Pietro Buttolo et al.

Patent Trials and Appeals Board

Nov 20, 2019

15076978 - (D) (P.T.A.B. Nov. 20, 2019)

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.
15/076,978 03/22/2016 Pietro BUTTOLO 83625529 2791
28395 7590 11/20/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
SYED, NABIL H
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
11/20/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PIETRO BUTTOLO, JAMES STEWART RANKIN II,
STEPHEN RONALD TOKISH,
and
STUART C. SALTER
____________________

Appeal 2019-000184
Application 15/076,978
Technology Center 2600
____________________

Before JOSEPH L. DIXON, HUNG H. BUI, and JON M. JURGOVAN,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a system and method “for wireless
vehicular access device authentication” based on “an acknowledgement

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. The real party in interest is Ford Global Technologies, LLC.
Appeal Br. 2.
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following transmission of a proper recognition code [among a plurality of
time-stamped recognition codes],” “a time-delay between transmission of
the proper recognition code and [the] acknowledgement receipt,” a “key-
code [compared] to a code exchanged with the device when the device was
previously present within a vehicle,” and “verification of the key-code and
[a] received signal strength of multiple wireless signals [successively
received from the device] matching a predefined pattern of increasing signal
strength, providing vehicle system access to the device.” (Spec. ¶ 1;
Abstract.)
Claim 12, reproduced below, is illustrative of the claimed subject
matter:
12. A system comprising:
a mobile-device processor configured to:
wirelessly transmit an access request to a vehicle based
on the mobile device being within a predetermined proximity to
the vehicle, including authentication code request;
wirelessly receive a series of authentication codes,
including a proper code and a plurality of false, invalid codes,
from the vehicle; and
respond with an acknowledgment to the vehicle
responsive to determining the proper code has been received.
(Supp. App. Br. 3 (Claims Appendix).)2

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Khan et al. US 2014/0285319 A1 Sept. 25, 2014

2 The citation is to Appellant’s Supplemental Appeal Brief dated May 8,
2018, submitting a correct copy of the claims on appeal.
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(“Khan”)

Povolny US 2015/0022314 A1 Jan. 22, 2015

Reiser US 2014/0266594 A1 Sept. 18, 2014

Puetz US 5,897,598 Apr. 27, 1999

Masudaya US 2003/0001723 A1 Jan. 2, 2003

Howarter et al. US 2010/0075656 A1 Mar. 25, 2010
(“Howarter”)

Oesterling US 2013/0271273 A1 Oct. 17, 2013

Nagai et al. US 2004/0085189 A1 May 6, 2004
(“Nagai”)

REJECTIONS
The Examiner made the following rejections:
Claims 12 and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny.
Claim 13 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Khan in view of Povolny, and further in view of Reiser.
Claim 18 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Khan in view of Povolny, and further in view of Puetz.
Claims 1–3 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny, and further in view of
Masudaya.
Claims 4 and 5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny, and further in view of
Masudaya and Puetz.
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Claims 6–8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny, and further in view of
Masudaya and Howarter.
Claims 15 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny, and further in view of
Howarter.
Claim 17 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Khan in view of Povolny, and further in view of Howarter and Puetz.
Claims 9–11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Povolny, and further in view of
Masudaya and Oesterling.
Claims 19 and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Khan in view of Nagai, and further in view of Masudaya,
Puetz, and Howarter.

ANALYSIS
With respect to independent claims 1, 12, and 19, Appellant argues
the claims together. (App. Br. 6–7.) Based on Appellant’s arguments and
our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we select independent
claim 12 as the representative claim for the group and will address
Appellant’s arguments presented in both Appeal Brief and Reply Brief. See
37 C.F.R. § 41.37(c)(1)(iv) (2017). Dependent claims 2–11, 13–18, and 20
stand or fall with claim 12. See 37 C.F.R. § 41.37(c)(1)(iv).
With respect to representative independent claim 12, Appellant
contends that “claim 12 recites th[e] determination [of ‘measured signal
strengths of the multiple wireless signals matching a predefined pattern of
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increasing signal strength’] as occurring at the mobile device,” and none of
the cited references teach or suggest such determination. (App. Br. 6–8.) In
particular, Appellant argues although Howarter “may teach or suggest a
determination using signal strength,” Howarter does not “remotely teach or
suggest the claimed ‘measured signal strength . . . matching a predefined
pattern of increasing signal strength’” and does not teach “this determination
occurring at the mobile device.” (Id. at 7–8.) In the Reply Brief, Appellant
additionally argues “the prior art fails to teach the claimed ‘condition vehicle
system access on the time delay being below a predefined threshold.’”
(Reply Br. 2.)
Appellant’s arguments are not persuasive because the arguments are
not commensurate in scope with the express language of representative
claim 12, which does not recite conditioning vehicle system access on the
time delay being below a predefined threshold or measured signal strengths
of multiple wireless signals matching a predefined pattern of increasing
signal strength. As the Examiner explains, Appellant’s claim set on appeal
is the September 29, 2017 claim set in which claim 12 does not recite a time
delay or signal strengths matching a predefined pattern. (Ans. 4.)3 Thus,
Appellant’s arguments fail because the arguments are not commensurate
with the scope of claim 12. See In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (“[A]ppellant’s arguments fail from the outset because . . . they are
not based on limitations appearing in the claims.”); see also In re Hiniker

3 On March 16, 2018, Appellant attempted to amend claim 12 to include,
inter alia, the feature of “measured signal strength matching a predefined
pattern of increasing signal strengths.” (See Amendment dated March 16,
2018). However, the Examiner’s Advisory Action dated March 28, 2018,
did not enter Appellant’s March 16 Amendment. (See Advisory Act. 1–2.)
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Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not
commensurate with the claim scope and are therefore unpersuasive.”). As a
result, Appellant’s arguments do not show error in the Examiner’s factual
findings or conclusion of obviousness of representative independent claim
12.
We therefore sustain the Examiner’s § 103 rejection of representative
independent claim 12, grouped independent claims 1 and 19, and grouped
dependent claims 2–11, 13–18, and 20.

CONCLUSIONS
The Examiner did not err in rejecting claims 1–20 based upon
obviousness.

DECISION
For the above reasons, we AFFIRM the Examiner’s obviousness
rejections of claims 1–20 under 35 U.S.C. § 103.

In summary:
Claims
Rejected
35 U.S.C.§  Basis Affirmed Reversed
12, 14 103  Khan, Povolny 12, 14
13 103 Khan, Povolny,
Reiser
13
18 103 Khan, Povolny,
Puetz
18
1–3 103 Khan, Povolny,
Masudaya
1–3
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Claims
Rejected
35 U.S.C.§  Basis Affirmed Reversed
4, 5 103 Khan, Povolny,
Masudaya,
Puetz
4, 5
6–8 103 Khan, Povolny,
Masudaya,
Howarter
6–8
15, 16 103 Khan, Povolny,
Howarter
15, 16
17 103 Khan, Povolny,
Howarter, Puetz
17
9–11 103 Khan, Povolny,
Masudaya,
Oesterling
9–11
19, 20 103 Khan, Nagai,
Masudaya,
Puetz, Howarter
19, 20
Overall Outcome 1–20

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) (2016).

AFFIRMED