GOGO LLC

Patent Trials and Appeals Board

Mar 22, 2022

2021001710 (P.T.A.B. Mar. 22, 2022)

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. 16/374,359 04/03/2019 Bryan Adrian Lauer 32045/50406-CON1 6012 4743 7590 03/22/2022 MARSHALL, GERSTEIN & BORUN LLP 233 SOUTH WACKER DRIVE 6300 WILLIS TOWER CHICAGO, IL 60606-6357 EXAMINER TRAORE, FATOUMATA ART UNIT PAPER NUMBER 2436 NOTIFICATION DATE DELIVERY MODE 03/22/2022 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): mgbdocket@marshallip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte BRYAN ADRIAN LAUER ____________________ Appeal 2021-001710 Application 16/374,359 Technology Center 2400 ____________________ Before MARC S. HOFF, JOHNNY A. KUMAR, and LARRY J. HUME, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks review under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 4-11, and 14-20. We have jurisdiction over the appeal of these claims pursuant to 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a) (2017). Appellant identifies GOGO, LLC as the real party in interest (Appeal Br. 3). Appeal 2021-001710 Application 16/374,359 2 STATEMENT OF CASE An understanding of the invention can be derived from a reading of exemplary claim 11, which is reproduced below (bracketed matter added): 11. A system for averting unsanctioned access to a network on- board a vehicle, the network being an on-board network, and the system comprising a portable computing device having: [L1] one or more wireless interfaces; [L2] one or more processors; and [L3] one or more non-transitory, tangible memory storing computer-executable instructions thereon that, when executed by the one or more processors, cause the portable computing device to: [L4] detect that the portable computing device is on-board the vehicle based on at least one condition that is contextual to the vehicle; [L5] detect multiple conditions associated with the portable computing device, the multiple conditions including at least one condition generated external to the portable computing device; [L6] evaluate at least one of a timing or a weighting of the detected multiple conditions to thereby determine a confidence score, the confidence score indicative of a likelihood of the portable computing device being operated, held, or carried by one or more persons on-board the vehicle; [L7] grant wireless access of the portable computing device to the on-board network when the confidence score is above a threshold; and [L8] deny wireless access of the portable computing device to the on-board network when the confidence score is below the threshold. Appeal Br. A-2, A-3 (Claims App.). Appeal 2021-001710 Application 16/374,359 3 REJECTIONS AND REFERENCES2 Claims 1, 4-9, 11, and 14-19 are rejected under 35 U.S.C. § 103 as being unpatentable over Veen (US 2010/0201478 A1, Aug. 12, 2010) in view of Ricci ’739 (US 2014/0310739 A1, Oct. 16, 2014). Claims 10 and 20 are rejected under 35 U.S.C. § 103 as being unpatentable over Veen, in view of Ricci ’739, in further view of Ricci ’870 (US 2014/0309870 A1, Oct. 16, 2014). Appellant’s Contentions Appellant contends that the Examiner erred in rejecting independent claims 1 and 11 under 35 U.S.C. § 103(a) because: The signals generated by Ricci’s vehicle interior sensors (e.g., camera, motion, weight, biometric, audio, etc.) may be indicative that a person is being carried by the vehicle, and others of the multiple factors listed by the Examiner’s Answer such as the aforementioned wireless signals, signal strengths, triangulation, etc. may be indicative of the computation device being carried by the vehicle. Additionally, as taught by Ricci, [0699], these two types of factors, when combined and evaluated, may allow Ricci’s device discovery daemon to determine “a likelihood or probability that the computational device is located within the passenger compartment.” However, Appellant points out that Ricci does not contemplate these factors as also indicating a likelihood or a probability that the computation device (which is being carried by the vehicle within the passenger compartment) is actually also being carried by the person who is being carried by the vehicle. Reply Br. 3. 2 Throughout this Decision we refer to the Appeal Brief filed Aug. 26, 2020 (“Appeal Br.”); Reply Brief filed Jan. 7, 2021 (“Reply Br.”); Final Office Action mailed Apr. 7, 2020 (“Final Act.”); and the Examiner’s Answer mailed Nov. 9, 2020 (“Ans.”). Appeal 2021-001710 Application 16/374,359 4 [O]ne of ordinary skill in the art would not be motivated by the teaching, suggestion, or motivation proffered by the Examiner’s Answer to add the evaluating of multiple factors, granting of wireless access, and denying of wireless access functionalities allegedly performed by the device discovery daemon of Ricci to the portable computing device of Veen, as the proffered teaching, suggestion, or motivation proffered by the Examiner’s Answer would be moot and unachievable by the modified Veen device. Reply Br. 4. Moreover, due to Veen’s modified portable computing device necessarily having wireless access in order to receive the sensor data and other factors from vehicle sensors and devices, Veen’s communicatively connected, modified portable computing would expose the vehicle network to possible attack even before the moot decision of granting or denying wireless access was reached. Reply Br. 5. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions that the Examiner has erred. See Appeal Br. 10-15; Reply Br. 2-6. Further, we have reviewed the Examiner’s response regarding representative claim 11 to the arguments presented by Appellant. We disagree with Appellant’s arguments. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief. Ans. 4-12. We concur with the conclusions reached by the Examiner. We highlight and address specific findings and arguments for emphasis as follows. The Examiner finds, and we agree, that Veen teaches limitations L1 through L5 of claim 11 (Final Act. 5-6; Ans. 5-11; Veen ¶¶ 16-19, 21-26, Appeal 2021-001710 Application 16/374,359 5 Figs. 1, 2), and Ricci ’739 teaches limitations L6 through L8 (Final Act.7-9; Ans. 5-11; Ricci ’739 ¶¶ 6, 46-48, 692-712; see also Figs. 7A, 7B). As to Appellant’s above contentions, we are not persuaded the Examiner erred. Appellant’s arguments essentially are premised on a “physical” or “bodily” incorporation of limitations of one reference into the other. This is not the standard of obviousness. See In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Moreover, “[a] reference must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect.” EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (emphasis omitted). Furthermore, an ordinarily skilled artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). “[T]he 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.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appeal 2021-001710 Application 16/374,359 6 In particular, the Examiner concludes, and we agree: [I]t would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the disclosure of Veen et al with the additional features of Ricci et al in order to provide a vehicle ecosystem, which can integrate both physical and mental comforts, while seamlessly communicating with current electronic devices to result in a totally intuitive and immersive user experience, as suggested Ricci et al par.6 [and also to provide a high level of vehicle security and block successfully intrusive attacks]. Final Act. 8-9; Ans. 11. The Examiner further finds, and we agree: Ricci et al specifically teaches a level of confidence can be assigned by the device discovery daemon to the computational device indicating a likelihood or probability that the computational device is located within the passenger compartment. This level of confidence can be based on consideration and analysis of multiple of the factors identified above. When multiple factors indicate that the user is within the passenger compartment, a higher likelihood is assigned to that determination. Ans. 8. Thus, the Examiner has set forth why an ordinarily skilled artisan would have been motivated to combine the teachings of Veen and Ricci ’739 to arrive at the claimed invention. Final Act. 5-9. Appellant has not presented any persuasive evidence or argument why the ordinarily skilled artisan would not have possessed the knowledge and skills to know how to combine the prior-art references. As such, we find that one of ordinary skill in the art would have recognized how to adjust Veen to accommodate the teachings from Ricci ’739. Moreover, Appellant has not provided persuasive evidence that combining the respective teachings of the references would have been Appeal 2021-001710 Application 16/374,359 7 “uniquely challenging or difficult for one of ordinary skill in the art,” or that such a combination would have “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant provided any objective evidence of secondary considerations, which, as our reviewing court explains, “operate[] as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Accordingly, Appellant has not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner’s reading of the contested limitations on the cited prior art, or in the proper combinability of the prior-art references as suggested by the Examiner. Therefore, we sustain the Examiner’s obviousness rejection of independent claims 1 and 11, and their respective dependent claims not argued separately. As to Appellant’s contention that the Final Action dated April 7, 2020 should have been designated as a Non-Final Action (Appeal Br. 15-17), this is a petitionable matter. See MPEP § 706.07(c) (“Final Rejection, Premature. Any question as to prematureness of a final rejection should be raised, if at all, while the application is still pending before the primary examiner. This is purely a question of practice, wholly distinct from the tenability of the rejection. It may therefore not be advanced as a ground for appeal, or made the basis of complaint before the Patent Trial and Appeal Board. It is reviewable by petition under 37 CFR 1.181. See MPEP § 1002.02(c).”). Therefore, this issue is not before us. Accordingly, Appellant has not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner’s reading of the contested limitations on the cited prior art, or in the proper combinability Appeal 2021-001710 Application 16/374,359 8 of the prior art references as suggested by the Examiner. Therefore, we sustain the Examiner’s obviousness rejections of claims 1, 4-11, and 14-20. CONCLUSION We affirm the Examiner’s decision to reject claims 1, 4-11, and 14-20. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C § Reference(s)/Basis Affirmed Reversed 1, 4-9, 11, 14-19 103 Veen, Ricci ’739 1, 4-9, 11, 14-19 10, 20 103 Veen, Ricci ’739, Ricci ’870 10, 20 Overall Outcome 1, 4-11, 14-20 TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 41.50(f). AFFIRMED