Ex Parte Vacon et al

Patent Trial and Appeal BoardAug 8, 2013

10807005 (P.T.A.B. Aug. 8, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/807,005 03/23/2004 Gary Vacon 27592-01423-US 2816 30678 7590 08/09/2013 NOVAK DRUCE CONNOLLY BOVE + QUIGG LLP 1875 EYE STREET, N.W. SUITE 1100 WASHINGTON, DC 20006 EXAMINER TURCHEN, JAMES R ART UNIT PAPER NUMBER 2439 MAIL DATE DELIVERY MODE 08/09/2013 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 GARY VACON and FLOYD BACKES ____________ Appeal 2011-003955 Application 10/807,005 Technology Center 2400 ____________ Before MAHSHID D. SAADAT, BARBARA A. BENOIT, and MATTHEW R. CLEMENTS, Administrative Patent Judges. CLEMENTS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Appellants’ invention relates to a method and apparatus for securing communication in a wireless network by authenticating new members of the network based on their ability to be physically proximate to at least one Appeal 2011-003955 Application 10/807,005 2 other member of the network. See generally Abstract. Claim 1 is illustrative with disputed limitations in italics: 1. A method for securing communications between members of a network including the steps of: receiving a signal from a device attempting to become a member of the network, the device being within communication range; determining whether to authenticate the device as a member of the network by verifying that the device is physically proximate to at least one member of the network, where being physically proximate is indicated by a distance that is less than maximum communication range of the network, including, responsive to a user action at the device and at a first member, determining a distance between the first member and the device; and if the device is not physically proximate, refusing to authenticate of the device. REFERENCES Brown US 6,377,792 B1 Apr. 23, 2002 Ammon US 2003/0217289 A1 Nov. 20, 2003 McCorkle US 2004/0203600 A1 Oct. 14, 2004 (filed Dec. 13, 2002) Olson US 6,928,295 B2 Aug. 9, 2005 (filed Jan. 30, 2002) H. Zhun and C. Hongyi, A Truly Random Number Generator Based on Thermal Noise, Proc. IEEE Int. Conf. ASIC, pp. 862–864 2001(hereinafter “Zhun”). Nancy Cam-Winget et al., IEEE 802.11i Overview, December 2002, available at http://csrc.nist.gov/wireless/S10_802.11i%20Overviewjw1.pdf (hereinafter “Cam-Winget”). Appeal 2011-003955 Application 10/807,005 3 THE REJECTIONS 1. Claims 1-7, 9, and 11-14 stand rejected under 35 U.S.C. § 102(e) as anticipated by McCorkle. Ans. 3-6. 2. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCorkle and Brown. Ans. 7. 3. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCorkle and Olson. Ans. 7-8. 4. Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCorkle and Ammon. Ans. 8. 5. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCorkle and Zhun. Ans. 8-9. 6. Claims 15-22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCorkle and Cam-Winget. Ans. 9-11. THE ANTICIPATION REJECTION The Examiner finds that McCorkle discloses every recited element of claim 1. Ans. 3-4. Appellants argue that McCorkle does not disclose “responsive to a user action at the device and at a first member, determining a distance between the first member and the device” because McCorkle’s distance calculation is not “responsive to a user action at the device” and to another user action “at a first member.” App. Br. 6-7. Appellants add that McCorkle’s “authentication device 960” does not disclose the recited “a first member” because it is not a member of the network. Reply Br. 7-8. Appeal 2011-003955 Application 10/807,005 4 ISSUE Under § 102, has the Examiner erred in rejecting claim 1 by finding that McCorkle discloses “responsive to a user action at the device and at a first member, determining a distance between the first member and the device”? ANALYSIS On this record, we are unpersuaded of error in the Examiner’s anticipation rejection of claim 1. Relying upon Figure 13 of McCorkle, Appellants argue that the distance calculation of step 1315 is not responsive to a user action. App. Br. 6. To the contrary, the distance determination in step 1315 is responsive to user actions performed in step 1305. Ans. 11-12 (citing McCorkle ¶¶ 0191-0193). Specifically, McCorkle states: As shown in FIG. 13, the process begins when the user physically enables communications in a secure manner. (Step 1305) This can include (1) activating an authentication enable element to put a new device 910 in a mode to receive the authentication data for a limited time; (2) activating an authentication element within the limited time to instruct an authentication device 960 to start the authentication process; and (3) making certain that the authentication device 960 and the new device 910 are close enough to make this process work. McCorkle ¶ 0191 (emphasis added). To the extent Appellants intend to argue that step 1315 is not “responsive to” step 1305 because of intervening step 1310, such an argument is not commensurate with the scope of the claims. The term “responsive to” is not used in the Specification, and the plain meaning of the term does not preclude the performance of an intervening step, such as step 1310. As a result, we are not persuaded that McCorkle’s distance determination is not “responsive to” a user action. Appeal 2011-003955 Application 10/807,005 5 We also are not persuaded by Appellants’ argument that McCorkle discloses only one user action, not two user actions as required by the claim. App. Br. 7. To the contrary, and as pointed out by the Examiner, paragraph 0191 of McCorkle describes two user actions: (1) activating an authentication enable element on a new device (i.e., “a user action at the device”); and (2) activating an authentication enable element on authentication device 960 (i.e., “a user action . . . at a first member”). Ans. 11-12. We also are not persuaded by Appellants’ argument that authentication device 960 is not the recited “first member” because it is a token shuttle, not a member of the network. Reply Br. 8. As an initial matter, McCorkle describes the token shuttle as communicating wirelessly with the new device. McCorkle ¶¶ 0117, 0119 (“The token shuttle 740 in this embodiment can wirelessly pass an authentication token throughout a limited range of operation 750.”) (emphasis added). Even if the token shuttle were not a member of the wireless network, the token shuttle is merely one embodiment of an authentication device. McCorkle ¶ 0131 (“authentication device 960, e.g., a token shuttle, . . .”) (emphasis added). We observe that McCorkle discloses alternate embodiments of authentication device 960, which are members of the network. See, e.g., McCorkle Fig. 10, ¶ 0147 (“The antenna 1010 and the transceiver 1020 serve to wirelessly communicate data between the authentication device 1000 and other devices. This is done using any known wireless data transmission scheme, and so will not be described in detail.”); see also McCorkle ¶¶ 0025, 0144-0146, 0148-0155. McCorkle further discloses that the authentication device also has a “normal operation” in which it Appeal 2011-003955 Application 10/807,005 6 communicates over the network using normal power and antenna sensitivity. McCorkle ¶ 0064 (“Under normal operation, the authentication device 510 has a normal effective transmission range 512 based on its normal transmission power and a normal level of antenna sensitivity.”) (emphasis added). CONCLUSION The Examiner did not err in rejecting claim 1 under § 102 as anticipated by McCorkle. We therefore sustain the Examiner’s rejection of (1) independent claim 1 and (2) the remaining dependent claims, not separately argued. DECISION The Examiner’s decision rejecting claims 1-22 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED gvw