Ex Parte Stuntebeck et al

Patent Trial and Appeal Board

Jul 9, 2018

14498253 (P.T.A.B. Jul. 9, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/498,253 09/26/2014
152577 7590 07/11/2018
Thomas I Horstemeyer, LLP (VMW)
3200 Windy Hill Road, SE
Atlanta, GA 30339
FIRST NAMED INVENTOR
Erich Peter Stuntebeck
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.
W084 (500102-1240) 2305
EXAMINER
IQBAL, KHAWAR
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
07/11/2018 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):
docketing@thomashorstemeyer.com
ipadmin@vmware.com
uspatents@thomashorstemeyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERICH PETER STUNTEBECK, KAR F AI TSE, and CHEN LU
Appeal2017-006710
Application 14/498,253 1
Technology Center 2600
Before MARC S. HOFF, CARLL. SILVERMAN, and
MELISSA A. RAAP ALA, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-10, 12-20, and 22-27, which constitute all
pending claims. Claims 11 and 21 are cancelled. App. Br. 3. We have
jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
STATEMENT OF THE CASE
The invention relates to restricting usage of a mobile device when a
1 The real party in interest is identified as Airwatch LLC, a wholly owned
subsidiary of VMware, Inc. App. Br. 2.
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Application 14/498,253
user is driving a vehicle. Abstract, Fig. 1, ,r,r 10-12. Claim 1, reproduced
below, is exemplary of the subject matter on appeal (emphasis added):
1. A non-transitory computer-readable medium embodying a
program executable in at least one computing device, wherein
when executed the program causes the at least one computing
device to at least: determine that a mobile device is in use in a
moving vehicle based at least in part on a plurality of global
positioning system (GPS) readings of the mobile device that
indicate that the mobile device is in motion beyond a first
predefined speed;
determine that the mobile device is in use by a driver of the
moving vehicle based at least in part on a lack of a fixed gaze by the
driver upon the mobile device, the lack of the fixed gaze being
detected via a camera of the mobile device;
restrict a functionality of the mobile device based at least in part on
determining that the mobile device is in use by the driver of the
moving vehicle; and
restore at least a portion of the restricted functionality of the
mobile device based at least in part on determining that the moving
vehicle is maintaining at least a second predefined speed, the second
predefined speed being greater than the first predefined speed.
App. Br. 18 (Claims Appendix).
THE REJECTION
Claims 1-10, 12-20, and 22-27 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Abramson et al. (US 2015/0312404 Al;
pub. Oct. 29, 2015) ("Abramson"). Final Act. 10-17.
ANALYSIS
Appellants argue the Examiner errs in finding Abramson teaches the
claim 1 limitation restore at least a portion of the restricted functionality of
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the mobile device based at least in part on determining that the moving
vehicle is maintaining at least a second predefined speed, the second
predefined speed being greater than the first predefined speed. App. Br.
5-7; Reply Br. 4--7. According to Appellants, Abramson teaches imposing
restrictions (i.e., disabling features) but does not describe restoring features
based on a determination that the moving vehicle is maintaining a second
predefined speed that is greater than the first speed. App. Br. 5-7 (citing
Abramson ,r,r 125,299, 518-520). In particular, Appellants argue Abramson
teaches that a driver "moving at a relatively high rate of speed is likely to be
potentially more distracted" and, therefore, Abramson suggests restricting
functionality (not restoring features) at greater speeds. Id. at 6-7 (citing
Abramson ,r 518). Appellants further argue that Abramson's teaching of
modifying restrictions is in response to determining a vehicle has stopped
moving, not that the vehicle is maintaining a greater speed. Id. at 7 ( citing
Abramson ,r 368).
The Examiner finds that Abramson teaches that input methods ( e.g.,
keyboard use) associated with a moving device "can be modified or changed
and (therefore it is evident that some functions are allowed and some
restricted depending on the speed of the vehicle, hence, restoring), such as to
different input method(s) that selectively restrict one or more aspects of the
functionality the device." Ans. 2-3 (citing Abraham
,r 299) ( emphasis omitted). The Examiner finds Abramson teaches
differentiating between a vehicle that has stopped and likely to continue the
trip from a vehicle that has stopped and likely finished its trip. Id. ( citing ,r
360). The Examiner then finds, "[i]n doing so, it can be determined when
usage/operational restrictions employed with respect to a device determined
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to be operated by a driver of a vehicle should be lifted or otherwise
modified/eased e.g., upon determining that the vehicle is relatively likely to
have finished its present trip." Id. at 3
The Examiner additionally finds drivers can self-declare their trips
have ended and based on the speed, "vehicle functions are
activated/deactivated, therefore restoring." Id. at 3--4 (citing Abramson
,r 368). The Examiner finds Abramson also discloses authentication
approaches/methods described configured to prevent/preclude requiring a
passenger to re-authenticate a device when a vehicle temporarily stops or
slows down e.g., reduces its speed below a certain threshold (predetermined
speed, not zero speed), during the course of a journey. Id. at 4.
In the Final Action and the Answer, the Examiner states:
the examiner has given the claim language its broadest reasonable
interpretation. Although the claims are interpreted in light of the
specification, limitations from the specification are not read into the
claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed.
Cir. 1993). Anticipatory reference need not duplicate, word for word,
what is in claims; anticipation can occur when claimed limitation is
"inherent" or otherwise implicit in relevant reference (Standard Havens
products Incorporated v. Gencor Industries Incorporated, 21 USPQ2d
1321 ).
Final Act. 9; see also Ans. 4, 6-7, 8-9, 10, 12, 14, 16, 17.
In the Reply Brief, Appellants argue the Examiner emphasizes
Abramson's teaching of "modified or changed" but this does not teach
"restoring restricted functionality." Reply Br. 5 (citing Abramson ,r 299).
According to Appellants, the only example of a modification or change in
Abramson is to enable a restriction, not to restore functionality. Id.
Appellants argue that Abramson's teaching of a stopped vehicle that
temporarily stops or slows down is inapplicable because it does not apply to
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an ongoing trip in which the vehicle "is maintaining at least a second
predefined speed, the second predefined speed being greater than the first
predefined speed." Id. at 6. Similarly, Appellants argue Abramson's "driver
self declaring their trips have ended" does not teach "restoring restricted
functionality in response to determining that the moving vehicle is
maintaining at least a second predefined speed, the second predefined speed
being greater than the first predefined speed." Id. at 6-7.
Here, the Examiner's interpretation that "restore at least a portion of
the restricted functionality" can be met simply by Abramson's
modifying/changing input methods is unreasonably broad and not consistent
with the Specification. See Spec. ,r,r 63, 67, Fig. 5. Claim terms in a patent
application are given the broadest reasonable interpretation consistent with
the Specification, as understood by one of ordinary skill in the art. In re
Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
The Examiner's findings are not commensurate with the disputed
claim limitation because Abramson does not describe "restoring"
functionality and does not describe restoring functionality based on a
determination "that the moving vehicle is maintaining at least a second
predefined speed, the second predefined speed being greater than the first
predefined speed." We agree with Appellants that the Examiner's reliance
on the portion of Abramson describing restoring functionality when a
vehicle has stopped moving (zero speed) does not disclose restoring
functionality based on a determination the vehicle is maintaining a second
speed greater than the first predefined speed. See Reply Br. 4; Abramson
,r 3 60. A claim is anticipated only if each and every element as set forth in
the claims is found, either expressly or inherently described in a single prior
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art reference, and arranged as required by the claim. Verdegaal Bros., Inc. v.
Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). See also In re
Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
Regarding inherency requirements for anticipation, See In re
Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations and internal
quotations omitted):
To establish inherency, the extrinsic evidence must make clear that the
missing descriptive matter is necessarily present in the thing described
in the reference, and that it would be so recognized by persons of
ordinary skill. Inherency, however, may not be established
by probabilities or possibilities. The mere fact that a certain thing may
result from a given set of circumstances is not sufficient.
In relying upon the theory of inherency, the Examiner must provide a
basis in fact and/or technical reasoning to reasonably support the
determination that the allegedly inherent characteristic necessarily flows
from the teachings of the applied prior art. In re Cruciferous Sprout Litig.,
301 F.3d 1343, 1349 (Fed. Cir. 2002). Here, the Examiner does not provide
sufficient evidence that Abramson's modifying/ changing necessarily results
in restoring.
In view of the above, we do not sustain the anticipation rejection of
claim 1, and dependent claim 26.
Regarding independent claim 2, Appellants argue that the Examiner
erred in finding Abramson teaches the limitation comparing, by the at least
one computing device, the current location of the mobile device to a route
employed by a mass transportation vehicle; and determining, by the at least
one computing device, that the active vehicle does not correspond to the
mass transportation vehicle. App. Br. 8-9 (citing Abramson ,r,r 364, 365,
411, 631). According to Appellants, Abramson's determinations relate to
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whether a vehicle is "likely to be stuck in traffic," not whether a vehicle
corresponds to a mass transportation vehicle. Id. at 8 (citing Abramson
,r 364). Appellants further argue Abramson does not teach "comparing
locations to a route employed by a mass transportation vehicle." Id. at 9
( citing Abramson ,r,r 631, 411 ).
In the Answer, the Examiner finds Abramson teaches determining a
particular type of vehicle, "e.g., one or more of moving, moving in a vehicle,
moving in a particular type of vehicle e.g., bicycle, car, truck, bus and
airplane." Ans. 6 (citing Abramson ,r,r 200, 600, 616, 620). The Examiner
then finds "Abramson determines a particular type of vehicle [i.e., active
vehicle] is different than bus or train [i.e., mass transportation vehicle]." Id.
In the Reply Brief, Appellants argue Abramson's determining the type
of vehicle does not teach the disputed limitation "comparing the current
location of the mobile device to a route employed by a mass transportation
vehicle." Reply Br. 8-9.
We are persuaded by Appellants' arguments because the Examiner
provides insufficient evidence that Abramson describes the disputed
limitation as required for anticipation, nor does the Examiner provide
sufficient evidence that the cited Abramson's portions would necessarily
result in the disputed limitation. Verdegaal Bros., Inc. v. Union Oil Co. of
Cal., 814 F.2d 628, 631; In re Robertson, 169 F.3d 743, 745. In particular,
the Examiner does not provide sufficient evidence that Abramson discloses
comparing the location of the mobile device to a route employed by a mass
transportation vehicle.
In view of the above, we do not sustain the rejection of claim 2, and
dependent claims 3-10, 12-15, and 27.
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Appellants argue the Examiner errs in finding Abramson teaches the
independent claim 16 limitations:
receive a request from the driver to bypass a restriction of the
functionality;
restore the functionality of the mobile device in response to the
request from the driver to bypass the restriction; and
send a notification to an administrator that the restriction has
been bypassed.
App. Br. 9--10; Reply Br. 9--11.
According to Appellants, Abramson's "exceptions for certain usage
(e.g., emergency calls, emergency text-messages) whereby the
aforementioned networks will allow such communications to pass through"
do not disclose that these exceptions are made in response to a request from
the driver to bypass a restriction of the functionality nor does Abramson
describe "send a notification to an administrator that the restriction has been
bypassed." App. Br. 10 (citing Abramson ,r 565). Appellants further argue
that no notification is sent to an administrator relating to Abramson's "self-
declaration of a trip end." Id. (citing Abramson ,r 369).
In the Answer, the Examiner finds Abramson describes device
restrictions that do not preclude operation of the device for emergency
purposes, such as emergency calls. Ans. 7-8 ( citing Abramson ,r,r 4 78,
54 7, 5 65 and 64 7). The Examiner additionally finds Abramson describes
that a user device can provide a notification, e.g. voice or text message, to a
party wishing to contact the user. Id. at 8 ( citing Abramson ,r,r 649--650).
In the Reply Brief, Appellants argue that "[ a ]lthough Abramson
discloses a "self-declaration of a trip end," ([0369]), no notification is sent to
an administrator." Reply Br. 10.
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We are persuaded by Appellants' arguments because Abramson's
notice does not indicate that "the restriction has been bypassed," nor that it is
sent to an administrator. Additionally, the Examiner provides insufficient
evidence that the cited portions of Abramson necessarily result in the
disputed limitations. Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814
F.2d 628,631; In re Robertson, 169 F.3d 743, 745.
In view of the above, we do not sustain the rejection of claim 16, and
dependent claims 17-20 and 22-25.
Because our decision with regard to the disputed limitations is
dispositive of the rejections, we do not address additional arguments raised
by Appellants.
DECISION
We reverse the Examiner's decision rejecting claims 1-10, 12-20, and
22-27.
REVERSED
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