Fitbit, Inc.Download PDFPatent Trials and Appeals BoardSep 27, 20212020004511 (P.T.A.B. Sep. 27, 2021) Copy Citation 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. 14/938,704 11/11/2015 Barry Burton GGLF-21400CON39 5363 100462 7590 09/27/2021 Dority & Manning P.A. and Google LLC Post Office Box 1449 Greenville, SC 29602 EXAMINER KHAN, OMER S ART UNIT PAPER NUMBER 2683 NOTIFICATION DATE DELIVERY MODE 09/27/2021 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): usdocketing@dority-manning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BARRY BURTON, HEIKO PANTHER, JAMES PARK, ERIC FRIEDMAN, SHELTEN YUEN, CHRISTINE BRUMBACK, and TIMOTHY ROBERTS Appeal 2020-004511 Application 14/938,704 Technology Center 2600 ____________ Before LARRY J. HUME, NORMAN H. BEAMER, and MICHAEL T. CYGAN, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–5 and 8–18.1 Claims 6 and 7 are cancelled. We have jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Fitbit, Inc. as the real party in interest. (Appeal Br. 3.) Appeal 2020-004511 Application 14/938,704 2 THE INVENTION Appellant’s disclosed and claimed invention is directed to displaying monitored activity. (Abstr.) Independent claim 1 is representative: 1. A method operable by a processor of an activity tracking device, the method comprising: capturing motion data associated with activity of a user by the activity tracking device, the motion data quantified into one or more metrics associated with the activity of the user; associating the activity tracking device with a computing device over a wireless data connection, the computing device having an activity application; sending, during a first time period, first motion data of the motion data at a first data transfer rate to the computing device in response to a determination that (i) the activity application is open and (ii) the activity tracking device is within a proximity distance of the computing device, wherein the first motion data is used for substantial real-time display of a metric, of the one or more metrics, by the activity application of the computing device; and sending, during one or more second time periods, second motion data of the motion data at a second data transfer rate higher than the first data transfer rate and to the computing device as background updates in response to a determination that (i) the activity application is closed and (ii) the activity tracking device is within the proximity distance of the computing device. (Appeal Br. 21 (Claim Appx.)) Appeal 2020-004511 Application 14/938,704 3 REJECTIONS The Examiner rejected claims 1, 4, 5, 8–10, 12, 13, and 15 under pre- AIA 35 U.S.C. § 103 as being unpatentable over Rahman (US 2012/0316406 A1, pub. Dec. 13, 2012), Adelman (US 2013/0173658 A1, pub. July 4, 2013), and Waris (US 2011/0126185 A1, pub. May 26, 2011). (Final Act. 4–21.) The Examiner rejected claims 2, 14, 17, and 18 under pre-AIA 35 U.S.C. § 103 as being unpatentable over Rahman, Adelman, Waris, and Meschter (US 2012/0251079 A1, pub. Oct. 4, 2012). (Final Act. 21–24.) The Examiner rejected claim 3 under pre-AIA 35 U.S.C. § 103 as being unpatentable over Rahman, Adelman, Waris, and Vincent (US 2009/0048070 A1), pub. Feb. 19, 2009). (Final Act. 24–26.) The Examiner rejected claims 11 and 16 under pre-AIA 35 U.S.C. § 103 as being unpatentable over Rahman, Adelman, Waris, and Allen (US 9,183,738 B1), iss. Nov. 10, 2015). (Final Act. 26–30.) ISSUE ON APPEAL Appellant’s arguments present the following dispositive issue:2 Whether the Examiner erred in finding that the combination of Rahman, Adelman, and Waris taught or suggested the independent claim 1 limitation, “a second data transfer rate higher than the first data transfer 2 Rather than reiterate the arguments of Appellant and the legal conclusions and findings of the Examiner, we refer to the Appeal Brief, filed Feb. 4, 2020 (“Appeal. Br.”); the Reply Brief, filed May 28, 2020 (“Reply Br.”); the Final Office Action, mailed Aug. 2, 2019 (“Final Act.”); and the Examiner’s Answer, mailed Apr. 7, 2020 (“Ans.”) for the respective details. Appeal 2020-004511 Application 14/938,704 4 rate,” and the commensurate limitations in independent claims 4, 5, and 9. (Appeal Br. 12–17.) ANALYSIS In rejecting the independent claims over the combination of Rahman, Adelman, and Waris, the Examiner relies on Waris as teaching or suggesting the higher data rate aspect of the requirement of “sending . . . second motion data . . . at a second data transfer rate higher than the first data transfer rate . . . in response to a determination that . . . the activity application is closed . . . .” (Final Act. 8–10; Ans. 7–9.) The “first data rate” referred to is a rate that applies when, inter alia, the activity application is open. (Appeal Br. 21 (Claim Appx.)) Appellant argues, and we agree that Waris discloses sending data at a lower rate when the application is closed, compared to the rate when the application is open, which is the opposite of what the independent claims require. (Appeal Br. 14.) The Examiner responds by citing the disclosure in Waris of adjusting the data rate “based on, for instance, how closely the UEs [user equipments] 101a-101n are socially connected,” and based on location factors. (Ans. 9, 11–12.) The Examiner reasons that these adjustments can result in the Waris system sending data at a higher rate when the application is closed, compared to the rate when the application is open, in accord with the claims. (Id.) Appellant argues, and we agree, that these adjustments are responsive to social media status, or location, and are not “in response to a determination that . . . the activity application is closed,” as required. (Reply Br. 5–6.) We also agree with Appellant’s argument that one of ordinary skill Appeal 2020-004511 Application 14/938,704 5 would not have been motivated to incorporate the teachings of Waris with respect to social media status and location, because: The User Equipment (UE) that the Examiner cites to would, in the context of a wearable fitness device, typically be a wearable device like Rahman's wearable device and a cell phone or other computing device carried by the user. It is unclear how “social connectedness” is relevant to communications between two devices that are owned and used by the same person. No person of ordinary skill in the art would think there was any benefit at all to incorporating Waris’s social connectedness paradigm into Rahman's activity tracker device for the purposes of conveying data from the activity tracker device to a computing device carried by the same user. (Reply Br. 6.) Accordingly, we do not sustain the Examiner’s rejection of independent claims 1, 4, 5, and 9 as obvious over Rahman, Adelman, and Waris. We also do not sustain the obviousness rejections of claims 8, 10, 12, 13, and 15 over Rahman, Adelman, and Waris, of claims 2, 14, 17, and 18 over Rahman, Adelman, Waris, and Meschter, of claim 3 over Rahman, Adelman, Waris, and Vincent, and of claims 11 and 16 over Rahman, Adelman, Waris, and Allen, which rejections are not argued separately with particularity. (Appeal Br. 18–19.) Appeal 2020-004511 Application 14/938,704 6 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 5, 8– 10, 12, 13, 15 103 Rahman, Adelman, Waris 1, 4, 5, 8– 10, 12, 13, 15 2, 14, 17, 18 103 Rahman, Adelman, Waris, Meschter 2, 14, 17, 18 3 103 Rahman, Adelman, Waris, Vincent 3 11, 16 103 Rahman, Adelman, Waris, Allen 11, 16 Overall Outcome 1–5, 8–18 REVERSED Copy with citationCopy as parenthetical citation