Ex Parte Keller et al

Patent Trial and Appeal Board

Jan 28, 2019

14663156 (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/663,156 03/19/2015 Walter John Keller
82357 7590 01/30/2019
AP Patents
P.O. Box244
Turtle Creek, PA 15145
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
NOK 15003 4036
EXAMINER
WANG, HARRIS C
ART UNIT PAPER NUMBER
2439
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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):
jray@jrayassoc.com
apogeegroup@comcast.net
snatal@jrayassoc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WALTER JOHN KELLER, BOGDAN AMARU PATHAK,
ANDREW RICHARD PORTUNE, and TODD ERIC CHORNENKY
Appeal2018-005987
Application 14/663,156 1
Technology Center 2400
Before JUSTIN BUSCH, CATHERINE SHIANG, and
LINZY T. McCARTNEY, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 3-11, 13-30, 33, and 34, which are all the claims
pending and rejected in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify Nokomis, Inc. as the real party in interest. App. Br. 2.
Appeal2018-005987
Application 14/663,156
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates to
"detecting a modification of the electrically powered devices and/or a
modification of the results generated by electrically powered devices."
Spec. 3 :4---6. Claim 1 is exemplary:
1. An apparatus comprising:
a sensor comprising a hollow enclosure with an access to an
interior thereof, said access configured to allow insertion of one or
more electrical devices therethrough, one or more antennas, low noise
amplifier(s) coupled to said one or more antennas, RF tuner(s) and
analog to digital converter(s), said sensor configured, to capture
unintended emitted electromagnetic energy and/or unintended
conducted energy from one or more electrical devices inserted into
said interior through said access and disposed, during operation of
said apparatus, within said interior;
one or more processors or logic devices; and
a computational medium comprising executable instructions
that, when executed by said one or more processors or logic devices,
cause said one or more processors or logic devices to perform the
following steps on said captured unintended emitted electromagnetic
energy and/ or said unintended conducted energy:
measuring a feature value in at least one spectral
frequency region of said captured unintended emitted
electromagnetic energy and/ or unintended conducted energy
from said one or more electrical devices, calculating a
difference value between said measured feature value and a
baseline feature value,
verifying, based on said calculated difference value,
whether at least one of sub-threshold and super-threshold
values have been exceeded in one or more of amplitude,
frequency, phase and time domains of signature(s) elements of
said captured unintended emitted electromagnetic energy and/or
unintended conducted energy, and
determining, based on said calculated difference value, a
presence or an absence of at least one of malicious software,
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Application 14/663,156
anomalous software, modified software, malicious firmware,
anomalous firmware, modified firmware, malicious circuitry,
anomalous circuitry and modified circuitry within the one or
more electrical devices.
References and Rejections2
Claims 1, 3-11, and 13-30 are rejected under 35 U.S.C. § 103 as
being unpatentable over Keller (US 2012/0223403 Al, published Sept. 6,
2012) and Telewski (US 6,021,315, issued Feb. 1, 2000). Final Act. 5-25.
Claim 33 is rejected under 35 U.S.C. § 103 as being unpatentable over
Keller, Telewski, and Robertazzi (US 2015/0247892 Al, published Sept. 3,
2015). Final Act. 25-26.
Claim 34 is rejected under 35 U.S.C. § 103 as being unpatentable over
Robertazzi and Keller. Final Act. 26-28.
ANALYSIS 3
Claims 1, 3-11, 13, and 33
We have reviewed the Examiner's rejection in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in determining the cited portions of
Keller teach "verifying, based on said calculated difference value, whether at
least one of sub-threshold and super-threshold values have been exceeded in
2 Throughout this opinion, we refer to the (1) Final Rejection dated June 7,
2017 ("Final Act."); (2) Appeal Brief dated January 8, 2018 ("App. Br.");
(3) Examiner's Answer dated March 20, 2018 ("Ans."); and (4) Reply Brief
dated May 21, 2018 ("Reply Br.").
3 Appellants raise additional arguments. Because the identified issues are
dispositive of the appeal, we do not need to reach the additional arguments.
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Application 14/663,156
one or more of amplitude, frequency, phase and time domains of
signature(s) elements of said captured unintended emitted electromagnetic
energy and/or unintended conducted energy," as recited in claim 1 (emphasis
added). See Reply Br. 3.
The Examiner initially cites Keller's paragraph 128 for teaching the
above limitation. Final Act. 7. The Examiner responds to Appellants'
arguments by additionally citing Keller's paragraph 133. Ans. 3--4.
Appellants argue:
Although Keller defines, in [0128], statistical features that may
be used in determining baseline characteristics, Appellant
respectfully finds that a person of ordinary skill in the art will
understand that Keller in [0133] makes a
determination/ evaluation on the state of the RF energy
signature, as "a whole" or as a sum of all features in the EF
energy signature.
Reply Br. 3.
Keller explains:
The output 116 may be configured to indicate two states of the
RF energy collection and processing means 18, whereby one
state is indicative of an RF energy signature substantially
matching a predetermined standard and whereby a second state
is indicative of the RF energy signature deviating from the
predetermined standard. Output 116 may be provided as an
analog or digital input.
Keller ,r 133 (emphasis added). Keller further explains the "step of
establishing the baseline RF characteristics includes the step of large scale
comparison of spectral emissions and the step of reducing the large scale
comparison to narrowband comparisons and outputting after comparison and
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Application 14/663,156
further reduction a single scalar value based on the quality of the
comparison match." Keller ,r 128 (emphases added).
We have reviewed the cited Keller portions, and they do not describe
"whether at least one of sub-threshold and super-threshold values have been
exceeded in one or more of amplitude, frequency, phase and time domains of
signature(s) elements" ( emphasis added). In particular, while Keller
describes a "single scalar value" (Keller ,r 128), it does not describe that
value as one of the elements required by the italicized limitation. Further,
the Examiner does not map the italicized limitation to the cited prior art. As
a result, to affirm the Examiner on this record would require considerable
speculation on our part, and we decline to engage in such speculation.
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner's rejection of claim 1.
We also reverse the Examiner's rejections of corresponding dependent
claims 3-11, 13, and 33. Although the Examiner cites an additional
reference for rejecting dependent claim 33, the Examiner has not shown the
additional reference overcomes the deficiency discussed above in the
rejection of claim 1.
Claims 14-2 3
We have reviewed the Examiner's rejection in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner has not provided the requisite rationale for
modifying Keller's system to incorporate Telewski's features for the
limitation "integrated antenna enclosure including a hollow enclosure with a
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door selectively opening and closing an access to an interior thereof . .. one
or more electrical devices inserted into said hollow interior through said
access and disposed, during operation of said apparatus, within said
interior" App. Br. 49 ( emphasis added). See App. Br. 26-28; Reply Br. 6.
The Examiner maps the recited "integrated antenna enclosure" to
Keller's enclosure 112. Final Act. 13. Keller's enclosure 112 is a part of the
integrated circuit (IC) 100. Keller ,r 133, Fig. 1. The Examiner cites
Telewski for teaching the italicized limitation, and determines "[t]he
motivation is to provide protection against RF leakage." Final Act. 15-16.
"[R ]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,418 (2007).
Contrary to the Examiner's assertion of "provid[ing] protection
against RF leakage" (Final Act. 16), one skilled in the art would understand
modifying Keller's enclosure to include Telewski's door would have caused
RF leakage and achieved the opposite result. Specifically, adding a door to
Keller's enclosure 112 would have created an open space in the enclosure,
which would have caused RF leakage. And placing a door in that open
space would have prevented some, but not all of the RF leakage. See, e.g.,
Telewski 1 :52-53 ("the door 6 is always a source of potential RF leakage").
Because adding a door to Keller's enclosure would have caused RF leakage,
the Examiner's determination contradicts the knowledge of one ordinarily
skilled in the art. As a result, the Examiner has not provided "some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness," as required by KSR. KSR, 550 U.S. at 418.
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Therefore, we are constrained by the record to reverse the Examiner's
rejection of independent claim 14. We reverse the Examiner's rejection of
independent claim 16 for similar reasons.
We also reverse the Examiner's rejection of corresponding dependent
claims 15 and 17-23.
Claims 24-30
For similar reasons discussed above with respect to independent
claims 1 and 14, we reverse the Examiner's rejection of independent claim
24.
We also reverse the Examiner's rejection of corresponding dependent
claims 2 5-3 0.
Claim 34
Appellants argue:
claim 34 is directed to measuring height and/or location of first
and second peaks in the captured unintended electromagnetic
energy from the same device and determining condition of the
device based on the change in height or location (bolded for
emphasis).
Combination of Keller and Telewski fails to at least teach
claimed limitations of "quantifying a feature value in at least
one spectral frequency region of said unintended emissions for
at least two different physical electrical devices that are
determined and/ or validated[.] As was shown above, the
combination of Robertazzi and Keller compares the
measurement between tested device and a corresponding
feature in the reference device.
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App. Br. 42--43; see also Reply Br. 10. Appellants also argue as a result, the
"[c]ombination teaches away from the claimed invention" with respect to the
claim requirement of "comparing the different measurements from the same
device." App. Br. 43.
We disagree with Appellants' arguments. To the extent consistent
with our analysis below, we adopt the Examiner's findings and conclusions
in (i) the action from which this appeal is taken and (ii) the Answer. 4
Appellants' arguments are unpersuasive because they are not
commensurate with the scope of claim 34. In particular, claim 34 does not
recite "quantifying a feature value in at least one spectral frequency region
of said unintended emissions for at least two different physical electrical
devices that are determined and/or validated." Nor have Appellants shown
claim 34 requires "comparing the different measurements from the same
device," as Appellants argue (App. Br. 43). As noted by the Examiner,
Appellants' proposed amendment was not entered. Ans. 10.
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 34.
DECISION
We reverse the Examiner's decision rejecting claims 1, 3-11, 13-30,
and 33.
We affirm the Examiner's decision rejecting claim 34.
4 To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F.R. § 41.41(b)(2).
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Application 14/663,156
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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