Ex Parte Chen et al

Patent Trial and Appeal Board

Apr 26, 2017

14059612 (P.T.A.B. Apr. 26, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/059,612 10/22/2013 Feng Chen XCN920120136US1 4661
81571 7590 04/28/2017
T aw Office Of Tim Rnioe
EXAMINER
3839 Bee Cave Road CORUM JR, WILLIAM A
Suite 201
West Lake Hills, TX 78746 ART UNIT PAPER NUMBER
2433
NOTIFICATION DATE DELIVERY MODE
04/28/2017 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):
jennifer@boiceip.com
Emily @ BoiceIP.com
Jim@BoiceIP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FENG CHEN, PAN LIU, XIAO YU WANG, and ZIAO ZHI YAN
Appeal 2017-000332
Application 14/059,612
Technology Center 2400
Before CAROLYN D. THOMAS, NABEEL U. KHAN, and
MICHAEL M. BARRY, 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 9—33, all the pending claims in the
present application. Claims 1—8 are canceled. See Claims Appendix. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally to setting and verifying a
password. See Abstract.
Appeal 2017-000332
Application 14/059,612
Claim 9 is illustrative:
9. A system comprising:
receiving circuitry suitable for receiving a configuration
password entered via a keyboard, wherein the configuration password
comprises position information of a first key on the keyboard, and
symbol information of a second key on the keyboard, wherein the first
key and the second key are different keys; and
storing circuitry suitable for storing the configuration
password.
Appellants appeal the following rejections:
Rl. Claims 9—33 are provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1—8 and
26—32 of copending Application No. 14/483,964 (Final Act. 5);
R2. Claims 9, 12—14, 21, 22, and 24 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Gao (US 2008/0172735 Al, July 17, 2008)
(Final Act. 6—8);
R3. Claims 10, 11, 15—20, 23, 25, 27, 29, and 32 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Gao (Final Act. 9-14); and
R4. Claims 26, 28, 30, 31, and 33 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gao and Shin (US 7,698,563 B2, Apr.
13,2010) (Final Act. 14-18).
ANALYSIS
Provisional Double Patenting Rejection
Claims 9-33 are provisionally rejected on the ground of nonstatutory
double patenting as being unpatentable over claims 1—8 and 26—32 of
copending Application No. 14/483,964 (see Final Act. 5).
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While acknowledging that the underlying provisional rejection might
be obviated by future events, such as the reference application failing to
issue as a patent, we find that such a rejection benefits both Appellants and
the Office by identifying the possibility of double patenting at an early date
and hastening of the prosecution. See In re Wetterau, 356 F.2d 556, 558
(CCPA 1966). Here, Appellants recognize the provisional rejection as an
issue on appeal (see App. Br. 1), but do not contest the rejection but rather
request that the rejection be held in abeyance (i.e., “Appellants agree to take
steps to appropriately respond to these rejections upon successful resolution
of any other non-double patenting rejections”).
In view of the lack of response from Appellants, we summarily
sustain the Examiner’s provisional double patenting rejection of claims 9—
33. Our affirmance of the double patenting rejection is only provisional, and
“might be obviated by future events.” See Wetterau, 356 F.2d at 558.
Rejection Under § 102(b)
Claims 9, 12—14, 21, 22, and 24
Issue 1: Did the Examiner err in finding that Gao discloses a
configuration password comprising position information and symbol
information, as set forth in claim 9?
Appellants contend that “[a]s shown in FIG. 2 of Gao, a keyboard
initially takes in positioning inputs from a user” (App. Br. 8) and “FIG. 4 of
Gao merely shows that a user can input a new authentication code into an
active field in a GUI. None of the teachings of Gao teach or suggest taking
two types of user input (‘entered via a keyboard’) to create the password”
{id. at 11).
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In response, the Examiner finds that Gao figure 4 does teach the
recited two types of input. “The first is that of a pattern layout” (Ans. 15
(citing Gao Fig. 6 and associated Specification discussion)). “The second is
a PIN code entered by keys having alphanumeric characters associated with
them” {id. (citing Gao Figs. 4, 6, claim 3, 31—32)). Appellants do not
persuasively rebut this finding.
It appears that Appellants concede that while Gao teaches inputting
position information of keys, i.e., the input pattern in Fig. 2, Gao’s new
authentication code fails to teach receiving symbol information of a second
key, hence Gao fails to teach the two types of input required for the recited
the password. See App. Br. 8—11. However, Appellants fail to explain why
the Examiner’s proffered explanation of Gao’s entering of a new
authentication code at dialog window 450 in Fig. 4 does not teach entering
symbol information from the keyboard. Specifically, we find Appellants
have failed to present substantive arguments persuasive of Examiner error
regarding interpreting the aforementioned argued limitation as reading on
both Gao’s authentication password along with Gao’s configuration of the
user’s layout.
We decline to examine the claims sua sponte, looking for distinctions
over the prior art. Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed.
Cir. 1991) (“It is not the function of this court to examine the claims in
greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.”); see also Ex parte Belinne, No. 2009-
004693, 2009 WF 2477843 at *3^1 (BPAI Aug. 10, 2009) (informative).
The Examiner further finds, and we agree, that Appellants “appear[]
to be bringing into the arguments details from the specification . . . not found
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Application 14/059,612
in [Appellants’] recited claim limitations” (Ans. 15). For example,
Appellants highlight that in the embodiment of their Specification, the user
presses the “POS” (Position) key to enter position information (see App. Br.
6), and argues claim 9 distinguishes over Gao based on the POS key as a
type of input not taught or suggested by Gao (see Reply Br. 2 (citing Gao
Figs. 2, 3)), without addressing the Examiner’s findings related to Gao Fig.
4. However, this aforementioned feature is not recited in the claims, and
hence Appellants’ argument based on this feature is not commensurate with
the scope of the claims.
Accordingly, we sustain the Examiner’s rejection of claim 9.
Appellants’ arguments regarding the Examiner’s rejection of independent
claim 21 rely on the same arguments as for claim 9, and Appellants do not
argue separate patentability for the dependent claims 12—14, 22, and 24. See
App. Br. 6—15. We, therefore, also sustain the Examiner’s anticipation
rejection of claims 12—14, 21, 22, and 24.
Rejections under § 103(a)
Claim 11
Issue 2: Did the Examiner err in finding that Gao teaches or suggests
the position information of a key in the configuration password is a function
of symbol information, as set forth in claim 11?
Appellants contend that “FIG. 5 and cited paragraph [0035] of Gao
merely teach that rows/columns of keys can be shifted about on the
keyboard. This is unrelated to the claimed limitation” (App. Br. 12).
The Examiner finds, however, that “Gao does show in Fig. 5 that the
pattern layout key ... is used to determine position information of symbol
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keys in a standard layout keyboard . . . [and] [t]he pattern layout key is
determining how keys from a standard layout keyboard should be arranged
when inputting the PEST code” (Ans. 16). We agree with the Examiner.
Contrary to Appellants’ contention, Gao’s paragraph [0035] does not
merely teach that the rows/columns of keys can be shifted, but also discloses
that “even though the authentication data used with the other applications
uses different alphanumeric values, the arrangement of the authentication
data can be made common” (135). In other words, Gao teaches that the
pattern chosen is associated with alphanumeric values, i.e., a key in the
configuration password is a function of symbol information.
Thus, we find unavailing Appellants contention that Gao’s Fig. 5 and
paragraph [0035] are unrelated to claim 11 given the aforementioned
disclosure.
Accordingly, we sustain the Examiner’s rejection of claim 11.
Claims 10, 15—20, 23, and 25—33
Issue 3: Did the Examiner err in finding that Gao teaches or suggest a
randomly arranged keyboard, as set forth in claim 32?
In addition to the arguments supra regarding claim 9, which we find
unpersuasive, Appellants further contend that “Gao does not teach or
suggest that the first and second set of key selections are from a ‘randomly
arranged keyboard’” (App. Br. 17).
For the randomly arranged keyboard limitation, it appears that the
Examiner is taking Official Notice because the Examiner finds that although
“Gao is silent as to the keyboard [being] a randomly arranged keyboard. . . .
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randomized keyboards are notoriously well known and used in the art” (Ans.
18; see also Final Act. 9).
In reviewing the record, we find that Appellants have not traversed the
Examiner’s finding by stating that the purported well-known fact is not
considered to be common knowledge or well-known in the art. See MPEP §
2144.03(C) (“To adequately traverse such a finding, an applicant must
specifically point out the supposed errors in the examiner’s action, which
would include stating why the noticed fact is not considered to be common
knowledge or well-known in the art. See 37 CFR 1.111(b).”). An adequate
rebuttal of the Examiner’s taking of Official Notice must contain sufficient
information or argument to create on its face a reasonable doubt regarding
the circumstances justifying the Examiner’s notice of what is well known to
one of ordinary skill in the art. In re Boon, 439 F.2d 724, 728 (CCPA
1971)).
Here, Appellants have done nothing more than allege the impropriety
of the Examiner’s striking out the term “randomly arranged” (see App. Br.
17), purportedly because the prior art of record does not teach or suggest the
disputed limitations. However, Appellants fail to positively state that the
purported well-known fact is not considered to be common knowledge or
well-known in the art. Thus, we find Appellants’ contention/response to be
inadequate by failing to state why the Examiner’s Official Notice was
improper and why the noticed fact was not well known.
Accordingly, we sustain the Examiner’s rejection of claim 32. We
also sustain the rejection of claims 10, 15—20, 23, 25—31, and 33, for which
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Appellants present no substantive arguments separate from those for claim
32.1
DECISION
We summarily affirm the Examiner’s provisional non-statutory
Double Patenting rejection R1 of claims 9—33.
We affirm the Examiner’s § 102(b) and § 103(a) rejections R2-R4 of
claims 9-33.
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
1 We note Appellants mistakenly argue claims 10, 23, 25, and 26 as rejected
under § 102(b) (see App. Br. 6—11, 14—15).
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