Toyota Motor Engineering & Manufacturing North America, Inc.

Patent Trials and Appeals Board

Jan 27, 2022

2020005729 (P.T.A.B. Jan. 27, 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. 15/720,795 09/29/2017 Gary C. Owens 22562-2422/ TOY2017-269 PA 7024 96411 7590 01/27/2022 Dinsmore & Shohl LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 EXAMINER NGUYEN, NAM V ART UNIT PAPER NUMBER 2684 NOTIFICATION DATE DELIVERY MODE 01/27/2022 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): CincyPAIR@dinsmore.com elise.merkel@dinsmore.com jennifer.baker@dinsmore.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GARY C. OWENS and JUNE C. OWENS Appeal 2020-005729 Application 15/720,795 Technology Center 2600 Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-6, 8-11, 13-18, 20, and 21, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Toyota Motor Engineering & Manufacturing North America, Inc. Appeal Br. 1. Appeal 2020-005729 Application 15/720,795 2 CLAIMED SUBJECT MATTER Appellant’s Specification explains that the claimed subject matter relates to “a lockbox in a vehicle that utilizes a biometric identifier and a physiological state of a user to grant access to a storage area within the lockbox.” Spec. ¶ 1. Claim 1, reproduced below, with annotations indicating the disputed limitations, illustrates the claimed subject matter: 1. A method for securing an object in a vehicle comprising: sampling a physiological state of a user at various times to classify a predetermined undesired physiological state; receiving data related to a biometric identifier of the user; receiving data related to a current physiological state of the user; determining whether the biometric identifier of the user corresponds with an authorized user; determining whether the data associated with the current physiological state of the authenticated user corresponds to the predetermined undesired physiological state; in response to determining that the received data related to the biometric identifier corresponds with the authorized user and determining that the current physiological state of the user does not correspond to the predetermined undesired physiological state, granting access to a storage area of a biometric lockbox; and in response to at least one of the following: determining that the received data related to the biometric identifier does not correspond with an authorized user or determining that the current physiological state of the user corresponds to the predetermined undesired physiological state of the user, denying access to the storage area of the biometric lockbox. Appeal 2020-005729 Application 15/720,795 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Evans et al. (“Evans”) US 8,598,980 B2 Dec. 3, 2013 McNulty US 8,744,139 B2 June 3, 2014 Lang US 9,672,339 B2 June 6, 2017 Bacarella US 9,695,617 B2 July 4, 2017 REJECTIONS Claims 1-3, 8-10, and 14-18 stand rejected under 35 U.S.C. § 103 as unpatentable over McNulty, Lang, and Evans. Final Act. 8-12. Claims 4, 5, 11, 13, 20, and 21 stand rejected under 35 U.S.C. § 103 as unpatentable over McNulty, Lang, Evans, and Bacarella. Final Act. 12- 13. Claim 6 stands rejected under 35 U.S.C. § 103 as unpatentable over McNulty, Lang, Evans, and Scott. Final Act. 13-14. OPINION Claim 1 recites, inter alia: sampling a physiological state of a user at various times to classify a predetermined undesired physiological state; . . . receiving data related to a current physiological state of the user; . . . determining whether the data associated with the current physiological state of the authenticated user corresponds to the predetermined undesired physiological state[.] Appeal Br. 11. Appeal 2020-005729 Application 15/720,795 4 The Examiner finds the combination of McNulty and Lang teaches or suggests the aforementioned limitations. See Ans. 3-8; see also Final Act. 8-11. More specifically, the Examiner finds McNulty discloses a system configured to detect sweat pore information as a biometric for identification and proof of liveness, where the sweat pore data is compared with sweat pore data in a matching reference database to determine a degree of variation between the data, where a minimal variation indicates liveliness. See Final Act. 8 (citing McNulty 9:57-10:4, 10:13-30, Fig. 4); see also Ans. 3 (citing McNulty 9:57-10:4, 10:13-30). McNulty further discloses that certain variations in the detected sweat pores can also be used as an indicator of the individual’s emotional or physical state. See Final Act. 9 (citing McNulty 10:31-42, Fig. 4); see also Ans. 3-4. The Examiner further finds Lang discloses taking measurements of electro-physiological signals (e.g., EKG signals) of an individual for a given period of time, and combining (e.g., averaging) the measurements with previously stored measurements in order to calculate or update norm values. See Final Act. 9-10 (citing Lang 4:34-65, Fig. 2); see also Ans. 6-7 (citing Lang 4:34-65, Fig. 2). As further found by the Examiner, at the time of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify McNulty’s system to include Lang’s taking measurements and combining the measurements with previously stored measurements to update norm values to increase the accuracy of the sweat pore data detected in McNulty as taught by Lang. See Final Act. 10-11; see also Ans. 7. Appellant argues McNulty’s “liveness” is a determination of whether a biometric sample is from a live person (rather than an artificial source) and Appeal 2020-005729 Application 15/720,795 5 is not a determination of a predetermined physiological state. See App. Br. 6-7; see also Reply Br. 3-4. Appellant’s argument is not persuasive. As a threshold matter, Appellant does not persuasively explain how a determination whether an individual is alive is not a determination of a predetermined physiological state of the individual. However, even assuming arguendo that a determination of “liveness” is not a determination of a predetermined physiological state, McNulty additionally discloses that the determined variation in an individual’s sweat pores can be used “as an indicator of the individual’s emotional or physical state, which teaches or suggests the claimed predetermined physiological state. See McNulty 10:31-38. Appellant additionally argues Lang merely discloses monitoring biometric data and updating norm values if an outlier with certain conditions occurs which does not teach or suggest sampling a physiological state of a person to determine an undesirable (or desirable) physiological state. See App. Br. 7-8; see also Reply Br. 2-3. This argument is also not persuasive because it addresses Lang individually rather than the Examiner combination of McNulty and Lang. More specifically, the Examiner did not rely upon Lang for using measured physiological data (i.e., sweat pore data) as an indicator of an emotional or physical state (i.e., predetermined physiological state). Rather, the Examiner relied upon the combination of McNulty’s teaching of using measured physiological data as an indicator of an emotional or physical state with Lang’s sampling of biometrical data of an individual and updating norm values. See Ans. 3-8; see also Final Act. 8- 11. One cannot show non-obviousness by attacking references individually when the rejection is based on a combination of references. See In re Merck Appeal 2020-005729 Application 15/720,795 6 & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant further argues Evans merely teaches a system that grants access based on a confirmed identity and a confirmation that an individual is not under duress, and fails to teach or suggest sampling a physiological state of a user to classify a desired or undesired physiological state. See App. Br. 8. This argument is not persuasive as the Examiner relies upon the combination of McNulty and Lang, rather than Evans, for teaching the aforementioned feature. Accordingly, we sustain the Examiner’s rejection of claim 1. The Examiner rejects independent claims 8 and 15 on a similar basis as claim 1, and therefore, we also sustain the Examiner’s rejections of claims 8 and 15. We also sustain the rejections of dependent claims 2-6, 9-11, 13, 14, 16-18, 20, and 21, as they are not separately argued by Appellant. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1-3, 8-10, 14-18 103 McNulty, Lange, Evans 1-3, 8-10, 14-18 4, 5, 11, 13, 20, 21 103 McNulty, Lange, Evans, Bacarella 4, 5, 11, 13, 20, 21 6 103 McNulty, Lange, Evans, Scott 6 Overall Outcome 1-6, 8-11, 13-18, 20, 21 Appeal 2020-005729 Application 15/720,795 7 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED