Motorola Mobility LLC

Patent Trials and Appeals Board

Oct 6, 2020

2019003560 (P.T.A.B. Oct. 6, 2020)

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.
15/234,618 08/11/2016 Sudhir Vissa MM02059-US-NP 1377
138908 7590 10/06/2020
Burrus Intellectual Property Law Group
(MM Files)
222 12th Street NE
Suite 1803
Atlanta, GA 30309
EXAMINER
WICKRAMASURIYA, SAMEERA
ART UNIT PAPER NUMBER
2494
NOTIFICATION DATE DELIVERY MODE
10/06/2020 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):
BIPLaw_docketing@burrusiplaw.com
pburrus@burrusiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SUDHIR VISSA, BINESH BALASINGH, MARY HOR-LAO,
and VIVEK TYAGI
____________________

Appeal 2019-003560
Application 15/234,618
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, CAROLYN D. THOMAS, and
MICHAEL J. ENGLE, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 9–17, 19, and 20. Appeal Br. 2.
Claims 8 and 18 have been cancelled. Advisory Act. 2. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse, and we enter a new ground of rejection.

1 Appellant identifies the real party in interest as Motorola Mobility LLC.
Appeal Br. 2.
Appeal 2019-003560
Application 15/234,618

2
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A method, comprising:
[A.] receiving an incoming biometric identification request
on a first device from a user;
[B.] determining first location data for the first device;
[C.] retrieving second location data associated with at least
one previous biometric identification request associated
with the user;
[D.] determining a time interval between the incoming
biometric identification request and the previous
biometric identification request;
[E.] estimating a travel time based on
[i.] the first and second location data and
[ii.] transportation schedule data; and
[F.] selectively initiating a second level identification
request on the first device based on the estimated travel
time exceeding the time interval.

REFERENCES2
The Examiner relies on the following references:
Name Reference Date
Lerenc US 2014/0207373 A1 July 24, 2014
Bataller US 2015/0067890 A1 Mar. 5, 2015

2 All citations herein to patent and pre-grant publication references are by
reference to the first named inventor only.
Appeal 2019-003560
Application 15/234,618

3
REJECTIONS
A.
The Examiner rejects claims 1–7, 10–17, and 20 under 35 U.S.C.
§ 102 as being anticipated by Bataller. Final Act. 4–13.
We select claim 1 as the representative claim for this rejection. The
contentions discussed herein as to claim 1 are determinative as to this
rejection. Therefore, except for our ultimate decision, we do not address the
merits of the § 102 rejection of claims 2–7, 10–17, and 20 further herein.
B.
The Examiner rejects claims 9 and 19, under 35 U.S.C. § 103 as being
unpatentable over the combination of Bataller and Lerenc. Final Act. 14–15.
To the extent that Appellant discusses claims 9 and 19, Appellant
merely refers to the arguments directed to claim 1. Appeal Br. 6. Such a
referenced argument (or repeated argument) is not an argument for “separate
patentability.” Thus, the rejection of this claim turns on our decision as to
claim 1. Except for our ultimate decision, we do not address the merits of
the § 103 rejection of claims 9 and 19 further herein.

OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief and Reply Brief arguments.
A. Bataller
Bataller discloses:
For example, in some embodiments, the location data
indicates the geographical zone 114A, 114B or 114C within
which the authorization requesting module is located. A
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Application 15/234,618

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candidate record is only included in the subset or considered a
match if the latest user position indicated by the historical
location data is within the corresponding zone, and if the age of
this position data is not older than a certain age threshold. The
age threshold is for example a parameter of the system, and
could be set at a value of between 1 and several hours. For
example, the age of each record is determined by subtracting
the time information associated with the position data from a
current time.
As a further example, a distance separating the location of
the identification request as indicated by the location data and
one or more locations indicated by the historical location
information of a candidate record is determined. This distance is
compared to a threshold, and if the threshold is exceeded, the
candidate record is for example filtered out or considered not to
correspond to the person requesting identification.
The distance threshold may be variable based on the age
of the historical location information. For example, historical
location information indicating that a user was more than 500 km
from the location of the identification request less than three
hours before the request may lead to a record being deemed not
to match, while historical location information indicating that a
user was more than 1000 km from the location of the
identification request less than six hours before the request may
also lead to the record being deemed not to match.
The distance threshold may also be variable based on the
transport infrastructure linking the locations. For example, if the
identification request is made from the vicinity of an airport,
and the historical location information is 6 hours old or less
and indicates that a user was in the vicinity of another airport,
a distance of up to 2000 km may be deemed feasible.
Bataller ¶¶ 67–70 (emphasis added).
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B.
The Examiner finds:
Battaller discloses . . .
determining a time interval between the incoming
biometric identification request and the previous biometric
identification request (Bataller: ¶ [0067] age threshold is for
example a parameter of the system, and could be set at a
value of between 1 and several hours. For example, the age
of each record is determined by subtracting the time
information associated with the position data from a current
time);
estimating a travel time based on the first and second
location data and transportation schedule data
(Bataller: ¶ [0069] distance threshold may be variable based
on the age of the historical location information. For
example, historical location information indicating that a
user was more than 500 km from the location of the
identification request less than three hours before the request
may lead to a record being deemed not to match, and ¶ [0070]
if the identification request is made from the vicinity of an
airport, and the historical location information is 6 hours old
or less and indicates that a user was in the vicinity of another
airport, a distance of up to 2000 km may be deemed feasible,
also see ¶¶ [0042] and [0067]);
Final Act. 5–6.
C.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 102.
Bataller is completely silent regarding the use of
transportation schedule data to estimate a travel time. Bataller
simply increases a distance threshold if the request is made near
an airport. This analysis is based solely on location. There is
no estimation of a travel time, and no determination of a travel
schedule associated with the airport.
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. . .
The adjustment of the distance threshold taught by
Bataller only takes location and absolute time difference into
consideration. The evaluation of elapsed time and location does
nothing to determine if travel was actually possible between the
two airports. The only teaching suggesting the use of
transportation schedule data to estimate a travel time comes from
Applicant’s own Application.
Appeal Br. 4–5 (emphasis added).
Batallter [sic] does not “need” time data that an airplane
would take to go from first airport to another to determine if
travel is possible. Bataller expressly teaches that the distance
threshold is only adjusted based on the time elapsed and the
position data indicating the user was near two airports. Hence,
Bataller expressly teaches determining that travel is possible if
the elapsed time and airport vicinity conditions are met. It does
not necessarily flow nor is it obvious that Bataller would use
transportation schedule data to estimate a travel time, since
Bataller expressly chooses to use elapsed time and location data
to make that determination.
Appeal Br. 6.
Bataller includes no teaching of computing a travel time.
Simply adjusting the distance threshold based on the proximity
of the user to two airports does not include a calculation of a
travel time. The units on distance are time-independent.
Bataller is completely silent regarding the estimation of a travel
time.
Reply Br. 2 (emphasis added).
C.
The Examiner responds:
Claim 1 require nothing more than that, estimating travel
time based on transportations schedule data (i.e. flying time,
driving time, etc.) between the two locations. In order for
Bataller to deem certain distance is feasible to travel, Bataller
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would be required to find each available transportation mean[s]
and respective travel time between the two locations before
concluding whether it is possible to travel between the two
locations in the elapsed time. Therefore, a person having an
ordinary skill in the art would have understood that the
transportation schedule data (i.e. flying time) would be required
for Bataller to determine whether it is possible for a user to travel
between two airports within the time indicated by the age of the
record.
. . .
A person of ordinary skill in the art reading Bataller would
understand that a schedule of travel times between airports would
be vital to Bataller’s method. Appellant argues that distance
threshold is only adjusted based on the time elapsed and the
position data. Similar to the previous response, the Examiner
would like to draw Appellant’s attention to ¶ [0070] of Bataller.
Bataller discloses that distance threshold is also a variable of
transport infrastructure, i.e. the distance threshold may also be
variable based on the transport infrastructure linking the
locations (Bataller ¶ [0070]). Bataller would necessarily require
transportation schedule data (i.e., flying times and/ or other travel
times between those points) to accurately setup a distance
threshold. A person of ordinary skill in the art would understand
that Bataller would be unable to determine if the travel is possible
(i.e., to travel a certain distance within a given time) without the
knowledge of the travel time associated with the threshold.
Consistent with the broadest reasonable interpretation and the
reasons discussed above with respect to previous argument, a
person having an ordinary skill in the art would have understood
that the transportation schedule data would be required in order
for Bataller to determine if it is possible for a user to travel
between two airports within the time indicated by the age of the
record.
Ans. 6–7.
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D.
First, we note that Specification discloses:
In method block 405, a travel time for traveling between
the first and second locations is estimated. In determining the
estimate, travel schedules (e.g., plane schedules, train schedules,
estimated driving time, walking time, biking time, etc.) may be
employed to estimate possible travel times. For example, a
minimum travel time may be determined based on the distance
between the locations and the available transportation resources.
Spec. ¶ 20 (emphasis added). Therefore, the claimed “transportation
schedule data” is broadly construed as including any estimate of the travel
time between two locations, i.e., the phrase “transportation schedule data” is
not limited to “plane schedules” and “train schedules.”
Second, contrary to Appellant’s argument that Bataller “does nothing
to determine if travel was actually possible between the two airports,”
Bataller discloses determining if the travel was “feasible.” Bataller ¶ 70.
Third, as to above claim 1, we look to the algorithms underlying
Appellant’s steps B–F:
B. Determine first location data (i.e., location = l2 and time = t2)
C. Retrieve prior location data (i.e., location = l1 and time = t1)
D. Calculate actual time interval Δtact = t2 – t1
E. Estimate minimum needed travel time tmin, based on:
i. first location = l2 and second location = l2
(i.e., travel distance, calculated as Δl = l2 – l1)
ii. transportation schedule data
(e.g., estimated driving or flying time for Δl)
F. If tmin > Δtact, then the actual travel is not feasible.
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Appellant acknowledges:
Bataller . . . teaches that the distance threshold is . . .
adjusted based on the time elapsed and the position data
indicating the user was near two airports. Hence, Bataller . . .
teaches determining that travel is possible if the elapsed time and
airport vicinity conditions are met.
Appeal Br. 6. That is, Appellant acknowledges that Bataller teaches:
B. First location data (i.e., location = l2 and time = t2)
C. Prior location data (i.e., location = l1 and time = t1)
D. Calculate actual time interval Δtact = t2 – t1
and
F′. The travel is (or is not) feasible based on a distance threshold
(which is based on l1, l2, and Δtact).
We disagree with Appellant’s argument that Bataller only discloses a
distance threshold and “does not ‘need’ time data that an airplane would
take to go from first airport to another to determine if travel is possible.”
Appeal Br. 6. Bataller states:
The distance threshold may be variable based on the age
of the historical location information. For example, historical
location information indicating that a user was more than 500
km from the location of the identification request less than three
hours before the request may lead to a record being deemed not
to match.
Bataller ¶ 69 (emphasis added). We determine that Bataller’s “more than
500 km” requires comparison of two values, and thus discloses calculation
of an actual travel distance as a value to compare to the 500 km. That is,
Bataller requires:
E′.i. Calculate travel distance, as Δl = l2 – l1.
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Further, we determine that Bataller’s “less than three hours” discloses the
minimum needed travel time (i.e., 3 hours = tmin), and Δtact < tmin is “deemed
to not match” (i.e., not be feasible). That is, Bataller discloses:
E′.ii. Estimate the needed travel time tmin for Δl
(e.g., if Δl > 500 km, then tmin must be at least 3 hours).
F. If tmin > Δtact, then the actual travel is not feasible.
Therefore, we determine that while Bataller’s process focuses on a distance
threshold, the threshold is based on time values that correspond to
Appellant’s claimed time values. However, given that the reason above is
provided by this Panel, we agree with Appellant to the extent that Appellant
argues the Examiner presents insufficient articulated reasoning to support
the Examiner’s finding that Bataller anticipates claim 1.
Fourth, Appellant arguments that “[i]t does not necessarily flow nor is
it obvious that Bataller would use transportation schedule data to estimate a
travel time.” Appeal Br. 6. As noted above, we agree with Appellant that
the Examiner presents insufficient articulated reasoning to support the
Examiner’s finding that Bataller anticipates claim 1. However, for the
reasons discussed above, we disagree with Appellant that claim 1 is not
obvious under 35 U.S.C. § 103 in light of Bataller. Although, claim 1
requires direct use of the time values, and Bataller indirectly uses those time
values while directly using the distance threshold, we deem that it would
have been obvious to one of ordinary skill in the art at the time of
Appellant’s invention to directly use the time values underlying Bataller’s
distance threshold.
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Similarly, based on the Examiner’s § 102 and § 103 rejections and the
above reasons, we designate our reversal of the Examiner § 103 rejection as
a new ground of rejection under 35 U.S.C. § 103.

CONCLUSION
Appellant has demonstrated the Examiner erred in rejecting claims 1–
7, 10–17, and 20 as being anticipated under 35 U.S.C. § 102.
Appellant has demonstrated the Examiner erred in rejecting claims 9
and 19 as being unpatentable under 35 U.S.C. § 103.
The Examiner’s rejections of claims 1–7, 9–17, 19, and 20 as being
unpatentable are reversed.
We newly reject claims 1–7, 9–17, 19, and 20 under 35 U.S.C. § 103
as being unpatentable.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed New
Ground
1–7, 10–
17, 20
102 Bataller 1–7, 10–
17, 20

9, 19 103 Bataller, Lerenc 9, 19
1–7, 10–
17, 20
103 Bataller 1–7, 10–
17, 20
9, 19 103 Bataller, Lerenc 9, 19
Overall
Outcome
1–7, 9–17,
19, 20
1–7, 9–17,
19, 20

Appeal 2019-003560
Application 15/234,618

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TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
REVERSED; 37 C.F.R. § 41.50(b)