Ex Parte Siwak et al

Patent Trial and Appeal BoardMar 5, 2019

14795815 (P.T.A.B. Mar. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/795,815 07/09/2015 22822 7590 LEWIS RICE LLC ATTN: BOX IP DEPT. 600 Washington Ave. Suite 2500 ST LOUIS, MO 63101 03/07/2019 FIRST NAMED INVENTOR Greg Siwak 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. 579/2278US 1049 EXAMINER SWARTHOUT, BRENT ART UNIT PAPER NUMBER 2689 NOTIFICATION DATE DELIVERY MODE 03/07/2019 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): IPDEPT@LEWISRICE.COM KDAMMAN@LEWISRICE.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREG SIWAK, TED SIEBENMAN, and MAX WITT 1 Appeal2018-006016 Application 14/795,815 2 Technology Center 2600 Before JAMES R. HUGHES, LINZY T. McCARTNEY, and BETH Z. SHAW, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL 1 Practecol, LLC ("Appellant") is the applicant as provided in 37 C.F.R. Â§ 1.46 and is identified as the real party in interest. Appeal Br. 4. 2 The application on appeal has an effective filing date of July 9, 2014. Therefore, the Leahy-Smith America Invents Act (AIA) amendments to the U.S. Code(Â§Â§ 102, 103) are applicable. See MPEP Â§ 2159.02 (9th ed. 2018) ( the amended sections "apply to any patent application that contains ... a claimed invention that has an effective filing date that is on or after March 16, 2013."). Appeal2018-006016 Application 14/795,815 STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's Final Rejection of claims 1-20. Claim 21 has been canceled. Final Act. 1; Br. 6. 3 We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. Appellant's Invention The invention at issue on appeal generally concerns "intrusion detection, and more specifically to an intrusion monitor useable without the need to install electronics into a residence" (Spec. ,r 2}-specifically intrusion detection monitors (apparatuses), intrusion detection systems, and methods for detecting an unauthorized intruder. See Spec. ,r,r 10, 17, 25. The apparatus includes a wireless communication system, an intrusion detection system, a microprocessor, and a power supply. The apparatus also includes a housing enclosing the components. The microprocessor is connected to the wireless communication system and the intrusion detection system, determines if the intrusion detection system detects ( that the output indicates) a human intruder and, if so, causes the wireless communication system to transmit a monitoring signal. See Spec. ,r,r 10-30; Abstract. 3 We refer to Appellant's Specification ("Spec.") filed July 9, 2015 (claiming benefit of US 62/022,530 filed July 9, 2014), and Appeal Brief ("Br.") filed Jan. 31, 2018. We also refer to the Examiner's Final Office Action (Final Rejection) ("Final Act.") mailed July 7, 2017, and Answer ("Ans.") mailed Feb. 22, 2018. 2 Appeal2018-006016 Application 14/795,815 Illustrative Claim Independent claims 1 and 16, reproduced below, further illustrate the invention: 1. A standalone, self-contained intrusion detection monitor comprising: a housing; a wireless communication system enclosed in said housing; one or more intrusion detection systems enclosed in said housing; a microprocessor enclosed by said housing and operatively coupled to said wireless communication system and operatively coupled to said one or more intrusion detection systems, said microprocessor causing said wireless communication system to transmit a monitoring signal if said microprocessor determines that the output of at least one of said one or more intrusion detection systems is indicative of a human intruder; and a power supply supplying power to said wireless communication system, said microprocessor, and said one of more intrusion detection systems. 16. A computer-implemented method for detecting an unauthorized intruder comprising: receiving, by an application executing on a handheld user device communicably coupled to an intrusion detection system over a wireless telecommunications network, a digital video feed comprising digital video data generated by said intrusion detection system placed in a residence; displaying, by said application on a display of said handheld user device, said received digital video feed; displaying, by said application on said display, a graphical user interface comprising a user input component configured for a user of said handheld user device to indicate whether said displayed digital video feed indicates the presence of an unauthorized intruder in said residence; 3 Appeal2018-006016 Application 14/795,815 receiving, from said user via said user input component, an indication that said displayed digital video feed indicates the presence of an unauthorized intruder in said residence; and in response to said received indication of the presence of an unauthorized intruder in said residence, storing on a non- volatile computer-readable medium of said handheld device a copy of said received digital video feed. Rejection on Appeal The Examiner rejects claims 1-20 under 35 U.S.C. Â§ 103 as being unpatentable over Hevia et al. (US 2013/0155242 Al, published June 20, 2013) ("Hevia") and Kates (US 2008/0042824 Al, published Feb. 21, 2008). See Final Act. 2---6. ISSUES Based upon our review of the record, Appellant's contentions, and the Examiner's findings and conclusions, the issues before us are as follows: 1. Did the Examiner err in concluding that Hevia and Kates collectively would have taught or suggested "a microprocessor ... causing said wireless communication system to transmit a monitoring signal if said microprocessor determines that the output of at least one of said one or more intrusion detection systems is indicative of a human intruder" within the meaning of claim 1, and the commensurate limitations of claim 8? 2. Did the Examiner err in concluding that Hevia and Kates collectively would have taught or suggested "displaying, by said application on a display of said handheld user device, said received digital video feed" and "in response to said received indication of the presence of an unauthorized intruder in said residence, storing on a non-volatile computer- 4 Appeal2018-006016 Application 14/795,815 readable medium of said handheld device a copy of said received digital video feed," as recited in claim 16? ANALYSIS Claims 1-5 and 8-15 Appellant argues independent claims 1 and 8, and dependent claims 2-5 and 9-15, together as a group with respect to theÂ§ 103 rejection. See Br. 16-25. We select independent claim 1 as representative of Appellant's arguments with respect to claims 1-5 and 8-15. 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner rejects representative independent claim 1 as being obvious over Hevia and Kates. See Final Act. 2-3; Ans. 4--7. The Examiner cites Hevia as teaching every feature of Appellant's claim 1, except the "microprocessor determin[ing] that the output of ... [the] intrusion detection systems is indicative of a human intruder" ( claim 1 ). The Examiner cites Kates as teaching this feature-"Kates teaches desirability of using camera images to detect size of an intruder so that it can be detected if intruder is a human adult, so as to avoid false alarms" (Final Act. 3). See Final Act. 2-3; Ans. 4--7. Specifically, the Examiner cites Hevia as teaching the recited "wireless communication system" ( claim 1) (see Final Act. 2; Ans. 4--5 ( citing Hevia ,r,r 23-25, 3 5)) and Kates as teaching human detection utilizing an imaging device (see Final Act. 3; Ans. 6-7 (citing Kates ,r,r 16, 90, 98)). Appellant contends that Hevia and Kates do not teach the disputed limitation of claim 1, and that Hevia and Kates are not properly combinable. See Br. 16-25. Specifically, Appellant contends That Hevia does not describe a wireless communication system-"the Examiner's interpretation of Appellant's claimed term 'wireless communication system' as reading on 5 Appeal2018-006016 Application 14/795,815 the 'communication circuitry' 16 of Hevia, or modem 18 of Hevia, is unreasonably broad" (Br. 22). See Br. 18-22. Appellant also contends the combination of Hevia and Kates does not teach human detection and one of ordinary skill in the art would not have combined Hevia and Kates because Hevia already addresses preventing false alarms using video images (making the addition of Kates superfluous). See Br. 23-25. We disagree with Appellant that Hevia and Kates do not teach the disputed features of claim 1, that the references are not properly combinable, and that the Examiner's interpretation of the at-issue claim limitations and references was overly broad. The Examiner provides an explanation how Hevia and Kates teach or suggest the disputed features of Appellant's claim 1. We adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2-3), and (2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 4-- 7) in response to Appellant's Appeal Brief. We concur with the findings and conclusions reached by the Examiner, and we address specific findings, conclusions, and arguments for emphasis as follows. We agree with the Examiner's findings (see Final Act. 3; Ans. 6-7) that Kates describes a wireless communication system. As pointed out by the Examiner (see Final Act. 2; Ans. 4--5) and conceded by Appellant (see Br. 19-22) Hevia describes communication circuitry and a modem that transmit alarm signals over the intemet----e.g., a "'hot spot."' See Hevia ,r,r 23-25. Hevia also describes the alarm system as being portable. See Hevia ,r 35. Additionally, Hevia describes the alarm system communicating directly with a mobile device application. See Hevia ,r 32; see also Hevia ,r,r 30-31. It is notoriously well-known that mobile devices (such as an 6 Appeal2018-006016 Application 14/795,815 iPhone or Android device (see Hevia ,r 30)) utilize wireless communication protocols. Therefore, in view of these disclosures, we conclude Hevia at least suggests the disputed wireless communication system of Appellant's claim 1. We also agree with the Examiner's findings (see Final Act. 3; Ans. 6- 7 (citing Kates ,r,r 16, 90, 98)) that Kates detecting a human utilizing an imaging device. Appellant does not directly dispute these findings. Instead, Appellant contends one would not have made the combination proffered by the Examiner. See Br. 23-25. Initially, we note Hevia suggests human detection-"the video verification feature allows the user to determine if the intruder is actually an authorized person" (Hevia ,r 35). Further, as pointed out by the Examiner "Hevia does not specifically state that human intruder detection is determined, use of Kates as a secondary reference is proper." Ans. 6-7. Further, with respect to Appellant's combinability arguments-that one of ordinary skill in the art would not have combined Hevia and Kates because Hevia already addresses preventing false alarms and that the Examiner did not provide a proper rationale for combining Hevia and Kates (see Br. 23-25}-we disagree. The Examiner provides a rationale for combining Hevia and Kates-"Kates teaches providing a more specific prevention of false alarms ... and it would have been obvious to one of ordinary skill in the art to use such a false alarm technique in conjunction with the Hevia system, in order to ... provid[ e] more comprehensive false alarm protections, leading to a more reliable intruder detection system." Ans. 6; see Final Act. 3; Ans. 6-7. Contrary to Appellant's arguments, this is not an instance where the rejection attempts to combine references where 7 Appeal2018-006016 Application 14/795,815 "the primary reference already solves the problem purportedly addressed by the secondary reference." Br. 24; see Br. 23-25. Instead as pointed out by the Examiner (supra), Kates discusses preventing specific types of false alarms not addressed by Hevia. The Supreme Court has held that in analyzing an obviousness rationale, the Examiner "need not seek out precise teachings directed to the specific subject matter of the challenged claim, [ and may] take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007). Also, the Examiner may consider "the background knowledge possessed by a person having ordinary skill in the art." KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Further, an artisan is presumed to possess both skill and common sense. See KSR, 550 U.S. at 421 ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). For the all the reasons set forth above, we find the Examiner provided a legally cognizable rationale for the combination of Hevia and Kates, in that the Examiner "'articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."' KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d at 988). We further find that it would have been within the skill of an ordinarily skilled artisan to combine the video alarm system of Hevia and video human detection as taught by Kates. See KSR, 550 U.S. at 417 ("[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."). We are not persuaded that combining the 8 Appeal2018-006016 Application 14/795,815 respective familiar elements of the cited references in the manner proffered by the Examiner would have been "uniquely challenging or difficult for one of ordinary skill in the art" at the time of Appellant's invention. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Additionally, Appellant failed to file a Reply Brief addressing the Examiner's clarified findings and additional discussion (see Ans. 4--7) of Hevia and Kates, the disputed limitations of claim 1, the Examiner's rationale for combining Hevia and Kates, or otherwise rebutting the findings and responsive arguments made by the Examiner in the Answer. Accordingly, Appellant's contentions do not persuade us of error in the Examiner's obviousness rejection of representative independent claim 1. Therefore, we affirm the Examiner's rejection of representative claim 1, independent claim 8 that includes limitations of commensurate scope, and dependent claims 2-5 and 9-15, not separately argued with particularity (supra). Claims 16-20 The Examiner rejects independent claim 16 as being obvious over Hevia and Kates. See Final Act. 2-5; Ans. 7-8. As with claim 1 (supra), the Examiner cites Hevia as teaching every feature of Appellant's claim 16, with the exception that Hevia does not show storing digital video at a mobile device. See Final Act. 4--5 (citing Hevia ,r,r 23-25, 28, 30, 31, 35; Figs. 1, 3-5). The Examiner explains that "it would have been obvious to use digital storage for the video on the smartphone, since smartphones typically use digital storage for camera and video imaging" and this "would have merely involved the simple substitution of a known video storage element for 9 Appeal2018-006016 Application 14/795,815 another well-known video storage element." Ans. 8; see Final Act. 5; Ans. 7-8. Appellant contends that Hevia and Kates do not teach the disputed limitations of claim 16. See Br. 26-31. Specifically, Appellant contends, inter alia, that Hevia does not describe storing the received digital video feed on a handheld device - that is, "response to said received indication of the presence of an unauthorized intruder in said residence, storing on a non- volatile computer-readable medium of said handheld device a copy of said received digital video feed" ( claim 16). See Br. 3 0-31. We agree with Appellant that the Examiner does not sufficiently explain how Hevia's description of transmitting video (Hevia ,r,r 28, 30, 31; Fig. 4), storing video to a server (Hevia ,r 27; Fig. 3), and sending "alarm signals" to a mobile device application (Hevia ,r,r 25, 28, 30, 31; Figs. 4, 5) describes storing on a handheld device (mobile device) a copy of received digital video in response to a received indication of the presence of an unauthorized intruder as required by claim 16. At best Hevia describes transmitting and storing a video clip to a remote server and sending separate alarm signals to a mobile application. Without further explanation, we are left to speculate on how Hevia describes responsively storing video on a mobile device. Cf Final Act. 4--5; Ans. 7-8 ( citing Hevia ,r,r 25, 30, 31; Figs. 3, 5) and Br. 26-31. Consequently, we are constrained by the record before us to find that the Examiner erred in concluding Hevia and Kates render the disputed features of Appellant's claim 16 obvious. Claims 17-20 depend from and 10 Appeal2018-006016 Application 14/795,815 stand with claim 16. Accordingly, we do not sustain the Examiner's obviousness rejection of claims 16-20. Claims 6 and 7 Appellant provides separate arguments with respect to dependent claims 6 and 7. See Br. 31-35. Specifically, Appellant contends Hevia and Kates do not describe human detection similar to claim 1 (supra). See Br. 31-34. Appellant also contends Hevia and Kates do not describe transmitting a monitoring signal includes video data (generated by a digital video camera). See Br. 34--35. We agree with the Examiner (see Final Act. 2-3; Ans. 8-9) that Hevia and Kates at least suggest these disputed features. Hevia and Kates describes human detection. See discussion of claim 1 (supra). Further, contrary to Appellant's arguments (see Br. 31-34) the prior art need only describe one of the specified factors. Appellant concedes Hevia at least describes "'measuring a size and movement track of the intruder"' (Br. 33 (quoting Hevia ,r 16)), which we find meets the disputed limitation of "determin[ing] [the] output is indicative of a human intruder based upon ... the size of a detected moving object" ( claim 6). With respect to claim 7, Hevia describes transmitting video (see discussion of claim 16 (supra); Hevia ,r,r 25, 28; Figs. 1, 3, 4). Contrary to Appellant's arguments (see Br. 34--35) this is all claim 7 requires. Thus, Appellant's contentions do not persuade us of error in the Examiner's obviousness rejection of 11 Appeal2018-006016 Application 14/795,815 dependent claims 6 and 7. Accordingly, we affirm the Examiner's rejection of claims 6 and 7. CONCLUSIONS Appellant has not shown the Examiner erred in rejecting claims 1-15 under 35 U.S.C. Â§ 103. Appellant has shown the Examiner erred in rejecting claims 16-20 under 35 U.S.C. Â§ 103. DECISION We affirm the Examiner's rejections of claims 1-15, and reverse the Examiner's rejections of claims 16-20. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. Â§ 1.13 6( a )(1 )(iv). AFFIRMED-IN-PART 12