Ex Parte Svendsen et al

Patent Trial and Appeal BoardMay 17, 2016

13290590 (P.T.A.B. May. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/290,590 11/07/2011 Hugh Svendsen 71739 7590 05/18/2016 Concert Technology Corporation 5400 Trinity Road, Suite 303 Raleigh, NC 27607 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. CT-MSG-002/US (P595) 3295 EXAMINER ABU ROUMI, MAHRAN Y ART UNIT PAPER NUMBER 2455 MAILDATE DELIVERY MODE 05/18/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HUGH SVENDSEN, KUNAL KANDEKAR, and SCOTT CUR TIS Appeal2014-008680 1 Application 13/290,590 Technology Center 2400 Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and GARTH D. BAER, Administrative Patent Judges. BAER, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify Modena Enterprises, LLC as the real party in interest. Appeal Br. 3. Appeal2014-008680 Application 13/290,590 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. Â§ 134(a), from the Examiner's final rejection of claims 1-31. Appeal Br. 9. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. BACKGROUND A. The Invention Appellants' invention is directed to a system "of operating a mobile communications device (MCD) associated with a user utilizing social relationships defined on a social network." Abstract. Claims 1, 2, 4, 5, and 7 are representative and reproduced below, with emphasis added to disputed elements: 1. A first mobile communications device, comprising: at least one communication interface device operable to provide an interface for communications with the first mobile communications device; and a controller operably associated with the at least one communication interface device and configured to: detect a second mobile communications device that is in proximity with the first mobile communications device; and communicate over a wireless local area networking link with the second mobile communications device using information access security data provided to secure communications with the second mobile communications device and as a result of a determination that a first user associated with the first mobile communications device has a defined affinity on a social network with a second user associated with the second mobile communications device. 2 Appeal2014-008680 Application 13/290,590 2. The first mobile communications device of claim 1, wherein the second mobile communications device is in proximity with the first mobile communications device by being within a defined number of wireless local area networking hops from the first mobile communications device. 4. The first mobile communications device of claim 1, wherein the controller is configured to communicate over the wireless local area networking link with the second mobile communications device using the information access security data by: encrypting data using the information access security data; and transmitting the data encrypted using the information access security data to the second mobile communications device over the wireless local area networking link. 5. The first mobile communications device of claim 1, wherein the controller is further configured to establish the wireless local area networking link with the second mobile communications device such that a third mobile communications device operates as a relay between the first mobile communications device and the second mobile communications device. 7. The first mobile communications device of claim 6, wherein the probing signal includes a defined number of wireless local area networking hops from the first mobile communications device and wherein the second mobile communications device is in proximity with the first mobile communications device by being within the defined number of wireless local area networking hops. Appeal Br. 27-29. (App. A-Claims). 3 Appeal2014-008680 Application 13/290,590 B. The Rejection on Appeal The Examiner rejects claims 1-31under35 U.S.C. Â§ 103(a) as unpatentable over Rothschild (US 2010/0069058 Al; Mar. 18, 2010) in view of Roberts (US 2010/0257239 Al; Oct. 7, 2010). Final Act. 13. ANALYSIS A. Claims 1, 3, 6, 8-28, and 30-31 Appellants argue that Rothschild and Roberts fail to teach or suggest "using information access security data provided to secure communications with the second mobile communications device," as recited in independent claims 1, 28, and 31. Appeal Br. 13. Specifically, Appellants argue that Rothschild does not explicitly or inherently disclose that information access security data is used to secure a communication channel between two mobile devices. Appeal Br. 16. Appellants further argue that Roberts does not cure Rothschild's deficiencies. Appeal Br. 17. We are not persuaded by Appellants' arguments. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "[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." Id. at 417. We agree with the Examiner that Rothschild teaches two mobile devices utilizing a wireless connection (such as Bluetooth) to communicate with each other, independent of a server. Ans. 3; see Rothschild i-f 29. We further agree with the Examiner that exchanging information access security data 4 Appeal2014-008680 Application 13/290,590 over a wireless connection to secure the connection was known to one of ordinary skill in the art, as evidenced by the additional references cited by the Examiner (e.g., Alexis (US 2011/0090818 Al; Apr. 21, 2011)). See Ans. 6-7. Neither Appellants' claims, nor Appellants' Specification, distinguishes the claimed "information access security data" from the passkeys or identifiers disclosed in Alexis. To the contrary, Appellants' Specification indicates that information access security data "may be any type of data utilized to prevent unauthorized access to information transmitted over a network." Spec. i-f 38. Thus, it would have been obvious to one of ordinary skill in the art to secure the wireless connection taught by Rothschild by having the mobile devices exchange information access security data. We have considered Appellants' other arguments regarding independent claims 1, 28, and 31, and we do not find thempersuasive.2 Accordingly, we sustain the Examiner's rejection of independent claims 1, 28, and 31, and claims 3, 6, 8-27, and 30, not argued separately. 2 Among Appellants' other arguments is that "the Examiner's Answer does more than merely elaborate upon what the Office previously stated," and, instead, "relies upon different portions of at least one of the references and introduces new references." Reply Br. 5. To the extent that Appellants are arguing that the remarks in the Examiner's Answer constitute a new ground of rejection, we note that the failure to designate a rejection as a new ground is a petitionable issue, rather than an appealable issue, and Appellants have not petitioned to designate the rejection a new ground of rejection. See MPEP Â§ 1207.03(b) ("37 CPR 41.40 sets forth the exclusive procedure for an appellant to request review of the primary examiner's failure to designate a rejection as a new ground of rejection via a petition to the Director under 3 7 CPR 1.181 ") (emphasis added). 5 Appeal2014-008680 Application 13/290,590 B. Claims 2 and 29 Appellants argue that Rothschild and Roberts fail to teach or suggest "wherein the second mobile communications device is in proximity with the first mobile communications device by being within a defined number of wireless local area networking hops from the first mobile communications device," as recited in claims 2 and 29. Appeal Br. 18. Appellants argue that Rothschild fails to contemplate networking hops because Rothschild only provides examples of mobile devices being within physical range of each other, which cannot be considered networking hops. Appeal Br. 18. Appellants further argue that Roberts does not cure Rothschild's deficiencies. See Appeal Br. 18-19. We are not persuaded by Appellants' arguments. We agree with the Examiner that Rothschild discloses the disputed limitation by disclosing two mobile devices communicating "independent of any server" (e.g. using "Bluetooth") once they are "disposed in a physical and/or geographic proximity to one another." Rothschild i-f 29; see Ans. 11; see also Rothschild i-f 25 (describing that mobile devices may communicate directly with one another via a wireless local area network, such as a peer-to-peer network). Because such directly connected devices are not separated by any networking hops, they are "within a defined number of wireless local area networking hops," as claims 2 and 29 require. In fact, they are within any defined number of wireless local area networking hops. Thus, we agree with the Examiner that the combination of Rothschild and Roberts teaches the aforementioned element of claims 2 and 29. Accordingly, we sustain the Examiner's rejection of claims 2 and 29. 6 Appeal2014-008680 Application 13/290,590 C. Claim 4 Appellants argue that Rothschild and Roberts fail to teach or suggest "encrypting data using the information access security data; and transmitting the data encrypted using the information access security data to the second mobile communications device over the wireless local area networking link," as recited in claim 4. Appeal Br. 19. More specifically, Appellants argue that Rothschild describes that mobile devices can communicate via communication methods that do not require encrypting data using information access security data. Id. Appellants further argue that, while social networks may require encryption and decryption to establish a communication with network websites, establishing a communication is not the same as communicating data via an already-established communication channel by encrypting the data using information access security data. Appeal Br. 20. Appellants further argue that Roberts does not cure Rothschild's deficiencies. Appeal Br. 19. We are persuaded by Appellants' arguments. We disagree with the Examiner's finding that Rothschild's communication between mo bile devices requires encryption of data using information access security data or transmission of encrypted data. Ans. 14. The Examiner's finding that a mobile device in Rothschild is required to send an encrypted password to a social networking site (Ans. 13-14) does not establish that Rothschild teaches or suggests that the mobile device transmits the encrypted data to another mobile device, as required by the claim. Accordingly, we reverse the Examiner's rejection of claim 4. 7 Appeal2014-008680 Application 13/290,590 D. Claim 5 Appellants argue that Rothschild and Roberts fail to teach or suggest "wherein the controller is further configured to establish the wireless local area networking link with the second mobile communications device such that a third mobile communications device operates as a relay between the first mobile communications device and the second mobile communications device," as recited in claim 5. Appeal Br. 21. More specifically, Appellants argue that in Roberts, there are no relay operations because the first and fourth mobile devices do not communicate with each other until they have established a direct communication. Appeal Br. 21-22. Appellants further argue that Rothschild does not cure Roberts' s deficiencies. See Appeal Br. 23. We are not persuaded by Appellants' argument. Roberts teaches the claimed relay by teaching that "updates to social networking information stored in file metadata may be relayed between communicating mobile devices." Roberts i-f 46; see Final Act. 21; Ans. 15. Roberts also discloses the claimed relay by teaching that a file is passed from a first device to a fourth device through intervening second and third devices. Roberts i-f 46; see Final Act. 21, Ans. 15. Thus, we agree with the Examiner that Roberts teaches the second and third mobile devices are relays between the first and fourth devices. Accordingly, we sustain the Examiner's rejection of claim 5. E. Claim 7 Appellants argue that Rothschild and Roberts fail to teach or suggest "wherein the probing signal includes a defined number of wireless local area networking hops from the first mobile communications device and wherein 8 Appeal2014-008680 Application 13/290,590 the second mobile communications device is in proximity with the first mobile communications device by being within the defined number of wireless local area networking hops," as recited in claim 7. Appeal Br. 23. More specifically, Appellants argue that Roberts fails to disclose or suggest a defined number of wireless local area networking hops from a first mobile communications device or a probing signal that includes a defined number of wireless local area networking hops from the first mobile communications device. Appeal Br. 24. Appellants further argue that Rothschild does not cure Roberts's deficiencies. See Appeal Br. 25. We are persuaded by Appellants' argument that Roberts fails to disclose or suggest a probing signal that includes a defined number of wireless local area networking hops. The Examiner's finding that the "close range" or "near field" communication teaches a defined number of wireless local area networking hops (Ans. 15-17) does not establish that Roberts teaches a probing signal that includes a defined number of wireless local area networking hops. Accordingly, we reverse the Examiner's rejection of claim 7. 9 Appeal2014-008680 Application 13/290,590 DECISION We affirm the Examiner's rejection of claims 1-3, 5---6, and 8-31 under 35 U.S.C. Â§ 103(a). We reverse the Examiner's rejection of claims 4 and 7 under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 10