Ex Parte Thibadeau et al

Patent Trial and Appeal BoardMar 23, 2018

14330986 (P.T.A.B. Mar. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/330,986 07/14/2014 124966 7590 WT & Antique Books, Inc 106 Pinedale Springs Way Cary, NC 27511 03/27/2018 FIRST NAMED INVENTOR Robert H. Thibadeau 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. 2063-00lC 9718 EXAMINER POWERS, WILLIAMS ART UNIT PAPER NUMBER 2434 NOTIFICATION DATE DELIVERY MODE 03/27/2018 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): patents@wt-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT H. THIBADEAU, SCOTT C. MARKS, and ROBERT THIBADEAU JR. Appeal2017-009167 Application 14/330,986 1 Technology Center 2400 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and DAVID J. CUTITTA II, Administrative Patent Judges. GALLIGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction Appellants appeal under 35 U.S.C. Â§ 134(a) from a final rejection of claims 35, 36, 38--48, and 50-58, which are all of the claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b ). Claims 1-34, 37, and 49 are cancelled. 2 WeAFFIRM. 3 1 According to Appellants, the real party in interest is Antique Books, Inc. Br. 2. 2 Claims 35 and 47 were amended, after the final rejection, to incorporate the limitations of claims 37 and 49, respectively. Br. 8, 15. 3 Our Decision refers to Appellants' Appeal Brief filed August 11, 2016 ("Br."); Examiner's Answer mailed December 7, 2016 ("Ans."); Advisory Appeal2017-009167 Application 14/330,986 STATEMENT OF THE CASE Claims on Appeal Claims 35 and 47 are independent claims. Claim 35 is reproduced below: 35. A device for a proof of knowledge authentication, the device comprising: a display; an input subsystem; one or more processors; and memory containing instructions executable by the one or more processors whereby the device is operable to: receive a first input via the input subsystem, wherein the first input comprises a selection of a motion picture for the proof of knowledge wherein a predetermined sequence of sounds is associated with the selected motion picture; play back the motion picture on the display wherein the playback of the motion picture includes the playback of the predetermined sequence of sounds associated with the motion picture; receive a second input via the input subsystem, wherein the second input comprises one or more timing selections with respect to the playback of the motion picture; and authenticate the proof of knowledge based on the one or more timing selections. Action mailed May 2, 2016 (Adv. Act.); and Final Office Action mailed February 4, 2016 ("Final Act."). 2 Appeal2017-009167 Application 14/330,986 Blonder Kirov ski Liu Rogers Alexander Moshenberg Thibadeau References us 5,559,961 US 2004/0010721 Al US 2009/0160800 Al US 2009/0313693 Al US 2010/0043062 Al US 8,155,622 Bl US 8,813,183 B2 Examiner's Rejections Sept. 24, 1996 Jan. 15,2004 June 25, 2009 Dec. 17, 2009 Feb. 18,2010 Apr. 10, 2012 Aug. 19, 2014 Claims 35, 36, 38--48, and 50-58 stand rejected under the judicially- created doctrine of non-statutory obviousness-type double patenting over claims 1-18 of Thibadeau. Ans. 14--16. Claims 35, 36, 38, and 39 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, and Liu. Ans. 4--6. Claims 40--44 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, Liu, and Kirovski. Ans. 7-8. Claims 45 and 46 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, Liu, Kirovski, and Rogers. Ans. 8-9. Claims 47, 48, 50, and 51 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, and Alexander. Ans. 9-12. Claims 52-56 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, Alexander, and Kirovski. Ans. 12-13. Claims 57 and 58 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, Alexander, Kirovski, and Rogers. Ans. 13- 14. 3 Appeal2017-009167 Application 14/330,986 Our review in this appeal is limited only to the above rejections and the issues raised by Appellants. Arguments not made are waived. See MPEP Â§ 1205.02; 37 C.F.R. Â§Â§ 41.37(c)(l)(iv) and 41.39(a)(l). ANALYSIS Obviousness-Type Double Patenting Claims 35, 36, 38--48, and 50-58 are rejected on the ground of non- statutory obviousness-type double patenting over claims 1-18 of Thibadeau. Ans. 14--16. Appellants do not challenge the merits of the double patenting rejection (see Br. 17); accordingly, we summarily sustain the Examiner's rejection of claims 35, 36, 38--48, and 50-58. Obviousness "timing selections" Appellants contend the Examiner erred in finding Moshenberg teaches selecting "a motion picture for the proof of knowledge" and "receiv[ing] a second input via the input subsystem, wherein the second input comprises one or more timing selections with respect to the playback of the motion picture," as recited in claim 35. Br. 10-12. Specifically, Appellants argue "Moshenberg teaches selecting the correct video from a set of videos as the proof of knowledge" but not a "second input compris [ing] one or more timing selections with respect to the playback of the motion picture." Br. 11. We are not persuaded because Appellants argue Moshenberg does not teach the disputed limitation (Br. 11) when the Examiner finds Blonder teaches the disputed limitation. In particular, the Examiner finds (Ans. 4, 4 Appeal2017-009167 Application 14/330,986 1 7), and we agree, Blonder teaches a "password may additionally require that particular tap regions be tapped at particular times. For example, the graphical image could be a moving image, such as a short cartoon, requiring the user to click and tap at right locations at the right time." Blonder 5: 10- 15. That is, Blonder teaches a password based on a moving image, i.e., "a motion picture for the proof of knowledge," based on tapping the moving image at the right time, i.e., "input compris[ing] one or more timing selections with respect to the playback of the motion picture." Appellants' argument that Moshenberg does not teach timing selections during motion picture playback (Br. 11) does not address the Examiner's findings that Blonder teaches timing selections during motion picture playback (Ans. 4, 17). Accordingly, we are not persuaded the Examiner erred in finding Blonder teaches selecting "a motion picture for the proof of knowledge" and "receiv[ing] a second input via the input subsystem, wherein the second input comprises one or more timing selections with respect to the playback of the motion picture," as recited in claim 35. "sounds associated with the motion picture" Appellants contend the Examiner erred in finding Liu teaches "play[ing] back the motion picture on the display wherein the playback of the motion picture includes the playback of the predetermined sequence of sounds associated with the motion picture," as recited in claim 35. Br. 12- 14. Specifically, Appellants argue Liu's audio prompts "must come before a password is entered or it is meaningless. Such an audio prompt before the password is entered and not even related to a motion picture cannot teach 5 Appeal2017-009167 Application 14/330,986 the claimed" limitation. Br. 13. Appellants further argue that interpreting Liu's audio prompts as a "predetermined sequence of sounds associated with the motion picture" is "unreasonably broad and is inconsistent with the specification." Br. 14. We are not persuaded. As discussed supra, we agree with the Examiner's finding that Blonder teaches a moving image password, i.e., a "motion picture for the proof of knowledge." Ans. 4, 17 (citing Blonder 5:10-15). We further agree with the Examiner's finding that Blonder teaches "prompts to assist the user in entering passwords." Ans. 17 (citing Blonder 4:59---67). Additionally, the Examiner finds, and we agree, Liu teaches audio prompts for password entry (Ans. 5, 17), e.g., a "sound made by a speaker such as 'please input the password."' Liu i-f 45. Appellants' argument that Liu's audio prompts do not have a "relationship" with motion picture playback (Br. 12-13) does not address the Examiner's combination of Blonder and Liu. The Examiner combines Blonder, teaching moving image passwords and prompts to enter a password, with Liu, teaching audio password prompts, to teach a "predetermined sequence of sounds associated with the motion picture" as recited by the claim. Ans. 5. In particular, the Examiner's combination results in "sound prompts [that] are played in conjunction with the authentication scheme." Ans. 5. Further, Blonder teaches password prompts occur after Blonder' s password image is displayed and during the password entry sequence, so those password prompts are associated with Blonder's image password scheme. Blonder 4:34--35 ("PASSWD 16 retrieves and displays on display 15 the stored password image 400"), 4:59- 66 (if "entry of the password has failed ... prompt[] the user to try again"), 6 Appeal2017-009167 Application 14/330,986 Fig. 2. Accordingly, we agree with the Examiner's finding that the combination of Blonder and Liu results in a "prompt [that] is played during the moving image password scheme," teaching a "predetermined sequence of sounds associated with the motion picture." Ans. 18 (emphasis added). Furthermore, Appellants' argument that the Examiner's interpretation of Liu's password prompt is "unreasonably broad and is inconsistent with the specification" because the claimed "predetermined sequence of sounds is played back at the same time as the motion picture selected for the proof of knowledge" (Br. 14) is not persuasive because, as discussed above, the Examiner finds the combination of Blonder and Liu teaches the disputed limitation. Further, to the extent Appellants argue that Liu's audio password prompt does not teach a "predetermined sequence of sounds," that argument is not persuasive. The Specification states that "the term 'predetermined sequence of sounds' means an order of sounds in succession and/or in combination, and in temporal relationships; music; and/or vocal, spoken, instrumental and/or mechanical sounds in temporal relationships having rhythm, melody and/or harmony." Spec. 5: 12-15. Accordingly, Liu's prompt to "please input the password" (Liu i-f 45) is a "predetermined sequence of sounds" because it is both "an order of sounds in succession" and a "vocal" sound, as described by the Specification. Accordingly, we are not persuaded the Examiner fails to show the combination of Blonder and Liu teaches or suggests the limitations as recited in independent claim 35. Independent claim 47 is rejected over the combination of Blonder, Liu, and Alexander; Appellants contend "[ c ]laim 4 7 includes features similar to those of claim 3 5" and do not provide any separate arguments for independent claim 4 7. Br. 16. 7 Appeal2017-009167 Application 14/330,986 Additionally, Appellants do not provide separate arguments for claims 36, 38--46, 48, and 50-58, which depend from claims 35 or 47. Br. 15-17. Therefore, we sustain the rejections of claims 35, 36, 38--48, 50-58 under 35 U.S.C. Â§ 103(a). DECISION We affirm the Examiner's decision rejecting claims 35, 36, 38--48, and 50-58 under the judicially-created doctrine of non-statutory obviousness-type double patenting over claims 1-18 of Thibadeau. We affirm the Examiner's decision rejecting claims 35, 36, 38, and 39 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, and Liu. We affirm the Examiner's decision rejecting claims 40--44 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, Liu, and Kirovski. We affirm the Examiner's decision rejecting claims 45 and 46 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Moshenberg, Liu, Kirovski, and Rogers. We affirm the Examiner's decision rejecting claims 47, 48, 50, and 51 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, and Alexander. We affirm the Examiner's decision rejecting claims 52-56 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, Alexander, and Kirov ski. We affirm the Examiner's decision rejecting claims 57 and 58 under 35 U.S.C. Â§ 103(a) as being unpatentable over Blonder, Liu, Alexander, Kirovski, and Rogers. 8 Appeal2017-009167 Application 14/330,986 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). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 9