Ex Parte Zadeh et al

Patent Trial and Appeal Board

Nov 19, 2018

13706182 (P.T.A.B. Nov. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/706, 182 12/05/2012 Shayan G. Zadeh
30748 7590 11/19/2018
INNOVATION PARTNERS
540 UNIVERSITY A VE.
SUITE 300
PALO ALTO, CA 94301
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.
1753 9087
EXAMINER
CHOW,DOONY
ART UNIT PAPER NUMBER
2174
MAIL DATE DELIVERY MODE
11/19/2018 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 SHAY ANG. ZADEH, ALEXANDER F. MEHR, and
CHARLES E. GOTLIEB
Appeal2018-004195 1
Application 13/706,1822
Technology Center 2100
Before MICHAEL J. STRAUSS, JAMES B. ARPIN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
ARPIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) the Examiner's decision
rejecting claims 1, 3-8, 10-15, and 17-21. Non-Final Act. 3--4, 10. Claims
2, 9, and 16 are cancelled. Id. at 2. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 In this Decision, we refer to Appellants' Appeal Brief ("App. Br.," filed
August 1, 2017) and Reply Brief, ("Reply Br.," filed February 12, 2018); the
Non-Final Office Action ("Non-Final Act.," mailed December 1, 2016); the
Examiner's Answer ("Ans.," mailed December 11, 2017); and the
originally-filed Specification ("Spec.," filed December 5, 2012).
2 According to Appellants, the real party-in-interest is Zoosk, Inc. App.
Br. 2.
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Application 13/706,182
STATEMENT OF THE CASE
Appellants' recited methods, devices, and program products relate to
"identify[ing second] users not only nearby or otherwise convenient for [a
first] user to interact with, but also compatible with that [first] user."
Spec. 2:8-11. As noted above, claims 1, 3-10, and 12-19 are pending.
Claim 1, directed to methods of displaying location information of at least
one first user to a second user, claim 8, directed to systems for displaying
location information of at least one first user to a second user, and claim 15,
directed to computer program products for displaying location information
of at least one first user to a second user, are independent. App. Br. Claims
App'x. Claims 3-7 depend directly or indirectly from claim 1, claims 10-14
depend directly or indirectly from claim 8, and claims 17-21 depend directly
or indirectly from claim 15. Id.
Claim 1, reproduced below, is representative.
1. A method of displaying location information of at least one
first user to a second user, comprising:
receiving, at a computer system comprising a hardware
processor coupled to a memory, location information from a
plurality of third users comprising the at least one first user, and
from the second user;
receiving, at the computer system comprising the
hardware processor coupled to the memory, from the second user
information indicating at least one preference for a plurality of
characteristics of other users;
receiving, at the computer system comprising the
hardware processor coupled to the memory, from each of the
plurality of third users information comprising a plurality of
characteristics of that user;
calculating, at the computer system comprising the
hardware processor coupled to the memory, a distance between
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an object different from any of the plurality of third users and the
second user;
selecting, at the computer system comprising the
hardware processor coupled to the memory, the at least one first
user from the plurality of third users in response to the current
locations of the plurality of third users and the second user, the
preference of the second user, the characteristics of the plurality
of the third users, and a distance between the object and the
locations of the plurality of third users and the distance
calculated between the object and the second user; and
providing, from the computer system comprising the
hardware processor coupled to the memory, for display to the
second user information in response to the location information
of the at least one first user selected.
Id. ( disputed limitations emphasized); see App. Br. 2-7.
REFERENCES
The Examiner relies upon the following prior art in rejecting the
pending claims: 3
Bourne ("Bourne") US 2005/0177614 Al
Robinson et al. ("Robinson") US 2008/0086261 Al
Scheibe ("Scheibe") US 2009/0100037 Al
Flinn et al. ("Flinn") US 2011/0302209 Al
Aug. 11, 2005
Apr. 10, 2008
Apr. 16, 2009
Dec. 8, 2011
3 The Examiner identifies other references, including Kahn and Tuck, as also
supporting findings underlying the rejections. Non-Final Act. 15-18;
Ans. 18-20. Nevertheless, those references are not included in the
Examiner's stated rejections or identified as contributing to any new grounds
of rejection. Ans. 3. Therefore, we do not address them further in this
decision. See App. Br. 14--16, 18; Reply Br. 13-14. As discussed below,
the Examiner did not err in concluding that Robinson, Bourne, and Flinn,
alone or in combination with Scheibe, render the pending claims obvious.
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THE REJECTIONS
Claims 1, 3-8, 10-15, and 17-21 stand rejected under 35 U.S.C.
§ 112, ,r 2, as indefinite. Non-Final Act. 2-3. Claims 1, 3, 4, 6-8, 10, 13-
15, 17, 18, and 21 stand rejected under 35 U.S.C. § 103(a) as rendered
obvious over the combined teachings of Robinson, Bourne, and Flinn. Id. at
4--10. Claims 5, 12, and 19 stand rejected under 35 U.S.C. § 103(a) as
rendered obvious over the combined teachings of Robinson, Bourne, Flinn,
and Scheibe. Id. at 10-11.
Unless otherwise indicated, we adopt the Examiner's findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis. We address these rejections below.
ANALYSIS
A. Indefiniteness
The Examiner finds independent claims 1, 8, and 15 are indefinite
and, consequently, claims 3-7, 10-14, and 17-21, which depend from
claims, 1, 8, or 15, also are indefinite. Non-Final Act. 2-3; Ans. 4--5. For
purposes of this Appeal, Appellants contest the indefiniteness rejections of
independent claims 1, 8, and 15 together. App. Br. 7-9; Reply Br. 17-20.
The rejections of dependent claims 3-7, 10-14, and 17-21 stand or fall with
the rejections of independent claims 1, 8, and 15. See App. Br. 9; Reply
Br. 20.
In particular, the Examiner finds that claim 1 recites "selecting ... the
at least one first user from the plurality of third users in response to" five
factors:
the current locations of the plurality of third users and the
second user,
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the preference of the second user,
the characteristics of the plurality of the third users,
a distance between the object and the locations of the plurality
of third users,
the distance calculated between the object and the second user.
Ans. 4. The Examiner finds that this language is "overly broad and makes
the entire claim indefinite because it is unclear how a selection can be in
response to the recited parameters." Id.
Particularly, the claim language fails to provide with any
certainty what it means for the selection to be "in response" to
the above parameters, and further fails to recite any meaningful
relationship therebetween. That is, it is unclear how these
parameters narrow the scope of the claim at all. To wit, there is
no recitation of how these parameters may be used or measured
to define a condition for the claimed selection step, thus leaving
the reader to speculate about the same. This renders the claim
overbroad and indefinite.
Id. at 5.
Appellants acknowledge that the claims are broad, but disagree that
their breadth renders them indefinite. App. Br. 8 ("Examiner rejects the 'in
response to' language, which is admittedly broad, but does not make a
determination of the scope to be impossible, as 'in response to' has a well
understood meaning."), Reply Br. 18 ("Examiner also attempts ... to state
that too much breadth is in fact indefiniteness"). Appellants contend that a
person of ordinary skill in the art would understand from the claim language
that the selection depends upon each of the recited factors. There are no
undefinable terms in the factors and no relative terms suggesting that a
factor may be omitted. See Ans. 13. According to Appellants, the factors
recited in claims 1, 8, and 15 are not difficult for one skilled in the art to
understand. The Examiner does not contest this assertion. See Non-Final
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Act. 3 (interpreting claims 1, 8, and 15 for purposes of compact
prosecution). Thus, Appellants contend "there is no uncertainty at all. The
factors specified in the claims for which the claimed invention is 'in
response to' are either used to perform the functions claimed or they aren't."
Reply Br. 18; see id. at 19 ("One either uses the factors claimed or they
don't."). We agree.
Because a person of ordinary skill in the art would understand the
identified factors and because, as Appellants contend, the claim language
makes clear that all of the factors are considered in performing the
"selecting" step, 4 we are persuaded that the independent claims are broad,
but not indefinite. Thus, we are persuaded that the Examiner erred in
rejecting independent claims 1, 8, and 15 and the claims that depend
therefrom as indefinite, and we do not sustain those rejections.
B. Obviousness Over Robinson, Bourne, and Flinn
1. Independent Claims 1, 8, and 15
For purposes of this Appeal, the Examiner argues the obviousness
rejections of independent claims 1, 8, and 15 together. Non-Final Act. 4--7;
Ans. 6-12. In particular, the Examiner finds that Robinson teaches or
suggests the recited step of "receiving ... location information from a
plurality of third users comprising the at least one first user, and from the
second user." Non-Final Act. 4, 11 (citing Robinson ,r 12); Ans. 7-8; see
Robinson ,r 11, Figs. 1 and 2. The Examiner further finds that Robinson
4 As discussed below, this consideration does not prevent "the distance
calculated between the object and the second user" from equaling zero. See
Non-Final Act. 12; see also App. Br. Claims App'x (claim 5 recites "the
speed of travel of the second user," which also may be zero).
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teaches or suggests the recited step of "receiving ... from the second user
information indicating at least one preference for a plurality of
characteristics of other users." Non-Final Act. 4, 11 (citing Robinson ,r,r 46,
54, Fig. 3); Ans. 8; see Robinson ,r 11. The Examiner also finds that
Robinson teaches or suggests the recited step of "receiving ... from each of
the plurality of third users information comprising a plurality of
characteristics of that user." Non-Final Act. 4, 11-12 (citing Robinson
,r,r 42, 54); Ans. 8; see Robinson ,r 49 (discussing steps 306 and 308 of
Fig. 3). Appellants do not contest the mapping of these "receiving" steps on
Robinson's teachings. See App. Br. 15; Reply Br. 17.
In addition, the Examiner finds that Robinson teaches or suggests the
recited step of "providing ... for display to the second user information in
response to the location information of the at least one first user selected."
Non-Final Act. 7 (citing Robinson ,r,r 50, 67); Ans. 12. Appellants do not
contest the mapping of this "providing" step on Robinson's teachings. See
App. Br. 15; Reply Br. 17.
Each of the steps of method claim 1 also refers to "a computer system
comprising a hardware processor coupled to a memory." See also App.
Br. Claims App 'x (Claim 8 recites "a GPS receipt manager comprising a
hardware processor 5 system coupled to a memory system," and claim 15
recites "calculat[ing], at the computer system comprising the hardware
processor coupled to the memory."). Robinson teaches that "a computer
system comprising a hardware processor coupled to memory" may be used
to perform the steps of the methods of claim 1. Non-Final Act. 7 (citing
Robinson, Fig. 9 ( depicting computed 902 having processing unit 904 and
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system memory 906)); Ans. 12. Appellants also do not contest the mapping
of these limitations on Robinson's teachings. See App. Br. 15; Reply Br. 17.
The Examiner further finds that Robinson teaches or suggests four of
the five factors recited in the "selecting" step. Non-Final Act. 4--5; Ans. 9-
10. In particular, the Examiner finds that Robinson teaches or suggests
selecting a candidate, i.e., a first user, from a group of candidates, i.e., third
users, "in response to" or based on ( 1) the current locations of the second
and third users (Robinson ,r,r 47, 50, 67, Figs. 2 (steps 202-212) and 3 (step
310); see Non-Final Act. 5), (2) the matching of the second user's
preferences with characteristics of third users (Robinson ,r,r 49, 50, 67,
Fig. 3 (steps 302 and 308); see Non-Final Act. 5), and (3) distances between
an object and the locations of the third users (Robinson ,r,r 47 48; see Non-
Final Act. 5; Ans. 6). Regarding the relative locations of an object and third
users, Robinson teaches that:
At [step] 304 [of Figure 3], a preferred location can be
identified by the user. In this act, the user can identify a location
by which candidates should be searched. In one example, this
preferred location can define a radius around a city or other
location. In other aspects, the preferred location can be a specific
city, state, building, park, amusement park, etc. In other words,
the granularity of the preferred location can be of most any
desired by a user.
Robinson ,r 47 (emphasis added); see Non-Final Act. 5. In another example,
the preferred location may be defined by a radius X from the user's current
location. Robinson ,r 48; see Non-Final Act. 5. Robinson explains that the
user's current location may be determined by "GPS location detection or
other suitable location determination systems," such as through a mobile
phone or other similar device, e.g., an object. Robinson ,r,r 2, 32, 41, 48; see
Spec. 3 :2-9. Thus, it is not contrary to Robinson's intended purpose to
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distinguish between users based on their distance from an object. See App.
Br. 16, 17-18; Reply Br. 2, 16.
The Examiner finds Robinson also teaches the step of "calculating ...
a distance between an object different from any of the plurality of third users
and the second user." Non-Final Act. 12; Ans. 20 ("[T]he primary reference
Robinson teaches the essence of the claimed subject matter, including
calculating the distance of a candidate from a first object associated with a
seeking user."). Although claims recite that the locations of the third users
are different from the location of the object, no such requirement is imposed
on the second user. Thus, the Examiner explains:
For example, it is noted that if Robinson is considered
individually, based on the broadest reasonable interpretation of
the claim language, it reads upon the claimed limitations in a
scenario where the object is the user's cellphone and the distance
between the user and the cell phone is zero, for example.
Non-Final Act. 12 (emphasis added). Appellants contend, if the object and
the second user are at the same location and there is zero distance between
them, there is no reason to "calculate" the distance, as recited in the
independent claims. App. Br. 13, 21. Nevertheless, we interpret
"calculating" broadly. App. Br. 8; Reply Br. 12; see Spec. 29:7-14. Given
that only the third users are required to be at a location different from that of
the object, we agree with the Examiner that the "calculating" step
encompasses determining that the distance between the second user and an
object is zero. Alternatively, the Examiner finds the combined teachings of
Robinson and Bourne teach or suggest this "calculating" step. Ans. 6-7; but
see App. Br. 19-22. Again, we agree with the Examiner.
The Examiner acknowledges that Robinson does not explicitly teach
or suggest "the limitations associated with using a distance between a
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[second] user and an object as a selection criteri[on]." Non-Final Act. 5
( emphasis added). The Examiner finds, however, that this limitation is
taught or suggested by Bourne and Flinn and that a person of ordinary skill
in the art would have been motivated to combine the teachings of these
references with those of Robinson to improve match quality or meeting
convenience and thereby achieve the method recited by claim 1. Id. at 5-7.
In particular, the Examiner finds that Bourne teaches "using location
information for finding a match within proximity of a location of interest
(i.e., based on distance of the user and the candidate from a common
location or object)." Id. at 5 (citing Bourne ,r 26). According to Bourne,
As used herein, a user "activates" the service to attempt to obtain
an introduction to another mobile device user, typically one that
is a given location within an overlapping time window.
Typically, mobile device users are potentially introduced only if
they are within a given physical proximity within overlapping
time windows, i.e., at a given time when such introductions are
possible. . . . If automated location data is not available, the
message may include location-related data, such as a zip code, a
landmark, an airport code, or other identifier, from which
location can be derived.
Bourne ,r 26; see id. ,r 34 ( defining "physical proximity"). The Examiner
finds that Bourne teaches selecting candidates based on the candidates'
proximity to the user and a landmark. Non-Final Act. 6; Ans. 7.
Appellants contend, however, that "Bourne focuses on matching
based on 'intellectual proximity', and so Bourne never describes the actual
proximity matching." App. Br. 11. In addition, Appellants contend that
Bourne teaches either automatically or manually identifying the candidate's
location. Id.; Reply Br. 4. Thus, Appellants contend that Bourne's matching
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may occur based on an input location rather than an actual location. We
disagree.
Initially, we note that the pending claims do not specify the source or
accuracy of the "location information." Further, contrary to Appellants'
contentions, Bourne teaches making candidate selections based on the user's
and the candidate's "intellectual proximity," e.g., their matching preferences
and characteristics, and their "physical proximity." Bourne ,r 6; see id. ,r 5
( defining "intellectual proximity"). Thus, Bourne teaches that "a given
intellectual proximity condition or threshold might be relaxed or
strengthened if prospective mobile users are close to one another (e.g., at the
same trade show)," that is if they are both close to the same object.
Because both Robinson and Bourne teach methods that employ the
relative location of users and candidates and matching user preferences and
candidate characteristics to make selections, the Examiner finds that a
person of ordinary skill in the art would have had reason to combine
Bourne's teachings regarding improved mapping based on user and
candidate proximity to a common object with those of Robinson. Non-Final
Act. 6; Ans. 7. We agree.
Anticipating challenges to the sufficiency of the teachings of
Robinson and Bourne (Non-Final Act. 6), the Examiner further finds that
Flinn teaches that users and candidates may be matched based on their
proximity to each other and to physical objects (id. ( citing Flinn, Table 1,
,r 45)). In particular, Flinn's Table 1 suggests "a variety of different user
behaviors 920, which, may be used by the one or more computer-based
applications 925 as a basis for recommending a first person to a second
person." Flinn ,r 32. Among these behaviors, Flinn's Table 1 identifies
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"environmental conditions and locations" including "current location,"
"location over time," and "relative location to users/object references."
Flinn explains that "[p ]roximity of a user to a second user (including a first
person that will be, or has already been, recommended to a second person),
or to physical objects referenced by elements or objects of the computer-
based application, may be inferred." Id. ,r 45 ( emphasis added).
Appellants disagree, first contending that Flinn does not teach or
suggest that the "proximate location of the users to each other or to common
objects may be utilized as a matching criteria." Reply Br. 5 (quoting Ans. 7
( emphasis added)). Appellants assert that:
"Common" objects is not something Flinn notes. Flinn doesn't
precisely describe the manner of making [the user's] matches, so
we look to Flinn's claims for some sort of indication of what
Flinn has in mind. It is noted that Flinn's claims don't recite
using locations of users to "common objects" as stated by
Examiner, and in fact note that the direct distance between the
two users is what is used for the match (Flinn claims 2 and 9).
Claim 10 of Flinn notes that the match may be based on the
proximity of only one of the two people and an object, not both
as asserted by Examiner.
Reply Br. 5. However, Appellants fail to note that Flinn's claim 17 recites
that the people matching system of Flinn's claim 16 further comprises "a
people matching function that generates the suggested match in accordance
with the proximity of the two people and a physical object." Thus, Flinn
explicitly teaches determining the locations of users with respect to a
common object.
Next, Appellants contend that, unlike the methods of claim 1, Flinn
teaches that proximity from one user to another or proximity from one user
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to a physical object is "inferred."5 App. Br. 14. Nevertheless, as the
Examiner explains,
the Office's reliance on Flinn has nothing to do with whether
location or distance from a location may be inferred, and further
nothing is recited in the claims that would distinguish how a
distance or location may be determined, or why inferring a
location or distance is distinguishable from determining or
calculating the distance or location.
Ans. 18. Moreover, Appellants contend that Flinn fails to explain how
location is used to determine matches. App. Br. 13-14. In particular,
Appellants note that Flinn discloses using the length of time that a user
remains in a location permits an inference of the user's "intensity of
interest," but Appellants contend that Flinn never explains how the intensity
is applied. Id. Given the broad interpretation of the "selecting" step of
claim 1 (id. at 8; see Non-Final Act. 14), we are persuaded that Flinn's
teachings regarding the use of the relative distances of users to a common
object is sufficient to teach the disputed limitation of claim 1.
Because Robinson, Bourne, and Flinn teach methods that employ the
relative location of users and candidates and matching user preferences and
candidate characteristics to make selections (see Flinn, Table 1 ), the
Examiner finds that a person of ordinary skill in the art would have had
reason to combine Flinn's teachings regarding improved matching by the
5 Appellants contend that the Examiner improperly takes official notice that,
as illustrated by Flinn, "it is 'well known' to use distance and location data
from an object to select or match users." Reply Br. 10-11. Nevertheless, as
Appellants note, "[i]f the reference shows a feature, it isn't necessary to
assert it is well known, as a single reference is all that is necessary." Id. at
11; see also App. Br. 19-20, 22 (Appellants contentions regarding improper
hindsight). We find that Flinn explicitly teaches this limitation.
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proximity of users and candidates to a common object with those of
Robinson and Bourne. Non-Final Act. 7; Ans. 11-12; see KSR Intern. Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) ("For the same reason, if a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill."). We agree.
For the above reasons, the Examiner has shown that the combined
teachings of Robinson, Bourne, and Flinn teach or suggest all of the
limitations of independent claim 1 and that a person of ordinary skill in the
art would have reason to combine the teachings of these references to
achieve the methods of claim 1. Non-Final Act. 4--7; Ans. 6-12. Thus, we
are not persuaded that the Examiner erred in concluding claim 1 is rendered
obvious over Robinson, Bourne, and Flinn. The limitations of claim 1 are
substantially the same as those recited in each of independent claims 8 and
15. App. Br. Claims App'x. Thus, we are persuaded that the Examiner has
shown that claims 8 and 15 also are rendered obvious over Robinson,
Bourne, and Flinn. Non-Final Act. 8. Thus, we sustain the rejections of
independent claims 1, 8, and 15 under 35 U.S.C. § 103(a) over Robinson,
Bourne, and Flinn.
2. Dependent Claims 3, 4, 6, 7, 10, 13, 14, 17, 18, and 21
The Examiner also concludes that claims 3, 4, 6, 7, 10, 13, 14, 17, 18,
and 21, which depend directly or indirectly from independent claim 1, 8, or
15, are rendered obvious by Robinson, Bourne, and Flinn. Non-Final
Act. 7-10. Appellants contend that, because the Examiner erred in rejecting
independent claims 1, 8, and 15, we cannot sustain the rejections of
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dependent claims 3, 4, 6, 7, 10, 13, 14, 17, 18, and 21. See Appeal Br. 23;
Reply Br. 17. For the above reasons, we disagree, and, thus, we are not
persuaded that the Examiner erred in the concluding claims 3, 4, 6, 7, 10, 13,
14, 17, 18, and 21 and 21 are rendered obvious by Robinson, Bourne, and
Flinn and sustain the rejection of those claims under 35 U.S.C. § 103(a).
C. Obviousness Over Robinson, Bourne, Flinn, and Scheibe
Claims 5, 12, and 19 stand rejected as rendered obvious by the
combined teachings of Robinson, Bourne, Flinn, and Scheibe. Non-Final
Act. 10-11. Claims 5, 12, and 19 depend directly from claims 1, 8, and 15,
respectively. Claims 5, 12, and 19 are not separately argued with
particularity. Accordingly, we sustain the rejections of claims 5, 12, and 19
under 35 U.S.C. § 103(a) over Robinson, Bourne, Flinn, and Scheibe for the
reasons discussed above in connection with claim 1.
We are not persuaded that the Examiner erred in rejecting claims 1, 3-
8, 10-15, and 17-21 under 35 U.S.C. § 103(a) as rendered obvious over
Robinson, Bourne, and Flinn, alone or in combination with Scheibe. Thus,
we sustain the obviousness rejections.
DECISION
We reverse the Examiner's decision to reject claims 1, 3-8, 10-15,
and 17-21 under 35 U.S.C. § 112, ,r 2.
We affirm the Examiner's decision to reject claims 1, 3-8, 10-15, and
17-21 under 35 U.S.C. § 103(a).
Because at least one rejection encompassing all claims on appeal is
affirmed, the decision of the Examiner is affirmed.
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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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