Google Inc.

Patent Trials and Appeals Board

Jan 22, 2021

2019005079 (P.T.A.B. Jan. 22, 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.
14/698,362 04/28/2015 Marc Stogaitis 1133-872US02 5436
98449 7590 01/22/2021
Shumaker & Sieffert, P.A.
1625 Radio Drive, Suite 100
Woodbury, MN 55125
EXAMINER
JACKSON, BLANE J
ART UNIT PAPER NUMBER
2644
NOTIFICATION DATE DELIVERY MODE
01/22/2021 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):
pairdocketing@ssiplaw.com
PTOL-90A (Rev. 04/07)
M UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MARC STOGAITIS and
BRIAN PATRICK WILLIAMS
____________________

Appeal 2019-005079
Application 14/698,3621
Technology Center 2600
____________________

Before JASON V. MORGAN, DEBORAH KATZ, and
JON M. JURGOVAN, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant seeks review under 35 U.S.C. § 134(a) from a final
rejection of claims 1, 9–11, 19, and 20, constituting all of the claims pending
in the application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.3

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, the real party in interest is
Google LLC. Appeal Br. 3.
2 Claims 3–6 and 13–16 were objected to as depending from a rejected base
claim but noted as allowable if rewritten in independent form. Claims 2, 7,
8, 12, 17, and 18 were canceled.
3 Our Decision refers to the Specification (“Spec.”) filed April 28, 2015, as
amended on November 22, 2016; the Final Office Action (“Final Act.”)
mailed August 6, 2018; the Appeal Brief (“Appeal Br.”) filed January 2,
2019; the Examiner’s Answer (“Ans.”) mailed May 9, 2019; and the Reply
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CLAIMED INVENTION
The claims relate to a mobile computing device with a processor and
motion module that detects a user’s activity, e.g., riding in a vehicle or
walking, based on a threshold amount of change of angle of the mobile
computing device relative to gravity. Spec. ¶ 67. The processor determines
a transition in the user’s activity from riding in a vehicle to walking and
determines the location of the vehicle on sensing that transition. Id. ¶ 68.
The mobile computing device may thus be used to remind the user where the
vehicle is parked.
Claims 1, 11, and 20 are independent. Claim 1 is a method claim
directed to operating the mobile computing device; claim 11 is an apparatus
claim directed to the mobile computing device; and claim 20 is a computer-
readable storage medium with instructions for the mobile computing
device’s operation. Appeal Br. 16, 20, and 24 (Claims Appendix). Claims
3–6, 9, and 10 depend from claim 1; and claims 13–16 and 19 depend from
claim 11.
Claim 1, shown below with argued limitation in italics, is
representative of the claimed invention.
1. A method comprising:
determining, by a processor of a mobile computing device and
based on first motion data generated by a motion sensor of the mobile
computing device, a first activity of a user associated with the mobile
computing device, wherein the first activity is riding in a vehicle;
after determining the first activity, detecting, by a motion
module of the mobile computing device and based on second motion
data generated by the motion sensor after the first activity is
determined, an activity transition in response to determining that a

Brief (“Reply Br.”) filed June 18, 2019.
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change in an angle of the mobile computing device relative to gravity
satisfies a threshold amount of change;
responsive to detecting the activity transition, determining, by
the processor and based on third motion data generated by the motion
sensor after the activity transition is detected, a second activity of the
user of the mobile computing device, wherein the second activity is
walking; and
responsive to determining that the second activity is different
from the first activity, determining, by the processor, a current
location of the mobile computing device indicative of a location at
which the vehicle is parked.

Appeal Br. 16 (Claims Appendix).

REJECTION
Claims 1, 9–11, 19, and 20 stand rejected under 35 U.S.C. § 103
based on Michalske (US 2014/0028477 A1, published January 30, 2014).
Final Act. 2–4.

ANALYSIS
Standard of Review
We undertake a limited de novo review of the appealed rejections for
error based upon the issues identified by Appellant, and in light of the
arguments and evidence produced thereon. Ex parte Frye, Appeal No.
2009-006013 (Feb. 26, 2010) (precedential).
§ 103 Rejection
Title 35, section 103, provides
A patent for a claimed invention may not be obtained,
notwithstanding that the claimed invention is not identically
disclosed as set forth in section 102, if the differences between
the claimed invention and the prior art are such that the claimed
invention as a whole would have been obvious before the
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effective filing date of the claimed invention to a person having
ordinary skill in the art to which the claimed invention pertains.4
The question of obviousness is resolved on the basis of underlying factual
determinations including: (1) the scope and content of the prior art; (2) any
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) where present, objective evidence of
nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
A. Independent Claims 1, 11, and 20
Appellant presents the same arguments for claim 1 as for claims 11
and 20, and thus argues these claims together as one group, notwithstanding
the manner in which Appellant groups the claims. See Appeal Br. 7–12.
Accordingly, we select claim 1 as representative of the independent claims
and unless otherwise indicated will restrict our analysis to this claim only.
37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims subject to the same
ground of rejection are argued as a group or subgroup by appellant, the
Board may select a single claim from the group or subgroup and may decide
the appeal as to the ground of rejection with respect to the group or subgroup
on the basis of the selected claim alone”).
The Examiner finds that Michalske teaches the limitations of claim 1.
Final Act. 2–4 (citing Michalske ¶¶ 40, 47–49, Figs. 5A, 5B, 12). Appellant
argues the Examiner erred in rejecting the claims, and presents arguments

4 The AIA included revisions to 35 U.S.C. § 103 that became effective on
March 16, 2013. Because the present patent application was filed after this
date, we assume AIA § 103 applies to this application. However, on this
record, our analysis would not be different if pre-AIA § 103 applied to this
case.
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for patentability. Appeal Br. 6–10; Reply Br. 2–4. Appellant’s arguments do
not persuade us of Examiner error for the following reasons.
(1) Angle Relative to Gravity
The Examiner finds that Michalske teaches the limitation of claim 1
(shown in emphasis above) reciting use of a motion sensor and motion
module that determines a change in angle of the mobile computing device
relative to gravity. Final Act. 3 (citing Michalske ¶¶ 47, 49). Specifically,
the Examiner finds that Michalske teaches “after the vehicle has stopped, the
accelerometer readings next detect erratic movement associated with being
picked up or removed from the vehicle by the user.” Id.
Appellant argues Michalske is silent about detecting “an angle of the
mobile computing device relative to gravity.” Appeal Br. 8. Appellant
acknowledges that Michalske describes detecting deceleration to a stop
and/or erratic movement associated with being picked up by the user, but
argues that Michalske never defines “erratic movement associated with
being picked up by the user” and only describes using “speed” or
“acceleration” to “detect when a moving vehicle is being parked.” Id.
Like the Specification (¶ 36), Michalske (¶ 46) teaches that its mobile
device includes an accelerometer or gyroscope to determine a change in the
user’s activity, signifying that the vehicle in which the user had been riding
is currently parked. Particularly, the Specification describes using
application processors, rather than a motion module to calculate the angle of
the mobile computing device relative to gravity, which, Appellant contends,
requires less power and analysis of less motion data (i.e., fewer
accelerometer data points) than when processors determine the user’s
current activity. Spec. ¶ 36 (emphasis added). The Specification also states
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[m]otion sensor 24 may measure motion information associated
with mobile computing device 4. For instance, motion sensor
24 may measure the rotation, velocity, and/or acceleration of
mobile computing device 4. Examples of one or more of
motion sensor 24 may include an accelerometer, a gyroscope,
or any other device capable of measuring the rotation, velocity,
and/or acceleration of mobile computing device 4.
Spec. ¶ 46 (emphases added). The Specification further states that
determining the angle of the computing device relative to gravity is
equivalent to determining the tilt of the computing device. Spec. ¶ 13
(“the angle of the computing device relative to gravity (i.e., the tilt of
the computing device).”).
Similarly, Michalske (¶ 46) describes that “the mobile device 10 may
employ its accelerometer or other motion-sensing device 32 to detect if and
when the vehicle 54 is being driven and if and when the vehicle 54 comes to
a stop to more accurately determine when the vehicle 54 is being parked”
(emphasis added). Michalske (¶ 35) further describes “motion-sensing
device 32 may be configured to detect motion, speed, movement, and/or
change in orientation of the mobile device 10. For example, the motion-
sensing device 32 may include an accelerometer, a gyroscope, a
magnetometer, and the like.” (emphases added). Thus, Michalske teaches
using an accelerometer or gyroscope, the same devices described in the
Specification, to determine a change in orientation of a mobile device.
Michalske (¶ 47) describes “erratic movement” in the same way the
Specification (¶ 29) does, i.e., that the “erratic movement” indicates the user
is carrying or walking with the mobile device. Thus, while Appellant may
be correct that Michalske does not define what “erratic movement” means,
the reference certainly describes it as the movement data observed when a
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user is carrying or walking with the device, the same as described in the
Specification.
Appellant’s remaining argument appears to be that Michalske’s
accelerometer or gyroscope is used to measure dynamic parameters like
acceleration or velocity, and not a static parameter like orientation. Appeal
Br. 8. However, Michalske’s teaching (¶ 35) of use of an accelerometer or
gyroscope to determine a change in orientation of the mobile device assumes
it has the capability to determine orientation. Furthermore, it was known in
the art that “accelerometers . . . only measure orientation relative to
gravity.”5
Accordingly, Appellant’s argument does not persuade us that the
Examiner erred in the rejection.
(2) Activity Transition
Appellant argues “Michalske is also deficient for failing to disclose or
suggest detecting ‘an activity transition’ as recited by claim 1.” Appeal Br.
8. Appellant argues, while Michalske detects conditions of whether a
vehicle is driven or parked or whether the mobile device is being carried by
a user, Michalske does not suggest “using an intermediary signal such as ‘an
activity transition’ as a signal to infer, as recited by claim 1, ‘a location at
which the vehicle is parked.” Id. at 9.
We do not agree. With reference to Figure 9, Michalske (¶ 49) states:
In order to detect that the vehicle 54 has been parked, the
mobile device 10 first detects (block 116) that it is disconnected
from the Bluetooth or USB connection. It may also detect
(block 118) for accelerometer readings associated with parking

5 Nasiri et al., US Patent No. 8,351,773 B2, filed Mar. 11, 2011, issued Jan.
8, 2013, 31:43–45 (“accelerometers cannot detect rotation around the
gravitational vector, but only measure orientation relative to gravity.”).
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of the car such as deceleration to a stop and/or erratic
movement associated with being picked up by the user. After
meeting one or more of these conditions, the mobile device 10
may save (block 120) its GPS location as the location of the
parked car. Later, the mobile device 10 may then output (block
122) the saved location of the parked vehicle 54 upon receiving
a request from the user.
(Emphasis added). Thus, Michalske detects deceleration to a stop,
and erratic movement associated with being picked up by the user, as
transitions from driving, to parking, to carrying the device while
walking, and when these conditions are met, the mobile device stores
the location of the parked vehicle.
Accordingly, Michalske teaches the argued claim language, and we
are not persuaded by Appellant’s arguments that the Examiner errs in the
rejection.
B. Dependent Claim 9
Claim 9 recites:
The method of claim 1, wherein:
the motion module includes the motion sensor and a first
processor,
the processor is an application processor, and
the first processor and the application processor are different
processors.
Appeal Br. 19 (Claims Appendix). The Examiner finds Michalske teaches
the limitations of claim 9. Final Act. 4 (citing Michalske ¶¶ 27, 34, 48–50).
Specifically, the Examiner finds Michalske teaches that “the mobile device
comprises a GPS and motion sensing device, an accelerometer with
independent processors to provide motion data.” Id.
Appellant argues “Michalske does not disclose or suggest ‘the motion
module includes the motion sensor and a first processor,’ as recited by
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claim 9.” Appeal Br. 13. According to Appellant, “Michalske only
references a processor when describing ‘processor(s) 12’ which is shown in
FIG. 1 of Michalske as being separate or distinct from ‘motion-sensing
device 32.’” Id. Appellant emphasizes that the claimed first processor and
application processor are different processors. Id.
As the Examiner found, Michalske (¶ 27) teaches that the mobile
device 10 may include one or more processor(s) 12, a global positioning
system (GPS) device 30, and a motion-sensing device 32, among other
components. Final Act. 4. Michalske’s motion-sensing device 32 and one
of the processor(s) 12 may be considered as teaching the claimed limitation
of “the motion module includes the motion sensor and a first processor.”
See Michalske (¶ 49). Michalske (¶ 28) further teaches that processors 12
may include application interfaces, and thus may execute applications.
To the extent the structural limitations of claim 9 could be considered
to modify or add to the method steps of claim 1, merely integrating a
processor and motion-sensing device together in one module, without more,
does not make the claim patentable. See In re Larson, 340 F.2d 965, 968
(CCPA 1965) (integrating separate prior art brake parts into integrated unit
did not render claim patentable). Furthermore, separating the function of
one processor into multiple processors is mere rearrangement or duplication
of parts, which does not render a claim patentable. See In re Harza, 274
F.2d 669 (CCPA 1960) (mere duplication of parts has no patentable
significance unless a new and unexpected result is produced); In re Japikse,
181 F.2d 1019 (CCPA 1950) (shifting position of a starting switch did not
change overall function of the device). While the Specification (¶ 17)
describes that power savings may be obtained under certain circumstances
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by using separate processors, the claims do not recite any such feature or
how it would operate.
Accordingly, Appellant’s arguments for claim 9 do not persuade us of
Examiner error.
C. Dependent Claim 19
Dependent claim 19 is similar to claim 9 but further recites the
limitation that “the motion sensor is an accelerometer.” Appeal Br. 23
(Claims Appendix). The Examiner finds claim 19 taught by Michalske.
Final Act. 4 (citing Michalske ¶¶ 27, 34, 48–50).
Like claim 9, claim 19 is a structural limitation and it is unclear how it
modifies or adds to the method steps of claim 1. In any case, Michalske
(¶ 35) discloses that its motion-sensing device 32 may include an
accelerometer. Appellant’s other argument—that the claim requires different
processors—is the same one raised for claim 9, which we find unpersuasive
for the reasons previously stated.
D. Reply Brief Arguments
Appellant argues Michalske does not teach “determining that a
change in an angle of the mobile computing device relative to gravity
satisfies a threshold amount of change.” Reply Br. 2. Appellant argues the
Examiner relies on a new ground of rejection based on inherency in finding
Michalske teaches this feature. Reply Br. 2.
We do not agree with Appellant’s arguments. In the Final Office
Action, the Examiner cited to Michalske as teaching this feature. Final Act.
4 (citing Michalske ¶¶ 47, 49). In the Answer, the Examiner merely points
out that Michalske (¶ 47) mentions “relative erratic movement.” Ans. 4
(emphasis added). The word “relative” implies a comparison of one level of
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erratic movement to another, i.e., “a threshold amount of change,” as
claimed. Michalske (¶ 35) teaches that its motion-sensing device detects
“change in orientation of the mobile device 10,” which is “a change in an
angle of the mobile computing device,” as claimed.
Thus, Michalske teaches the argued features of the claims, and we do
not agree with Appellant that the Examiner’s Answer advances a new ground
of rejection based on inherency, or that the Examiner engaged in
impermissible hindsight bias. Reply Br. 2–4. Appellant also repeats the
“angle relative to gravity” argument, which we find unpersuasive for reasons
previously stated. Id. at 4.
E. Remaining Claims
No separate arguments are presented for the remaining dependent
claims, which fall for the same reasons stated for their respective
independent claims. See 37 C.F.R. § 41.37(c)(1)(iv) (“the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately”).

CONCLUSION
The Examiner’s rejection of claims 1, 9–11, 19, and 20 under
35 U.S.C. § 103 is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
References Affirmed Reversed
1, 9–11,
19, 20
103 Michalske 1, 9–11,
19, 20

Overall
Outcome
1, 9–11,
19, 20

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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