Ex Parte Evans et al

Patent Trial and Appeal Board

Mar 25, 2016

12173224 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/173,224 07/15/2008 Gregory M. Evans
71739 7590 03/25/2016
Concert Technology Corporation
5400 Trinity Road, Suite 303
Raleigh, NC 27607
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.
CT-LBS-Oll/US (P215) 6471
EXAMINER
GAO, JING
ART UNIT PAPER NUMBER
2645
MAILDATE DELIVERY MODE
03/25/2016 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 GREGORY M. EV ANS and EUGENE M. FARRELLY
Appeal2014-008080
Application 12/173,224
Technology Center 2600
Before THU A. DANG, ERIC S. FRAHM, and
CARLL. SILVERMAN, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 2, and 4--28. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
A. INVENTION
According to Appellants, the invention relates to "enabl[ing] a user to
reach an inaccessible user" when "the inaccessible user may have forgotten
his or her mobile telephone, have his or her mobile telephone turned off, or
not be answering his or her mobile telephone" (Spec. i-f 2).
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Application 12/173,224
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method comprising:
receiving via a user interface of a first user device of a first
user, in connection with initiating a person-to-person
communication to a user of interest to the first user, information
identifying the user of interest, information identifying an
anticipated current location of the user of interest, and
information identifying a social network of the user of interest;
identifying one or more users that are in the social network
of the user of interest and located within a geographical area of
interest associated with the identified location; and
facilitating communication between the first user device
and a second user device of a second user from the one or more
users that are in the social network of the user of interest and
located within the geographical area of interest.
C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Mgrdechian
Z vinyatskovsky
Cadenas
Boland
US 2005/0174975 Al
US 2006/0059142 Al
WO 2006/135553 A2
US 2008/0081638 Al
Aug. 11, 2005
Mar. 16,2006
Dec. 21, 2006
Apr. 3, 2008
Claims 1, 2, 4, 5, 7-12, 14--17, and 19-28 stand rejected under 35
U.S.C. § 103(a) as unpatentable over the teachings of Cadenas and
Z vinyatskovsky.
Claims 6 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Cadenas, Zvinyatskovsky, and Boland.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the teachings of Cadenas, Zvinyatskovsky, and Mgrdechian.
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Application 12/173,224
IL ISSUE
The principal issue before us is whether the Examiner erred in finding
that the combination of Cadenas and Zvinyatskovsky teaches or would have
suggested "receiving via a user interface ... information identifying an
anticipated current location of the user of interest" (claim 1) (emphasis
added).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Cadenas
1. Cadenas discloses a notification method for cellular
communication in which, when a first user tries to call a user of interest and
the user of interest cannot be contacted, a notification message indicating the
failed call attempt is transmitted to a second user who is nearby the user of
interest (Abstr.; p. 28, 11. 4--32). The second user may then notify the user of
interest that the first user is attempting to contact the user of interest (p. 28,
11. 31-32). If the current location of the user of interest (based on the
location of his or her mobile phone) cannot be determined (e.g., because the
mobile phone is switched off), the notification message may be transmitted
to a second user nearby the user of interest's "last known location" (p. 11, 11.
5-11 ). In determining a location of the user of interest's mobile phone,
"location estimates may be determined at regular intervals" (p. 17, 11. 4--33).
Second users "may ... control whether they are available for receiving
notification messages" (p. 26, 11. 28-33).
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Zvinyats kovs ky
2. Zvinyatskovsky discloses an online dating application in which
a user may edit search criteria, including "a location," for potential
relationship candidates on a user interface (i-f 22).
IV. ANALYSIS
As for representative claim 1, Appellants contend that, because
"Cadenas specifically teaches that the location of the user is known ... there
is no need for information identifying an anticipated current location of the
user of interest" (App. Br. 12). Further, Appellants contend that the
Examiner's interpretation of "anticipated current location" is unreasonably
broad because "a location of where a person lives is not the same as an
anticipated current location" (App. Br. 13-14). Appellants also contend that
the Examiner's reason to combine Cadenas and Zvinyatskovsky would not
have prompted a person of ordinary skill to make the combination (App. Br.
14).
We have considered all of Appellants' arguments and evidence
presented. However, we disagree with Appellants' contentions regarding the
Examiner's rejections of the claims. We agree with the Examiner's findings,
and find no error with the Examiner's conclusion that the claims would have
been obvious over the combined teachings.
As an initial matter of claim interpretation, we give the claims their
broadest reasonable interpretation consistent with the specification. See In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). While we interpret claims
broadly but reasonably in light of the specification, we nonetheless must not
import limitations from the specification into the claims. See Phillips v.
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Application 12/173,224
AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en bane) (citations
omitted).
We note that claim 1 does not define the term "anticipated current
location" other than information identifying such location is received via an
interface, and users located within a "geographic[al] area of interest
associated with" the identified location are identified (claim 1 ). The
Specification merely discusses "identify[ing] the location at which the user
of interest is located or believed to be located" (Spec. i-f 29) and "information
identifying a location at which the user 16-1 knows the user of interest to be
located or believes the user of interest to be located" (Spec. i-f 30) without
providing a specific definition for the term "anticipated current location."
Thus, giving the term its broadest reasonable interpretation consistent with
the Specification, we conclude "anticipated current location" broadly
encompasses any location in which the user of interest is currently located or
anticipated (i.e., believed/expected) to be currently located. Although
Appellants contend "Cadenas specifically teaches that the location of the
user is known" and "a location of where a person lives is not the same as an
anticipated current location" (App. Br. 12-14), nothing in the claims or the
Specification precludes "anticipated current location" from encompassing a
"known" location or a "location of where a person lives" (id.), as long as the
location is where the user of interest is "anticipated," i.e., believed/expected
to be located (claim 1 ).
The Examiner finds, and we agree, that Cadenas discloses information
identifying the current location of the user of interest (Ans. 3; FF 1). In fact,
Cadenas even discloses identifying a "last known location" or "location
estimates" of the user of interest (FF 1 ). That is, Cadenas discloses and
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Application 12/173,224
suggests identifying the location at which the user of interest is located or
believed/expected to be located (id.). In view of our broadest reasonable
interpretation above, we conclude that "anticipated current location"
encompasses Cadenas' "last known location" or "location estimate" (FF 1 ).
Furthermore, the Examiner finds, and we agree, "[i]n an analogous
art, Zvinyatskovsky teaches receiving via a user interface of a first user
device of a first user information identifYing a location" (Final Act. 4). In
particular, Zvinyatskovsky discloses an application in which a user may edit
search criteria, including "a location," for potential relationship candidates
(FF 2). In view of our broadest reasonable interpretation above, we find no
error with the Examiner's reliance on Zvinyatskovsky for also disclosing
and suggesting information identifying an "anticipated current location" of a
user of interest (Final Act. 4).
Thus, we agree with the Examiner's finding that the combination of
Cadenas and Zvinyatskovsky teaches or at least suggests receiving, via a
user interface, information identifying an anticipated current location of the
user of interest (id.). That is, the test for obviousness is what the combined
teachings would have suggested to one of ordinary skill in the art. See In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We do not find
error with the Examiner's finding that "Zvinyatskovsky teaches receiving
via a user interface of a first user device of a first user certain information"
and that it would have been obvious to combine Cadenas and
Zvinyatskovsky to provide "receiving via a user interface ... information
identifying an anticipated current location of the user of interest" (Ans. 4 ).
Although Appellants contend that the Examiner's reason to combine
Cadenas and Zvinyatskovsky would not have prompted a person of ordinary
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skill to make the combination (App. Br. 14 ), the Supreme Court has
determined that the conclusion of obviousness can be based on the
interrelated teachings of multiple patents, the effects of demands known to
the design community or present in the marketplace, and the background
knowledge possessed by a person having ordinary skill in the art. KSR Int 'l
Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Appellants have provided no
evidence that combining two references directed at receiving information via
a user interface such that the received information includes "anticipated
current location" was "uniquely challenging or difficult for one of ordinary
skill in the art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007). Nor have Appellants presented evidence that this
incorporation of a teaching in the same field of endeavor yielded more than
expected results.
Rather, we find Appellants' invention, to an ordinarily skilled artisan,
is simply a combination of familiar prior art practices or acts (as taught or
suggested by the cited combination of references) that would have realized a
predictable result. The skilled artisan is "a person of ordinary creativity, not
an automaton." KSR, 550 U.S. at 420-21. 1
Based on this record, we find no error in the Examiner's rejection of
independent claims 1, 24, and 25 and claims 2, 4, 5, 7, 8, 10-12, 14--17, 19-
1 We do not address Appellants' assertion that the Examiner raised a new
ground of rejection in the Examiner's Answer (Reply Br. 4--5) because
whether an Examiner's rejection would or would not properly be regarded as
a new ground of rejection is a petitionable matter, not an appealable matter.
Appellants had the opportunity to raise this issue by filing a timely Petition
to the Director under 37 C.F .R. § 1.181, but did not do so.
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23, and 26-28 depending therefrom and falling therewith (App. Br. 15) over
Cadenas and Zvinyatskovsky.
Appellants do not provide substantive arguments for claims 6, 18, and
13 other than Boland or Mgrdechian "fails to cure the deficiencies of
Cadenas and Zvinyatskovsky" (App. Br. 16-17). For the reasons discussed
above, we also affirm the rejections of claims 6 and 18 over Cadenas and
Zvinyatskovsky, in further view of Boland; and of claim 13 over Cadenas
and Zvinyatskovsky, in further view ofMgrdechian.
As for claim 9, Appellants contend that Cadenas' teaching of "using a
distance threshold to determine which user to contact ... does not indicate
whether or not the user is willing to accept communication from the first
user as the second user" (App. Br. 15). We find no error with the
Examiner's reliance on Cadenas for disclosing and suggesting "identify[ing]
a user from the one or more users that has expressed a willingness to accept
communication from the first user as the second user" as claimed because
Cadenas explicitly discloses that the second users "may ... control whether
they are available for receiving notification messages" (Ans. 4--5; FF 1).
Based on this record, we find no error in the Examiner's rejection of
claim 9 over Cadenas and Zvinyatskovsky.
V. CONCLUSION AND DECISION
We affirm the Examiner's rejections of claims 1, 2, and 4--28 under 35
U.S.C. § 103(a).
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).
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AFFIRMED
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