Ex Parte Muttik et al

Patent Trial and Appeal BoardFeb 26, 2019

14498287 (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/498,287 09/26/2014 Igor Muttik 149052 7590 02/28/2019 HANLEY, FLIGHT & ZIMMERMAN, LLC (McAfee) 150 S. WACKER DRIVE SUITE 2200 CHICAGO, IL 60606 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. P68535 8555 EXAMINER LAM, YEEF ART UNIT PAPER NUMBER 2465 NOTIFICATION DATE DELIVERY MODE 02/28/2019 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@hfzlaw.com jflight@hfzlaw.com pcesarz@hfzlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IGOR MUTTIK and MARTIN STECHER Appeal2018-004571 Application 14/498,287 1 Technology Center 2400 Before MAHSHID D. SAADAT, JASON J. CHUNG, and SCOTT E. BAIN, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1, 2, 4, 5, and 7-25. 2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. INVENTION The invention is directed to techniques for making identity determinations based upon detection of collections of wearable devices. Spec. ,r 1. Claim 1 is illustrative of the invention and is reproduced below: 1. A non-transitory machine readable medium, on which are stored instructions for recognizing a person by a 1 According to Appellants, McAfee, Inc. is the real party in interest. Br. 3. 2 Claims 3 and 6 are cancelled. Br. 14--15. Appeal2018-004571 Application 14/498,287 programmable device, compnsmg instructions that when executed cause the programmable device to: detect signals from a first plurality of wearable devices proximate with or disposed on an unknown person; generate a first body area network fingerprint of the first plurality of wearable devices corresponding to the detected signals, wherein the detected signals are analyzed without interpreting data payloads carried by the detected signals; and match the first body area network fingerprint with a second body area network fingerprint associated with a second plurality of wearable devices, wherein the second plurality of wearable devices is associated with a known person. REJECTION AT ISSUE Claims 1, 2, 4, 5, and 7-25 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over the combination of Utter (US 2013/0004923 Al; published Jan. 3, 2013) and Asano (US 2008/0209545 Al; published Aug. 28, 2008). Ans. 2-9. ANALYSIS I. Utter Teaches "without interpreting data payloads carried by the detected signals" recited in Claims 1, 15, and 18 (and similarly recited in claim 10) The Examiner finds Utter teaches evaluating data from personal wearable data capture devices to identify a specific individual user such as by recognizing a unique pattern of behavior, biometric responses, an individual person's gait, etc., which the Examiner maps to the limitation "wherein the detected signals are analyzed without interpreting data payloads carried by the detected signals" recited in claim 1. Ans. 12-13 (citing Utter ,r 42). Also, the Examiner finds Utter's teaching of pattern recognition is consistent with Appellants' Specification, which states "sensors used to collect data from the BAN 100 and the analysis unit 230 do 2 Appeal2018-004571 Application 14/498,287 not need to be capable of interpreting the data that is communicated by the wearable devices. Instead, analysis unit 230 may recognize patterns in the communications received by the sensors 210 and 220." Ans. 10-12 (citing Spec. ,r 20). Appellants argue Utter fails to teach the limitation "without interpreting data payloads carried by the detected signals" recited in claim 1 because Utter evaluates captured data and the Examiner improperly imports claim limitations from the Specification to narrowly interpret the claim. Br. 8-10. At the outset, we note that the Examiner makes a new finding in the Answer by relying on Utter's teaching of pattern recognition being consistent with paragraph 20 Appellants' Specification for the first time. Compare Final Act. 2--4, 8-10 (see analysis of claim 1 lacking discussion of Utter's recognizing a unique pattern of behavior, biometric responses, an individual person's gait, etc. and correlating Utter's teaching to Appellants' analysis unit 230 recognizing patterns in the communications received by the sensors 210 and 220) with Ans. 10-13 (citing Utter ,r 42; Spec. ,r 20). Appellants do not rebut the Examiner's new finding because they did not file a Reply Brief. Nonetheless, we agree with the Examiner's finding that Utter teaches evaluating data from personal wearable data capture devices to identify a specific individual user such as by recognizing a unique pattern of behavior, biometric responses, an individual person's gait, etc., which teaches the limitation "wherein the detected signals are analyzed without interpreting data payloads carried by the detected signals" recited in claims 1, 15, and 18 (and similarly recited in claim 10). Ans. 12-13 (citing Utter ,r 42). Also, we 3 Appeal2018-004571 Application 14/498,287 agree that Utter's teaching of pattern recognition is consistent with Appellants' Specification, which states "sensors used to collect data from the BAN 100 and the analysis unit 230 do not need to be capable of interpreting the data that is communicated by the wearable devices. Instead, analysis unit 230 may recognize patterns in the communications received by the sensors 210 and 220." Ans. 10-12 (citing Spec. ,r 20). Accordingly, we agree with the Examiner's finding that Utter teaches the limitation "wherein the detected signals are analyzed without interpreting data payloads carried by the detected signals" recited in claims 1, 15, and 18 (and similarly recited in claim 10). II. Utter Teaches "networkfingerprint" recited in Claim 1 (and similarly recited in claims 10, 15, and 18) The Examiner finds Utter teaches biometric information and signatures about a user, which the Examiner maps to the limitation "generat[ing] a first body area network fingerprint of the first plurality of wearable devices corresponding to the detected signals" recited in claim 1. The Examiner finds Utter' s teaching of biometric information and signatures about a user is consistent with Appellants' Specification, which states "a fingerprint may include ... some emissions can be attributed to specific body parts." Ans. 19--20 ( citing Spec. ,r 15). Appellants argue Utter fails to teach the limitation "network fingerprint" ( emphasis added) recited in claim 1 because Utter teaches biometric information and signatures about a user, rather than any information as to the network of devices. Br. 10-11. We disagree with Appellants. At the outset, we note that the Examiner makes a new finding in the Answer by relying on Utter's teaching of biometric information and 4 Appeal2018-004571 Application 14/498,287 signatures about a user being consistent with paragraph 15 Appellants' Specification for the first time. Compare Final Act. 2-11 (see analysis of claim 1 lacking discussion of paragraph 15 of Appellants' Specification) with Ans. 10-13 (comparing Utter ,r,r 41--42 with Spec. ,r 15). Appellants do not rebut the Examiner's new finding because they did not file a Reply Brief. Nonetheless, we agree with the Examiner's finding that Utter teaches biometric information and signatures about a user, which teaches the limitation "generat[ing] a first body area network fingerprint of the first plurality of wearable devices corresponding to the detected signals" recited in claim 1 (and similarly recited in claim 10, 15, and 18). Further, we agree with the Examiner's finding that Utter's teaching of biometric information and signatures about a user is consistent with Appellants' Specification, which states "a fingerprint may include ... some emissions can be attributed to specific body parts." Ans. 19-20 (citing Spec. ,r 15). Accordingly, we agree with the Examiner's finding that Utter teaches the limitation "generat[ing] a first body area network fingerprint of the first plurality of wearable devices corresponding to the detected signals" recited in claim 1 (and similarly recited in claim 10, 15, and 18). Appellants do not separately argue dependent claims 2, 4, 5, 8, 11-13, 16, 17, 19, 20, and 23-25 with particularity, but assert the rejections of those claims should be withdrawn for at least the same reasons as argued in independent claims 1, 10, 15, and 18. Br. 8-13. Accordingly, we sustain the Examiner rejection of: (1) independent claims 1, 10, 15, and 18; and (2) dependent claims 2, 4, 5, 8, 11-13, 16, 17, 19, 20, and 23-25. 5 Appeal2018-004571 Application 14/498,287 III. Utter Teaches "associate[ing] location information with the first body area networkfingerprint" recited in Claim 7 (and similarly recited in claims 14, 21, and 22) The Examiner finds Utter teaches sensor 212 may be implemented as GPS receiver 316, which the Examiner maps to the limitation "associate[ing] location information with the first body area network fingerprint" recited in claim 1. Ans. 21-23 ( citing Utter ,r 48). Appellants argue Utter fails to teach location based data is connected to the biometric signature in any way. Br. 11-12. We disagree with Appellants. Utter teaches sensor 212 may be implemented as various types of sensors such as biometric sensors and GPS receiver 316 (i.e., GPS receiver 316 has location based data), which teaches the limitation "associate[ing] location information with the first body area network fingerprint" recited in claim 1. Ans. 21-23 ( citing Utter ,r 48). Accordingly, we sustain the Examiner's rejection for claims 7, 14, 21, and 22 under 35 U.S.C. Â§ 103. IV. Utter Fails to Teach "simulat[ing] communications that appear to be from a non-present device" recited in Claim 9 The Examiner finds Utter teaches two runners using bands 104 and 112 are geographically remote from each other, but wish to share data regarding their race times; if both runners are partaking in the same race, then they share data in substantially real-time, which the Examiner maps to the limitation "simulat[ing] communications that appear to be from a non- present device" recited in Claim 9. Ans. 23-24 (citing Utter ,r 40). Appellants argue Utter' s sharing data fails to teach simulating communications. Br. 12. We agree with Appellants. 6 Appeal2018-004571 Application 14/498,287 Utter teaches two runners using bands 104 and 112 are geographically remote from each other, but wish to share data regarding their race times; if both runners are partaking in the same race, then they share data in substantially real-time. Ans. 23-24 (citing Utter ,r 40). However, the cited portion of Utter relied upon by the Examiner teaches actual communications between two devices rather than the limitation "simulat[ing] communications that appear to be from a non-present device" ( emphasis added) recited in Claim 9. Accordingly, we do not sustain the Examiner's rejection for claim 9 under 35 U.S.C. Â§ 103. We have only considered those arguments that Appellants actually raised in the Briefs. Arguments Appellants could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). DECISION We affirm the Examiner's decision rejecting claims 1, 2, 4, 5, 7, 8, and 10-25 under 35 U.S.C. Â§ 103. We reverse the Examiner's decision rejecting claim 9 under 35 U.S.C. Â§ 103. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). AFFIRMED-IN-PART 7