Ex Parte Gilley et al

Patent Trial and Appeal Board

Dec 23, 2016

13187140 (P.T.A.B. Dec. 23, 2016)

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.
13/187,140 07/20/2011 Glenn Gregory Gilley P4725USD1 5648
111349 7590 12/28/2016
Van Court & Aldridge LLP
Apple Inc.
154 Grand St.
New York, NY 10013
EXAMINER
NUNEZ, JORDANY
ART UNIT PAPER NUMBER
2171
NOTIFICATION DATE DELIVERY MODE
12/28/2016 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLENN GREGORY GILLEY, SARAH A. BRODY,
RANDALL HAYES UBILLOS, MIHNEA CALIN PACURARIU,
JESSE LEE DOROGUSKER, ROBERT EDWARD BORCHERS, and
DONALD GINSBURG
Appeal 2015-002608
Application 13/187,140
Technology Center 2100
Before ERIC S. FRAHM, LARRY J. HUME, and
JOHN D. HAMANN, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-002608
Application 13/187,140
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of a Final
Rejection of claims 37—56. Claims 1—36 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
We have reviewed Appellants’ arguments in the Appeal Brief (App.
Br. 6—16) and the Reply Brief (Reply Br. 6—16) that the Examiner’s
rejections of:
(i) claims 37-40, 43—52, and 54—56 under 35 U.S.C. § 103(a) as being
unpatentable over Watterson (US 2002/0022551 Al; published Feb. 21,
2002) and Case (US 2007/0287596 Al; published Dec. 13, 2007) (Final Act.
2-7);
(ii) claims 41 and 42 as being unpatentable over Watterson, Case, and
Einav (US 2008/0242521 Al; published Oct. 2, 2008 with a § 371 priority
date of June 3, 2008) (Final Act. 7—8); and
(iii) claim 53 as being unpatentable over Watterson, Case, and
Redmann (US 2006/0025282 Al; published Feb. 2, 2006) (Final Act. 8—9)
are in error, and the Examiner’s response to Appellants’ arguments in the
Appeal Brief (Ans. 2—13).
Although we agree with the Examiner that Case teaches or suggests
multi-sensor monitoring of athletic performance, including producing first
and second sensor data (Final Act. 3; see Case ]Hf 58—60), we cannot agree
with the Examiner (Ans. 4—11) that one of ordinary skill in the art at the time
of Appellants’ invention would consider Case’s pedometer-based speed and
distance monitor results, corrected and calibrated by the GPS data (see Case
H 59 and 60), whether taken alone or in some combination with the
teachings of Watterson, as meeting the “duplicative data source” and “more
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Appeal 2015-002608
Application 13/187,140
accurate sensor data” limitations recited in each of independent claims 37
and 48. Specifically, Case’s second sensor data is not “duplicative data” of a
first sensor data “for a particular type of data” as required by claims 37 and
48. And, Case’s disclosure of implementing a correction by having a user
press a button to substitute second sensor data for first sensor data (see Case
1 59), does not teach or suggest the claimed feature of identifying one of the
first and second sensor data “as the more accurate sensor data” as recited in
claims 37 and 48.
Based on the foregoing, we concur with Appellants’ assertions (see
App. Br. 6—15; Reply Br. 6—16) that claims 37-40, 43—52, and 54—56 are
allowable over Watterson and Case. And, as a result, we similarly agree
with Appellants’ contentions (see App. Br. 13 and 15; Reply Br. 13—14 and
16) that claims 41, 42, and 53 should fall for the same reasons as the
respective independent claims 37 and 48 from which these claims ultimately
depend.
Based on the foregoing, we find that the Examiner has not properly
established factual determinations and articulated reasoning with a rational
underpinning to support the legal conclusion of obviousness for claims 37
and 48, resulting in a failure to establish prima facie obviousness. In view of
the foregoing, we do not sustain the Examiner’s obviousness rejection of
claims 37 and 48 over Watterson and Case, as well as claims 38-40, 43—47,
49-52, and 54—56 depending respectively and ultimately therefrom. For
similar reasons, we also do not sustain the Examiner’s obviousness
rejections of (i) claims 41 and 42 over the combination of Watterson, Case,
and Einav; and (ii) claim 53 over the combination of Watterson, Case, and
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Appeal 2015-002608
Application 13/187,140
Redmann for the same reasons as provided supra, with respect to claims 37
and 48 from which claims 41, 42, and 53 respectively depend.
CONCLUSION
The Examiner erred in rejecting (i) claims 37—40, 43—52, and 54—56
over the combination of Watterson and Case; (ii) claims 41 and 42 over the
combination of Watterson, Case, and Einav; and (iii) claim 53 over the
combination of Watterson, Case, and Redmann.
DECISION
We reverse the Examiner’s rejections of claims 37—56.
REVERSED
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