Ex Parte Porten et alDownload PDFPatent Trials and Appeals BoardJul 9, 201914986504 - (D) (P.T.A.B. Jul. 9, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/986,504 12/31/2015 Joshua Porten 38706 7590 07/11/2019 FOLEY & LARDNER LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 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. 111491-0147 (JTI-015-C) 7861 EXAMINER ZHAO, DAQUAN ART UNIT PAPER NUMBER 2484 NOTIFICATION DATE DELIVERY MODE 07/11/2019 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): ipdocketing@foley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSHUA PORTEN, SOFIN RASKIN, MICHAEL WANG, SHAOAN CHIN, and ALEXANDER INDENBAUM 1 Appeal2017-011860 Application 14/986,504 Technology Center 2400 Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and SCOTT RAEVSKY, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 1-5. Claims 6-8, 19, and 20 are canceled (see Claims Appendix). Claims 9-18 are allowed (see Ans. 10). We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). An Oral Hearing was held on June 25, 2019. We REVERSE. The present invention relates generally to securing otherwise unsecured computer audio and video subsystems (see Spec., Abstract). 1 Appellants name Janus Technologies, Inc. as the real party in interest (App. Br. 2). Appeal2017-011860 Application 14/986,504 Claim 1 is illustrative: 1. A computing device comprising: a host processor subsystem including a CPU and a video subsystem for producing a video output for playback and display on an associated video output device, wherein the video output includes first and second different streams produced by an operating system and application software running on the CPU of the host processor subsystem; and a secure subsystem that receives the video output from the host processor subsystem and controls an actual playback and display of the video output on the associated video output device, wherein the control includes selectively passing the first stream from the host processor to the video output device unchanged, and performing processing on content of the second stream before passing the second stream to the video output device, and wherein the video output further includes video data produced by an associated video input device, and wherein the secure subsystem performs analytics on the video data produced by the associated video input device and output from the host processing subsystem, and wherein the analytics comprise a biometric authentication application that is adapted to determine whether a user of the computing device is authorized to use the computing device based on analysis of the video data, and wherein the secure subsystem is adapted to prevent use of the computing device by the user if the biometric authentication application determines that the user is not authorized to use the computing device, and wherein the secure subsystem is adapted to prevent use of the computing device by the unauthorized user by shutting down the computing device, and wherein the secure subsystem is adapted to shut down the computing device after the user determined by the biometric authentication application to be unauthorized has been present in the video data for a threshold amount of time. Appellants appeal the following rejection: Claims 1-5 are rejected under 35 U.S.C. § 103(a) as being 2 Appeal2017-011860 Application 14/986,504 unpatentable over Spurgat (US 2002/0057795 Al, May 16, 2002), Gravoille (US 2011/0158609 Al, June 30, 2011), Sipe (US 8,457,367 Bl, June 4, 2013), and Kmnar2 (US 2014/0075211 Al, Mar. 13, 2014). We review the appealed rejections for error based upon the issues identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential). ANALYSIS Issue: Did the Examiner err in finding that Kumar teaches or suggests "to shut down the computing device after the user determined ... to be unauthorized has been present in the video data for a threshold amount of time," as set forth in claim 1? Appellants contend, "[i]n connection with the claimed actions of shutting down the computing device, the Office Action primarily relies on Kumar. However, Kumar merely teaches shutting down power to a camera after there has been no activity for an amount of time" (App. Br. 6). Appellants further contend that "[t]his is exactly opposite to the requirements of [the] claims, which set forth shutting down a computing device after an unauthorized user is present for a threshold amount of time" (id. at 8). We agree with Appellants. 2 Appellants filed an Amendment after final incorporating claims 19 and 20 into claim 1, and the Examiner entered the amendment (see Advisory Action dated January 26, 2017). As such, we shall treat the rejection of claim 1 as also including the Kumar reference (see Final Action 11-12). 3 Appeal2017-011860 Application 14/986,504 The Examiner finds that "[i]t would have been obvious to one [ ofJ ordinary skill in the art at the time the invention was made to modify the teaching ofKuma[r] et al[.] to tum off the power after an unauthorized presented himself or herself for a period of time" (Ans. 11 ). Here, it appears that the Examiner is conceding that Kumar does not explicitly teach the aforementioned claimed feature because the Examiner states that one would "modify the teaching" of Kumar to tum off the power after an unauthorized presented himself or herself for a period of time (id.), as oppose to finding that Kumar actually teaches this feature. Such a finding appears to rest on speculation, unfounded assumptions, and/or hindsight reconstruction of the claimed invention. See In re Warner, 379 F .2d 1011, 1017 (CCP A 1967) ("A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art"). Kumar discloses: At block 220, the sensor cascading microdriver 128 may receive data from facial recognition software to determine if a user is authorized. For example, the face of a person in close proximity to the computing system may be compared to any suitable number of faces of authorized users. . . . If the sensor cascading microdriver 128 determines a user is not authorized, ... the sensor cascading driver 128 determines if a timeout occurs. In some examples, a timeout may indicate a user has not been authorized within a period of time. Kumar ,r 24; see also Fig. 2B. In other words, within a certain period of time, Kumar checks for an authorized user, not an unauthorized user. If no user is authorized within this period, a timeout occurs. Kumar further discloses: 4 Appeal2017-011860 Application 14/986,504 If the sensor cascading microdriver 128 determines a timeout has occurred, the process flow continues by stopping execution of facial recognition software at block 230. Kumar ,r 25. At block 218, the sensor cascading microdriver 128 can determine if another timeout value is reached or exceeded without detecting any input or activity from the camera. . . . If the sensor cascading microdriver 128 determines a timeout value for the camera has been exceeded, power can be turned off to the camera at block 234 to reduce power consumption of the computing system. Kumar ,r 26. In other words, Kumar stops execution of facial recognition when the first timeout occurs and if another timeout value is reached, i.e, for inactivity, power is turned off to the camera. In contrast to Kumar, claim 1 recites, inter alia, wherein the secure subsystem is adapted to shut down the computing device after the user, determined by the biometric authentication application to be unauthorized, has been present in the video data for a threshold amount of time (see claim 1 ). In other words, the claimed invention seeks an unauthorized user being present in the video for a certain amount of time, and this feature shuts down the computing device. Whereas, Kumar shuts down the camera due to inactivity of the facial recognition component and/or no detection of an authorized user within a period of time. Kumar is not concerned with how long an unauthorized user is present, but rather focuses on how long since an authorized user has been detected in order to reduce power consumption. Thus, for at least the reasons noted supra, we disagree with the Examiner's finding that a somehow modified Kumar teaches "to shut 5 Appeal2017-011860 Application 14/986,504 down the computing device after the user determined ... to be unauthorized has been present in the video data for a threshold amount of time," as recited in independent claim 1. Also, the Examiner has not found that any of the other references of record teach this feature. Since we agree with at least one of the arguments advanced by Appellants, we need not reach the merits of Appellants' other arguments. Accordingly, we will not sustain the Examiner's obviousness rejection of claims 1-5. DECISION The decision of the Examiner to reject claims 1-5 under 35 U.S.C. § 103(a) is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation