Ex Parte Xydis

Patent Trial and Appeal Board

Dec 6, 2012

09997299 (P.T.A.B. Dec. 6, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
09/997,299 11/29/2001 Thomas G. Xydis 65,116-038 4354
27305 7590 12/06/2012
HOWARD & HOWARD ATTORNEYS PLLC
450 West Fourth Street
Royal Oak, MI 48067
EXAMINER
PICH, PONNOREAY
ART UNIT PAPER NUMBER
2615
MAIL DATE DELIVERY MODE
12/06/2012 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 THOMAS G. XYDIS
____________________

Appeal 2009-0124041
Application 09/997,299
Technology Center 2100
____________________

Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and LARRY J.
HUME, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Ensure Technologies, Inc. (App. Br. 1.)

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 4-12, 14, and 15. Claims 3 and 13 have been
canceled. (App. Br. 2.)2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.
Appellant’s Invention
Appellant invented a method for providing a user with secure access
to a wireless network when the user is within a designated working space
(14). In particular, upon receiving at an access point (20) a first and second
radio frequency (RF) signals of a predetermined strength from a first
electronic device (18) (e.g. laptop, cell phone) and a second electronic
device (12) (e.g. a badge, token, ID card) carried by the user (16) to verify
his identity, the user’s privileges information is retrieved from a user’s
database to provide corresponding network access to the user’s first
electronic device. However, the user’s access is disabled if the RF signal of
any of the two electronic devices falls below the specified threshold, and it is
not re-enabled until the strength of the RF signals are restored to at least the
specified threshold. (Spec. Fig. 1, ¶¶ [0021]-[0025].)

2 Appellant’s Brief filed on August 23, 2007 indicates that claims 1, 2, 4-12,
14, and 15 are pending in this application, but only claims 1 and 10 are being
appealed. (App. Br. 2, “Status of Claims”). However, by arguing rejected
claims 2, 4-9, 11, 12, 14, and 15 along with independent claims 1 and 10,
Appellant has manifested an intent to appeal all the pending claims. We
therefore consider claims 1, 2, 4-12, 14, and 15 as being on appeal.
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Illustrative Claim
Independent claim 1 further illustrates the invention as follows:
1. A method of securing access to a network (13), the
network (13) including at least one first electronic device (18)
and at least one access point (20), from a user (16) having a
second electronic device (12), said method comprising the steps
of:
transmitting a radio frequency (RF) signal (48) from the
at least one of first electronic device (18);
detecting the RF signal (48) from the at least one of first
electronic device (18) with the at least one of access point (20);
transmitting a radio frequency (RF) signal (50) from the
second electronic device (12) including user information to
identify the user (16);
detecting the RF signal (50) from the second electronic
device (12) with the same at least one of access point (20);
retrieving user privileges for the user (16) from a user
database based upon the user information;
enabling the at least one of first electronic device (18) to
allow the user (16) having the second electronic device (12) to
access the network (13) and the at least one of first electronic
device (18) in response to the at least one of access point (20)
detecting the RF signals (48, 50) from both the at least one of
first (18) and the second electronic devices (12) and based upon
the user privileges; and
disabling the at least one of first electronic device (18) in
response to either of the RF signals (48, 50) from the at least
one of first and second electronic devices (18, 12) no longer
being detected by the at least one of access point (20) to prevent
access to the network (13) and the first electronic device (18);
and
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re-enabling the at least one of first electronic device (18)
in response to the at least one of access point (20) detecting the
RF signals (48, 50) from the at least one of first (18) and the
second electronic devices (12) based upon the user privileges.

Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
Meier US 5,673,031 Sep. 30, 1997
Curtis US 5,963,599 Oct. 5, 1999
Stewart US 5,969,678 Oct. 19, 1999
He US 6,088,451 Jul. 11, 2000
Van Bokhorst US 6,192,230 B1 Feb. 20, 2001
Hanson US 6,546,425 B1 Apr. 8, 2003
Bahl US 6,629,151 B1 Sep. 30, 2003
Porter US 6,745,013 B1 Jun. 1, 2004

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claim 1 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Curtis, He, and Hanson.
2. Claims 2, 4, 5, 7, 8, and 15 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Curtis, He, Hanson,
and Meier.
3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Curtis, He, Hanson, Meier,
and Van Bokhorst.
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4. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Curtis, He, Hanson, Meier,
and Stewart.
5. Claims 10-12, and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Bahl, He, Porter, and
Hanson.

ANALYSIS
We consider Appellant’s arguments seriatim as they are presented in
the Appeal Brief, pages 6-24.

Claims 1, 2, 4-9, and 15
Dispositive Issue 1: Has Appellant shown the Examiner erred in
finding that the combination of Curtis, He, and Hanson teaches or suggests
enabling a user’s electronic device in response to detecting RF signals from
both the user’s first and second electronic devices, as recited claim 1?
Appellant argues that the Examiner erred in finding that cited
references are properly combined to teach or suggest the disputed limitations
emphasized above. (App. Br. 8-17.) In particular, Appellant argues that
Curtis merely discloses computers connecting to a wireless network (Id. at
10.) Similarly, Appellant argues that He discloses protecting network
elements against unauthorized usage by requiring the user to enter
authentication log-in credentials before being given network access. (Id. at
11-12.) Further, Appellant argues that Hanson discloses providing
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continuous connection between mobile and stationary computing devices.
(Id. at 12.) Appellant argues, however, that the combined disclosures of the
cited references do not teach enabling a user’s electronic device in response
to detecting RF signals from both the user’s first and second electronic
devices, and based upon the user privileges. (Id.) Additionally, Appellant
argues that the Examiner has not provided sufficient rationale to combine the
references in as proposed by Examiner. (Id. at 13-17.)
In response, the Examiner finds that, because the claim does not
define in what manner the first electronic device is enabled, Curtis’
disclosure of an access point that, upon receiving RF signals from two
electronic devices, allows the devices to communicate with each other
teaches enabling an electronic device upon receiving RF signals from both
devices. (Ans. 19-20.) Further, the Examiner finds that He’s disclosure of
requiring the user to enter log-in authentication information before the user
can be granted access to the network complements Curtis by teaching
enabling the network access based on the user privileges. (Id. at 20.)
Additionally, the Examiner finds that Hanson’s disclosure of disabling a
user’s network connection when the user’s device is out-of-range, and re-
connecting the user to the network when the user’s device is back within
range further complements Curtis by teaching disabling the user’s access
when one of the RF signals falls below the threshold and re-enable the
access the user’s device is back within the threshold. (Id. at 21-22.)
Consequently, the Examiner submits that the disclosures of the cited
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references are properly combined to teach the disputed limitations. (Id. at
23-27.)
Figure 5a of Curtis is reproduced below:

Figure 5a illustrates a block diagram of a wireless local area network.
On the record before us, we do not agree with the Examiner’s findings
and ultimate conclusion of obviousness. In particular, while Figure 5a of
Curtis depicts two mobile terminals (1W and nW) emitting RF signals to a
single access point (16), we find no disclosure in Curtis to suggest that those
two stations must both be emitting RF signals to the access point as a
prerequisite for one of them to access the network. Rather, the portion of
Curtis upon which the Examiner relies indicates that, irrespective of whether
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the other mobile terminal emits a signal or not, it suffices that an authorized
mobile terminal emits the RF signal to the access point in order for the
emitting mobile terminal to be enabled. (Col. 7, l. 65- col. 8, l. 12.) Thus,
while the Examiner correctly finds that Curtis teaches enabling a mobile
terminal, the Examiner incorrectly finds that such enabling is predicated
upon both mobile terminals emitting RF signals to the access point. We note
that neither Hanson nor He cures the noted deficiencies. Because Appellant
has shown at least one error in the Examiner’s rejection, we need not reach
the Appellant’s other arguments. It therefore follows that Appellant has
shown error in the Examiner’s rejection of claim 1.
Because dependent claims 2, 4-9, and 15 also recite the disputed
limitations above, we find that Appellant has similarly shown error in the
Examiner’s rejection of those claims.

Claims 10-12, and 14
Dispositive Issue 2: Has Appellant shown the Examiner erred in
finding that the disclosures of Bahl, He, Hanson, and Porter are properly
combined to teach or suggest enabling a first electronic device in response
to detecting the RF signal strength of a second electronic device exceeds
predetermined threshold, and based upon the user privileges to access the
network, otherwise disabling the user’s electronic device, as recited claim
10?
Appellant argues that the proffered combination of references does
not teach or suggest the disputed limitations emphasized above. In
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particular, Appellant argues that Bahl’s disclosure of maintaining a
connection with a specific base station teaches away from the subject of the
invention which, in contrast, allows access based on two access points
measuring the signal strength above a threshold. (App. Br. 18.) Further,
Appellant argues that Porter’s disclosure of measuring a signal strength at
access points does not cure Bahl’s deficiencies. (Id. at 20.) Additionally,
Appellant argues that the Examiner employs impermissible hindsight to
combine Bahl with He, Porter, and Hanson in an attempt to improperly
reconstruct the claimed invention. (Id. at 21-23.) We do not agree with
Appellant.
Figure 3 of Bahl is reproduced below:
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Figure 3 shows a block diagram of an exemplary computer network.
Bahl discloses a plurality of base stations (124, 128) that allow
wireless communication between two mobile terminals (120, 130). In
particular, the signal strength emitted by the mobile terminal (120) gets
weaker as the mobile terminal (120) is moved away from the base station
(124) associated therewith and gets stronger as it is moved closer to another
base station (128). The base station that measures a signal strength emitted
by the mobile terminal (120) exceeding a particular threshold is selected to
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thereby allow the terminal (120) to communicate with the other terminal
(130). (Col. 8, ll. 49-63.)
We agree with the Examiner that Bahl’s disclosure of switching from
one base station to another as the strength of the signal emitted by the
mobile terminal fluctuates teaches using a dynamic access point that
maintains communication between the mobile devices, and therefore does
not teach away from Appellant’s invention. (Ans. 28-29.) We further agree
with the Examiner that, by enabling the two mobile terminals to
communicate via the base station that registers the signal strength exceeding
a predetermined threshold, Bahl teaches enabling an electronic device to
access the network based on the signal strength of another electronic device
communicating therewith. (Id. at 29-30.) Additionally, we agree with the
Examiner that the disclosures He, Hanson, and Porter complement Bahl’s
teaching to yield the invention. (Id. at 31-34.)
Next, regarding the lack of logical reason to combine argument, we
note that U.S. Supreme Court has held that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int'l Co. v. Teleflex, Inc., 550
U.S. 398, 416 (2007). The Court further instructs that:
[o]ften it will be necessary for a court to look to interrelated
teachings of multiple patents; . . . and the background
knowledge possessed by a person having ordinary skill in the
art, all in order to determine whether there was an apparent
reason for combining the known elements in a the fashion
claimed by the patent at issue.

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Id. at 418.
Additionally, the Court instructs that:
“rejections on obviousness grounds cannot be sustained by
mere conclusory statements. Instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”…. [H]owever, the
analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

Id. (citation omitted).
First, we find that the ordinarily skilled artisan, being a creative
individual would have been able to fit the teachings of the cited references
together like pieces of a puzzle to predictably result in the disputed
limitations. That is, the cited references disclose prior art elements that
perform their ordinary functions to predictably result in a system that
enables and dynamically maintains wireless communication between
authorized mobile terminals provided that the signal strength emitted by one
of the terminals exceeds a predetermined threshold as measured by a
plurality of base stations.
Further, as prescribed by the controlling case law, while it is often
necessary for an Examiner to identify a reason for combining the familiar
elements obtained from the prior art in establishing a prima facie case of
obviousness, the identification of such a reason is not a sine qua non
requirement. So long as the Examiner provides an articulated reasoning
with some rational underpinning to substantiate the obviousness rejection,
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such a conclusion is proper. In this case, the Examiner provides more than
just a mere conclusory statement. The Examiner notes that at the time of the
claimed invention, an ordinarily skilled artisan would have been motivated
to combine the cited teachings of He, Hanson, and Porter with Bahl’s to (1)
increase security on the wireless network, (2) allow devices to adjust their
transmission power, and (3) disable or re-enable devices as the signal as
fluctuates. (Ans. 16.) In our view, such statements suffice as an articulated
reason with a rational underpinning to support the cited combination. As
noted above, the case law allows the Examiner to look to the state of the
prior art, including the knowledge of the ordinarily skilled artisan to arrive at
such a reason for combining the known elements of the prior art.
Consequently, the Examiner’s reliance upon the cited references in order to
arrive at an articulated reason with a rational underpinning to support the
proffered combination is proper. For these same reasons, Appellant’s
argument that the combination is improper is not persuasive. It follows that
Appellant has not shown error in the Examiner’s rejection of claim 10.
Claims 11, 12, and 14 not separately argued fall with claim 10. See 37
C.F.R. § 41.37(c)(1)(vii).

DECISION
We reverse the Examiner’s rejection of claims 1, 2, 4-9, and 15.
However, we affirm the Examiner’s rejection of claims 10-12, and 14 as set
forth above.
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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-IN-PART

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