Ex Parte Boatwright

Board of Patent Appeals and Interferences

Apr 22, 2009

10160357 (B.P.A.I. Apr. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOHN T. BOATWRIGHT
____________________

Appeal 2009-1564
Application 10/160,357
Technology Center 2600
____________________

Decided:1 April 23, 2009
____________________

Before KENNETH W. HAIRSTON, LEE E. BARRETT, and KARL D.
EASTHOM, Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-1564
Application 10/160,357

2
Appellant appeals2 under 35 U.S.C. § 134 from a final rejection of
claims 21, 23, and 24. We have jurisdiction under 35 U.S.C. § 6(b).
We will sustain the rejection.
Appellant has invented a method and system for detecting fraudulent
use of a device by detecting and storing normal pattern of use data for the
device, detecting use of the device which deviates from the normal usage
pattern, and taking an action based upon the detection of use of the device
that differs from the normal usage pattern (Abstract).
Claim 21 is representative of the claims on appeal, and it reads as
follows:
21. A method for detecting fraudulent use of a device,
detecting and storing data concerning the normal pattern
of use of said device,
detecting use of said device which deviates from said
normal usage pattern,
taking an action based upon the detection of use of said
device that differs from said normal usage pattern.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cooper US 5,335,265 Aug. 2, 1994
(effective filing date Nov. 8, 1991)
The Examiner rejected claims 21, 23, and 24 under 35 U.S.C. § 102(e)
based upon the teachings of Cooper.

2 In a prior decision dated July 22, 2005, the Board reversed the anticipation
rejection of claims 1 to 10 based upon the teachings of Cooper (U.S. Patent
Number 5,335,265).
Appeal 2009-1564
Application 10/160,357

3
ISSUE
Appellant contends inter alia that Cooper does not determine “a
normal pattern of use of a device” and does not detect a use of the device
that deviates from a normal usage pattern (App. Br. 4, 5). Thus, the issue
before us is:
Has Appellant shown that the Examiner erred by finding that Cooper
describes a method and system for detecting fraudulent use of a device by
determining a normal pattern of use of the device, and then detecting a use
of the device that deviates from the normal usage pattern?

FINDINGS OF FACT
Cooper describes a method and system for detecting fraudulent use of
a mobile telephone device (Fig. 4; Abstract; col. 9, ll. 14 to 45). Cooper
detects data concerning a normal pattern of use of the device (col. 9, ll. 18 to
21), and stores the data concerning the normal pattern of use of the device
(col. 9, ll. 21 to 25). Cooper detects use of the device which deviates from
the normal usage pattern (Fig. 4, step 407; col. 9, ll. 25 to 28). Based upon
the detection of a use of the device that differs from the normal usage
pattern, Cooper takes an action (i.e., activation of validation process) that
may result in the generation of a fraud alarm (Fig. 4, steps 408 and 409; col.
9, ll. 28 to 36).

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses
expressly or under the principles of inherency each and every limitation of
Appeal 2009-1564
Application 10/160,357

4
the claimed invention. Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir.
1994).

ANALYSIS
A comparison of the teachings of Cooper to the claimed invention
reveals that Cooper describes all of the method steps of claim 21 and the
system limitations of claims 23 and 24 (Findings of Fact).
With respect to Appellant’s argument (App. Br. 5) that Cooper does
not detect a use of the device that deviates from a normal usage pattern, the
referenced portions of Cooper clearly explain that a “usage pattern for this
particular subscriber unit is monitored to determine if the usage activity is
indicative of fraudulent” behavior, and such usage pattern data is stored to
identify suspect behavior. Appellant’s argument (App. Br. 5) that Cooper
does not describe a “comparison to a previously stored calling pattern” is
without merit since the claims on appeal are silent as to a “comparison to a
previously stored calling pattern.” The claims on appeal are also silent as to
“a system that compares current usage to actual prior usage of the same
device” (Reply Br. 2). Thus, Appellant’s arguments do not convince us that
the Examiner erred in finding that the claimed method steps and system
structure read on the method and system described by Cooper.
In summary, anticipation has been established by the Examiner
because Cooper discloses each and every limitation of the claimed invention
set forth in claims 21, 23, and 24. Atlas Powder Co., 190 F.3d at 1347;
Paulsen, 30 F.3d at 1478-79.
Appeal 2009-1564
Application 10/160,357

5

CONCLUSION OF LAW
Appellant has not demonstrated that the Examiner erred by finding
that Cooper describes a method and system for detecting fraudulent use of a
device by determining a normal pattern of use of the device, and then
detecting a use of the device that deviates from the normal usage pattern.

ORDER
The decision of the Examiner rejecting claims 21, 23, and 24 under 35
U.S.C. § 102(e) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

AFFIRMED

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