Fitbit, Inc.

Patent Trials and Appeals Board

Sep 27, 2021

2020004511 (P.T.A.B. Sep. 27, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/938,704 11/11/2015 Barry Burton GGLF-21400CON39 5363
100462 7590 09/27/2021
Dority & Manning P.A. and Google LLC
Post Office Box 1449
Greenville, SC 29602
EXAMINER
KHAN, OMER S
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
09/27/2021 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):
usdocketing@dority-manning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BARRY BURTON, HEIKO PANTHER, JAMES PARK,
ERIC FRIEDMAN, SHELTEN YUEN, CHRISTINE BRUMBACK, and
TIMOTHY ROBERTS

Appeal 2020-004511
Application 14/938,704
Technology Center 2600
____________

Before LARRY J. HUME, NORMAN H. BEAMER,
and MICHAEL T. CYGAN, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–5 and 8–18.1 Claims 6 and 7 are cancelled. We have
jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Fitbit, Inc. as the real party in interest.
(Appeal Br. 3.)
Appeal 2020-004511
Application 14/938,704

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THE INVENTION
Appellant’s disclosed and claimed invention is directed to displaying
monitored activity. (Abstr.)
Independent claim 1 is representative:
1. A method operable by a processor of an activity tracking
device, the method comprising:
capturing motion data associated with activity of a user
by the activity tracking device, the motion data
quantified into one or more metrics associated with
the activity of the user;
associating the activity tracking device with a computing
device over a wireless data connection, the
computing device having an activity application;
sending, during a first time period, first motion data of
the motion data at a first data transfer rate to the
computing device in response to a determination
that (i) the activity application is open and (ii) the
activity tracking device is within a proximity
distance of the computing device, wherein the first
motion data is used for substantial real-time
display of a metric, of the one or more metrics, by
the activity application of the computing device;
and
sending, during one or more second time periods, second
motion data of the motion data at a second data
transfer rate higher than the first data transfer rate
and to the computing device as background
updates in response to a determination that (i) the
activity application is closed and (ii) the activity
tracking device is within the proximity distance of
the computing device.
(Appeal Br. 21 (Claim Appx.))
Appeal 2020-004511
Application 14/938,704

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REJECTIONS
The Examiner rejected claims 1, 4, 5, 8–10, 12, 13, and 15 under pre-
AIA 35 U.S.C. § 103 as being unpatentable over Rahman (US
2012/0316406 A1, pub. Dec. 13, 2012), Adelman (US 2013/0173658 A1,
pub. July 4, 2013), and Waris (US 2011/0126185 A1, pub. May 26, 2011).
(Final Act. 4–21.)
The Examiner rejected claims 2, 14, 17, and 18 under pre-AIA
35 U.S.C. § 103 as being unpatentable over Rahman, Adelman, Waris, and
Meschter (US 2012/0251079 A1, pub. Oct. 4, 2012). (Final Act. 21–24.)
The Examiner rejected claim 3 under pre-AIA 35 U.S.C. § 103 as
being unpatentable over Rahman, Adelman, Waris, and Vincent (US
2009/0048070 A1), pub. Feb. 19, 2009). (Final Act. 24–26.)
The Examiner rejected claims 11 and 16 under pre-AIA 35 U.S.C.
§ 103 as being unpatentable over Rahman, Adelman, Waris, and Allen (US
9,183,738 B1), iss. Nov. 10, 2015). (Final Act. 26–30.)
ISSUE ON APPEAL
Appellant’s arguments present the following dispositive issue:2
Whether the Examiner erred in finding that the combination of
Rahman, Adelman, and Waris taught or suggested the independent claim 1
limitation, “a second data transfer rate higher than the first data transfer

2 Rather than reiterate the arguments of Appellant and the legal conclusions
and findings of the Examiner, we refer to the Appeal Brief, filed Feb. 4,
2020 (“Appeal. Br.”); the Reply Brief, filed May 28, 2020 (“Reply Br.”); the
Final Office Action, mailed Aug. 2, 2019 (“Final Act.”); and the Examiner’s
Answer, mailed Apr. 7, 2020 (“Ans.”) for the respective details.
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Application 14/938,704

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rate,” and the commensurate limitations in independent claims 4, 5, and 9.
(Appeal Br. 12–17.)
ANALYSIS
In rejecting the independent claims over the combination of Rahman,
Adelman, and Waris, the Examiner relies on Waris as teaching or suggesting
the higher data rate aspect of the requirement of “sending . . . second motion
data . . . at a second data transfer rate higher than the first data transfer rate .
. . in response to a determination that . . . the activity application is closed . .
. .” (Final Act. 8–10; Ans. 7–9.) The “first data rate” referred to is a rate
that applies when, inter alia, the activity application is open. (Appeal Br. 21
(Claim Appx.))
Appellant argues, and we agree that Waris discloses sending data at a
lower rate when the application is closed, compared to the rate when the
application is open, which is the opposite of what the independent claims
require. (Appeal Br. 14.) The Examiner responds by citing the disclosure in
Waris of adjusting the data rate “based on, for instance, how closely the UEs
[user equipments] 101a-101n are socially connected,” and based on location
factors. (Ans. 9, 11–12.) The Examiner reasons that these adjustments can
result in the Waris system sending data at a higher rate when the application
is closed, compared to the rate when the application is open, in accord with
the claims. (Id.)
Appellant argues, and we agree, that these adjustments are responsive
to social media status, or location, and are not “in response to a
determination that . . . the activity application is closed,” as required. (Reply
Br. 5–6.) We also agree with Appellant’s argument that one of ordinary skill
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Application 14/938,704

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would not have been motivated to incorporate the teachings of Waris with
respect to social media status and location, because:
The User Equipment (UE) that the Examiner cites to would, in
the context of a wearable fitness device, typically be a wearable
device like Rahman's wearable device and a cell phone or other
computing device carried by the user. It is unclear how “social
connectedness” is relevant to communications between two
devices that are owned and used by the same person. No
person of ordinary skill in the art would think there was any
benefit at all to incorporating Waris’s social connectedness
paradigm into Rahman's activity tracker device for the purposes
of conveying data from the activity tracker device to a
computing device carried by the same user.
(Reply Br. 6.)
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 1, 4, 5, and 9 as obvious over Rahman, Adelman, and
Waris. We also do not sustain the obviousness rejections of claims 8, 10,
12, 13, and 15 over Rahman, Adelman, and Waris, of claims 2, 14, 17, and
18 over Rahman, Adelman, Waris, and Meschter, of claim 3 over Rahman,
Adelman, Waris, and Vincent, and of claims 11 and 16 over Rahman,
Adelman, Waris, and Allen, which rejections are not argued separately with
particularity. (Appeal Br. 18–19.)

Appeal 2020-004511
Application 14/938,704

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 5, 8–
10, 12,
13, 15
103 Rahman, Adelman,
Waris
1, 4, 5, 8–
10, 12, 13,
15
2, 14, 17,
18
103 Rahman, Adelman,
Waris, Meschter
2, 14, 17,
18
3 103 Rahman, Adelman,
Waris, Vincent
3
11, 16 103 Rahman, Adelman,
Waris, Allen
11, 16
Overall
Outcome
1–5, 8–18

REVERSED