Ex Parte Locker et alDownload PDFPatent Trials and Appeals BoardMay 24, 201913854610 - (D) (P.T.A.B. May. 24, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/854,610 04/01/2013 58127 7590 05/24/2019 FERENCE & ASSOCIATES LLC 409 BROAD STREET PITTSBURGH, PA 15143 FIRST NAMED INVENTOR Howard Locker 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. RPS920130015USNP(710.225) 6693 EXAMINER KHAN, IBRAHIM A ART UNIT PAPER NUMBER 2692 MAIL DATE DELIVERY MODE 05/24/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HOWARD LOCKER, DARYL CROMER, and JOHN WELDON NICHOLSON1 Appeal 2018-008069 Application 13/854,610 Technology Center 2600 Before ST. JOHN COURTENAY III, LARRY J. HUME and JOYCE CRAIG, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-3 and 5-20, which are all the claims pending in this application. Claim 4 is canceled. App. Br. 19, 29. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Party in Interest as Lenovo (Singapore) PTE. LTD. App. Br. 3. Appeal 2018-008069 Application 13/854,610 STATEMENT OF THE CASE Introduction Appellants' invention relates generally to "Intuitive Touch Gesture- Based Data Transfer Between Devices." Spec., Title. Illustrative Claim 1. A method comprising: receiving, at a network device, data from a source device; receiving, at the network device, a first identification of a user from the source device; wherein the data from the source device comprises data issued in response to a detection of a three dimensional gesture performed by the user at the source device and wherein the data and the three dimensional gesture are associated with the user based upon the first identification; storing, at the network device, the data from the source device; detecting, at the network device, a request from a destination device, the request from the destination device comprising a second identification of the user occurring at the destination device and wherein the request is in response to detection of a second three dimensional gesture performed by the user at the destination device; transferring, based upon the request and from the network device to the destination device, the data from the source device based upon the first identification of the user identifying the user as the same user identified from the second identification of the user. (Emphasis added regarding contested dispositive "transferring" limitation). 2 Appeal 2018-008069 Application 13/854,610 Rejections Rl. Claims 1-3, 5-9 and 12 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Mooring et al. (US 8,260,883 B2, issued Sept. 4, 2012) ("Mooring"), Schrecker (US 2013/0268758 Al, published Oct. 10, 2013), Chin (US 2011/0187497 Al, published Aug. 4, 2011), and Thomas et al. (US 2013/0169546 Al, published July 4, 2013) ("Thomas"). Final Act. 3. R2. Claims 10 and 11 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Mooring, Schrecker, Chin, Thomas, and Motes et al. (US 2014/0115116 A 1, published April 24, 2014) ("Motes"). Final Act. 15. R3. Claims 13-16, and 20 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Mooring, Schrecker, Chin, Thomas, and Patterson (US 2003/0182326 Al, published Sept. 25, 2003). Final Act. 16. R4. Claims 17-19 are rejected under 35 U.S.C. § 103 as being obvious over the combined teachings and suggestions of Mooring, Schrecker, Chin, Thomas, Patterson and Motes. Final Act. 28. Summary We have reviewed all of Appellants' arguments in the Briefs, the Examiner's obviousness rejections, and the Examiner's responses to Appellants' arguments. For the reasons discussed infra, Appellants have proffered sufficient arguments and evidence to persuade us of error regarding the Examiner's underlying factual findings and ultimate legal conclusion of obviousness for all claims 1-3 and 5-20 on appeal. 3 Appeal 2018-008069 Application 13/854,610 The Examiner's Findings The Examiner finds Schrecker teaches the limitation "upon the first identification of the user identifying the user as the same user identified from the second identification of the user," as explained in the Final Action: First of all the second identification can be the exact same as the first identification because the same user can use their user device at the second locations. This corresponds to Schrecker where a user can use the same authentication token on a different device. Para 0031, and Para 0056 the wireless token device is for authentication and can be used on a receiving device see fig. 3E. Also see para 0022 servers clients and computing devices are operable to receive, transmit, process, store, communicate, or manage data and information associated with software system 100, see para 0023 user profiles associated with the different devices para 0024 one user can use one or multiple computers or multiple users can use one or multiple computers. Para 0026 users may have a smart phone for work, a different personal smart phone, a table computer for person use etc., para 0027 managing data across multitude of devices by synchronizing devices to some degree, para 0029 wireless token can be used to authenticate more than one computing device, para 0042 _ authenticate user to sever by token para 0043 authenticate authorized users. So, a user can upload data to a server on their work smartphone then receive the data from their home laptop or computer when they get home and the way they authenticate is through the wireless token). Final Act. 4-5 ( emphasis omitted). Appellants' Contentions Appellants contend: "Schrecker does not teach a system that even mentions 'based upon the first identification of the user identifying the user as the same user identified from the second identification of the user.' Claim 1 (emphasis added)." App. Br. 24. 4 Appeal 2018-008069 Application 13/854,610 In support, Appellants contend: In other words, the identification as claimed is not used for authentication as taught by Schrecker. Rather, it is used to identify the user to identify "any object(s) waiting for a drop tied to that identification." Specification at [0032]. Applicant respectfully submits that this is not taught by Schrecker, or any of the other references. App. Br. 24 ( emphasis omitted). The Examiner's Answer In response, the Examiner further explains the basis for the rejection: Schrecker teaches a user can use the same authentication token on a different device. Para 0031, and Para 0056 the wireless token device is for authentication and can be used on a receiving device see fig. 3E below. Also see para 0022 servers clients and computing devices are operable to receive. transmit, process, store, communicate, or manage data and information associated with software system 100, see para 0023 user profiles associated with the different devices para 0024 one user can use one or multiple computers or multiple users can use one or multiple computers. Para 0026 users may have a smart phone for work, a different personal smart phone, a table computer for person use etc., para 0027 managing data across multitude of devices by synchronizing devices to some degree, para 0029 wireless token can be used to authenticate more than one computing device. para 0042 authenticate user to sever by token para 0043 authenticate authorized users. So, a user can upload data to a server on their work smartphone then receive the data from their home laptop or computer when they get home and the way they authenticate is through the wireless token). Ans. 4. 5 Appeal 2018-008069 Application 13/854,610 Appellants' Response in the Reply Brief However, Appellants disagree and respond in the Reply Brief: Schrecker does not link the first identification and the second identification, specifically, Schrecker does not "based upon the first identification of the user identifying the user as the same user identified from the second identification of the user." Claim 1 ( emphasis added). Rather, Schrecker teaches a system that "authenticat[ es] a user on one or more computing devices and/or particular data and programs accessible through the other computing devices" using a wireless token device. Schrecker at [0031]. In other words, Schrecker teaches a system for authenticating a user. Reply Br. 25 (underline in original omitted). Appellants summarize and clarify their argument in the Reply Brief: In other words, the identification as claimed is not used for authentication as taught by Schrecker. Rather, it is used to identify the user to identify "any object(s) waiting for a drop tied to that identification." Specification at [0032]. Applicant respectfully submits that this is not taught by Schrecker, or any of the other references. Reply Br. 26 ( emphasis omitted). ANALYSIS Rejection RI of claims 1-3, 5-9, and 12 Dispositive Issue on Appeal Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the cited combination of references teaches or suggests the limitation: transferring, based upon the request and from the network device to the destination device, the data from the source device based upon the first identification of the user identifying the user as the same user identified from the second identification of the user[,] 6 Appeal 2018-008069 Application 13/854,610 within the meaning of independent claim 1? 2 (Emphasis added). Claims App'x 28; see also App. Br. 23-24. Based upon our review of the record, we find the Examiner does not explain in sufficient detail how the cited prior art combination teaches or suggests the disputed limitation: "transferring ... the data from the source device based upon the first identification of the user identifying the user as the same user identified from the second identification of the user." Claim 1 ( emphasis added). In setting forth the rejection of claim 1, we find the Examiner paints with a broad brush. Final Act. 5. On this record, we find the Examiner's proffered mapping of the disputed claim limitation to the corresponding specific features found in each of the cited references is imprecise, and thus would require us to engage in some degree of speculation. 3 Although the Examiner finds Schrecker teaches "identifying the user as the same user identified from the second identification of the user," we do not see the Examiner's cited portions of Schrecker as teaching or suggesting "the same user." Id. ( emphasis added). Based upon our review of the record, we find a preponderance of the evidence supports Appellants' contentions that "Schrecker does not link the 2 We give the contested claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). 3 See 37 C.F.R. § l.104(c)(2) ("When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on must be designated as nearly as practicable. The pertinence of each reference, if not apparent, must be clearly explained and each rejected claim specified.") ( emphasis added). 7 Appeal 2018-008069 Application 13/854,610 first identification and the second identification." Reply. Br. 25. Rather, "Schrecker teaches a system for authenticating a user." Id. Because the Examiner has not fully developed the record to establish how Schrecker, in combination with Mooring, Chin, and Thomas, teaches or suggests the disputed limitation, we find speculation would be required to affirm the Examiner on this record. We decline to engage in speculation. "A rejection ... must rest on a factual basis." In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). "The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not ... resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis." Id. Therefore, based upon a preponderance of the evidence, Appellants have persuaded us the Examiner erred in concluding that Appellants' claim 1 is obvious over the cited combination of Mooring, Schrecker, Chin, and Thomas. Accordingly, we reverse the Examiner's§ 103 rejection Rl of independent claim 1. For the same reasons, we also reverse rejection Rl of independent claim 6, which recites the disputed limitation using similar language of commensurate scope. Because we have reversed the rejection of all independent claims (1 and 6) rejected under rejection Rl, for the same reasons, we reverse the Examiner's rejection of all dependent claims 2, 3, 5, 7-9, and 12, also rejected under Rejection Rl. 8 Appeal 2018-008069 Application 13/854,610 Rejection R2 of claims 10 and 11 Regarding dependent claims 10 and 11, rejected under § 103 Rejection R2, the Examiner has cited one additional reference, Motes, in addition to the same four base references cited as evidence in support of Rejection Rl. On this record, we find the Examiner has not shown how Motes overcomes the deficiencies of the Mooring, Schrecker, Chin, and Thomas combination, as discussed above regarding Rejection Rl of independent claims 1 and 6. Therefore, we are constrained on this record to also reverse § 103 Rejection R2 of dependent claims 10 and 11. Rejection R3 of claims 13-16 and 20 Regarding rejection R3, we note remaining independent claims 13 and 20 recite the disputed limitation using similar language of commensurate scope. As per claims 13-16 and 20, rejected under § 10 3 Rejection R3, the Examiner has cited one additional reference, Patterson, in addition to the same four base references cited as evidence in support of Rejection Rl. On this record, we find the Examiner has not shown how Patterson overcomes the deficiencies of the Mooring, Schrecker, Chin, and Thomas combination, as discussed above regarding Rejection Rl of independent claims 1 and 6. Therefore, we are constrained on this record to also reverse§ 103 Rejection R3 of claims 13-16 and 20. 9 Appeal 2018-008069 Application 13/854,610 Rejection R4 of claims 17 and 19 Regarding the remaining dependent claims 17-19, rejected under § 103 Rejection R4, the Examiner has cited two additional references, Motes and Patterson, in addition to the same four base references cited as evidence in support of Rejection Rl. On this record, we find the Examiner has not shown how Motes and Patterson overcome the deficiencies of the Mooring, Schrecker, Chin, and Thomas combination, as discussed above regarding Rejection Rl of independent claims 1 and 6. Therefore, we are constrained on this record to also reverse§ 103 Rejection R4 of dependent claims 17-19. CONCLUSION The Examiner erred in rejecting claims 1-3 and 5-20 as being obvious over the cited combinations of references under 35 U.S.C. § 103. DECISION We reverse the Examiner's decision rejecting claims 1-3 and 5-20 under 35 U.S.C. § 103. REVERSED 10 Copy with citationCopy as parenthetical citation