Ex Parte Ashley et al

Patent Trials and Appeals Board

Jun 10, 2019

14014071 - (D) (P.T.A.B. Jun. 10, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/014,071 08/29/2013
33717 7590 06/12/2019
GREENBERG TRAURIG LLP (GT)
C/0: GREENBERG TRAURIG
INTELLECTUAL PROPERTY DEPARTMENT
77 WEST WACKER DRIVE, SUITE 3100
CHICAGO, IL 60601
FIRST NAMED INVENTOR
James Ashley JR.
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
081221-012101 1036
EXAMINER
SCHEUNEMANN, RICHARD N
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
06/12/2019 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):
gtipmail@ gtlaw .com
clairt@gtlaw.com
cadanoc@gtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES ASHLEY JR., PATRICK MOONEY, PATRICK
BLATTNER, and JAMES ASHLEY SR.
Appeal2018-003103
Application 14/014,071 1
Technology Center 3600
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 51-53, 57, 58, and 60-69, which constitute all the
claims pending in this application. Claims 1-50, 54--56, and 59 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest identified by Appellants is Wirelesswerx
International, Inc. App. Br. 2.
Appeal2018-003103
Application 14/014, 701
STATEMENT OF THE CASE
Introduction
Appellants' described and claimed invention relates generally to
monitoring wireless devices, messaging by wireless communication between
wireless devices, and facilitating the movement of entities in, out, and/ or
through a specific geographic location. See Spec. ,r 2. 2
Claim 51 is representative and reads as follows:
51. An airport facility comprising a physical door for entry
into the airport facility from an outside position from the airport
facility, a first zone between the door and a security checking
location within the airport facility and the security checking
location, a second zone beyond the security checking location,
and a system providing a location-based service to an operator of
the airport facility comprising:
a physical location node in the airport facility, the physical
location node including a transceiver of wireless signals for
transmitting the signals received to a central hub wherein the
wireless signals are processed;
the physical location node being located at a specific
location in the airport facility, the physical location node being
capable of communicating wirelessly with human entities in the
airport facility thereby establishing the location and movement
of the human entities in the airport facility, the human entities
having wireless communicating units transmitting and receiving
signals wirelessly to or from the physical location node, each of
the wireless communicating units being unique for one of the
human entities;
the physical location node including a physical detection
device, the physical device including a radio transmitter/receiver,
2 Our Decision refers to the Final Office Action mailed March 29, 2017
("Final Act."), Appellants' Appeal Brief filed November 30, 2017 ("App.
Br.") and Reply Brief filed January 29, 2018 ("Reply Br."), the Examiner's
Answer mailed January 12, 2018, and the original Specification filed August
29, 2013 ("Spec.").
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Application 14/014, 701
the physical detection device being capable of detecting entry to
the first or second zone, dwell and exit events of the human
entities, and wireless communicating units of human entities;
the wireless communicating units being mobile phones
equipped with a Bluetooth and WI-FI radio;
the transceiver of the physical location node transmitting
through the Bluetooth and WI-FI radio data about the movement
of the human entities in the airport facility relative to the security
checking location, the data including the entry into the security
checking location, the departure from the security checking
location, and the amount of time spent in the vicinity of the
security checking location; and the data transmitted being in at
least one of real time or being for storage and analysis at a later
time by the operator;
an algorithm, executable by a computer processor, for
processing the data; and
a physical screen displaying the first zone and the second
zone as a map depicted on a pixilated image on the physical
screen, and the physical screen displaying information of
movement of human entities from the first zone through the
security checking location and into the second zone as mapped
on the pixilated image, and the pixilated image being a tool to
plan operations in the airport facility and personnel assignment
in the airport facility.
App. Br. 27-28 (Claims App.).
Rejections on Appeal
Claims 51-53, 57, 58, and 60-69 stand rejected under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter. 3
3 The rejection does not address claim 57 (see e.g., Final Act. 5), but this
appears to be an error as Appellants appear to treat claim 57 as also being
rejected under 35 U.S.C. § 101. See e.g., App. Br. 10 ("[c]laims 51-53, 57,
58, and 60-69 stand rejected under 35 U.S.C. § 101," emphasis added).
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Claims 51, 52, 57, 58, 60-64, and 66-68 stand rejected under
35 U.S.C. §103 as being unpatentable over Lucas et al.
(US 2007/0239569 Al; published Oct. 11, 2007) ("Lucas"), Ramachandra
(US 2008/018917 0 A 1; published Aug. 7, 2008) ("Ramachandra"), Winand
et al. (US 2009/0259549 Al; published Oct. 15, 2009) ("Winand"), and
Nasser (US 2008/0294487 Al; published Nov. 27, 2008) ("Nasser").
Claim 53 stands rejected under 35 U.S.C. §103 as being unpatentable
over Lucas, Ramachandra, Winand, Nasser, and Frey et al.
(US 5,557,513 A; issued Sept. 17, 1996) ("Frey").
Claims 65 and 69 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lucas, Ramachandra, Winard, Nasser, and Fitzpatrick et
al. (US 8,209,219 B2; issued June 26, 2012) ("Fitzpatrick").
ANALYSIS
Rejection of Claims 51-53, 57, 58, and 60---69 under§ 101
Applicable Law
Section 101 of the Patent Act provides that "any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof' is patent eligible. 35 U.S.C. § 101. But the
Supreme Court has long recognized an implicit exception to this section:
"Laws of nature, natural phenomena, and abstract ideas are not patentable."
Alice Corp. v. CLSBanklnt'l, 573 U.S. 208,216 (2014) (quotingAss'nfor
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
To determine whether a claim falls within one of these excluded categories,
the Court has set out a two-part framework. The framework requires us first
to consider whether the claim is "directed to one of those patent-ineligible
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concepts." Alice, 573 U.S. at 217. If so, we then examine "the elements of
[the] claim both individually and 'as an ordered combination' to determine
whether the additional elements 'transform the nature of the claim' into a
patent-eligible application." Alice, 573 U.S. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)).
That is, we examine the claim for an "inventive concept," "an element or
combination of elements that is 'sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself."' Alice, 573 U.S. at 217-18 ( alteration in original) ( quoting
Mayo, 566 U.S. at 72-73).
The Office published revised guidance on the application of
35 U.S.C. § 101. USPTO's January 7, 2019 Memorandum, 2019 Revised
Patent Subject Matter Eligibility Guidance, Federal Register Vol. 84, No. 4,
50-57 ("Revised Guidance"). Under the Revised Guidance, we first look to
whether the claim recites: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as fundamental economic practices, or
mental processes); and additional elements that integrate the judicial
exception into a practical application. See Revised Guidance 54--55. Only if
a claim recites a judicial exception and does not integrate that exception into
a practical application, do we then look to whether the claim adds a specific
limitation beyond the judicial exception that are not "well-understood,
routine, conventional" in the field. See Revised Guidance 56.
Appellants' Arguments
Appellants contend the claims are directed to a specific non-abstract
physical interrelated structure (e.g., airport facility), rather than an abstract
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idea. See App. Br. 1 O; see also Reply Br. 4. According to Appellants, the
claims do not recite a basic concept similar to any abstract idea previously
identified by the courts, such as a concept relating to the economy and
commerce, an idea of itself, or a mental process that can be performed in the
human mind or by a human using pen and paper. See App. Br. 20.
Appellants further argue the claims do not threaten to create problems
related to preemption. See id. Appellants additionally argue the claims
facilitate the ability to solve the problem of location and line control
determined by data derived from input received from devices, and, thus, the
claims amount to an inventive concept for solving the problem of location
and line control. See App. Br. 21.
Step One of Alice
Prong 1 : Whether Claims Are Directed to an Abstract Idea
The Examiner finds the claims recite steps for monitoring data and
analyzing data received from disparate sources in a mass transit facility. See
Final Act. 5. Thus, according to the Examiner, the claims are similar to the
claims found patent-ineligible in Electric Power Group, LLC v. Alstom S.A.,
830 F.3d 1350 (Fed. Cir. 2016), where the court found the claims were
directed toward the patent-ineligible abstract idea of monitoring and
analyzing data from disparate sources. See id.
Upon review of the Examiner's findings in support of the rejection of
the aforementioned claims under 35 U.S.C. § 101, we do not sustain the
rejection because the Examiner's findings are not sufficient to establish that
the claims recite an abstract idea that falls within one of the three
enumerated categories of abstract ideas in the Revised Guidance (i.e.,
mathematical concepts, certain methods of organizing human activity, or
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mental processes). More specifically, the claims recite, inter alia, an airport
facility comprising a system providing location-based services to an operator
of the airport facility, where the system comprises: (a) a physical location
node, including a transceiver and a physical detection device including a
radio transmitter/receiver, where the physical detection device is capable of
detecting movement and wireless communication units of human entities
within the airport facility; (b) a computer processor capable of executing an
algorithm for processing data received by the physical detection device; and
( c) a physical screen displaying information of movement of the human
entities. See App. Br. 27-28. We conclude that such claimed subject matter
is neither a mathematical concept, a certain method of organizing human
activity (such as a fundamental economic practice, commercial or legal
interaction, or method of managing personal behavior or relationship or
interactions between people), or a mental process. Accordingly, we do not
sustain the rejection of claims 51-53, 57, 58, and 60-69 under 35 U.S.C.
§ 101.
Rejection of Claims 51-53, 57, 58, and 60---69 under§ 103
Applicable Law
The Supreme Court has rejected the rigid requirement of
demonstrating a teaching, suggestion, or motivation in the references to
show obviousness. See KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 415-16
(2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017)
("KSR directs that an explicit teaching, suggestion, or motivation in the
references is not necessary to support a conclusion of obviousness.").
Further, one cannot show non-obviousness by attacking references
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individually when the rejection is based on a combination of references. See
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413,425 (CCPA 1981).
Analysis
We have reviewed the Examiner's rejection of claims 51-53, 58, and
60-69 under 35 U.S.C. § 103, and are not persuaded the Examiner has erred.
Unless otherwise noted, with respect to the rejection under 35 U.S.C. § 103,
we adopt as our own the findings and reasons set forth by the Examiner in
the Office Action from which this appeal is taken (Final Act. 8-32), and in
the Examiner's Answer (Ans. 7-9), and we concur with the conclusions
reached by the Examiner. Appellants proffer several contentions as to why
the claims are not obvious in light of the cited prior art references. See App.
Br. 23-25; see also Reply Br. 5-7. We do not find any of them persuasive
for the reasons provided below.
Appellants argue none of the references teach or suggest the "claimed
human tracking with communication by both Bluetooth and WI-FI radio
data." App. Br. 23; see also Reply Br. 5-7. This argument is not
persuasive. As the Examiner correctly found, Ramachandra teaches wireless
communications via both Bluetooth and WiFi protocols. See e.g., Final
Act. 10; see also Ans. 7.
Appellants further argue there is nothing in or about Lucas that relates
to an airport facility. See App. Br. 24. This argument is not persuasive
either as the Examiner relied upon Winand, rather than Lucas, for teaching
the claimed "airport facility." See e.g., Final Act. 9; see also Ans. 8.
Appellants also argue Ramachandra teaches cell phone usage,
including downloading of applications and information related to a shopping
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experience, and does not teach or suggest the usage of a cell phone related to
location determination of a user as a tool used by a shopping manager or
facility. See App. Br. 24. We also are not persuaded by this argument. We
agree with the Examiner that Ramachandra teaches the usage of customers'
cell phones as nodes in a network to track their locations. See Final Act. 1 O;
see also Ans. 8; Ramachandra ,r,r 54, 133 ("a shopper locator device can be a
variety of devices that can accompany a shopper on a shopping trip"; "a cell
phone such as shopper cell phone can be supported as a node in a sensor
network-based context-aware content delivery system").
As further argued by Appellants, "Nasser is a retail establishment
technology which has nothing remotely to do with an airport facility." App.
Br. 24. This argument is not persuasive either. Similar to Appellants'
argument regarding Lucas, the Examiner relied upon Winand, rather than
Nasser, for teaching the claimed "airport facility." See e.g., Final Act. 9.
As also argued by Appellants, Nasser only discloses a CAD map
converter used to overlay an indicator of people detector information where
detectors are located or should be located, and category zone maps to show
where people detectors are located or should be located, and thus, Nasser
does not disclose using a pixilated image as a tool to plan personal
assignment. See App. Br. 24 (citing Nasser ,r 69); see also Reply Br. 5. We
are not persuaded by this argument. As the Examiner correctly found,
Nasser teaches the claimed "pixilated image on [a] physical screen," where
the physical screen displays "information of movement of human entities."
See e.g., Final Act. 11; see also Ans. 9. To Appellants' specific argument
that Nasser's CAD map converter does not teach or suggest the claimed
"pixilated image," Nasser explicitly discloses that the CAD map converter
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includes pixel recognition processes that detect types of structural elements
represented by pixels in the CAD drawings. See Nasser ,r 64. Thus, we
agree with the Examiner's finding that Nasser teaches or suggests the
claimed "pixilated image."
Appellants further argue Frey does not relate to security check points
anywhere. See App. Br. 24. This argument is not persuasive because the
Examiner did not rely on Frey as teaching the claimed "security checking
location." Instead, the Examiner relied on Frey for teaching a system that
uses location-based tracking to collect data regarding the total number of
shoppers in a store. See e.g., Final Act. 20-29.
Appellants additionally argue Fitzpatrick is solely related to a
commercial establishment, and as such Fitzpatrick's camera use is "totally
unrelated to the airport facility environment and the features of the claimed
subject matter." App. Br. 25. The Examiner relied on Fitzpatrick for
teaching a computer system configured to monitor customer flow using
security cameras with integrated video and including display interfaces, and
did not rely on Fitzpatrick as teaching the claimed "airport facility." See
e.g., Final Act. 30-31. Thus, this argument is not persuasive.
As also argued by Appellants, "Winand does not concern itself or
disclose the systems, elements and physical system of nodes, communication
devices for wireless signals, and pixilated image screen displays of maps to
display information of movement, location and status; nor NFC systems ...
or visualization." App. Br. 25. The Examiner did not rely on Winand as
teaching any of the aforementioned elements. See e.g., Final Act. 9. Thus,
this argument is not persuasive either.
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Appellants also argue that the cited references fail to disclose or
suggest several elements of independent claims 51, 60, 61, 66, and
dependent claims 57, 62, 65, 66, and 69. See App. Br. 25. Appellants'
argument amounts to a general allegation that the claims define a patentable
invention without specifically pointing out how the language of the claims
patentably distinguish them from the references. See 37 C.F.R.
§ 4I.37(c)(l)(vii) (noting that an argument that merely points out what a
claim recites is unpersuasive); see also In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) ("[T]he Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art."). Accordingly, for the reasons provided above,
we sustain the rejection of claims 51-53, 57, 58, and 60-69 under 35 U.S.C.
§ 103.
DECISION
We reverse the Examiner's rejection of claims 51-53, 57, 58, and 60-
69 under 35 U.S.C. § 101.
We affirm the Examiner's rejection of claims 51-53, 57, 58, and 60-
69 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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