Ex Parte Markel et al

Patent Trial and Appeal Board

May 9, 2018

13730267 (P.T.A.B. May. 9, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/730,267 12/28/2012 Shlomo Markel
49579 7590 05/11/2018
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
3875.6190001 2326
EXAMINER
ZOUBAIR, NOURA
ART UNIT PAPER NUMBER
2434
NOTIFICATION DATE DELIVERY MODE
05/11/2018 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):
e-office@stemekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHLOMO MARKEL and JACOB MENDEL
Appeal2017-010228
Application 13/730,267 1
Technology Center 2400
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
GALLIGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 11-15, 19-29, and 31-34, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 1-10, 16-
18, and 30 have been cancelled.
We REVERSE and enter a NEW GROUND OF REJECTION
UNDER 37 C.F.R. § 41.50(b). 2
1 According to Appellants, the real party in interest is Avago Technologies
General IP. App. Br. 3.
2 Our Decision refers to Appellants' Appeal Brief filed April 3, 2017 ("App.
Br."); Appellants' Reply Brief filed July 26, 2017 ("Reply Br."); Examiner's
Answer mailed May 26, 2017 ("Ans."); Advisory Action mailed October 26,
2016 ("Adv. Act."); and Final Office Action mailed July 19, 2016 ("Final
Act.").
Appeal2017-010228
Application 13/730,267
STATEMENT OF THE CASE
Claims on Appeal
Claims 11, 15, and 26 are independent claims. Claim 11 is
reproduced below:
11. A user device for detecting an occurrence of an event
compnsmg:
a memory coupled to a processor, the memory configured
to store a movement pattern signature of the user device
indicative of a predefined movement pattern of the user device
during the occurrence of the event; and
a movement sensing module comprising sensor hardware,
the movement sensing module configured to:
Wassingbo
Baca
Velusamy
capture a motion of the user device and convert the
captured motion into the movement pattern signature,
store the movement pattern signature in the
memory,
monitor the user device for movement that matches
the stored movement pattern signature, and
when the monitored movement matches the stored
movement pattern signature, transmit a message
indicating that the event has been detected.
References
US 2008/0020733 Al
US 2012/0124662 Al
US 2012/0164968 Al
Examiner's Rejections
Jan.24,2008
May 17, 2012
June 28, 2012
Claims 11-14, 21-29, and 31-34 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Velusamy and Baca. Final Act. 4--15.
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Claims 15, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Velusamy, Baca, and Wassingbo. Id. at 15-23.
ANALYSIS
Appellants contend the Examiner improperly combined V elusamy and
Baca. App. Br. 8-10, 12; Reply Br. 2---6. Appellants argue that "the Office
Action's rationale for combining Velusamy and Baca is deficient" and
further that "[i]t would be non-sensical that a movement corresponding to an
emergency/accident condition as described in Velusamy be used to
authenticate the 'identification and location information' transmitted in an
emergency message." App. Br. 10, 12; Reply Br. 5. We are persuaded.
The Examiner relies on (Final Act. 4--5; Ans. 25) Velusamy's "rule
base," which defines "acceleration and deceleration threshold data,
movement and positional threshold data" corresponding to accidents or
course deviations (Velusamy i1i133-35, 41), to teach a "stored movement
pattern signature." The Examiner further relies on (Final Act. 6-7; Ans. 25-
26) Velusamy' s comparison of monitored user device motion to the rule
base, which detects "an accident condition or course deviation" (Velusamy
i-fi-f 18, 57), to teach "monitor[ing] the user device for movement that matches
the stored movement pattern signature." Additionally, the Examiner relies
on (Final Act. 6; see Ans. 25) Baca's "password training mode," in which a
"mobile computing device captures the directional motion information
generated as a result of sensing the user's movement of the device ... and
the sequence of captured directional motion information ... may be stored
for further use as the user's stored password for the device" (Baca i128), to
teach "captur[ing] a motion of the user device and convert[ing] the captured
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motion into the movement pattern signature, [and] stor[ing] the movement
pattern signature in the memory." Further, the Examiner combines
Velusamy and Baca and supports that combination with the following
reasomng:
It would have been obvious to a person having ordinary
skill in the art at the time of the invention to modify Velusamy
with Baca because Velusamy recognizes that ["g]iven the high
urgency associated with such messages, the notification
message, whether by way of voice or data communication, must
be accompanied by identification and location information of
the requesting party["] and Baca allows verification of
identification information because the detection of movements
in Baca authenticate the identity of the user in secure manner
since ["]the combination of conventional user inputs and device
movements forming the password according to embodiments of
the present invention are limitless["] and ["b ]y requiring device
movement as at least part of the password, security may be
improved."
Final Act. 8 (quoting Velusamy i-f 14, Baca i-f 22); see Ans. 23-24.
It is not apparent to us how the Examiner's articulated reasoning for
the combination, "verification of identification information" based on "the
detection of movements" so that "security may be improved" (Final Act. 8),
is rationally underpinned. KSR Int'! v. Teleflex, Inc., 550 U.S. 398, 417-18
(2007). The Examiner relies on Velusamy's disclosure of rules that define
motions indicating an accident or a course deviation and transmission of
emergency messages when such accidents or deviations are detected based
on these rules. Final Act. 4--5 (citations omitted); Ans. 25 (citations
omitted). We are not persuaded an ordinarily skilled artisan would have
found improving security or providing authentication by detecting
movements, as taught by V elusamy' s accident/ course deviation detecting
system, is a rational goal. Specifically, Velusamy is concerned with "the
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Application 13/730,267
high urgency associated with" sending messages when accidents or course
deviations are detected (Velusamy i-f 14). Requiring a password, however,
would slow down such emergency messages. Thus, it is not apparent how
"Velusamy' s 'identification and location information' would ... benefit
from verification using Baca' s authentication method" (App. Br. 10). Even
further, it is not clear to us, and the Examiner has not adequately explained,
how modifying Velusamy's detected accident or course deviation motions
would function and result in improved security or authentication of
messages.
Moreover, the Examiner's combination-which relies on
Velusamy's rule base to teach a "movement pattern signature" and Baca's
movement training to teach using captured movement of the device to define
the "stored movement pattern signature" (see Final Act. 4--6) - would
result in Velusamy's rule base being defined by actually engaging in
movements corresponding to accidents or course deviations before the later-
monitored accidents or course deviations. We are not persuaded an
ordinarily skilled artisan would have required the device that detects an
accident to have first experienced an accident or would have required the
device to have learned and captured a course deviation by experiencing the
course deviation before the course deviation actually occurs.
As such, we are constrained by the record to reverse the Examiner's
obviousness rejections of independent claims 11 and claim 26 under 35
U.S.C. § 103(a) as being unpatentable over Velusamy and Baca and
independent claim 15 under 35 U.S.C. § 103(a) as being unpatentable over
Velusamy, Baca, and Wassingbo, which Appellants argue are patentable for
similar reasons. See App. Br. 14--15. Because we agree with at least one of
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the arguments advanced by Appellants, we need not reach the merits of
Appellants' other arguments (see App. Br. 7-8, 13). We also do not sustain
the Examiner's rejections of claims 12-14, 19-25, 27-29, and 31-34, which
depend directly or indirectly from claims 11, 15, and 26.
NEW GROUND OF REJECTION
We enter the following new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b). Independent claims 11 and 26 are
rejected under 35 U.S.C. § 103(a) as being unpatentable over Baca and
Wassingbo.
Baca' s system for capturing "a sequence of motions for use in a
password for a mobile computing device" (Baca i-f 14) teaches a "user device
for detecting an occurrence of an event." In Baca, "a password may include
a specific set of motions performed by the user with the mobile computing
device." Id. Accordingly, Baca teaches "a memory coupled to a processor,
the memory configured to store a movement pattern signature of the user
device indicative of a predefined movement pattern of the user device during
the occurrence of the event." Further, Baca's password is set via "a
password training mode" in which "the mobile computing device captures
the directional motion information generated as a result of sensing the user's
movement of the device . . . . [A ]nd the sequence of captured directional
motion information ... may be stored for further use as the user's stored
password for the device." Id. i-fi-127-28, Fig. 4. Accordingly, Baca teaches
"a movement sensing module comprising sensor hardware, the movement
sensing module configured to: capture a motion of the user device and
convert the captured motion into the movement pattern signature, store the
movement pattern signature in the memory." After Baca's password has
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been trained, to unlock Baca's device, "the directional motion information"
of the user device "may be captured" so that "the captured motion
information ... may be compared to the stored password. If the sequence of
captured motion information ... match[ es] the stored password, then access
to the mobile computing device features and functions may be allowed." Id.
i-fi-129--30, Fig. 5. Accordingly, Baca teaches "monitor[ing] the user device
for movement that matches the stored movement pattern signature" and "the
monitored movement match[ing] the stored movement pattern signature."
Wassingbo 's authentication system generates an "indication of
authentication and/or unlocking of the mobile radio device 10 occurs" when
an input movement matches a stored reference movement. Wassingbo
i-fi-147, 63. Accordingly, Wassingbo teaches "transmit[ting] a message
indicating that the event has been detected."
We conclude that it would have been obvious to one of ordinary skill
in the art to combine Baca's motion password training and password
authenticating system with Wassingbo's message transmitting an indication
of authentication. In particular, the skilled artisan would have been
motivated to transmit an indication of authentication in order to enable
locked features (see Wassingbo i155) and to display the unlocked status of a
device (see Wassingbo i-f 18).
Thus, pursuant to our authority under 37 C.F .R. § 41.50(b ), we enter a
new ground of rejection of independent claim 11under35 U.S.C. § 103(a)
as being unpatentable over Baca and Wassingbo. Independent claim 26 is a
method claim that recites limitations similar to claim 11 and is therefore
rejected under 3 5 U.S. C. § 1 0 3 (a) for the same reasons as claim 11.
However, we have not reviewed independent claim 15 or dependent claims
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Application 13/730,267
12-14, 19-25, 27-29, and 31-34 to the extent necessary to determine
whether these claims are unpatentable over Baca and Wassingbo or any
other references. We leave it to the Examiner to determine the
appropriateness of any further rejections based on these or other references.
Our decision not to enter a new ground of rejection for all claims should not
be considered as an indication regarding the appropriateness of further
rejection or allowance of the non-rejected claims.
DECISION
We reverse the Examiner's decision rejecting claims 11-14, 21-29,
and 31-34 under 35 U.S.C. § 103(a) as being unpatentable over Velusamy
and Baca.
We reverse the Examiner's decision rejecting claims 15, 19, and 20
under 35 U.S.C. § 103(a) as being unpatentable over Velusamy, Baca, and
Wassingbo.
In a new ground of rejection, we reject claims 11 and 26 under
35 U.S.C. § 103(a) over Baca and Wassingbo.
TIME TO RESPOND
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides that "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
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Application 13/730,267
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
examiner. The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not previously
of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims, appellant may
again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under§ 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
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.
§ 41.50(±).
REVERSED
37 C.F.R. § 41.50(B)
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