PHAM, HUNG A. et al.

Patent Trials and Appeals Board

May 4, 2020

14291404 - (D) (P.T.A.B. May. 4, 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.
14/291,404 05/30/2014 HUNG A. PHAM 18962-0866001/
P23536US1
8523
26183 7590 05/04/2020
FISH & RICHARDSON P.C. (APPLE)
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
TORRES, MARCOS L
ART UNIT PAPER NUMBER
2647
NOTIFICATION DATE DELIVERY MODE
05/04/2020 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte HUNG A. PHAM and RONALD K. HUANG
____________________

Appeal 2019-000169
Application 14/291,404
Technology Center 2600
____________________

Before JOSEPH L. DIXON, JUSTIN BUSCH, and BETH Z. SHAW,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 9–13, 15–19, and 21–25, which
constitute all the claims pending in this application. We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
Appellant’s disclosure generally relates to calculating an estimated
time of arrival based on a calibrated distance. Spec. ¶ 1. More specifically,

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Apple, Inc. Appeal
Br. 1.
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the claimed invention relates to determining a calibration factor based on
(1) a location on a person’s body where the device is located (e.g., right
hand, left hand, right arm, left arm, hip) and (2) movement pace (e.g., walk,
brisk walk, jog, run), then multiplying an estimated distance by the
calibration factor to determine a modified estimated distance and an
estimated time of arrival (ETA). Spec. ¶ 2; Figs. 2–5. Claims 1, 12, and 17
are independent. Claim 1 is reproduced below:
1. A method comprising:
receiving, by a processor included in a mobile device to be
carried by a user, an estimated distance between a starting
location and an ending location;
determining, by the processor, a calibration factor based
on a location of the mobile device on a user’s body and a
movement pace of the user, the calibration factor representing a
relationship between a first distance between the starting location
and the ending location determined based on a plurality of Global
Navigation Satellite System (GNSS) and a second distance
between the two locations determined based, in part, on the
location of the mobile device on the user’s body and the
movement pace;
modifying, by the processor, the estimated distance
between the starting location and the ending location by
multiplying the estimated distance and the determined
calibration factor resulting in a modified estimated distance;
determining, by the processor, an estimated time to arrive
(ETA) at the ending location based, in part, on the modified
estimated distance and a movement speed of the user; and
providing, by the processor, the ETA as an output.
REJECTIONS
Claims 1–7 and 9–11 stand rejected under 35 U.S.C. § 112(b) as
indefinite. Final Act. 3.
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Claims 1–4, 9, 11–13, 17–19, and 21 stand rejected under 35 U.S.C.
§ 103 as obvious in view of Chavez (US 2012/0150424 A1; June 14, 2012)
and Modi (US 2013/0085711 A1; Apr. 4, 2013). Final Act. 4–10.
Claims 5–7, 10, 15, 16, and 21–25 stand rejected under 35 U.S.C.
§ 103 as obvious in view of Chavez, Modi, and Shiga (US 2013/0138394
A1; May 30, 2013). Final Act. 11–12.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv).
THE INDEFINITENESS REJECTION
In relevant part, independent claim 1 recites a “calibration factor
representing a relationship between a first distance . . . and a second
distance.” Appeal Br. 17. The Examiner rejects independent claim 1 as
indefinite under 35 U.S.C. § 112(b) because the scope of the recited
relationship between the two distances is unclear and, moreover, the recited
“calibration factor” merely represents the undefined relationship. Final
Act. 3; Ans. 8–9.
Appellant argues the claim language makes the calibration factor’s
meaning clear. Appeal Br. 13–14 (quoting claim language that recites
(1) the factor represents a relationship between two distances and
(2) multiplying the calibration factor by an estimated distance to calculate a
modified estimated distance). Appellant also argues the Specification makes
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the calibration factor’s scope clear. Appeal Br. 14 (citing Appeal Br. 1–3);
see Appeal Br. 1–3 nn.3–5 (citing Spec. ¶¶ 21, 22, 26–32).
We agree with the Examiner that claim 1 does not require a particular
relationship between the first and second distances. Rather, as noted by the
Examiner, claim 1 merely requires the calibration factor to represent the
claimed undefined relationship between the two recited distances. However,
because claim 1 recites “multiplying the estimated distance and the
determined calibration factor resulting in a modified estimated distance,” the
calibration factor must be a number.
To the extent the claimed relationship is a ratio or other mathematical
relationship, claim 1 does not require that the calibration factor is that ratio
or result from a mathematical relationship. Although the calibration factor
must be a number, it merely needs to represent the relationship. More
specifically, if the relationship is a ratio of a first distance (e.g., 9 miles) over
a second distance (e.g., 10 miles), the calibration factor need not be the ratio
itself (0.9 in this example). Rather, the relationship could be any number
chosen to represent that relationship. As merely one example, the
calibration factor could be: 1 to represent any ratio greater than 0 and less
than 0.5, 2 to represent any ratio greater than or equal to 0.5 and less than 1,
and 3 for any number greater than or equal to 1.
Accordingly, a person of ordinary skill in the art would understand the
scope of the claimed calibration factor to include any number that can
represent a relationship between the two recited distances and can be
multiplied by an estimated distance. Although the claimed calibration factor
is extremely broad, we disagree with the Examiner that a person of ordinary
skill in the art would not understand the claimed scope. Nevertheless, given
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the extreme breadth of the recited calibration factor, we encourage the
Examiner to evaluate whether the recited “calibration factor,” as recited in
claim 1, complies with 35 U.S.C. § 112(a) such that the Specification
enables and provides written description support for the full breadth of the
claim.2 See LizardTech v. Earth Resource Mapping, Inc., 424 F.3d 1336
(Fed. Cir. 2005); Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d
671 (Fed. Cir. 2015); 84 Fed. Reg. 57; MPEP § 2161.01.
THE OBVIOUSNESS REJECTIONS
The Examiner finds the combination of Chavez and Modi teaches or
suggests every limitation recited in independent claims 1, 12, and 17. Final
Act. 4–5, 7–10. Of particular relevance to this Appeal, the Examiner finds
the combination of Chavez and Modi teaches or suggests the recited step of
determining a calibration factor that represents a relationship between two
distances and Modi teaches or suggests determining a modified estimated
distance by multiplying together the estimated distance and the calibration
factor. Final Act. 4–5 (citing Chavez ¶¶ 14, 28, 29, 41, 44; Modi ¶¶ 70–73);
Ans. 3–4 (additionally citing Chavez ¶¶ 26, 42, 43, 45–49; Modi ¶ 43). The
Examiner also determines it would have been obvious to combine the cited

2 We also note claims 12 and 17 recite that the calibration factor is
determined by determining two distances between the same two locations,
each distance determined differently. See Appeal Br. 21–22. Claim 12
further recites the calibration factor is determined by “dividing the second
distance by the first distance.” Thus, we construe claim 12 to mean that the
calibration factor is the ratio of the second distance divided by the first
distance. Claim 17, however, does not recite that the calibration factor is
determined by dividing one distance by the other. Nor does claim 17 recite
any other precise value or formula for determining the calibration factor
based on the two determined distances. As with claim 1, the Examiner may
wish to evaluate whether claim 17 complies with 35 U.S.C. § 112(a).
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teachings “for enhanced accuracy.” Final Act. 5; Ans. 4–5 (citing Chavez
¶¶ 10–17, 26, 27, 52; Modi ¶¶ 3, 6).
Appellant argues the combination of Chavez and Modi fails to teach
the determining a calibration factor step. Appellant contends neither
reference teaches or suggests determining two distances between the same
two points where the two distances are each determined differently. Appeal
Br. 4. Appellant argues Chavez merely determines, in response to a request,
an estimated time of arrival (ETA) for a person associated with a mobile
device based on (1) a current location of the mobile device, (2) the
destination location, and (3) the velocity of the mobile device. Appeal
Br. 4–5 (citing Chavez ¶¶ 11–15, 42–49, 60). Appellant notes that Chavez
describes determining multiple ETAs based on different routes, but argues
Chavez does not describe determining two distances between two locations,
each distance determined differently—one distance “based on a plurality of
Global Navigational Satellite System (GNSS)” coordinates and one distance
“based, in part, on the location of the mobile device on the user’s body and
the movement pace.” Appeal Br. 5.
Appellant also argues that Chavez’s description of updating an ETA
as the distance between the current mobile device location and the
destination changes fails to teach or suggest the claimed limitations because
it does not teach multiplying an estimated distance by a calibration factor
that is based, in part, on the on-body location of the mobile device and the
movement pace. Appeal Br. 6–7; Reply Br. 1–2 (arguing that determining
different ETAs in response to changing distances does not teach the claimed
steps which recite a calibration factor based on two distances between the
same two locations for which the distances are calculated differently).
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Each of independent claims 1, 12, and 17 recite a calibration factor.
Claim 1 recites that the calibration factor is “based on a location of the
mobile device on a user’s body and a movement pace of the user” and
represents “a relationship between a first distance between the starting
location and the ending location . . . and a second distance between the two
locations.” Appeal Br. 17. Claims 12 and 17 similarly recite that the
calibration factor is determined by “determining a first distance between two
locations” and “determining a second distance between the two locations.”
Appeal Br. 20–22. Claim 12 further recites the calibration is determined by
“dividing the second distance by the first distance.” Appeal Br. 20. In each
claim, determining the first distance is “based on a plurality of Global
Navigation Satellite System (GNSS)” coordinates and determining the
second distance is “based, in part, on the” on-body “location of the mobile
device on the user’s body and the movement pace.” Appeal Br. 17, 20–22.
Chavez teaches (1) tracking mobile device locations as the mobile
device moves along a travel path and (2) in response to an ETA request,
(i) determining a shortest route distance between a mobile device’s current
location and a destination, (ii) determining a velocity at which the mobile
device is moving and/or traffic volume, and (iii) determining an ETA based
on that information. Chavez ¶¶ 10–17, 26–29, 41–49. Chavez may update
the ETA “as the distance to the destination, traveled route, traffic conditions,
and the like change.” Chavez ¶ 52.
Appellant correctly notes that Chavez only describes determining one
distance between a particular pair of locations (i.e., the current mobile
device location and the destination). Chavez describes calculating an ETA
based on a first distance (between a first mobile device location and a
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destination) and determining an updated ETA (between a second mobile
device location, different than the first mobile device location, and the
destination). Chavez updates the ETA, including calculating another
distance as the mobile device location changes, but Chavez does not teach or
suggest either (1) a calibration factor based on determining two distances
between the same two locations or (2) multiplying a factor by an estimated
distance to generate a modified estimated distance.
The Examiner, however, does not rely on Chavez alone. Instead, the
Examiner finds the combination of Chavez and Modi teaches determining a
calibration factor and multiplying an estimated distance by the calibration
factor to determine a modified estimated distance. See Final Act. 5
(“Chavez fails to disclose multiplying on the estimated distance and the
determined calibration factor.”); Ans. 3 (“The rejection of record admits that
Chavez fails to disclose the details of the calibration factor and relies in
Modi to show those details.”).
Modi is similar to the claimed invention in that Modi describes
techniques “for improving pedometer readings.” Modi, Abstract. Modi
discloses that mobile devices may be used as pedometers to determine not
only the number of steps taken, but also distances traveled. Modi ¶¶ 3, 33–
35. The devices use sensors (e.g., accelerometers and gyroscopes) to detect
the orientation and movement of the device that represents the user’s
movement. Modi ¶¶ 3, 32, 37.
Modi attempts to improve pedometer readings by analyzing
acceleration data, including adaptive threshold filtering and adaptive
frequency filtering, to improve the accuracy of step detection. Modi ¶¶ 6,
22, 23, 38–50. Modi may compensate for different locations at which the
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device is carried or worn. Modi ¶ 43. Modi also may determine the pace of
the user’s steps based on step frequency, which may improve distance
estimation accuracy because user’s strides are different when walking as
compared to when running. Modi ¶¶ 24, 44–46, 56–59, 64. A user may
enter parameters relevant to the user’s stride length or the system may use
various statistical measures to determine parameters correlated to stride
length. Modi ¶¶ 61, 62.
Modi discloses calibrating the pedometer-estimated distances using “a
K-factor approach” by comparing an estimated distance to a user-entered
actual distance. Modi ¶¶ 25, 66–73. The K-factor represents a ratio between
the actual and estimated distances. Modi ¶ 70. The “out-of-box K factor”
may be a default, such as 1, which assumes the estimated distance to be
equal to the actual distance. Modi ¶ 70. After using the pedometer to
estimate a distance and receiving an actual distance, a new K-factor can be
calculated by dividing the actual distance by the estimated distance. Modi
¶ 71. Any future estimated distance is then multiplied by the calibrated K-
factor to determine an updated, or calibrated, estimated distance. Modi ¶ 72.
Based on these disclosures, we find Modi calculates an estimated
distance using statistical analysis that compensates for the location of a
user’s body on which the device is worn or carried and the stride length that
correspond to a user’s pace. See Modi ¶¶ 43–46. We also find Modi
compares this estimated distance with an actual distance to determine a
calibration factor, wherein the calibration factor is the estimated distance
divided by the actual distance. See Modi ¶¶ 70, 71. Thus, we agree with the
Examiner that Modi teaches both (1) the recited calibration factor, including
determining a distance between two points based, at least in part, on a user’s
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pace and a body location on which the device is carried and (2) multiplying
the factor by an estimated distance to generate an improved or modified
estimated distance. Accord Final Act. 5; Ans. 3–4.
Appellant also argues that, because Chavez determines only one
distance between two locations, a person of ordinary skill in the art would
have had no reason to modify Chavez to use Modi’s K-factor to generate a
modified distance. Appeal Br. 7; Reply Br. 2. Appellant further argues the
Examiner’s proposed rationale of improving accuracy is insufficient because
Chavez’s disclosed determined distance likely is an actual distance for
which its accuracy cannot be improved by Modi’s calibration techniques.
Appeal Br. 7; Reply Br. 3. To the extent that Chavez’s determined distance
could be calibrated (or modified by a calibration factor), Appellant argues
Chavez does not mention a pedometer function or refer to any distance
“based on an on-body location of” a mobile device. Reply Br. 3.
We agree with Appellant that the Examiner’s rationale of “enhanced
accuracy” for combining Modi’s teachings with Chavez is not sufficiently
explained or supported on this record. See In re Nuvasive, Inc., 842 F.3d
1376, 1383 (Fed. Cir. 2016) (“‘conclusory statements’ alone are insufficient
and, instead, the finding must be supported by a ‘reasoned explanation’”).
Chavez’s system relates to generating ETAs based on detecting a device’s
location using GPS coordinates or “any conventional technique such as
radio-physical location techniques (e.g., triangulation, angle of arrival, signal
strength, and time-based techniques).” Chavez ¶ 29. These techniques rely
on accurate location services, not a pedometer feature of a device that
measures a user’s strides.
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Modi teaches calibrating a pedometer that is dependent on counting a
user’s strides. Pedometer sensors such as accelerometers and gyroscopes
may measure strides differently depending on where the device is worn or
carried and the user’s pace. Accordingly, Modi teaches estimating the
distance by accounting for these variations and calibrating the device using a
calibration factor by comparing the estimate to an actual determined distance
so that a more accurate estimate can be determined for future pedometer-
determined distances.
Given Chavez’s distinct method of determining distances, the
Examiner’s explanation that Modi would provide enhanced accuracy to
Chavez’s distance determinations is unsupported by the record. Even to the
extent the proposed combination teaches determining a first distance based
on GNSS (e.g., Chavez’s determined distance) and a second distance using a
pedometer (e.g., Modi’s estimated distance), the proposed combination does
not result in a combination that determines a calibration factor that
represents a relationship between (or is determined by determining) two
distances between the same two locations, one distance determined based on
the location of the mobile device on the user’s body and the movement pace
and the other distance determined based on satellite coordinates.
Should this matter undergo further prosecution, the Examiner may
wish to consider whether there is an alternate sufficient basis for combining
Chavez’s (or some other prior art’s) teachings regarding determining a
distance using GPS coordinates and calculating an ETA based on a distance
with Modi’s pedometer features, including (1) determining a calibration
factor using two distances (one based on an actual distance and one based on
the device’s location and the user’s pace) between two points, (2) receiving
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an estimated distance (from the pedometer), and (3) multiplying the
estimated distance by the calibration factor to determine a modified, more
accurate estimated distance.
For the reasons discussed above, we are constrained by the record to
reverse the Examiner’s rejection of independent claim 1 because the
Examiner has not provided sufficient rationale for combining Modi’s
teachings and suggestions with Chavez’s teachings and suggestions. For the
same reasons, we do not sustain the rejections of: (1) independent claims 12
and 17, which recite commensurate limitations and (2) dependent claims 2–
7, 9–11, 13, 15, 16, 18, 19, and 21–25, which ultimately depend from and
incorporate the limitations of independent claims 1, 12, and 17.
CONCLUSION
The Examiner erred with respect to the indefiniteness rejection of
claims 1–7 and 9–11 under 35 U.S.C. § 112(b) and the obviousness
rejections of claims 1–7, 9–13, 15–19, and 21–25 under 35 U.S.C. § 103
over the cited prior art combinations of record, and we do not sustain these
rejections.

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DECISION SUMMARY
Claims
Rejected 35 U.S.C. § References Affirmed Reversed
1–7, 9–11 112(b) Indefinite 1–7, 9–11
1–4, 9, 11–
13, 17–19,
21
103 Chavez, Modi
1–4, 8, 9,
11–13, 17–
19, 21
5–7, 10, 15,
16, 21–25 103
Chavez, Modi,
Shiga
5–7, 10,
15, 16, 21–
25
Overall
Outcome
1–7, 9–13,
15–19, 21–
25
REVERSED