Loralee Hajdu et al.

Patent Trials and Appeals Board

Jun 4, 2021

2021003338 (P.T.A.B. Jun. 4, 2021)

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.
16/193,611 11/16/2018 Loralee Hajdu HAJDU-00300 6023
27052 7590 06/04/2021
STEPHEN E. ZWEIG
224 VISTA DE SIERRA
LOS GATOS, CA 95030
EXAMINER
KELLEY, STEVEN SHAUN
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
06/04/2021 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):
stevezweig@comcast.net
szweig@patentassociate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LORALEE HAJDU and OLIVER HAJDU
___________

Appeal 2021-003338
Application 16/193,611
Technology Center 2600
____________

Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
JAMES B. ARPIN, Administrative Patent Judges.

ARPIN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 5, 7–10, 14–17, 21–23, and 30–35, all of the
pending claims.1, 2 Final Act. 2; Appeal Br. 26–30 (Claims App.).3

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies the real parties-in-interest as Loralee Hajdu and
Oliver Hajdu. Appeal Br. 3.
2 The Examiner misidentifies the rejected claims in the Final Action as
claims 1–5, 7–12, 14–19, 21–23 and 30–35. See Final Act. 2, 6. Because
Appellant’s contentions focus on the rejection of independent claim 1, this
error is harmless. See also infra note 6.
3 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed
January 25, 2021) and Reply Brief (“Reply Br.,” filed April 27, 2021); the
Final Office Action (“Final Act.,” mailed September 29, 2020) and the
Examiner’s Answer (“Ans.,” mailed April 5, 2021); and the Specification
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Claims 3, 4, 6, 11–13, 18–20, and 24–29 are cancelled. Appeal Br. 26–30
(Claims App.). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
The claimed devices relate generally to “automated systems . . . to
help prevent distracted driving.” Spec., 1:19–20.
As noted above, claims 1, 2, 5, 7–10, 14–17, 21–23, and 30–35 are
pending. Claims 1, 10, and 17 are independent. Appeal Br. 26 (claim 1), 27
(claim 10), 28–29 (claim 17) (Claims App.). Claims 2, 5, 7–9, and 34
depend directly from claim 1; claims 14–16, 30, 31, and 35 depend directly
from claim 10; and claims 21–23, 32, and 33 depend directly from claim 17.
Id. at 26–30.
Claim 1, reproduced below with disputed limitations emphasized, is
representative.
1. A handheld computerized device configured to help prevent
distracted driving, said handheld computerized device
comprising:
a Bluetooth4 transceiver, processor, graphical user
interface, memory, wireless cellular network transceiver, and
reply software;
wherein said handheld computerized device is any of a
smartphone and tablet computer device;
said handheld computerized device including at least one
reply message stored in said memory;

(“Spec.,” filed November 11, 2018). Rather than repeat the Examiner’s
findings and Appellant’s contentions in their entirety, we refer to these
documents.
4 “Bluetooth” is a trademark owned by Bluetooth SIG Inc.
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said handheld computerized device configured to
determine at least a Bluetooth peripheral device identification
code of a remote Bluetooth device;
said handheld computerized device configured to compare
said Bluetooth peripheral device identification code to at least
one known Bluetooth peripheral identification code to determine
that said remote Bluetooth device is a vehicle associated
Bluetooth device;
said handheld computerized device further configured so
that, based on said determination, said handheld computerized
device is configured to respond to at least one incoming cellular
network message with at least one reply message from said
memory.
Id. at 26 (emphases added).
REFERENCES AND REJECTION
The Examiner relies upon the following references:
Name5 Reference Published/Issued Filed
Riemer US 2010/0216509 A1 Aug. 26, 2010 Apr. 6, 2010
Olincy US 2011/0151842 A1 June 23, 2011 June 22, 2010
Gargi US 2013/0324081 A1 Dec. 5, 2013 Mar. 12, 2012
Tucker US 2013/0331034 A1 Dec. 12, 2013 Dec. 10, 2012
Czaja US 8,989,820 B2 Mar. 24, 2015 June 14, 2012
The Examiner rejects claims 1, 2, 5, 7–10, 14–17, 21–23, and 30–35
under 35 U.S.C. § 103 as obvious over the combined teachings of Riemer in
view of either one of Olincy or Czaja, and also Gargi and Tucker.6 Final
Act. 2–7.

5 All reference citations are to the first named inventor only.
6 Although the Examiner cites to 35 U.S.C. § 103(a) in rejecting the pending
claims (Final Act. 2), the earliest application from which Appellant claims
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We review the appealed rejection for error based upon the issues
identified by Appellant, and in light of the contentions and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). The Examiner and Appellant focus their findings and
contentions on the claim 1; so do we. See Final Act. 5–6; Appeal Br. 25.
Arguments not made are forfeited.7 Unless otherwise indicated, we adopt
the Examiner’s findings in the Final Office Action and the Answer as our
own and add any additional findings of fact for emphasis. We address the
rejection below.
ANALYSIS
Obviousness of Claim 1 over Riemer, Olincy or Czaja, Gargi, and Tucker
As noted above, the Examiner rejects claim 1 as obvious over the
combined teachings of Riemer, Olincy or Czaja, Gargi, and Tucker. Final
Act. 2–5. The Examiner finds Riemer teaches or suggests the majority of
the limitations of claim 1, but

priority was filed after March 16, 2013 (Spec., 1:3–13). Consequently, 35
U.S.C. § 103 as modified by the America Invents Act (“AIA”) governs the
examination of these claims. However, because neither the Examiner in
rejecting the pending claims nor Appellant in challenging that rejection
relies on differences between the pre-AIA and post-AIA statute, this error is
harmless. See also infra note 6.
7 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020)
(“We interpret the Patent Office to be arguing that Google’s failure to raise
its lexicography arguments, inadvertent or not, compels a finding of
forfeiture.”); 37 C.F.R. § 41.37(c)(1)(iv) (2018) (“Except as provided for in
§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the
appeal brief will be refused consideration by the Board for purposes of the
present appeal.”).
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Although Riemer describes Bluetooth connections, SMS
messages and conventional cellular functions, as Riemer does
not explicitly show the recited structures of smartphones such as
those explicitly listed as “a Bluetooth transceiver, processor,
graphical user interface, memory, wireless cellular network
transceiver, and reply software”, for completeness, either one of
Olincy or Czaja may be added.
Id. at 3 (emphasis added). In particular, the Examiner finds that either
Olincy’s Figures 1 and 2 or Czaja’s Figure 2 depict(s) the recited
smartphone structures and a person of ordinary skill in the relevant art would
have had reason to combine the teachings of either Olincy or Czaja with
those of Riemer to achieve this limitation. Id.; see also Olincy ¶¶ 5
(describing linking smartphone to General Motors’s Onstar™ handsfree
system), 42 (describing cellular transceivers), 54 (describing Bluetooth
transceivers), Fig. 3 (depicting touch screen controller); Czaja, 2:11–20
(describing a proximity detector, such as a Bluetooth transceiver).
The Examiner further finds Riemer and Olincy or Czaja together do
not teach or suggest, “said handheld computerized device configured to
determine at least a Bluetooth peripheral device identification code of a
remote Bluetooth device” and responding to an incoming cellular network
message “based on said determination.” Final Act. 3. Nevertheless, the
Examiner finds Gargi teaches or suggests,
a system which disables or changes texting modes of a mobile
device when the mobile device is detected to be connected to a
vehicle. See for example, [Gargi ¶¶ 21–22], which describe that
the device stores identifiers used to identify “secondary devices”,
and that the secondary Bluetooth devices may include a
Bluetooth vehicle communication system (and see [id. ¶¶ 59,
65]).
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Final Act. 4. “[A]s both Riemer and Gargi teach pairing the vehicle system
to the phone, and as Gargi teaches storing previous identifiers of secondary
devices (which explicitly include a Bluetooth vehicle system), which
‘identify the Bluetooth vehicle device’ and then automatically disable
features of the mobile device,” the Examiner finds a person of ordinary skill
in the relevant art would have had reason to combine Riemer’s and Gargi’s
teachings to achieve these limitations. Id. (citing Gargi, Fig. 3 (depicting a
table of enabled and disabled functions)); see Gargi ¶ 46 (“For yet another
example, stages may be added to determine velocity and/or acceleration
information, which may be used in combination with (at least) the proximity
of the primary user to vary the functionality of the device.” (emphasis
added)).
The Examiner finds, however, that Riemer, Olincy or Czaja, and
Gargi together do not teach or suggest, “said handheld computerized device
configured to . . . compare said Bluetooth peripheral device identification
code to at least one known Bluetooth peripheral identification code to
determine that said remote Bluetooth device is a vehicle associated
Bluetooth device,” as recited in claim 1. Final Act. 4 (italics added). In
particular, although “Gargi teaches that the mobile phone 400 receives
‘vehicle connection information’, as these teachings relate to passively
‘identified/determined vehicle connections’ (and not to actively determine or
compare a peripheral device code that indicates that the connection is to a
vehicle per se),” the Examiner relies on Tucker to teach or suggest such
active comparison. Id. at 4–5. Specifically, the Examiner finds,
Tucker teaches a mobile phone which pairs to peripheral
Bluetooth devices. As described in [Tucker ¶¶ 53, 54], Tucker
teaches that the peripheral devices are identified by codes or
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types such as “headset” or “car audio system[.]” These
[paragraphs] also teach that the codes used to identify the type of
Bluetooth connected device are at various levels of granularity.
For example, a determination of “car audio system” and/or
additional determinations of the make and model of the car which
includes the “car audio system[.]” [Tucker ¶ 54] also teaches
that the received Bluetooth codes are compared to the profile
information, where the stored profile information is “known
information[,]” as recited.
Final Act. 5; see id. at 8 (“Regarding the language of a ‘known code’ as
Tucker teaches using make/model number identification codes, these codes
must also be known to the paired device as they determine the type of
connected device such as a vehicle communication system.”).
[A]s Riemer/Gargi teach storing previous Bluetooth device
profiles and identifiers for a vehicle system and as Tucker
explicitly teaches identifying a peripheral Bluetooth vehicle
system by a device code, it would have been obvious to modify
the profiles and identifiers in the Riemer/Gargi combination to
include the known Bluetooth peripheral device code as in
Tucker, as Tucker teaches the conventionality and benefits of
identifying peripherals based on the code of the device
type/function, as is desired.
Id. at 5. Thus, the Examiner finds Riemer, Olincy or Czaja, Gargi, and
Tucker together teach or suggest all of the limitations of claim 1 and a
person of ordinary skill in the relevant art would have had reason to combine
their teachings to achieve the devices of claim 1.
Appellant contends that the Examiner errs in combining the teachings
of Riemer, Olincy or Czaja, Gargi, and Tucker for three reasons. Appeal
Br. 9–10, 24–25. Specifically, Appellant contends,
l. R[ie]mer and Gargi: unacceptable level of hindsight bias under
MPEP 2143.01 V and VI (modification makes inoperable), lack
of underlying support.
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2. Olincy and [Czaja]8 (and again R[ie]mer): MPEP 2141.02 VI
teaching away issues. All of the cited distracted driving prior art
relies on motion detection, while the applicants do not.
3. Tucker: MPEP 2141.02 II, distilling down to gist or thrust,
lack of underlying support.
Appeal Br. 10. For the reasons given below, we are not persuaded the
Examiner errs, and we sustain the Examiner’s rejection of claim 1.
1. Modification of Riemer by Gargi Makes Their Devices Inoperable
Appellant contends (a) the Examiner cites to portions of Riemer and
Gargi that are inconsistent when the references are considered as a whole,
and (b) the Examiner’s combination of the teachings of Riemer and Gargi
would render the devices described in these references inoperable or would
change their principles of operation. Appeal Br. 11. Further, given their
improper combination, Appellant contends the Examiner relies on
impermissible hindsight. Id. at 13–14. We disagree with Appellant.
a. Allegedly Inconsistent Operation of Riemer and Gargi and
Appellant’s Devices
Appellant contends, “R[ie]mer uses motion information to trigger
distracted driving protection (pre-stored reply messages) on a cell phone.
This can include motion information obtained over a Bluetooth connection
from Bluetooth equipped GPS sensors and Bluetooth motion sensors. (taught
by R[ie]mer’s Bluetooth GPS sensor in [¶ 88]).” Appeal Br. 11; see Riemer,
Abstract (“A portable device includes a safety feature that prevents some
forms of use when the device is moving. The device may detect its speed or

8 We understand Appellant’s reference to “Gargi” here to be a typographical
error. Appeal Br. 10. Appellant’s contentions on this reason are directed to
Olincy and Czaja. Id. at 19.
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movement, compare that to a threshold, and provide a response or blocking
function upon exceeding that threshold.” (emphases added)). Further,
Appellant acknowledges that Riemer discloses:
Other location based detection services can be used to determine
when the user is in a motor vehicle, including connection with a
cradle or charger, connection with a BLUETOOTH system in a
motor vehicle, connection with a personal navigation device,
activation of some other type of key or token mechanism
associated with the vehicle, or the like.
Riemer ¶ 36 (emphases added); see Appeal Br. 12; cf. Spec., 4:26–29
(“device dock”). Appellant contends, however, that when read in the
context of the surrounding paragraphs 35 and 37, Riemer’s disclosure in
paragraph 36 focuses on motion detection. Appeal Br. 12.
The Examiner responds,
as R[ie]mer uses the Bluetooth connection to the vehicle to detect
motion (then disabling texting functions on the device and enact
the auto-reply function) that R[ie]mer cannot be used to show the
claimed features (and/or be modified by Gargi) is not disputing
what R[ie]mer teaches. Therefore, these arguments are not
persuasive as R[ie]mer does teach the feature of Bluetooth
connection to a vehicle and enabling auto-replies for texting, as
recited. The fact the R[ie]mer also uses motion or speed
detection does not mean that R[ie]mer does not teach these
claimed features as set forth in the Office action.
Ans. 4 (emphasis added). Moreover, Appellant’s claimed devices “help
prevent distracted driving.” Appeal Br. 26 (Claims App.) (quoting preamble
of claim 1; emphasis added). In particular, the Specification explains,
Although the invention may be used in many situations, from a
public safety perspective, the invention is particularly useful for
preventing problems while operating any kind of machinery,
heavy machinery or even equipment such as in a factory or
assembly line, such as distracted driving and the like,
particularly with regards to preventing distractions.
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Spec., 4:22–25 (emphases added). The Specification further explains,
“[t]hus in some embodiments, the invention makes use of the fact that close
proximity to automobile associated Bluetooth peripherals is often an
excellent indicator that the user is driving, and thus should not be distracted
by various incoming messages.” Id. at 4:29–32 (emphasis added).
Appellant points to no limitations of claim 1 which prevent use of the
recited devices while the vehicle is in motion, e.g., while the vehicle is being
driven. To the extent that aforementioned situation is described in the
Specification, we do not read it into the claims. See Spec., 24:29–25:2
(“Other advantages listed were that the system was not [global positioning
system (GPS)] based or motion based . . . .”); but see id. at 4:22–25 (quoted
above). Consequently, we find nothing inconsistent in detecting the
presence of a smartphone or tablet in a vehicle while the vehicle is in
motion, i.e., is being driven, as described in Riemer and Gargi, and in the
use of device proximity as a proxy for detecting motion, as described in the
Specification, and while driving, as encompassed by claim 1.
Appellant also contends,
Gargi teaches that Bluetooth proximity activates device
functions. This is the exact opposite of the applicant’s teaching.
Gargi’s art reduces security when the user is close, and increases
it when the user is distant. Gargi only teaches disabling device
functions when the device is beyond a specified threshold from
the user (Gargi [0016]) (as established by wireless proximity).
Appeal Br. 14. However, Appellant interprets Gargi’s teachings too
narrowly.
The Examiner finds “Gargi teaches a system which disables or
changes texting modes of a mobile device when the mobile device is
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detected to be connected to a vehicle.” Final Act. 4 (emphasis added). In
particular, Gargi discloses:
For another example, more of fewer rows may be used: for
instance, a row may be added to define a profile for an access
state that is active when the device is within a specified distance
of (e.g. paired with) a specific Bluetooth® equipped car, such as
the primary user’s car. For such a profile, the primary user may
assume that family and other known persons would be using the
device when it is paired with the primary user’s car, and that the
primary user would be in the car, and so may enable most or all
of the device’s functionality.
Gargi ¶ 59 (emphases added); see id. ¶ 65 (“In some embodiments, the
memory 410 may include a program(s) 415 for altering or varying the
functions or capabilities of an electronic device based on the distance of the
primary user.” (emphasis added)). Further, as noted above, Gargi explains,
“[process] stages may be added to determine velocity and/or acceleration
information, which may be used in combination with (at least) the proximity
of the primary user to vary the functionality of the device.” Id. ¶ 46
(emphases added); see Ans. 5. A reference “must be considered for all that
it teaches to those of ordinary skill in the art, not just the embodiments
disclosed therein.” In re Arora, 369 Fed.Appx 120, 122 (Fed. Cir. 2010));
see In re Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001); In re
Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). Therefore, we are persuaded
that Gargi teaches or suggests varying, e.g., enabling, disabling, or changing,
device functionalities and capabilities based on vehicle velocity or
acceleration alone or in combination with device proximity.
The Examiner finds:
as both R[ie]mer and Gargi teach Bluetooth pairing to vehicles
and both also teach that speed/movement determinations are also
considered when disabling texting features, one of ordinary skill
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would be motivated to combine these references and based on
the similar desires and teachings of these references, the
operation of neither reference would be destroyed, as Appellant
contends.
Ans. 5–6. We agree with the Examiner, and Appellant does not persuade us
that the Examiner relies on inconsistent portions of Riemer and Gargi or that
the combined teachings of Riemer and Gargi would render either reference’s
devices inoperable or would change their principles of operation. Ans. 7.
b. Unfair Reading of Riemer and of Gargi
Although Riemer discloses that device proximity may be considered
in its devices (see Riemer ¶ 36), Appellant contends Riemer requires motion
detection in its devices, but Appellant does not (Appeal Br. 7). Thus,
Appellant contends the “Examiner’s suggestion to modify R[ie]mer to make
R[ie]mer trigger on mere proximity to a vehicle Bluetooth peripheral,
regardless of if the vehicle is in motion or not, renders R[ie]mer
unsatisfactory for R[ie]mer’s motion detection safety purpose,” because the
Examiner has not made a fair reading of Riemer. Id. at 16. We disagree
with Appellant.
As discussed above, although Riemer discloses using both motion and
proximity to trigger Riemer’s safety policies (Riemer ¶¶ 35–37), Gargi also
discloses devices in which both motion and proximity may be detected
(Gargi ¶ 46). A fair reading of both references does not suggest that the
combination of their teachings would render either inoperative or change
either’s principle of operation.
Similarly, referring to one of Gargi’s disclosed embodiments,
Appellant contends Gargi teaches increasing functionality when a primary
device is within a proximity threshold to a secondary device and reducing
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functionality when the primary device is not within a proximity threshold to
the secondary device. See Appeal Br. 13–14 (citing Gargi ¶ 16, Fig. 1), 17
(quoting Gargi’s claim 1). However, Appellant’s reliance on this single
embodiment is misplaced. See Ans. 6–7.
As noted above, a reference “must be considered for all that it teaches
to those of ordinary skill in the art, not just the embodiments disclosed
therein.” Arora, 369 Fed.Appx. at 122; see Inland Steel Co., 265 F.3d at
1361; Fritch, 972 F.2d at 1264. In view of the foregoing discussion, we are
persuaded the Examiner relies on fair readings of Riemer and of Gargi, each
as a whole.
c. Impermissible Hindsight
Appellant also contends the Examiner relies on impermissible
hindsight when combining the teachings of Riemer and Gargi. See Appeal
Br. 13–14; Reply Br. 2. Nevertheless,
Any judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of
ordinary skill in the art at the time the claimed invention was
made and does not include knowledge gleaned only from
applicant’s disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395, (CCPA 1971). Here, for the
reasons given above, we are persuaded the Examiner relies only on
knowledge that was within the level of a person of ordinary skill in the
relevant art at the time of the claimed invention, and, thus, the Examiner’s
combination of the teachings of Riemer and Gargi is not based on
impermissible hindsight. Ans. 9.
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We are not persuaded Appellant shows that the Examiner’s
combination of the teachings of Riemer and Gargi relies on inconsistent
portions of those references when they are considered as a whole or renders
the devices described in those references inoperable or would change their
principles of operation. Consequently, we do not find Appellant’s first
reason persuasive of Examiner error.
2. Olincy, Czaja, and Riemer Teach Away from Appellant’s Devices
Appellant next contends, “the prior art would have led a person of
ordinary skill towards motion [detection] methods, and not towards making
an association between generic Bluetooth devices and distracted driving.”
Appeal Br. 19. In particular, Appellant asserts:
Due to the applicant’s more general perspective, they viewed the
problem differently. Other cited distracted driving prior art
(R[ie]mer, Olincy, and Czaja) viewed the issue as restricting
smartphone distractions while the smartphone was in motion. By
contrast, the applicants viewed the problem as limiting
smartphone distractions while the smartphone was close to
Bluetooth peripherals associated with hazardous equipment.
Thus, as will be discussed, the applicants came up with a more
general solution to smartphone call distractions that, unlike
other distracted driving prior art, did not rely on motion
detection. In the present application, the applicants have focused
their more general solution entirely on the specific problem of
distracted driving. However, as will be discussed, one advantage
of the applicant’s more general approach over the cited prior art
is that the applicant’s more general techniques can work with a
broader range of driving situations (e.g., while stopped at a
traffic light). Applicant’s more general approach can also
operate with a more comprehensive range of Bluetooth
peripheral devices (not merely vehicle purpose-built Bluetooth
devices, but Bluetooth devices in general).
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Id. at 7 (some italics added). Thus, Appellant contends Olincy, Czaja, and
Riemer teach away from the claimed devices. Id. at 19.
Nevertheless, Appellant’s claim 1 is intended “to help prevent
distracted driving” and does not prohibit detecting motion. See Appeal
Br. 26 (Claims App.) (emphasis added). As noted above, the Examiner
finds, “[t]he fact the R[ie]mer also uses motion or speed detection does not
mean that R[ie]mer does not teach these claimed features as set forth in the
Office action.” Ans. 4 (emphasis added). Riemer’s more specific solution
to the distracted driving problem does not teach away from Appellant’s more
general solution to that problem. “‘A reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.’ A
reference does not teach away, however, if it merely expresses a general
preference for an alternative invention but does not ‘criticize, discredit, or
otherwise discourage’ investigation into the invention claimed.” DePuy
Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed.
Cir. 2009) (citations omitted; emphases added). Here, Riemer may express a
preference for relying on motion detection and proximity to solve the
problem of distracted driving, but Riemer does not “criticize, discredit, or
otherwise discourage” the approach broadly recited in Appellant’s claim 1.
As with Riemer, Olincy and Czaja disclose devices that determine
motion, as well as proximity. See Appeal Br. 19–21 (citing Olincy,
Abstract, Claim 1; Czaja, Abstract); see also Czaja, 2:11–20 (“The status of
the vehicle operator may be obtained implicitly through the interaction with
the user . . . or explicitly by associating the position of the terminal with the
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proximity detector, such as the NFC or Bluetooth transceiver; or by using
the mobile terminal camera.”). Nevertheless, for the same reasons discussed
above with respect to Riemer, neither Olincy nor Czaja teaches away from
Appellant’s more general solution to the common problem.
For the reasons given above, Appellant does not persuade us that
Riemer, Olincy, or Czaja teaches away from Appellant’s devices, as recited
in claim 1. Consequently, we do not find Appellant’s second reason
persuasive of Examiner error.
3. Improper Distillation of Tucker’s Gist or Thrust
Appellant further contends,
[the] Examiner argues that “Tucker explicitly teaches identifying
a peripheral Bluetooth vehicle system by a device code.”
However, as will be discussed, the applicants will argue that the
examiner’s assertions lack underlying support. Further, the
applicants will argue that the examiner has ignored important
claim limitations and is instead attempting to distill the
applicant's invention down to a “gist or thrust.”
Appeal Br. 21. More particularly, Appellant contends, “Tucker does not
discuss distracted driving. Tucker lacks the concept of using Bluetooth
hands-free devices for distracted driving purposes.” Id. at 22 (citing Tucker
¶¶ 39, 48 (discussing “driving a car” and hands-free operation of Bluetooth
devices)). Specifically, Appellant contends that Tucker does not use the
term “code” in the paragraphs cited by the Examiner (see Final Act. 5 (citing
Tucker ¶¶ 53, 54)) and
Even if Tucker had used the term “code,” which he does not, not
all “codes” are alike. For example, as the applicants discuss,
although all Bluetooth devices will provide a Bluetooth
identification code, different Bluetooth devices will also produce
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other types of data (see [Spec.,] page 7, the entire page, also see
independent claims 10 and 17).
By calling everything a “code” and then refusing to distinguish
between different kinds of “codes,” the examiner is also
inappropriately attempting to distill the applicant’s art down to a
“gist or thrust,” which is against MPEP 2141.02 II
(Appeal Br. 23 (emphasis added)).
The Examiner denies any attempt to distill Tucker down to its “gist or
thrust.” Ans. 10. Moreover, the Examiner asserts that its findings regarding
Tucker, as well as the other applied references, are properly supported. Id.
We agree.
As noted above, the Examiner finds Tucker discloses a mobile phone
that pairs to peripheral Bluetooth devices. Final Act. 5. The Examiner
further finds Tucker teaches or suggests “that the codes used to identify the
type of Bluetooth connected device are at various levels of granularity” and
“the received Bluetooth codes are compared to the profile information,
where the stored profile information is ‘known information[,]’ as recited.”
Id. (citing Tucker ¶¶ 53, 54). In particular, referring to its Figure 4, Tucker
discloses:
In [step] 408, a device type of the Bluetooth device may
be determined. The device type may be a device type at any of
multiple levels of granularity. . . . As a further possibility, more
specific device type information may be determined, such as the
manufacturer and/or model of the Bluetooth device. For
example, if the Bluetooth device is a car audio system, the device
type may include the type (e.g., make, model) of car.
The Bluetooth device type may be determined during
(and/or based on) a device discovery process, e.g., based on
information (e.g., profile information) provided by the Bluetooth
device.
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Tucker ¶¶ 53, 54 (emphases added). Although Appellant correctly notes that
Tucker does not use the term “codes,” Appellant acknowledges:
Applicant’s more general solution is based on the insight
([Spec.,] page 3, paragraph 2-4) that there is a predictable context
in which a user’s smartphones connect to specific Bluetooth
peripheral devices. The applicant’s solution is also based (as per
the Bluetooth specifications, also disclosed by applicants) on the
understanding that all Bluetooth peripheral devices may be
identified by at least their Bluetooth peripheral device
identification code.
Appeal Br. 8 (italics added); see id. at 23 (quoted above); see also Gargi
¶ 27 (describing determining and registering a distinct digital identity code
for a Bluetooth accessory). “[I]t is proper to take into account not only
specific teachings of the reference but also the inferences which one skilled
in the art would reasonably be expected to draw therefrom.” In re Preda,
401 F.2d 825, 826 (CCPA 1968). Thus, we are persuaded that a person of
ordinary skill in the relevant art would have understood Tucker’s teachings
regarding the various methods of identifying a device type, including a
“device discovery process, e.g., based on information (e.g., profile
information) provided by the Bluetooth device,” to include the use of known
Bluetooth peripheral device identification codes. See Final Act. 8; Tucker
¶¶ 53, 54.
Moreover, Tucker envisions the problem of distracted driving and the
desirability of hands-free devices. But see Appeal Br. 22 (quoted above).
Tucker discloses, “[t]here are, however, many situations in which it is
desirable to make a call in which one’s hands are not free to operate one’s
wireless device, such as while driving a car. In such and other situations, the
use of a Bluetooth device for hands-free operation is common.” Tucker
¶ 39.
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Appellant does not persuade us that the Examiner attempts to distill
Tucker down to its “gist or thrust,” and we find that the Examiner
adequately supports its findings regarding Tucker, as well as the other
applied references. Ans. 10. Consequently, we do not find Appellant’s third
reason persuasive of Examiner error.
On this record, we are not persuaded that the Examiner errs in
rejecting claim 1 as obvious over the combined teachings of Riemer, Olincy
or Czaja, Gargi, and Tucker, and we sustain that rejection. Further,
Appellant does not challenge the obviousness rejection of claims 2, 5, 7–10,
14–17, 21–23, or 30–35, separately; and, therefore, we also sustain the
rejection of those claims. See Appeal Br. 25 (“Applicants further
respectfully submit that all of the other presently pending claims, regardless
of if they are independent or dependent, all contain the limitations of
claim 1.”).
DECISIONS
1. The Examiner does not err in rejecting claims 1, 2, 5, 7–10, 14–17,
21–23, and 30–35 as obvious over the combined teachings of Riemer,
Olincy or Czaja, Gargi, and Tucker.
2. Thus, on this record, claims 1, 2, 5, 7–10, 14–17, 21–23, and 30–35
are not patentable.
CONCLUSION
We affirm the Examiner’s rejection of claims 1, 2, 5, 7–10, 14–17,
21–23, and 30–35.
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20

In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5, 7–10,
14–17, 21–
23, 30–35
103 Riemer, Olincy, Czaja,
Gargi, Tucker
1, 2, 5, 7–10,
14–17, 21–
23, 30–35

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2018).
AFFIRMED