Ex Parte DONG et al

Patent Trials and Appeals Board

Apr 4, 2019

14104822 - (D) (P.T.A.B. Apr. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/104,822 12/12/2013
77399 7590 04/08/2019
Leydig, Voit & Mayer, Ltd
(for Huawei Technologies Co., Ltd)
Two Prudential Plaza Suite 4900
180 North Stetson Avenue
Chicago, IL 60601
FIRST NAMED INVENTOR
Zhenhua DONG
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.
HW715617 3623
EXAMINER
BURKE, JEFF A
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
04/08/2019 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):
Chgpatent@leydig.com
uspatent@huawei.com
hwpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZHENHUA DONG, LIANGWEI WANG, and
GONG ZHANG
Appeal 2018-007341 1
Application 14/104, 822
Technology Center 2100
Before JASON V. MORGAN, DANIEL N. FISHMAN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) of the Final Rejection of
all pending claims 1-3, 5, 7-10, 12, 14, and 22-26. 2 Claims 4, 6, 11, 13,
and 15-21 were previously cancelled. App. Br. 16-18. We have
jurisdiction under 35 U.S.C. § 6. We affirm.
1 Appellants assert the real party in interest is Huawei Technologies Co.,
Ltd. Appeal Brief 1.
2 In this Opinion, we refer to the Appeal Brief ("App. Br.," filed December
19, 2017), the Reply Brief ("Reply Br.," filed July 10, 2018), the Examiner's
Answer ("Ans.," mailed May 1 7, 2018), the Final Office Action ("Final
Act.," mailed April 20, 2017), and the original Specification ("Spec.," filed
December 12, 2013).
Appeal2018-007341
Application 14/104, 822
THE INVENTION
Appellants' invention relates generally to generating a log of user
activities on a mobile device. Spec. ,r,r 2---6. In an embodiment, the
invention obtains information from an accelerometer sensor of the mobile
device over time, detecting an action of the user ( such as walking, running,
or jumping) based on the accelerometer information over time, and logging
the detected user activity in the mobile device. Id. ,r 41.
Independent apparatus claim 1, reproduced below, is illustrative:
1. A method for generating a mobile phone terminal log
including information of user physical exercise activity,
compnsmg:
obtaining sensor information of a mobile phone terminal,
where the sensor information includes an acceleration
information;
generating first log information according to the sensor
information of the mobile phone terminal;
receiving second log information initially input by a user
of the mobile phone terminal; and
combining the first log information with the second log
information to generate the mobile phone terminal log including
information of user physical exercise activity,
wherein generating the first log information according to
the sensor information of the mobile terminal comprises:
obtaining a user exercise activity over a time period,
by performing analysis using a set analysis policy
according to a timestamped series of instances of the
sensor information of the mobile phone terminal within
the time period, where the instances of the sensor
information includes at least the acceleration information,
and where the user exercise activity over a time period
includes at least a type of user exercise activity taken from
2
Appeal2018-007341
Application 14/104, 822
the group of user activity types consisting of: walking,
running and jumping; and
generating an activity entry, of the first log
information, by using a set generation policy according to
the user exercise activity obtained by performing analysis
using the set analysis policy, where the activity entry
identifies:
the user activity, and
the time period.
App. Br. 15. Independent claims 8 and 22 recite essentially the same
elements in differing contexts.
THE REJECTIONS
Claims 1, 2, 8, 9, 22, and 23 are rejected under 35 U.S.C. § I03(a) as
obvious over the combination of Bensley et al. (U.S. Patent Publication No.
2014/0031060 Al) ("Bensley") and Laikari et al. (U.S. Patent No. 8,923,994
B2) ("Laikari"). Final Act. 2-5.
Claims 3, 10, and 24 are rejected under 35 U.S.C. § I03(a) as obvious
over Bensley, Laikari, and Roskowski (U.S. Patent Publication No.
2009/0210516 Al). Final Act. 5-6.
Claims 5, 12, and 25 are rejected under 35 U.S.C. § I03(a) as obvious
over Bensley, Laikari, Roskowski, and Macbeth et al. (U.S. Patent
Publication No. 2007 /0299631 Al) ("Macbeth"). Final Act. 7-8.
Claims 7, 14, and 26 are rejected under 35 U.S.C. § I03(a) as obvious
over Bensley, Laikari, Roskowski, and Mori et al. (U.S. Patent Publication
No. 2012/0117499 Al) ("Mori"). Final Act. 8-9.
3
Appeal2018-007341
Application 14/104, 822
ANALYSIS
Claims 1, 2, 8, 9, 22, and 23
Regarding independent claims 1, 8, and 22, the Examiner finds
Bensley teaches nearly all features of claim 1, but does not explicitly
disclose that the logged data includes user exercise activity "wherein the
instances of the sensor information includes at least acceleration
information, and where the user activity over a time period includes at least
a type of user activity taken from the group of user activity types consisting
of: walking, running and jumping." Final Act. 4. The Examiner further
finds: (1) Laikari discloses this feature; (2) Bensley and Laikari are in the
same field of endeavor ("activity logging"); and (3) the combination of the
two references would have been obvious to the ordinarily skilled artisan "to
provide robust mapping of user activities." Id. at 4--5 ( citing Laikari, 4:21-
25, 5:45, 13:23-30). The Examiner finds independent claims 8 and 22 recite
similar limitations and are rejected for the same reasons as claim 1. Id. at 5.
Based on Appellants' arguments, 3 we first address the issue of
propriety of the proposed combination, followed by a discussion of
arguments directed to the teachings of the references.
3 Appellants' Appeal Brief tends to intertwine arguments apparently directed
at the propriety of the Examiner's proposed combination and arguments
apparently directed to the teachings of the references relative to the rejected
claims. The Examiner's Answer and Appellants' Reply Brief then dissect
each other's assertions without identifying or addressing more coherent
arguments relating to potential Examiner error. Such deconstruction, when
it does not lead to substantive argument, merely distracts and does not
warrant further analysis by the Board. As such, our analysis focuses on the
substantive findings and arguments before us.
4
Appeal2018-007341
Application 14/104, 822
MOTIVATION TO COMBINE REFERENCES
Appellants argue the proposed combination "is based upon an
impermissible reliance upon excessive reliance upon hindsight." App. Br. 6.
Appellants assert Bensley and Laikari are unrelated and that Bensley fails to
"express an awareness of a problem or need that would provide a reason for
one skilled in the art ... to substantially augment/modify Bensley to include
totally unnecessary 'acceleration information' (taught by Laikari) to render
the activity logs described and contemplated by Bensley." Id. Appellants
further assert, "[ a ]t no point does Bensley mention any type of recorded
activity that would be enhanced by incorporating the additional sensor
equipment and processing that would be needed to incorporate acceleration
information into Bensley's activity log entries." Id. Appellants contend
"Bensley and Laikari are directed to two vastly differing user activity logs"
and, thus, "there is no reason for one skilled in the art to modify Bensley, in
view of Laikari, in a way that would result in Appellants' claimed
invention." Id. at 7. Appellants further contend that in view of such
"disparity in the teachings" of the references, "one cannot reasonably
combine their teachings in a way that would result in Appellants' claimed
invention." Id. at 10. Appellants argue that Bensley fails to identify a
problem that is addressed by the proposed combination with Laikari. Id. at
1 1.
Appellants' argument suggests the Examiner has failed to establish a
reason with a rational underpinning why the ordinarily skilled artisan would
have combined Bensley and Laikari, in part, because they are alleged to be
non-analogous art and, in part, because there is no reasonable expectation of
success.
5
Appeal2018-007341
Application 14/104, 822
We are not persuaded the references are non-analogous art. There are
two separate tests for determining whether a prior art reference is analogous:
(1) whether the art is from the same field of endeavor, regardless of the
problem addressed; and (2) if the reference is not within the inventor's
endeavor, whether the reference is reasonably pertinent to the particular
problem with which the inventor is involved. In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004). "A reference is reasonably pertinent if, even though
it may be in a different field from that of the inventor's endeavor, it is one
which, because of the matter with which it deals, logically would have
commended itself to an inventor's attention in considering his problem." In
re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379--80 (Fed. Cir. 2007)
( quotation marks and citation omitted).
Appellants' arguments focus on whether the references satisfy the
second prong of the two tests-reasonably pertinent to a problem with which
the inventor is involved. We are unpersuaded by Appellants' arguments that
the references are unrelated or address "vastly" different problems.
Moreover, we agree with the Examiner that Bensley and Laikari are in the
same field of endeavor-namely, user activity logging on the user's mobile
device-the same field as the claimed invention. Final Act. 4; Ans. 4; see
also Bensley ,r,r 3, 22; Laikari, 1:6-10, 5: 1--4, 5:32--42.
Furthermore, in addition to asserting the references are analogous art
(i.e., at least in the same field of endeavor), the Examiner argues that it
would have been obvious to modify Bensley's activity logs to incorporate
exercise data as taught by Laikari "to provide robust mapping of user
activities." Final Act. 4. A motivation to combine may be found
"'explicitly or implicitly in market forces; design incentives; the 'interrelated
6
Appeal2018-007341
Application 14/104, 822
teachings of multiple patents'; 'any need or problem known in the field of
endeavor at the time of invention and addressed by the patent'; and the
background knowledge, creativity, and common sense of the person of
ordinary skill."' ZUP, LLC v. Nash Mfg., Inc., 896 F.3d 1365, 1371 (Fed.
Cir. 2018) (quoting Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1354
(Fed. Cir. 2013)).
Here, we find the Examiner has sufficiently articulated a reason for
the combination based on rational underpinnings. In its most general
discussion, Bensley discloses generating a "storyline" of the user's activities
over a period of time where the storyline comprises slices of time during
which it is determined that the user is staying (stationary) or traveling (non-
stationary). Bensley ,r 23. Bensley also discloses embodiments providing
more detailed (more robust) logged activities such as "walking" (id. ,r 42) or
"jogging" (id. ,r 63). We agree with the Examiner that the ordinarily skilled
artisan, in view of Bensley's disclosure of more detailed types of activities
than merely "staying" or "traveling," would have been motivated to seek out
Laikari' s teachings to detect still finer gradations of motion such as walking,
running or jumping to improve on the level of detail in Bensley's logged
activities-i.e., to generate a more "robust" storyline. For example, Bensley
specifically discloses that, with additional sensors to sense activity during a
slice of time, "a biometric slice such as 'high caloric bum' may cover part of
a visit to the park as well as time at the gym." Id. ,r 42. Thus, the ordinarily
skilled artisan would have reason to seek out Laikari' s teachings to detect
high caloric bum based on Laikari's detected user movement such as
walking, running, or jumping.
7
Appeal2018-007341
Application 14/104, 822
Accordingly, we are not persuaded that the Examiner erred in
combining Bensley and Laikari.
COMBINATION DISCLOSES ALL ELEMENTS
Appellants do not identify specific elements alleged to be missing in
the proposed combination. Rather, Appellants argue that the claimed
acquisition of acceleration sensor readings "is of a type that is sufficiently
high in frequency (multiple times per second) to enable, using the
acceleration signal data values, identification of one of the claimed physical
user activities of walking, running and jumping." App. Br. 11. We agree
with the Examiner, however, that the claims do not recite any particular
frequency of acquisition. Ans. 9.
Appellants further argue Bensley does not utilize acceleration sensor
readings and argues Bensley's activity logging would not benefit from
adding such acceleration information as taught by Laikari. App. Br. 9. The
Examiner notes that Bensley expressly discloses use of an accelerometer as
an additional sensor within its context collector. Ans. 6 ( citing Bensley
,r 34). Appellants further assert that the Examiner incorrectly reads
Bensley' s Figure 1 as disclosing "walking" as a user activity to be logged.
Reply Br. 5 ( citing Ans. 6). We agree with Appellants that the Examiner
incorrectly reads Figure 1 as disclosing "walking" as a logged activity-the
figure is of poor quality and, thus, difficult to read. However, the rejection
relies on Laikari for disclosing the recited activities of "walking, running,
and jumping." Final Act. 4. Thus, the Examiner's error in reading the text
on Bensley's Figure 1 is harmless error and, because it is not the basis for
the rejection, does not warrant reversal. Furthermore, Bensley does
8
Appeal2018-007341
Application 14/104, 822
expressly disclose detecting walking as a type of user motion during a slice
of time based on sensor data. Bensley ,r 42 ("such as driving, walking,
flying, or riding a bus").
CONCLUSION REGARDING CLAIMS 1, 2, 8, 9, 22, AND 23
For the reasons discussed above, we are not persuaded the Examiner
erred in rejecting claim 1. Appellants argue independent claims 8 and 22
together with claim 1. App. Br. 12. Appellants do not argue claims 2, 9,
and 23 separately with particularity other than their dependence on claims 1,
8, and 22, respectively. Id. at 12. Thus, for the same reasons as claims 1, 8
and 22, we are not persuaded the Examiner erred in rejecting claims 2, 9 and
23.
CLAIMS 3, 5, 7, 10, 12, 14, AND 24--26
Claims 3, 5, 7, 10, 12, 14, and 24--26 each depend, directly or
indirectly, from one of claims 1, 8, and 22. Claims 3, 5, 7, 10, 12, 14, and
24--26 are rejected over Bensley and Laikari as applied to their respective
base claim and further in view of one or more of Roskowski, Macbeth, and
Mori. Final Act. 5-9. Other than asserting that the additional reference(s)
fail to cure the alleged deficiency of Bensley and Laikari, Appellants do not
argue claims 3, 5, 7, 10, 12, 14, and 24--26 separately with particularity.
App. Br. 12-13.
9
Appeal2018-007341
Application 14/104, 822
DECISION
For the above reasons, the Examiner's decision rejecting all claims 1-
3, 5, 7-10, 12, 14, and 22-26 is affirmed.
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
10