Ex Parte Bell et alDownload PDFPatent Trial and Appeal BoardJun 27, 201613172992 (P.T.A.B. Jun. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/172,992 06/30/2011 46320 7590 06/29/2016 CRGOLAW STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, FL 33434 FIRST NAMED INVENTOR David Bell 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. GB920110029US1 (729) 8352 EXAMINER ORTIZ RODRIGUEZ, CARLOS R ART UNIT PAPER NUMBER 2127 NOTIFICATION DATE DELIVERY MODE 06/29/2016 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): docketing@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID BELL and CHRIS PHILLIPS Appeal2015-001582 Application 13/172,992 Technology Center 2100 Before KRISTEN L. DROESCH, LINZY T. McCARTNEY, MELISSA A. RAAP ALA, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-18. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM-IN-PART. Appeal2015-001582 Application 13/172,992 STATEMENT OF THE CASE The present patent application "relates to pattern recognition and more particularly to home automation utilizing pattern recognition of occupant behavior." Spec. i-f 2. Claim 1 illustrates the claimed subject matter: 1. A method of pattern matching determination of destination and duration of stay in a geographically bounded area, the method comprising: detecting movement by an identified individual in an origination location of the geographically bounded area; retrieving a contemporaneously generated pattern of movement for the identified individual; comparing the contemporaneously generated pattern of movement for the identified individual to a set of patterns in a pattern data store; predicting from a matching pattern in the set of patterns both a destination location in the geographically bounded area and a duration of time at which the identified individual is to remain at the destination location; and, directing activation of a fixture at the destination location responsive to predicting the destination location; and directing deactivation of a fixture at the origination location responsive to predicting the duration of time that exceeds a threshold value. REJECTIONS Claims 13-18 stand rejected under 35 U.S.C. § 101 as directed to non- statutory subject matter. Claims 1-18 stand rejected under 35 U.S.C. § 102(b) as anticipated by Bodmer et al. (US 6,263 ,260 B 1; July 17, 2001) ("Bodmer"). 2 Appeal2015-001582 Application 13/172,992 ANALYSIS § 101 Rejection Independent claims 13 recites in relevant part "the computer program product comprising: a computer readable storage medium having computer readable program code embodied therewith." Claims 14--18 depend from claim 13. The Examiner concluded claims 13-18 encompass non-statutory subject matter because "in light of the specification, the recited 'computer program product' and the 'computer readable storage medium' can be a carrier wave or other non-statutory transmission embodiments." Final Act. 3. Appellants argue claims 13-18 recite statutory subject matter because the specification distinguishes a "computer readable storage medium" from a "computer readable signal medium." See App. Br. 5-8 (quoting Spec. i-fi-125, 26). According to Appellants, the "specification expressly defines a carrier wave as being a signal medium and also expressly excludes from a signal medium a storage medium." Id. at 8. In light of this and certain prior Board decisions, Appellants contend claims 13-18 exclude transitory signals. See id. at 8-10. We find Appellants' arguments unpersuasive. The broadest reasonable interpretation of claims directed to a "computer readable storage medium" usually encompasses transitory signals, unless the specification explicitly discloses otherwise. See Ex parte Mewherter, 107 USPQ2d 1857, 1859---64 (PTAB 2013) (precedential); see also David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. & Trademark Office 212 (Feb. 23, 2010). When the broadest reasonable interpretation of a claim includes transitory signals, the claim covers non- 3 Appeal2015-001582 Application 13/172,992 statutory subject matter and should be rejected under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007); Mewherter, 107 USPQ2d at 1862. Here, contrary to Appellants' arguments, Appellants' specification does not exclude transitory signals from the scope of "computer readable storage medium." The specification paragraphs cited by Appellants provide examples of a "computer readable storage medium" and a "computer readable signal medium" but do not define either term. For instance, paragraph 25 discloses "[a] computer readable storage medium may be, for example, but not limited to" various systems, apparatuses, and devices. Spec. i-f 25 (emphasis added). Although paragraph 25 also discloses "[a] computer readable storage medium may be any tangible medium," the paragraph does not limit computer readable storage media to a tangible medium. Id. (emphasis added). This disclosure simply indicates that a computer readable storage medium can be a tangible medium. 1 Similarly, paragraph 26 discloses "a computer readable signal medium may include a propagated data signal with computer readable 1 Paragraph 25 also discloses "a non-exhaustive list" of computer readable storage media that includes "an electrical connection having one or more wires" and "an optical fiber." Spec. i-f 25. Paragraph 27 further discloses "[p ]rogram code embodied on a computer readable medium may be transmitted using any appropriate medium, including ... wireline, optical ... and the like . ... " Id. i-f 27 (emphases added). These disclosures arguably establish that the term "computer readable storage medium" encompasses the transitory signals that travel over "an electrical connection" and "an optical fiber." "[P]hysical but transitory forms of signal transmission such as ... electrical signals through a wire, and light pulses through a fiber-optic cable" are non-statutory subject matter. In re Nuijten, 500 F.3d 1346, 1353 (Fed. Cir. 2007). 4 Appeal2015-001582 Application 13/172,992 program code embodied therein, for example, in baseband or as part of a carrier waver." Id. i-f 26 (emphasis added). Like the disclosure concerning computer readable storage media in paragraph 25, this disclosure simply indicates that a computer readable signal medium can include a propagated data signal such as a baseband or a carrier waive. But this disclosure does not limit computer readable signal media to propagated data signals or establish that computer readable signal media include all propagated data signals. Nor does the subsequent disclosure that "[a] computer readable signal medium may be any computer readable medium that is not a computer readable storage medium" distinguish computer readable storage and signal media. Id. (emphasis added). The use of the permissive word "may" indicates that computer readable signal media and computer readable storage media can include mutually exclusive subject matter but does not limit the terms to mutually exclusive subject matter. For the above reasons, Appellants have not persuaded us the broadest reasonable interpretation of the term "computer readable storage medium" excludes transitory signals. We therefore affirm Examiner's rejection of claims 13-18 under 35 U.S.C. § 101. § 102 Rejection Appellants argue, among other things, that Bodmer does not disclose the following limitations recited in claim 1: comparing the contemporaneously generated pattern of movement for the identified individual to a set of patterns in a pattern data store predicting from a matching pattern in the set of patterns both a destination location in the geographically bounded area 5 Appeal2015-001582 Application 13/172,992 and a duration of time at which the identified individual is to remain at the destination location See App. Br. 16; Reply Br. 7-8. In particular, Appellants contend "there is no pattern matching in Bodmer ... instead it is [Bodmer's] probability functions (probability algorithms) that recognize [a] change of behavior." Reply Br. 8; see also id. at 7. We find Appellants' arguments persuasive. With respect to claim 1 's "predicting" limitation, the Examiner found Bodmer teaches both predicting user behavior and using pre-stored patterns to adjust heating in various locations: Bodmer describes predicting that a user is going to the bathroom at [a] specific time and then from the bathroom (origination locations) the user is going to the kitchen (destination locations). Based on pre-stored user patterns the system pre-heats the rooms (originations/ destinations) at optimum times, and after a specific duration has exceed the system switches off the heating. Similar procedures are performed in other rooms (other origination locations and destinations locations). Ans. 3--4. But the "predicting" limitation requires "predictingfrom a matching pattern in the set of patterns both a destination location ... and a duration of time ... the identified individual is to remain at the destination location." App. Br. 18 (Claims Appendix) (emphasis added). The Examiner's finding that Bodmer discloses predicting user behavior and then uses pre-stored patterns to adjust heating does not establish that Bodmer predicts user behavior based on the pre-stored patterns, much less "from a matching pattern in the set of patterns" as claimed. The Examiner also found Bodmer discloses claim 1 's "predicting" limitation because "Bodmer 'knows' a specific person's behavior and uses that information to predict the most probable actions." Final Act 2; see also 6 Appeal2015-001582 Application 13/172,992 id. at 4 (citing Bodmer 3:34---67, 6:9-21). But the disputed "predicting" step requires more than simply using someone's behavior to predict a probable action; the step requires predicting specific actions "from a matching pattern in the set of patterns" The portions of Bodmer cited by the Examiner do not disclose this aspect of the disputed "predicting" step. Rather, the cited portions disclose that Bodmer's software uses user behavior as a prediction basis and provide examples in which mismatches in user behavior cause Bodmer's system to either trigger an alarm or update a behavioral model. See Bodmer 3:34---67, 6:9-21. Although these disclosures might render claim 1 's "predicting" limitation obvious to one of ordinary skill in the art, the Examiner did not make an obviousness rejection. The Examiner found Bodmer anticipates this limitation, and the cited disclosures lack sufficient specificity to support this finding. Accordingly, based on the record before us, we do not sustain the Examiner's anticipation rejection of claim 1 and its dependent claims. Because the Examiner's anticipation rejection of the other pending independent claims (claims 7 and 13) has similar deficiencies, we also do not sustain the Examiner's rejection of these claims and their respective dependent claims. DECISION For the above reasons, we affirm the Examiner's rejection of claims 13-18 under 35 U.S.C. § 101. We reverse the Examiner's rejection of claims 1-18 under 35 U.S.C. § 102. 7 Appeal2015-001582 Application 13/172,992 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-IN-PART 8 Copy with citationCopy as parenthetical citation