Robert Bruce. Kleve et al.

Patent Trials and Appeals Board

Oct 1, 2019

14712367 - (R) (P.T.A.B. Oct. 1, 2019)

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.
14/712,367 05/14/2015 Robert Bruce KLEVE 83546212 1359
28395 7590 10/01/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
DADA, BEEMNET W
ART UNIT PAPER NUMBER
2435
NOTIFICATION DATE DELIVERY MODE
10/01/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROBERT BRUCE KLEVE, BRIAN PETERSEN,
RITESH PANDYA, EDWARD ANDREW PLEET, and
JOHN ROBERT VAN WIEMEERSCH
____________________

Appeal 2018-004683
Application 14/712,367
Technology Center 2400
____________________

Before ELENI MANTIS MERCADER, JASON J. CHUNG, and
BETH Z. SHAW, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Appellant requests rehearing under 37 C.F.R. § 41.52 of our Decision,
mailed on January 28, 2019 (“Decision”), in which we affirmed the
Examiner’s rejection under 35 U.S.C. § 102(e) of claims 21–40. Appellant
timely filed a Request for Rehearing (“Req. Reh’g”) on March 27, 2019.

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Appellant first identifies that the Examiner noted that “a system
whereby a vehicle owner can use their own mobile device to approve a
request from a different person using a substitute mobile device to start a
vehicle” was not present in claim 21. Req. Reh’g 2. Appellant then assumes
that this argument (and subsequent agreement by the Board) were founded
on reasoning that the “mobile device processor” of the claims was contained
in the substitute user device of the claims, making the claim interpreted as a
one-device system. Id.
Appellant wrongly makes the assumption that our reasoning is based
on the “mobile device processor” of the claims being contained in the
substitute user device of the claims, making the claim interpreted as a one-
device system.
As we previously stated in our opinion, we agreed with the
Examiner’s finding that Takizawa discloses a mobile-device processor (i.e.,
vehicle biometric authentication ECU, Fig 2. Unit 21) configured to: receive
an authentication request from a user (i.e., user A, Fig 1) attempting to use a
substitute-user device (i.e., a device 40, Fig 1) to access a vehicle for drive-
away (Fig. 2) user A with device 40. Dec. 4 (citing Ans. 3).
We also agreed with the Examiner’s finding that the identity of the
user needs to be identified (i.e., authenticated), the authentication
information of the user is transmitted from device 40 to ECU 21 for
verification, and if verified drive-away of the vehicle is permitted. Id.
(citing Ans. 3–4 and paras. 27, 35–37, and 40).
We concluded that Takizawa discloses receiving confirmation of the
request through a mobile-device interface (i.e., vehicle control unit 28, Fig
2), approving the user to access the vehicle (i.e., when the user is verified to
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access the vehicle by verification portion 27 and subsequently vehicle
control unit 28 (Fig 2), and receives the confirmation (steps 7-8 of Fig. 3 and
para.49)). Ans. 4.
The terms “own mobile device” do not appear in claim 21, contrary to
Appellant’s argument, nor does the claim positively recite “a mobile-
device.” We note that the claim 21 does not recite a processor of the mobile
device but rather a “mobile-device processor,” which under the broadest but
reasonable interpretation can be a processor that communicates with a
mobile device. Claim 21 recites “a mobile-device processor” having a
“mobile-device interface” to approve the user of “a substitute-user device.”
In other words, “a mobile-device processor” (i.e., vehicle biometric
authentication ECU, Fig 2. Unit 21) which is a processor able to authenticate
a substitute user device (i.e., mobile device 40) request for authentication
through a mobile-device interface (vehicle control portion 28 able to
authenticate the mobile device’s request). Thus, in Takizawa a processor is
able to authenticate the mobile device’s 40 request for authentication (i.e., “a
mobile-device processor”).1

1 We note that our additional characterization to the Examiner’s finding
of the vehicle’s biometric authentication unit 21 (ECU) as a mobile
processor since it is a part of a mobile vehicle (Dec. 4) is a cumulative
finding and is not required based on the broad language of claim 21, as
clarified in this rehearing.
We further note that claim 29 also suffers from the same deficiencies
as claim 21 because the pre-amble of claim 29 reciting “a mobile device” is
not relied on by the body of the claim. A preamble is generally not accorded
any patentable weight where it merely recites the purpose of a process or the
intended use of a structure, and where the body of the claim does not depend
on the preamble for completeness but, instead, the process steps or structural
limitations are able to stand alone. See In re Hirao, 535 F.2d 67 (CCPA
1976) and Kropa v. Robie, 187 F.2d 150, 152 (CCPA 1951).
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Appellant further alleges that claims 37 and 40 were not considered
by the Board’s adoption of the Examiner’s position that “a system whereby a
vehicle owner can use their own mobile device to approve a request from a
different person using a substitute mobile device to start a vehicle.” Req.
Reh’g 3–4.
We are persuaded by Appellant’s argument. Claims 37 and 40 differ
from claim 21 because they positively recite a “first mobile device” and a
“second mobile device” and further recite the limitation of “send
authentication data to the first mobile device, usable to access the vehicle for
drive way, in response to receiving a confirmation receipt from the second
mobile device” (emphasis added). See claims 37 and 40.
As an initial matter, the broadest reasonable interpretation differs from
the broadest possible interpretation. In re Smith Int’l, Inc., 871 F.3d 1375,
1383 (Fed. Cir. 2017); see also MPEP § 2111 (“The broadest reasonable
interpretation does not mean the broadest possible interpretation. Rather, the
meaning given to a claim term must be consistent with the ordinary and
customary meaning of the term (unless the term has been given a special
definition in the specification), and must be consistent with the use of the
claim term in the specification and drawings.”). The correct inquiry in
giving a claim term its broadest reasonable interpretation in light of the
specification is “an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an interpretation
that is ‘consistent with the specification.’” Smith, 871 F.3d at 1382–83
(quoting In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997)). We are

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mindful, however, that limitations are not to be read into the claims from the
Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
We note that in Takizawa a portion of the vehicle on board unit is
identified as portable (i.e., portable detection unit 25) but the remaining
biometric authentication ECU is not identified as portable. See Fig. 2. Thus,
it would seem that the ECU unit, other than the portable terminal detection
unit, is part of the vehicle and as such could not be reasonably interpreted as
a mobile device. In Appellant’s Specification, the mobile application is
downloaded to a personal computer and/or a nomadic device (i.e., cell phone
103 as indicated in Fig. 1), thus the mobile device itself is portable. So in
light of the Specification, Takizawa’s ECU unit is not portable and
accordingly not mobile.
Based on the above reasons we deny the request for rehearing for
claim 21 and its dependent claims 22–36, and thus, claims 21–36 stand
affirmed under 35 U.S.C. § 102 (e). Additionally, we grant the request for
rehearing for claims 37, 40, and dependent claims 38–39 and we hereby
designate that the rejection of claims 37–40 under 35 U.S.C. § 102 (e) is
reversed.
Requests for extensions of time are governed by 37 C.F.R. § 1.136.
See 37 C.F.R. § 41.52(b).

REHEARING GRANTED-IN-PART