Ex Parte Shields

Board of Patent Appeals and Interferences

May 29, 2009

09570622 (B.P.A.I. May. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ADRIAN SHIELDS
____________

Appeal 2008-3189
Application 09/570,622
Technology Center 2400
____________

Decided: 1 May 29, 2009
____________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
STEPHEN C. SIU, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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I. STATEMENT OF THE CASE
A Patent Examiner rejected claims 18-23 and 26-37. Claim 38 is
objected to and claim 37 has been indicated as allowable over the prior art.
Claims 24 and 25 are canceled. The Appellant appeals therefrom under
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We
Affirm-in-Part.

A. INVENTION
The invention at issue on appeal relates to self-service terminals
(SST). The invention also relates to a module for use in an SST and to a
method of encrypting a communication for transmission between
interconnected modules in an SST. (Spec. 1.)

B. ILLUSTRATIVE CLAIM
Claim 18, which further illustrates the invention, follows.
18. A method of operating an ATM, comprising:
a) maintaining modules within the ATM;
b) generating template-keys within the modules, using a
computation process which is relatively long;
c) maintaining the template-keys in the modules until a
message is transmitted between two modules;
d) when a message is transmitted between two modules,
i) encrypting the message using a first template-
key, in a process which is relatively short, to produce an
encrypted message; and
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ii) transmitting the encrypted message.

C. REFERENCES
The Examiner relies on the following references as evidence:
Wigur US 4,870,612 Sep. 26, 1989
Peters EP 0 854 456 A1 Jul. 22, 1998
Venkatesan US 6,490,354 B2 Dec. 03, 2002
(Jun. 23, 1998)

D. REJECTIONS
The Examiner makes the following rejections.
Claims 18-21 and 37 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as the invention.
Claims 18-23 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Wigur.
Claims 26, 27 and 31-36 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wigur in view of Peters.
Claims 28-30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wigur, Peters as applied above and further in view of
Venkatesan.

II. ISSUES
Has Appellant shown error in the Examiner's initial showing of a lack
of particularity in claiming the invention? Has Appellant shown that the
Examiner erred in establishing a prima facie case of anticipation? Has
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Appellant shown that the Examiner erred in establishing a prima facie case
of obviousness?

III. PRINCIPLES OF LAW
35 U.S.C. § 112, Second Paragraph
The second paragraph of 35 U.S.C. § 112 requires claims to set out
and circumscribe a particular area with a reasonable degree of precision and
particularity. In re Johnson, 558 F.2d 1008, 1015 (CCPA 1977). In making
this determination, the definiteness of the language employed in the claims
must be analyzed, not in a vacuum, but always in light of the teachings of
the prior art and of the particular application disclosure as it would be
interpreted by one possessing the ordinary level of skill in the pertinent art.
Id.
The Examiner's focus during examination of claims for compliance
with the requirement for definiteness of 35 U.S.C. § 112, second paragraph,
is whether the claims meet the threshold requirements of clarity and
precision, not whether more suitable language or modes of expression are
available. Some latitude in the manner of expression and the aptness of
terms is permitted even though the claim language is not as precise as the
Examiner might desire. If the scope of the invention sought to be patented
cannot be determined from the language of the claims with a reasonable
degree of certainty, a rejection of the claims under 35 U.S.C. § 112, second
paragraph, is appropriate.

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35 U.S.C. § 102
"[A]nticipation of a claim under § 102 can be found only if the prior
art reference discloses every element of the claim . . . ." In re King, 801
F.2d 1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1457 (Fed. Cir.
1984)). "[A]bsence from the reference of any claimed element negates
anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571
(Fed. Cir. 1986).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987). Analysis of whether a claim is patentable
over the prior art under 35 U.S.C. § 102 begins with a determination of the
scope of the claim. We determine the scope of the claims in patent
applications not solely on the basis of the claim language, but upon giving
claims their broadest reasonable construction in light of the specification as
it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The properly
interpreted claim must then be compared with the prior art.
Appellant has the opportunity on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006).
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005) (citation omitted).
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35 U.S.C. § 103(a)
Section 103 forbids issuance of a patent when “the differences
between the subject matter sought to be patented and the prior art are
such that the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in
the art to which said subject matter pertains.”

KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).

In KSR, the Supreme Court emphasized "the need for caution in
granting a patent based on the combination of elements found in the prior
art," Id. at 415, and discussed circumstances in which a patent might be
determined to be obvious. KSR, 550 U.S. at 415 (citing Graham v. John
Deere Co., 383 U.S. 1, 12 (1966)). The Court reaffirmed principles based
on its precedent that "[t]he combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results." Id. at 416. The operative question in this "functional
approach" is thus "whether the improvement is more than the predictable use
of prior art elements according to their established functions." Id. at 417.
The Federal Circuit recently recognized that "[a]n obviousness
determination is not the result of a rigid formula disassociated from the
consideration of the facts of a case. Indeed, the common sense of those
skilled in the art demonstrates why some combinations would have been
obvious where others would not." Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. 398, 415
(2007)). The Federal Circuit relied in part on the fact that Leapfrog had
presented no evidence that the inclusion of a reader in the combined device
was “uniquely challenging or difficult for one of ordinary skill in the art” or
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“represented an unobvious step over the prior art." Id. at 1162 (citing KSR,
550 U.S. at 416-419).
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).

IV. ANALYSIS
35 U.S.C. § 112, Second Paragraph
With respect to independent claims 18 and 37, Appellant contends
that the terms "relatively long" and "relatively short," are sufficiently
definite under "standard rules for claim interpretation" and that the claim
phrases are being read in isolation. (App. Br. 61). The Examiner maintains
that the terms are not defined in the claims in the Specification and does not
provide a standard for ascertaining the requisite degree at one of ordinary
skill and the art would not be reasonably apprised of the scope of the
invention. (Ans. 3).
We agree with the Examiner that the two terms are not defined in each
claim and Appellant’s Specification does not set forth a standard for the
degree of each limitation. While Appellant maintains that the two terms
must be compared to each other, the claim language does not require a
comparison of the two to determine the degree as dependent claim 22 does
set forth a specific comparison. Therefore, Appellant has not shown error in
the Examiner's initial showing of a lack of particularity in claiming the
invention. Therefore, we will sustain the rejection of independent claims 18
and 37 and dependent claims 19-21 as containing the same deficient
limitations.
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With respect to dependent claim 21, the Examiner maintains that the
term "computationally intensive" is a relative term which renders that claim
indefinite. (Ans. 4). Appellant maintains that the identified language clearly
means that one process requires "more computation" than the other process.
(App. Br. 62). We agree with Appellant since there is a direct comparison
between two discrete claim elements, and we will not sustain the rejection of
dependent claim 21 concerning this limitation.

35 U.S.C. § 102
With respect to independent claim 18, Appellant argues in Point 1 that
claim 18(b) requires that the keys are "generated within the modules." (App.
Br. 52-53). Appellant contends that since the initial generation of the
working code is done in the security model which sends a copy of the
working code to the keyboard and the modification of working codes into
new working codes occurs in both the keyboard and the security module,
then plainly the first generation in the security module does not qualify as
the claimed key generation. We note that independent claim 18 does not
differentiate between an initial time frame and a time frame after the initial
setup. Therefore, we find the modification of the template-keys as taught by
Wigur is sufficient to meet the limitations of independent claim 18.
Therefore, we do not find Appellant’s argument to show error in the
Examiner's initial showing of anticipation.
With respect to Claim 18, Point 2, Appellant’s argument that Wigur
does not state that one process is longer than the other and there is no way to
determine which is longer than the other. While Appellant is literally
correct, we find that the two processes would be inherently and statistically
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different in length, wherein an exact similar time is statistically an
impossibility. Furthermore, we find that the use of the working code in the
logic units 21 and 31 (Figs. 2 and 3) in Wigur would have been shorter than
the generation of a working code which would ultimately be used for
dispensing cash. Otherwise, the working code would not work.
Furthermore, the "PIN-code" is usually and customarily a short value/code
whereas a working code would be substantially longer. Appellant sets forth
a simple example to rebut the inherency of the relative relationship between
key generation and the encryption process. (Reply Br. 10). We find
Appellant’s argument is based upon a clearly erroneous "simple example"
that has no relationship to the claimed invention, or to the SST disclosed in
Wigur. We find that an ATM or SST would generally not be transmitting a
65 page document, the normal transmission of the disclosed PIN-code would
be less than a dozen characters. Therefore, we do not find Appellant’s
argument is persuasive of error in the Examiner's initial showing of
anticipation.
With respect to Point 3, Appellant contends that claim 18(a) states that
the modules are maintained within the ATM and that Wigur expressly states
that his keyboard is located in a position which is different from the security
module. (App. Br. 54). We find Wigur additionally states that the keyboard
coupled to the secured cabinet or box in column 2, but we agree with the
Examiner that Wigur still teaches the modules "within" an ATM or SST.
The language of independent claim 18 does not recite a physical location
within another structure, but merely that the modules are maintained
"within" the system of an ATM, and the claim does not set forth a physical
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"box" or "chassis." Therefore, we find Appellant’s argument unpersuasive
of error in the Examiner's initial showing of anticipation.
With respect to Point 4, i.e., that Wigur does not show multiple
modules that generate keys, then store the keys which they generated, and
then use the stored keys to encrypt outgoing messages. (App. Br. 54-55).
We find Appellant’s argument is not commensurate in scope with the
express language set forth in independent claim 18. Independent 18 does not
set forth multiple messages that are transmitted between two modules. The
claim merely sets forth maintaining the template keys in the modules until "a
message is transmitted between two modules." Therefore, only a singular
message is required to be transmitted between two modules. We find that
Wigur discloses that a message would be transmitted using the working code
between the keyboard and the security module and then a new working code
generated using the same algorithm in both modules.
With respect to Appellant’s argument concerning "accidental
anticipation," we do not find Appellant’s argument to show how the non-
repetitive claim limitations of the method are accidentally anticipated. The
claimed steps are anticipated. Therefore, we find Appellant’s argument
unpersuasive of the error in the Examiner's initial showing of anticipation.
With respect to Point 5 (App. Br. 55-56), Appellant argues that a
single occurrence in Wigur of encryption is insufficient since "when" means
"if" or "whenever." Unfortunately, we must review patentability based upon
the claim language presented on appeal. If Appellant desired the language to
state "whenever," an appropriate amendment to the claim language would
have remedied the issue, rather than an offer to amend in the Brief. Claim
18 sets forth a singular message which is transmitted between two modules.
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We find Wigur teaches the transmission of a message as claimed.
Therefore, we find Appellant’s argument to be unpersuasive of error, and we
will sustain the rejection of independent claim 18.
With respect to dependent claim 19, Appellant relies upon similar
arguments, discussed above, which we found unpersuasive of error.
Therefore, we will sustain the rejection of dependent claim 19.
With respect to dependent claim 20, Appellant argues that claim 20
recites after decrypting the message changing the template-key in said two
modules, and Appellant identifies that Wigur in column 3 states that the
keyboard changes its working code after transmitting the message and the
security module changes its working code after the option. Appellant
therefore concludes that "Wigur's keyboard changes its working code before
the decryption occurs." (App. Br. 56). We disagree with Appellant’s
conclusion since it is not clearly disclosed as being before the decryption
occurs, as asserted.
With respect to independent claim 22, Point 1, Appellant argues that
Wigur only shows one pair of modules, at best the keyboard in the security
module. (App. Br. 58). Appellant argues that there is no clear discussion of
a card reader with regards to encrypting and that there is no reason to
encrypt the information read from the ATM card (id.). We agree with
Appellant and find no clear teaching of two pairs of modules using different
keys for each pair as recited in independent claim 22. Therefore, Appellant
has shown error in the Examiner's initial showing of anticipation, and we
cannot sustain the rejection of independent claim 22 and dependent claim
23.

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35 U.S.C. § 103
With respect to independent claim 26, we agree with Appellant’s
argument in the Reply Brief at page 20 that claims 26, 27, and 31-36 should
not be grouped together since Appellant has set forth separate arguments for
patentability. Therefore, we will address the claims as set forth in the Brief.
With respect to claim 26, Point 1, Appellant relies upon discussions
made with respect to independent claim 31. (App. Br. 46). We are left to
speculate as to what Appellant contends as the argument for patentability
with respect to Point 1 concerning claim 26, since the arguments set forth
with regards to independent claim 31 are set forth as "Problem 1," etc.
Therefore, there is no corresponding Point 1. Additionally, we note the
scope of independent claim 31 is different and more specific than
independent claim 26. Hence, the same arguments may not necessarily
follow for independent claim 26. Therefore, we do not find Appellant’s
argument identifies any error with respect to independent claim 26.
With respect to Point 2, Appellant argues the claim recites encryption
occurs in an originating module and decryption occurs in a recipient module.
(App. Br. 46-47). Appellant argues that Wigur may show recitation of
transmission from the keyboard to his security module, but does not show
the claimed four modules. (App. Br. 47). We disagree with Appellant and
find that the Background of the Invention of Wigur at column 1 clearly
discusses the keyboard, card reader, the cash dispenser, and arguably to
display information for the customer. Therefore, we find Wigur does teach
four (4) modules. Furthermore, the Examiner has relied upon the teachings
of Peters to evidence these multiple units. Therefore, Appellant’s argument
does not show error in the Examiner's initial showing of obviousness.
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Appellant further argues that Wigur does not show encryption/decryption
"whenever" communication occurs between the two modules. (App. Br.
47). We note that the claim language does not recite that the communication
for all four modules must be met whenever communication occurs. The
claim merely states encryption/decryption "whenever" communication
occurs between two modules. Wigur clearly discloses encryption/decryption
between the keyboard inputting the pin code to this security module each
time the PIN-code is input.
With respect to the Examiner's position that the duplication of the
central working parts which would be before modules would be to "secure
communication between multiple modules," we find the Examiner's
discussion goes beyond the express language of independent claim 26
wherein there is no recitation of any encryption/decryption key and no
recitation that modules have keys in pairs. (Ans. 12-13). Therefore, the
Examiner's discussion goes further than is necessary for the language of
claim 26. Therefore, we find Appellant’s specific arguments in the Reply
Brief in pages 19-25 to be unpersuasive of the error. We find ample support
for the Examiner's position concerning enhancing secure communication
between functional modules in ATM machine, wherein it would have been
desirable to those skilled in the art to have a discrete portion of the ATM to
have more secure communication since money is involved.
With respect to Point 3, Appellant argues that the only source of the
concept of increased security resulting from an encryption of messages
between multiple modules is found in Appellant’s Specification. We
disagree with Appellant’s argument and find no support for the "encryption
of messages between multiple modules" in the language of independent
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claim 26. The claim merely sets forth two (2) modules communicating.
Therefore, we find Appellant’s argument to be unpersuasive of error in the
Examiner's initial showing of obviousness of independent claim 26.
With respect to dependent claim 27, Appellant argues that "the" data
refers to data in any "communications" between modules. Again,
Appellant’s argument is not commensurate with the express language of
dependent claim 27 as it depends from independent claim 26. Therefore,
Appellant’s argument does not show error in the Examiner's initial showing
of obviousness.
With respect to dependent claims 28 and 29, we disagree with
Appellant, and find that the Examiner's statement of the rejection relies upon
the teachings of Venkatesan. The Examiner relies upon the discussion in
Venkatesan concerning symmetric algorithms in a very simple form of a
stream cipher using exclusive-or (XOR). The Examiner has provided a
rationale for the combination and Appellant contends that the rationale is a
"broad conclusory statement" (App. Br. 48-49). We disagree with
Appellant’s contention and find that Venkatesan teaches the well-known use
of the XOR function for encryption and decryption as a simple form of
transforming plain text into cipher text. Appellant’s blanket argument does
not show error in the stated line of reasoning for the combination nor does it
dispute these well-known cipher functions. Therefore, we do not find
Appellant’s arguments to be persuasive of error in the Examiner's initial
showing of obviousness of dependent claims 28 and 29.
Appellant in the Reply Brief at page 28 merely asserts that the
Examiner's discussion at page 14 of the Answer does not overcome the
arguments of the Brief at pages 40-42. From our review of pages 40-42 of
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the Brief, we find no arguments concerning claims 28-30 (claims 32 and 33
are discussed which depend from a different and more specific independent
claim 31, which we distinguished above). Therefore, Appellant’s arguments
do not show error in the Examiner's initial showing of obviousness for
dependent claims 28-30, and we will sustain the rejection thereof.
With respect to independent claim 31, Problems 1-3, Appellant argues
that the Examiner's rejection is flawed since neither reference discusses
encryption of communications "between multiple modules." (App. Br. 34-
35). We find no support for the "between multiple modules" language in
independent claim 31. Therefore, we find Appellant’s arguments
unpersuasive of error.
With respect to Problem 4, independent claim 31 sets forth
maintaining a controller, maintaining at least four of the recited modules,
and maintaining a different template in each module and a copy of each
template in the controller. Appellant argues that the Examiner has not
shown that the combined teachings would produce different keys for the
modules and copies of these keys in the controller. (App. Br. 36-37). We
agree with Appellant and find that the Examiner has not specifically
addressed the merits of these portions of independent claim 31 in the
statement of rejection at pages 6-7 of the Answer nor has the Examiner
addressed the merits in the responsive arguments at pages 12-14, we find the
Examiner has not set forth a sufficient initial showing of obviousness of the
claimed invention. Therefore, we cannot sustain the Examiner’s rejection of
independent claim 31 and dependent claim 32.
With respect to independent claim 33, Appellant relies upon the same
arguments advanced with respect to independent claim 31. (App. Br. 41-
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43). While we found Appellant’s arguments persuasive with respect to
independent claim 31, independent claim 33 is broader than independent
claim 31. We note independent claim 33 recites "N pairs," but does not
define "N" in the limited situation where N equals zero or N equals one, we
find that the teachings of Wigur render the claim obvious. Therefore, we do
not find Appellant’s Point 1 to be persuasive of error.
With respect to Points 2-4, Appellant argues that claim 33 states that
N modules are present. (App. Br. 42). We disagree with Appellant and find
that claim 33 recites maintaining "a controller which controls N
components." Appellant further argues there are N pair of keys and one key
is used to encrypt and one key is used to decrypt. Where N equals one(1) or
zero(0) Wigur teaches the claimed invention. Therefore, Appellant’s
arguments are not persuasive of error in the Examiner's initial showing of
obviousness of independent claim 33.
With respect to dependent claim 34, Appellant argues that the
communication is from the controller to the component which would be the
keyboard in Wigur. We disagree with Appellant and find that Wigur,
discloses an order to "change code" is communicated from the security
module to the keyboard. Therefore, we find that Wigur does disclose
communication from the security module to the keyboard and also that the
communication could be encrypted using the working code. Therefore, we
find Appellant’s argument to be unpersuasive of error.
With respect to independent claim 35, Point 1, Appellant argues that
independent claim 35 clearly states that multiple keys are computed at a
single time and then stored. Appellant argues that neither Wigur nor Peters
teaches this limitation. (App. Br. 44-45). Again, we disagree with
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Appellant’s loose interpretation of the claim language. We find independent
claim 35 merely sets forth (a) maintaining a controller within the ATM
which controls components (plural); (b) when the ATM is not involved with
transactions with customers, computing encryption keys, and storing the
keys; (c) use the keys; and (d) change the keys. Therefore, we find no
limitation concerning generation of the keys at a "single time," but merely a
general time frame which is taught by Wigur. With respect to the time
frame for generation of the encryption keys, we find that the common sense
of those skilled in the art would have demonstrated why the computationally
demanding generation would be done during times when not in use by a
user. See Leapfrog at 1161 (citing KSR, 550 U.S. 398, 415 (2007)).
Furthermore, Appellant presented no evidence that timing for generation of
the keys was “uniquely challenging or difficult for one of ordinary skill in
the art” or “represented an unobvious step over the prior art."
Therefore, we find Appellant’s argument to be unpersuasive of error
in the Examiner's initial showing of obviousness.
Appellant further argues in Point 2 that the references are
contradictory concerning whether the keys are changed. (App. Br. 45). We
find the teachings of Wigur to be clear to change the keys after use.
Therefore, we find Appellant's argument to be unpersuasive of error in the
Examiner's initial showing of obviousness, and we will sustain the rejection
of independent claim 35.
Appellant argues that claim 36 has not been shown in the references
even if combined, but offers to rewrite the claim as saying "wherein all
communications between the controller and the components are encrypted."
(App. Br. 45). Again, it is the language of the claim on appeal that we
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review, and we find no substantive argument concerning dependent claim
36. Therefore, we sustain the rejection of dependent claim 36.

V. CONCLUSION
For the aforementioned reasons, Appellant has shown error in the
Examiner’s initial showing and shown a lack of a prima facie case with
respect to the anticipation of claims 22 and 23 and with respect to the
obviousness rejection of claims 31 and 32. We find that Appellant has not
shown error in the Examiner's rejection under 35 U.S.C. § 112, second
paragraph concerning claims 18-21. Appellant has not shown error in the
Examiner's rejection under 35 U.S.C. § 102 concerning claims 18-21.
Appellant has not shown error in the Examiner's rejection under 35 U.S.C.
§ 103 concerning claims 26-30 and 33-36.

VI. ORDER
We affirm the rejection under 35 U.S.C. § 112 of claims 18-21 and 37
and reverse a separate rejection under 35 U.S.C. § 112 of dependent claim
21. We affirm the anticipation rejection of claims 18-21, and reverse the
anticipation rejection of claims 22 and 23.
We affirm the obviousness rejections of claims 26-30 and 33-36, and
we reverse the obviousness rejections of claims 31 and 32.

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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).

AFFIRMED-IN-PART

rwk

MICHAEL CHAN
NCR CORPORATION
1700 SOUTH PATTERSON BLVD
DAYTON, OH 45479-0001