anticipation analysis involves comparing the claims to prior art. Id. A
prior art reference anticipates a claim under 35 U.S.C. § 102(b) if it discloses
every claim limitation. Id. Furthermore, during examination of a patent
application, pending claims are given their broadest reasonable construction
consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation
standard, claim terms are given their ordinary and customary meaning as
would be understood by one of ordinary skill in the art in the context of the
entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007). During patent prosecution when claims can be amended,
ambiguities should be recognized, scope and breadth of language explored,
and clarification imposed. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989). Construing claims broadly during prosecution is not unfair to the
applicant, because the applicant has the opportunity to amend the claims to
obtain more precise claim coverage. Am. Acad. of Sci. Tech Ctr., 367 F.3d
at 1364.
First, we construe the term “programmatically” of claim 1. Appellant
broadly directs attention to Figure 3 and page 8, lines 5–24 of the
Specification as providing a concise explanation of the subject matter
defined in claim 1. Appeal Br. 4. Reviewing the indicated and other
portions of the Specification, we do not find the term “programmatically”
much less its definition. Therefore, we turn to THE MICROSOFT PRESS
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COMPUTER DICTIONARY (Microsoft Press 1991), which, although not
including a definition of “programmatic” defines “program” as “[a]
sequence of instructions that can be executed by a computer.” Id. at 424.
Therefore, we find “programmatically” refers to tasks performed in an
automated manner (e.g., using a computer program), as opposed to tasks
performed manually (e.g., by a person). Thus, a reasonable interpretation of
the disputed limitation of claim 1 requires the beacon manager determine the
recited configurations in an automated manner, e.g., using a computer.
Next, we construe “region” and the requirement that beacon
configurations are determined “based on a region.” We do not find an
explicit definition in Appellant’s Specification of the term “region.” One
use of the term in the Specification is in connection with Figure 2 describing
“regions of coverage” of beacons in an enclosed space (Spec. 5, ll. 17–19)
and in connection with a device 208 (e.g., a smartphone entering a region
with overlapping beacon ranges) (Spec. 6, l. 6). In describing beacon
manager operations, the Specification refers to Figure 1 (reproduced below),
as follows:
In some embodiments, the layout of the area, such as shown in
Figure 1, may be known and the beacon manager 300 may
configure each of the beacons 102 in the area (including the
range of the beacon) based on the layout of the area. Thus, the
beacon manager 300 may receive the layout of the area
including a location of each beacon in the area and a region in
the area being managed by each beacon. The beacon manager
300 may then generate a configuration for each beacon in the
area (including a range configuration) based on the layout of the
area and communicate the configuration to each beacon in the
area. Alternatively, if a layout of the deployment site is not
known, the beacons 102 may be preconfigured and labeled at
the factory to be “CallOut”, “Informational” or
“LocationMarking” and the deployment personnel may then
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deploy the suitable pre-configured beacon at the suitable
location at the deployment site.
Spec. 9, ll. 8–18 (emphasis added).
Thus, because each beacon manages a region, a reasonable
interpretation of a region includes at least those areas depicted within the
unlabeled closed dashed lines of Figure 1 that include a beacon 102 (i.e., “a
region in the area being managed by each beacon”).
In contrast to what might be considered to correspond to regions as
depicted in Figure 1, claim 1 recites a single region, i.e., “each beacon is
situated in a region within the area” and a configuration is determined based
on “the region in which the plurality of beacons are situated.” In spite of
Figure 1 illustrating an example of a structure, such as a
retail store, that may utilize range configurable beacons
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these seeming contradiction, for purposes of this appeal, we interpret claim 1
to require that each of the plurality of beacons is situated in a respective
region within the area and that the beacon manager determines a
configuration for each of the plurality of beacons based on a respective one
of the regions in which each of the plurality of the plurality of beacons is
situated.
Having concluded a region is the area managed by a respective
beacon, we interpret what is meant by programmatically determining a
configuration of each of the beacons based on the region in which each of
the plurality of beacons is situated. Configuring a beacon includes setting a
range of the beacon. Claim 1; see also Spec. 1, ll. 9–11 (“The disclosure
relates generally to range configurable beacons . . . .”); Spec. 2, ll. 18–19
(“Beacons may be programmatically configured to have as short a range as
called for by the application.”). However, the Specification fails to disclose
the basis of the range setting other than, as depicted in Figure 1, the range
corresponds to an intended use of the beacon, e.g., an “Informational,”
“Callout,” or “LocationMarking” beacon. In the absence a description of
how a beacon’s region affects its configuration, under a broad but reasonable
interpretation, configuring a beacon based on a region includes setting a
range of a beacon that is situated within a particular region. The
requirement for programmatically determining a configuration (e.g., range)
further requires that the range be set automatically, e.g., under computer
control. However, in the absence of a description of what processing is
performed programmatically, determining a configuration does not exclude
other steps including, for example, manual input selecting a range. Thus, the
disputed limitation of “programmatically determin[ing] a configuration for
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each of the plurality of beacons based on the region in which the plurality of
beacons are situated,” under a broad but reasonable interpretation, includes
merely using a computer to set the ranges of beacons in respective locations.
Appellant’s argument that Fernandez’s ranges are predetermined
(Appeal Br. 6) and, therefore, are not programmatically configured, is
unpersuasive. As explained above, the recited determining step is broadly
construed to include using a computer to set the range of a beacon. As
found by the Examiner (Ans. 21), Fernandez’s server configures and
controls beacons of sensors including run-time range adjustment to provide a
dynamic range. Thus, contrary to Appellant’s argument, Fernandez is not
limited to preconfigured sensor having beacon ranges that are
predetermined, but also discloses dynamic beacon configuration of beacon
range. Accordingly, under a broad but reasonable interpretation consistent
with Appellant’s Specification, Fernandez discloses the argued limitation of
programmatically determining a configuration for each of the plurality of
beacons based on the region in which the plurality of beacons are situated.
For the first time in the Reply Brief Appellant specifically calls out
claim language reciting “a range of the beacon [is] selected from a first
range and a second range” in arguing Fernandez fails to anticipate the
subject matter of claim 1. Reply Br. 4. However, Appellant fails to show
good cause for this new argument, and as such, Appellant’s belated
argument is deemed waived as untimely. 37 C.F.R. § 41.41(b)(2) (2016).
See In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an
argument not first raised in the brief to the Board is waived on appeal); Ex
parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010) (explaining that
arguments and evidence not timely presented in the principal Brief, will not
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be considered when filed in a Reply Brief, absent a showing of good cause
explaining why the argument could not have been presented in the Principal
Brief); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative)
(“Properly interpreted, the Rules do not require the Board to take up a
belated argument that has not been addressed by the Examiner, absent a
showing of good cause.”).
Furthermore, Appellant’s newly presented argument does not address
the Examiner’s findings. Final Act. 4; Ans. 23. Such argument constitutes
little more than a general denial that fails to address the Examiner’s findings
and is, therefore, insufficient. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement
[that] merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”); In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”).
Nonetheless, Fernandez discloses selection of sensor ranges including
“a maximum range allowed by the sensor” and a power-saving “limited
range” (Fernandez ¶ 71) thereby disclosing a configuration for each beacon
includes a range of the beacons selected from a first range (e.g., a maximum
range for the sensor) and a second range (e.g., a power-saving limited
range). See also Fernandez ¶ 74 (“various ranges . . . may be used”).
Accordingly, even if timely presented, Appellant’s argument is unpersuasive
of reversible Examiner error.
For the reasons discussed above, we sustain the rejection of claim 1
under 35 U.S.C. § 102(a)(2) together with the rejection of dependent claims
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4, 5, and 7 that are not argued separately with particularity. For the same
reasons, we sustain the rejections of dependent claims 2, 3, and 6 under 35
U.S.C. § 103 that are not argued separately with particularity. Appellant’s
arguments presented in connection with independent claim 8 repeat those
made in connection with claim 1 that are unpersuasive for the reasons
discussed above. Therefore, we likewise sustain the rejection of claim 8
under 35 U.S.C. § 103 together with the rejections of dependent claims 9–12
that are not argued separately with particularity.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 7 102(a)(2) Fernandez 1, 4, 5, 7
8, 11 103 Fernandez, Schuster 8, 11
2, 3 103 Fernandez, DelMain 2, 3
9, 10 103 Fernandez, Schuster,
DelMain
9, 10
6 103 Fernandez, Koskela 6
12 103 Fernandez, Schuster,
Koskela
12
Overall
Outcome
1–12

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
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AFFIRMED