Ex Parte Razzell

Patent Trial and Appeal Board

May 3, 2016

12743425 (P.T.A.B. May. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121743,425 05/18/2010
65913 7590 05/05/2016
Intellectual Property and Licensing
NXPB.V.
411 East Plumeria Drive, MS41
SAN JOSE, CA 95134
FIRST NAMED INVENTOR
Charles Razzell
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.
81057845US05 3987
EXAMINER
TRAORE, FATOUMATA
ART UNIT PAPER NUMBER
2436
NOTIFICATION DATE DELIVERY MODE
05/05/2016 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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ip.department.us@nxp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES RAZZELL
Appeal2014-009664
Application 12/743,425 1
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the
Examiner's Non-Final rejection of claims 1-18, which constitute all the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 According to Appellant, the real party in interest is NXP Semiconductors.
App. Br. 2.
Appeal2014-009664
Application 12/743,425
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed "invention relates generally to
wirelessly exchanging data between devices over short distances, and
particularly to using acoustic signals to exchange data between devices over
short distances, for example to establish a secure communications link."
Spec. 1, 11. 6-9.
Exemplary Claims
Claims 1 and 12, reproduced below, are representative of the subject
matter on appeal (emphasis and lettering added to disputed limitations):
1. A method for establishing a secure wireless
communication link between first and second proximately-
located devices, each of which includes respective audio
transmitters and audio receivers, the method comprising:
[L 1] using the audio transmitter of the first device to
transmit a device-dependent authentication key;
receiving the transmitted authentication key at the audio
receiver of the second device, and using the audio transmitter of
the second device to transmit an acknowledgement;
receiving the acknowledgement at the audio receiver of
the first device;
[L2] determining the round-trip time from transmitting
the authentication key from the first device to receiving the
acknowledgement at the first device; and
2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed
April 28, 2014); Reply Brief ("Reply Br.," filed Sept. 12, 2014); Examiner's
Answer ("Ans.," mailed July 15, 2014 ); Non-Final Office Action ("Non-
Final Act.," mailed Nov. 27, 2013 ); Advisory Action ("Adv. Act." mailed
June 27, 2013); and the original Specification ("Spec.," filed May 18, 2010).
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Application 12/743,425
[L3] determining whether to establish the secure wireless
communication link based on the determined round-trip time.
12. A mobile communications device comprising:
an audio transmitter;
an audio receiver; and
circuitry configured and arranged to send audio data
packets via the audio transmitter, receive audio data packets via
the audio receiver, calculate round-trip times between sending
audio data packets and receiving audio acknowledgements, and
validate audio communications based on the calculated round-
trip times.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Willey US 2003/0065918 Al Apr. 3, 2003
Rejections on Appea!3
Claims 1-18 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Willey. Non-Final Act. 10.
CLAIM GROUPING
Based on Appellant's arguments (App. Br. 3-8), we decide the appeal
of the anticipation rejection of claims 1-11 on the basis of representative
claim 1; we decide the appeal of the anticipation rejection of claims 12-16
3 The Examiner has withdrawn the 35 U.S.C. § 112 rejections of claims 5
and 6. Adv. Act., June 27, 2013.
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Appeal2014-009664
Application 12/743,425
on the basis of representative claim 12; and we address the appeal of the
anticipation rejection of claims 17 and 18, infra.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments
which Appellant could have made but chose not to make in the Briefs so that
we deem any such arguments as waived. 37 C.F.R. § 41.37(c)(l)(vii).
We disagree with Appellant's arguments with respect to claims 1-18,
and we incorporate herein and adopt as our own: ( 1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellant's arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments for emphasis as
follows.
1. § 102 Rejection of Claims 1-11
Issue 1
Appellant argues (App. Br. 3-5; Reply Br. 2-3) the Examiner's
rejection of claims 1-11 under 35 U.S.C. § 102(b) as being anticipated by
Willey is in error. These contentions present us with the following issue:
4 Although Appellant appears to provide separate arguments directed to the
patentability of claims 17 and 18 (App. Br. 5---6), depending from claims 12
and 16, respectively, we have considered these arguments, and find they are
essentially identical to those directed to the rejection of claim 1, addressed,
infra. Appellant further groups claims 17 and 18 with claim 12. App.
Br. 6-7.
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Application 12/743,425
Did the Examiner err in finding the cited prior art discloses limitations
LI, L2, and L3, as recited in claim 1?
Analysis
Appellant contends:
[N]ot only does the '918 reference require that the devices be
authenticated prior to calculation of distance or any round trip
time, the cited antispoof variable is used for the initial
authentication and separate from the subsequent transmission of
the "challenge" and "response" that are actually used to
calculate distance. As such, these aspects do not, as asserted in
the Office Action, correspond to aspects of the claims directed
to transmitting an authentication key and determining whether
to establish a secure wireless communication link based on the
determined round trip time of the key communication.
App. Br. 5.
We agree with the Examiner's finding that Willey's "authenticating
device 200['s] determin[ation of] the roundtrip time from the time the
transmittal of the challenge and the time of the response" discloses the
disputed claim term "round-trip time" in each of limitations [L2] and [L3] of
claim 1. Ans. 2--4 (citing Willey i-f77, Fig. I IA).
We also agree with the Examiner's finding that step 42 of the flow
chart depicted in Fig. 11 a, which shows authenticating device 200
determining the response time from authenticated device 1010, teaches
claim 1 's "determining" limitations [L2] and [L3]. Ans. 2-3. We agree with
the Examiner because Fig. I la's flowchart shows step 42 calculates a
roundtrip time prior to step 50's authentication. Willey, Fig. I la. Moreover,
we agree with the Examiner's finding that the scope of the claim term
"device-dependent authentication key" reads on Willey's symmetric key 36
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Application 12/743,425
antispoof variable, because Willey's key is computed in the transmitting
devices. Ans. 3; Willey i1i167, 68, and 71.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitations on the cited prior art. Therefore, we sustain the
Examiner's anticipation rejection of independent claim 1 and grouped
claims 2-11 which fall therewith. See Claim Grouping, supra.
2. § 102 Rejection of Claims 12-16
Issue 2
Appellant argues (App. Br. 6-7; Reply Br. 4--5) the Examiner's
rejection of claims 12-16 under 35 U.S.C. § 102(b) as being anticipated by
Willey is in error. These contentions present us with the following issue:
Did the Examiner err in rejecting claims 12-16 under 35 U.S.C.
§ 102(b) by relying upon multiple embodiments in the cited prior art; and
did such reliance result in an undesignated new ground of rejection?
Analysis
Appellant contends:
[T]he instant Office Action has introduced new grounds of
rejection by citing to new embodiments of the '918 reference
involving the communication of audio (with a speaker/
microphone). However, the Office Action continues to rely
upon citation to alternate embodiments requiring the use of
radio frequency (RF) data communication and related
authentication, and fails to provide any explanation as to how
these mutually-exclusive embodiments would be combined.
More specifically regarding the mixed embodiments, the Office
Action cites to communications via a "speaker" of "PDA 200"
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and "microphone" of "PDA 910" at page 15, but then cites to
transmitting audio data packets via "wireless RF
communication" at page 16. The Office Action has provided no
explanation as to how these embodiments would be either
combined, thus failing to provide an enabled, corresponding
embodiment . . . .
App. Br. 6.
Appellant further contends "such a combination would appear to be
inappropriate under § 102, as a modification of the '918 reference would
necessarily be required in order to combine the RF transmission aspects with
an audio transmission." App. Br. 7.
We are not persuaded by Appellant's arguments because the Examiner
does not rely on multiple embodiments in disclosing independent claim 12's
audio transmitter and audio receiver, but rather relies on only one singular
embodiment having optional, alternative audio components (i.e., Bluetooth
wireless link or audio link). Ans. 4--5, Non-Final Act. 15-16, citing Willey
i-fi-134--36, and 65---68. That is, the Examiner's relies on a plurality of
alternatives to disclose receiving audio packets using a singular embodiment
of either wireless RF communication or an audio modulation scheme such as
audio frequency shift keying (AFSK). Ans. 4--5. Therefore, we do not find
the Examiner inappropriately relied upon an undesignated new ground of
rejection in rejecting claim 12.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitations on the cited prior art. Therefore, we sustain the
Examiner's anticipation rejection of independent claim 12 and grouped
claims 13-16 which fall therewith. See Claim Grouping, supra.
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3. § 102 Rejection of Claims 17-18
Appellant contends "[T]he rejections of claims 17 and 18 are
improper for reasons similar to those discussed above in Section I
[addressing claim 1], as the '918 reference's distance calculation is not
carried out as claimed." App. Br. 5.
For the same reasons discussed with respect to claim 1, Issue 1, supra,
we sustain the Examiner's rejection of dependent claims 17 and 18.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2-5) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a reply brief that were not raised in
the appeal brief or are not responsive to arguments raised in the Examiner's
Answer will not be considered except for good cause. See 37 C.F.R.
§ 41.41 (b )(2).
CONCLUSION
The Examiner did not err with respect to the anticipation rejection of
claims 1-18 under 35 U.S.C. § 102(b) over the cited prior art of record, and
we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1-18.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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