Ex Parte Xydis

Board of Patent Appeals and Interferences

Mar 11, 2009

10948497 (B.P.A.I. Mar. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS G. XYDIS
_____________

Appeal 2009-1066
Application 10/948,497
Technology Center 2600
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Decided1: March 11, 2009
____________

Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY,
and ELENI MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, 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 CFR § 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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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final
rejection of claims 1, 3-9, and 13-15.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.

INVENTION
Appellant’s claimed invention is directed to a method of allowing access to a
user (16) having a remote device (212) to an electronic device (218) in a working
space (14) (Spec. ¶[0006] and Fig. 8). The electronic device (218) and access
points (20) are at known locations in the working space (Spec. ¶[0006] and Fig. 8).
An initial signal is transmitted from the access point instructing the remote device
to respond after a delay period, the initial signal is detected with the remote device,
and a response signal is transmitted from the remote device upon the expiration of
the delay period (Spec. ¶[0006]). The response signal is detected with the access
points and the access points measure a period interval from the transmission of the
initial signal to the detection of the response signal (Spec. ¶[0006]). A distance of
the remote device is determined from the electronic device based upon the period
interval and the known positions of the access point and the electronic device and
the distance is compared to a predetermined distance range (Spec. ¶[0006]). The
electronic device is enabled in response to the distance of the remote device being

2 In the final rejection dated September 20, 2006, the Examiner allowed claims 16
and 18-23 and objected to claims 10-12. Furthermore, Appellant cancelled claims
2 and 17 by the February 17, 2006 Amendment.
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within the predetermined distance range such that the user can access the electronic
device (Spec. ¶[0006]).
Claim 1, reproduced below, is representative of the subject matter on appeal:
1. A method of allowing access to an electronic device (218) disposed in a
working space (14) by a user (16) having a remote device (212) in proximity to the
electronic device (218), said method comprising the steps of:
disposing the electronic device (218) selected from at least one of a
computer, a printer, a personal digital assistant, a copy machine, and a cellular
phone in communication with a network (13) at a known position in the working
space (14);
disposing an access point (20) in communication with the network (13) at a
known position about the working space (14);
detecting the remote device (212) with the access point (20);
transmitting an initial signal from the access point (20) instructing the
remote device (212) to respond after a delay period;
detecting the initial signal with the remote device (212);
transmitting a response signal from the remote device (212) upon the
expiration of the delay period;
detecting the response signal with the access point (20);
measuring a period interval from the transmission of the initial signal to the
detection of the response signal by the access point (20);
determining a distance of the remote device (212) from the electronic device
(218) based upon the period interval and the known positions of the access point
(20) and the electronic device (218);
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comparing the distance to a predetermined distance range;
enabling the electronic device (218) in response to the distance of the remote
device (212) being within the predetermined distance range such that the user (16)
can access the electronic device (218) and the network (13); and
disabling the electronic device (218) in response to the distance of the
remote device (212) being outside the predetermined distance range such that the
user (16) can not access the electronic device (218) and the network (13).

THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
Brinkmeyer US 5,983,347 Nov. 09, 1999

Harrison US 6,249,226 B1 Jun. 19, 2001

The following rejections are before us for review:
1. The Examiner rejected claims 1, 3-9, and 13-15 under 35 U.S.C.
§ 103(a) as being unpatentable over Harrison in view Brinkmeyer.
2. The Examiner provisionally rejected claims 1, 3-9, and 13-15 under the
judicially created doctrine of obviousness-type double patenting rejection as being
unpatentable over claims 1 and 2 of copending application 09/997,299 in view of
Brinkmeyer.

OBVIOUSNESS
ISSUE
Appellant contends inter alia that Harrison does not teach or suggest a
system that relies on access point networking for enabling and disabling access to
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the user based upon the distance of the user from the access point as determined by
the remote device responding upon the expiration of the delay period (Br. 11)
(emphasis added). Appellant further states that Brinkmeyer does not cure the cited
deficiencies (Br. 11).
The Examiner responds that Brinkmeyer teaches measuring an interval to
determine the distance (Ans. 7).
The issue before us, then, is as follows:
Has the Appellant shown that the Examiner erred by determining that
Brinkmeyer teaches “determining a distance of the remote device (212) from the
electronic device (218) based upon the period interval and the known positions of
the access point (20) and the electronic device (218)” as recited in claim 1?

FINDINGS OF FACT
The relevant facts include the following:
1. Brinkmeyer teaches measuring with the time-measuring device 6 the time
duration starting when the introductory signal 21 is transmitted from the
door lock unit 1b to the key unit 10 and stopping when the authentication
response signal 22 is received at the door lock unit 1b (col. 5, ll. 25-36) in
order to release the door-locking unit 20 if the authentication response signal
22 is recognized (col. 4, ll. 36-41).
2. Brinkmeyer further teaches that unauthorized attempts will be lengthened in
duration in comparison with normal authorized communication processes,
because of the longer transmission distance and/or the required signal
conversion (col. 3, ll. 26-31).
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3. Appellant’s Specification states that an access point “detects the locating
signals” (Spec. 4:5).
4. Brinkmeyer is silent as to knowing the positions of the access point and the
electronic device.
PRINCIPLES OF LAW
The Examiner bears the initial burden of presenting a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). If that burden is
met, then the burden shifts to the Appellants to overcome the prima facie case with
argument and/or evidence. Id. The Supreme Court, citing In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006), stated that “‘ [r]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,
127 S. Ct. 1727, 1741 (2007).
“The Patent and Trademark Office (PTO) must consider all claim limitations
when determining patentability of an invention over the prior art.” In re Lowry, 32
F.3d 1579, 1582 (Fed. Cir. 1994).

ANALYSIS
Claim 1 recites “determining a distance of the remote device (212) from the
electronic device (218) based upon the period interval and the known positions of
the access point (20) and the electronic device (218)” (emphasis added).
Brinkmeyer teaches measuring with the time-measuring device 6 the time duration
starting when the introductory signal 21 is transmitted from the door lock unit 1b
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to the key unit 10 and stopping when the authentication response signal 22 is
received at the door lock unit 1b (col. 5, ll. 25-36) in order to release the door-
locking unit 20 if the authentication response signal 22 is recognized (col. 4, ll. 36-
41) (emphasis added). Brinkmeyer further teaches that unauthorized attempts will
be lengthened in duration in comparison with normal authorized communication
processes, because of the longer transmission distance and/or the required signal
conversion (col. 3, ll. 26-31). In other words, Brinkmeyer teaches determining the
time duration of a transmitted and received signal from the electronic device and if
authentication does not occur, the inference that the holder of the key unit is either
located at a longer transmission distance or prolonged signal conversion (Findings
of Fact 1 and 2). Longer time duration for authentication is not necessarily the
result of a longer transmission distance, but could be the result of prolonged signal
conversion due to use of an unauthorized key unit. Thus, determining time
duration does not equate to “determining a distance” as recited in claim 1. As
stated supra, the claim limitation of “determining a distance” was not considered
in determining patentability of an invention over the prior art. See Lowry, 32 F.3d
at 1582.
Furthermore, according to Appellant’s Specification an access point “detects
the locating signals” (Finding of Fact 3). Brinkmeyer teaches determining the time
duration of the transmitted and received signal between the key unit 1b (i.e.,
remote device) and the door lock unit (i.e., access point)--not from the door-
locking unit 20 (i.e., electronic device) (Finding of Fact 1). Brinkmeyer is silent as
to knowing the positions of the access point and the electronic device (Finding of
Fact 4). Thus, Brinkmeyer does not teach determining a distance based upon the
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period interval and the known positions of the access point and the electronic
device (emphasis added).
For the above reasons, Appellant has shown error in the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a). Furthermore, Harrison does not
remedy the shortcomings of Brinkmeyer. We are therefore likewise persuaded of
error in the Examiner’s obviousness rejections of claims 3-9 and 13-15 under 35
U.S.C. § 103(a) for similar reasons as these claims depend directly or indirectly
from independent claim 1.

DOUBLE PATENTING
For the same reasons as articulated supra, Appellant has shown error in the
Examiner’s rejection of claims 1, 3-9, and 13-15 under the judicially created
doctrine of obviousness-type double patenting rejection as being unpatentable over
claims 1 and 2 of copending application 09/997,299 in view of Brinkmeyer.3 As
we determined supra, Brinkmeyer does not teach “determining a distance of the
remote device (212) from the electronic device (218) based upon the period
interval and the known positions of the access point (20) and the electronic device
(218)” as recited in claim 1.

3 While Appellant addressed the Kramer reference instead of the Brinkmeyer
reference which was used in rejecting claims 1, 3-9, and 13-15 under obviousness
double patenting rejections (Br. 17-18), we consider this a harmless error as the
same arguments set forth for the obviousness rejection as they apply to the
Brinkmeyer reference necessarily extend to the double patenting rejection
regarding the same limitation.
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CONCLUSIONS OF LAW
Appellant has shown that the Examiner erred by determining that
Brinkmeyer teaches “determining a distance of the remote device (212) from the
electronic device (218) based upon the period interval and the known positions of
the access point (20) and the electronic device (218)” as recited in claim 1. We are
likewise persuaded of error in the Examiner’s obviousness rejections of claims 3-9
and 13-15 under 35 U.S.C. § 103(a) for similar reasons as these claims depend
directly or indirectly from independent claim 1.
For the same reasons, the Examiner also erred in rejecting claims 1, 3-9, and
13-15 under the judicially created doctrine of obviousness-type double patenting
rejection as being unpatentable over claims 1 and 2 of copending application
09/997,299 in view of Brinkmeyer.

ORDER
The decision of the Examiner to reject claims 1, 3-9, and 13-15 under 35
U.S.C. § 103(a) is reversed.

REVERSED

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tdl

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