Ex Parte Little et al

Patent Trial and Appeal Board

Oct 9, 2012

11044959 (P.T.A.B. Oct. 9, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte HERBERT A. LITTLE, SCOTT D. ROSE,
SCOTT W. TOTZKE, and MIHAL LAZARIDIS
____________________

Appeal 2010-005595
Application 11/044,959
Technology Center 2400
____________________

Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and
JAMES R. HUGHES, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE

The Patent Examiner rejected claims 1-23. Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
INVENTION
Appellants’ claimed invention is generally related “to the field of
wireless networks and, more particularly, to systems for providing
authenticated proximity access to wireless networks and related methods.”
(Spec. 1).

Independent claim 1, reproduced below, is representative of the
subject matter on appeal:
1. A wireless personal area network (WPAN)
system comprising:

a plurality of WPAN devices using encrypted wireless
communication therebetween when in an enabled state and not
wirelessly communicating when in a disabled state; and

at least one of said WPAN devices comprising a WPAN
identity reader for reading at least one identifying parameter of
a user, for confirming that the user is an authorized user based
upon reading the at least one identifying parameter, and for
wirelessly communicating with at least one other WPAN device
to switch the at least one other WPAN device from the disabled
state to the enabled state based upon confirming the user is an
authorized user.
(disputed limitations emphasized).

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REJECTION
Claims 1-23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Xydis (U.S. Patent No. 6,763,315 B2,
Jul. 13, 2004), Overy (U.S. Patent No. 6,961,541 B2, Nov. 1, 2005), and
Kinoshita (U.S. Patent App. Pub. No. 2003/0007641 A1, Jan. 9, 2003).

GROUPING OF CLAIMS
Based on Appellants’ arguments, we decide the appeal of the
obviousness rejection of claims 1-23 on the basis of representative claims 1,
2, 9, and 15. See 37 C.F.R. § 41.37(c)(1)(vii). We address dependent claims
7, 10, and 17 separately, infra.
ANALYSIS
We consider Appellants’ arguments seriatim as they are presented in
the Brief, pages 6-19.
Based upon our review of the record, we disagree with Appellants’
contentions regarding the Examiner’s obviousness rejection of the claims.
(Id.). We adopt as our own: (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken and (2) the reasons
set forth by the Examiner in the Answer in response to arguments made in
Appellants’ Appeal Brief. (Ans. 11-13). We highlight and address specific
findings and arguments below.
Representative Claim 1
Regarding the group including claims 1, 3-6, 8, 11-14, 19, 21, and 22,
Appellants contend:
While Xydis discloses a computer workstation and an
identifying token that wirelessly communicate, there is no
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disabled state in which the computer workstation and the
identifying token do not wirelessly communicate.
While the computer workstation itself has a “user access
disabled state” wherein a user cannot access the computer
workstation, it is still communicating with the identifying token
while in that state. That is, since the computer workstation
allows user access only when it determines, based upon the
signal strength of wireless communications with the identifying
token, that the identifying token is within a certain distance, the
computer workstation is still wirelessly communicating with the
identifying token when in its “user access disabled” state. As
such, Xydis fails to disclose a plurality of WPAN devices using
wireless communication therebetween when in an enabled state
and not wireless communicating when in a disabled state.
Overy et al. fails to provide this critical deficiency
of Xydis. As explained above, Overy et al. discloses a
communications system including two wireless devices. The
two wireless devices wirelessly communicate to send signals
therebetween, and each device determines its distance from the
other based upon those wireless communications. When the
devices determine that they are within a threshold distance of
each other, pairing (and thus further communication) between
the devices is enabled. Therefore, even when in a “disabled”
state, the wireless devices of Overy et al. are still
communicating. Consequently, Overy fails to disclose a
plurality of WPAN devices using wireless communication
therebetween when in an enabled state and not wirelessly
communicating when in a disabled state.
Kinoshita discloses a singular wireless device and
therefore also fails to disclose a plurality of WPAN devices
using wireless communication therebetween when in an
enabled state and not wireless communicating when in a
disabled state. Thus, since none of Xydis, Overy et al., and
Kinoshita discloses a plurality of WPAN devices using wireless
communication therebetween when in an enabled state and not
wirelessly communicating when in a disabled state, the
combination thereof fails to disclose this feature claimed in
independent Claim 1.
(App. Br. 7-9; emphasis added).
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Appellants additionally contend that the combination of Xydis,
Overy, and Kinoshita fails to disclose the feature, recited in
independent Claim 1, of at least one of the WPAN devices comprising
a WPAN identity reader for reading at least one identifying parameter
of a user. (App. Br. 10). Appellants further aver that the Examiner
“has failed to articulate a reason why the references should be
combined.” (App. Br. 11; emphasis added).

ISSUES – Representative Claim 1
Issues 1 and 2: Under § 103, did the Examiner err in finding that the
cited references, either alone or in combination, would have taught or
suggested the following limitations (labeled L1, L2 for convenience):

[L1] a plurality of WPAN devices using encrypted
wireless communication therebetween when in an enabled state
and not wirelessly communicating when in a disabled state; and

[L2] at least one of said WPAN devices comprising a
WPAN identity reader for reading at least one identifying
parameter of a user,

within the meaning of representative claim 1(emphasis added)?

Issue 3: Did the Examiner err in combining the references under
§103?

We begin our analysis by observing at the outset that Appellants
respond to the Examiner’s final rejection of representative claim 1 by
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presenting arguments that have no citation or other reference to specific
supporting evidence of record. (See arguments for Group 1 consisting of
claims 1, 3-6, 8, 11-14, 19, 21, and 22; App. Br. 6-11). Attorney arguments
and conclusory statements that are unsupported by factual evidence are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
“Argument in the brief does not take the place of evidence in the record.” In
re Schulze, 346 F.2d 600, 602 (CCPA 1965) (citing In re Cole, 326 F.2d
769, 773 (CCPA 1964)).
We decline to examine the claims sua sponte, looking for distinctions
over the prior art. Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed.
Cir. 1991) (“It is not the function of this court to examine the claims in
greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.”). See also Ex parte Belinne, No. 2009-
004693, 2009 WL 2477843 at *3-4 (BPAI Aug. 10, 2009) (informative).
The Examiner disagrees with Appellants contentions and points to
specific sections of the cited combination of references as evidence in
support of the obviousness rejection. (Ans. 11-12). Appellants, who did not
file a Reply Brief, have not addressed this reasoning of the Examiner by
pointing to specific contravening evidence in the record, let alone
demonstrated error by the Examiner, as required to satisfy their burden on
appeal with respect to this ground of rejection. Cf. Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Moreover, regarding limitation L1, we agree with the Examiner that
there exists a disabled state in which the WPAN devices are not wirelessly
communicating, i.e., when they are out of transmission/reception range.
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(Ans. 12). We also agree with the Examiner that limitation L2 is at least
suggested by the authentication of a token or smart card carried by the user.
(Ans. 11-12; see Xydis Fig. 1, token 12). Nor do we find persuasive
Appellants’ contention that the Examiner “has failed to articulate a reason
why the references should be combined.” (App. Br. 11). To the contrary,
the Examiner provided a motivation. (Ans. 4, 12). See Issues 1-3 supra.
On this record, we find Appellants have failed to present substantive
arguments and supporting evidence persuasive of Examiner error regarding
the aforementioned disputed limitations. For at least these reasons, we are
not persuaded of Examiner error regarding the claims in Group 1.
Accordingly, we sustain the Examiner’s § 103 rejection of representative
claim 1. Claims 3-6, 8, 11-14, 19, 21, and 22 (not argued separately) fall
therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

Representative Claim 2
Regarding the group including claims 2 and 20, Appellants urge that
these claims are patentable for the reasons we have previously found
unpersuasive regarding claim 1. Appellants additionally aver that the cited
combination “fails to disclose that the at least one other WPAN
device when in the enabled state switches back to the disabled
state based upon movement beyond the limited communication range
with the WPAN identity reader, as recited in dependent Claim 2.” (App. Br.
12). However, we agree with the Examiner’s finding that Overy discloses
the connection stays valid or becomes disabled based on the range, as
claimed. (Ans. 4; see also Overy Fig. 5). Therefore, we sustain the
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Examiner’s § 103 rejection of representative claim 2. Claim 20 (not argued
separately) falls therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

Dependent Claim 7
Regarding claim 7, Appellants urge that these claims are patentable
for the reasons we have previously found unpersuasive regarding claim 1.
Appellants additionally contend that the cited combination, particularly
“Kinoshita[,] fails to disclose that encryption data comprises at least one of a
public and private encryption key, as recited in dependent Claim 7.” (App.
Br. 14).
However, we agree with the Examiner (Ans. 5, 13) that embodiments
of Kinoshita’s key data teach or suggest “at least one of a public and private
encryption key,” within the meaning of claim 7. (See Kinoshita para.
[0056]: “shared-key system,” Abstract: “exchanges shared key data,” para.
[0007]: “shared-key system,” see also Fig. 7).

Representative Claim 9
Regarding the group including claims 9 and 23, Appellants urge that
these claims are patentable for the reasons we have previously found
unpersuasive regarding claim 1. Appellants additionally contend that the
cited combination “fails to disclose that the at least one other WPAN device
is operable upon user entry of a password in addition to being in the enabled
state, as recited in dependent Claim 9.” (App. Br. 14-15). In particular,
Appellants reproduce the portion of Xydis cited by the Examiner (Col. 2,
lines 28-33) and state that “[t]his cited portion makes no reference to user
entry of anything, let alone a password.” (App. Br. 15). Appellants further
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aver that the remaining cited references fail to overcome this deficiency with
Xydis. (Id.).
In reviewing the record, we observe that in the rejection of claim 9,
the Examiner relies on the general teaching of authentication by Xydis (col.
2, ll. 28-33) as teaching or suggesting the claimed password. (Ans. 6). We
agree with Appellants that the portion of Xydis relied on by the Examiner
does not expressly teach the use of a password entered by the user.
However, we find that user authentication is a broad concept that would
have been at least suggestive of common forms of authentication (such as
authentication by a password) to an artisan of ordinary skill. Therefore, we
find the weight of the evidence supports the Examiner’s ultimate legal
conclusion of obviousness. Accordingly, we sustain the Examiner’s
rejection of representative claim 9. Claim 23 falls therewith. See 37 C.F.R.
§ 41.37(c)(1)(vii).
Representative Claim 15
Regarding the group including claims 15, 16, and 18, Appellants
contend that the cited “combination fails to disclose a processor carried by
the portable hosing and connected to the receiver and the limited
communication range WPAN transceiver for operating the limited
communication range WPAN transceiver for encrypted wireless
communication based upon the encryption data.” (App. Br. 16). Appellants
additionally restate that the Examiner failed to articulate a reason to combine
the cited references. (App. Br. 17).
We have addressed the Examiner’s proffered motivation to combine
the references supra. Regarding the claimed processor, we are of the view
that the use of a processor is taught by each cited reference and adapting a
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processor within a portable housing in the manner claimed would have been
at least obvious to try to an artisan of ordinary skill, particularly given the
express teaching of a processor 13 within the portable housing of token 12,
as described in Xydis at column 2, lines 65-67 and column 3, lines 1-4 and
as shown in Figure 1. Therefore, we find the weight of the evidence
supports the Examiner’s ultimate legal conclusion of obviousness.
We sustain the Examiner’s rejection of representative claim 15. Claims 16
and 18 fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

Dependent Claim 17
Regarding claim 17, Appellants contend that the cited combination
of Xydis, Overy, and Kinoshita fails to disclose that encryption data
comprises at least one of a public and private encryption key, as recited in
dependent Claim 17. (App. Br. 18). We disagree. We sustain the
Examiner’s rejection of claim 17 for the same reasons discussed above
regarding claim 7.

Dependent Claim 10
Appellants do not provide any arguments traversing the Examiner’s
rejection of dependent claim 10. Therefore, we consider these arguments
waived. On this record, we summarily sustain the Examiner’s rejection of
claim 31. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir 2008) (“When
the appellant fails to contest a ground of rejection to the Board, section
1.192(c)(7) [(now section 41.37(c)(1)(vii))] imposes no burden on the Board
to consider the merits of that ground of rejection. . . . [T]he Board may treat
any argument with respect to that ground of rejection as waived.”).
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DECISION
We affirm the Examiner's rejection of claims 1-23 under § 103.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv).

ORDER
AFFIRMED

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