Ex Parte Fitzgerald et al

Patent Trial and Appeal Board

Mar 31, 2017

12546660 (P.T.A.B. Mar. 31, 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.
12/546,660 08/24/2009 William Fitzgerald 101908.00023 3792
23619 7590 04/04/2017
Squire Patton Boggs (US) LLP
PHX-IP&T-S PB
8000 Towers Crescent Drive
14 th Floor
Tysons Corner, VA 22182
EXAMINER
NGUYEN, NAM V
ART UNIT PAPER NUMBER
2682
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
PHXIPDOCKET @ SquirePB .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM FITZGERALD, PETER BERMINGHAM,
FRANK HANNIGAN, and PAUL PRENDERGAST
Appeal 2016-004177
Application 12/546,6601
Technology Center 2600
Before DEBRA K. STEPHENS, KARA L. SZPONDOWSKI, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
Final Rejection of claims 1—35. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
1 Appellants’ Brief (“Br.”) identifies the real party in interest as
YOUGETITBACK Limited. Br. 3.
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Application 12/546,660
CLAIMED SUBJECT MATTER
The claims are directed to displaying information through an auxiliary
user interface without first having to login using a primary access interface.
Spec. 141—142. Claim 1, reproduced below, is exemplary of the claimed
subject matter:
1. A method comprising:
(a) defining a user interface of a provided electronic
device, the user interface including:
(i) an auxiliary interface for receiving input from a
user and providing output to the user; and
(ii) a distinct primary access interface separate from
the auxiliary interface; and
(b) providing, using the auxiliary interface, a message to
the user wherein the message is provided without requiring the
user to be authenticated through the primary access interface.
Br. 29 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kagay, Jr. US
Vesikivi US
Zellner US
Dunko US
Tysowski US
Chen2 US
6,782,251 B2 Aug. 24, 2004
7,389,118 B2 June 17, 2008
7,664,488 B2 Feb. 16, 2010
7,983,723 B2 July 19, 2011
8,090,389 B2 Jan. 3, 2012
8,739,053 B2 May 27, 2014
2 We note Chen’s status as prior art under 35 U.S.C. § 102(e) is contingent
upon the present application not being entitled to claim priority back to its
original parent application filing. As Appellants have not challenged the
prior art status of Chen, we assume Appellants do not assert an effective
filing date which antedates Chen.
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REJECTIONS
Claims 1—6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dunko and Chen. Final Act. 7.
Claims 7—16 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dunko, Chen, and Kagay, Jr. Final Act. 8.
Claims 17—22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dunko, Chen, and Tysowski. Final Act. 10.
Claims 23—27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dunko, Chen, and Zellner. Final Act. 11.
Claims 28—35 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dunko, Chen, Zellner, and Vesikivi. Final Act. 12.
ISSUES
(1) Has the Examiner erred in finding Dunko teaches “an auxiliary
interface for receiving input from a user and providing output to the user,” as
recited in claim 1?
(2) Has the Examiner erred in finding Dunko teaches “providing,
using the auxiliary interface, a message to the user wherein the message is
provided without requiring the user to be authenticated through the primary
access interface,” as recited in claim 1?
(3) Has the Examiner stated a sufficient rationale to support the
combination of Dunko and Chen?
(4) Has the Examiner erred in finding dependent claims 2—6 are
obvious over Dunko and Chen?
(5) Has the Examiner erred in finding dependent claims 7—16 are
obvious over Dunko, Chen, and Kagay, Jr.?
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ANALYSIS
First Issue
Appellants contend the Examiner has erred in finding Dunko teaches
“an auxiliary interface for receiving input from a user and providing output
to the user,” as recited in claim 1. Br. 15. Appellants argue neither the
Primary User Interface (142) nor the Secondary User Interface (144) in
Dunko is capable of any output. According to Appellants, the only user
interface in Dunko capable of output is the user interface (140), which
includes display (146) and speakers (150). As a result, Appellants argue
Dunko’s Secondary User Interface (144) is not capable of output and cannot
be considered an “auxiliary interface for . . . providing output to the user.”
Appellants’ argument does not fully appreciate the Examiner’s
application of Dunko. The Examiner finds Dunko’s primary user interface
(142) and the display (146) when the flip phone is open corresponds to the
“primary access interface” recited in the claims; the Examiner finds Dunko’s
secondary user interface (144) along with the display (146), including the
soft keys 106 which are assigned to functions when the flip phone is closed
is “an auxiliary interface.” See Ans. 5 (“The display (146) is part of the
secondary user interface (144), primary user interface (142) and the user
interface (140).”); see also Dunko Fig. 1A—ID. Because the display (146) is
capable of outputting messages, and the portion of Dunko identified by the
Examiner as the recited “auxiliary interface” includes both the Secondary
User Interface (142) and the display (146), we are not persuaded the
Examiner has erred in finding Dunko teaches “an auxiliary interface for
receiving input from a user and providing output to the user.”
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We note Appellants’ contention that the display (146) may not be a
common resource shared by the Primary User Interface (142) and Secondary
User Interface (144). App. Br. 15. This argument is not persuasive because
it is inconsistent with the embodiments described in Appellants’
Specification. For example, the Specification states “auxiliary interface
6520 (if visual) may be any size, shape, or configuration,'1'’ (Spec. 1143,
italics added), and Figure 65 illustrates an embodiment in which the primary
access interface (6510) and the auxiliary interface (6520) share a common
display (6500) to provide output.
Second Issue
The Examiner finds Dunko teaches the limitation “wherein the
message is provided without requiring the user to be authenticated through
the primary access interface.” Ans. 3^4 (citing Dunko col. 3,11. 32—64, col.
5,11. 54—64, col. 7,11. 19—25, and Figs. 3—5). Appellants assert neither
Dunko nor Chen teaches this limitation. Br. 19. However, Appellants
provide no reasoning or explanation in support of this assertion. Id.
We are not obligated to consider this bare assertion, as it is not
considered an argument under our rules. 37 C.F.R. § 41.37(c)(l)(iv) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability.”); see also In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art.”). Nevertheless,
even if we were to consider Appellants’ assertion to be a properly advanced
argument, we are not persuaded.
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We interpret claims according to their broadest reasonable
construction. Here, the limitation at issue recites “wherein the message
[provided by the auxiliary interface] is provided without requiring the user to
be authenticated through the primary access interface.” However, the claim
as a whole does not impose any requirement that access to the device be
contingent upon the user being authenticated through the primary access
interface.3 As a result, if a device does not require authentication via the
primary access interface, any message provided by the auxiliary interface is
provided “without requiring the user to be authenticated though the primary
access interface.” Dunko does not discuss any authentication requirement
associated with any of the interfaces. Accordingly, an ordinarily skilled
artisan would understand any messages provided by Dunko’s Secondary
User Interface are provided “without requiring the user to be authenticated
through” the Primary User Interface.
Third Issue
All claim rejections are based on some combination that includes at
least Dunko and Chen. Final Act. 7 (claims 1—6), 8 (claims 7—16), 10
(claims 17—22), 11 (claims 23—27), 12 (claims 28—35). Appellants contend
Dunko and Chen are improperly combined because “Dunko’s disclosure
teaches away from using a separate display from outputting any message
(only a common display) and so the combination of Dunko and Chen would
produce an inoperative result, and would not suggest the claimed
combination.” Br. 19. Appellants argue this inoperative result would result
3 Claim 1 merely recites “a distinct primary access interface separate from
the auxiliary interface.” Thus, there is no requirement that a user be
authenticated in order to access the functionality of the device via the
primary access interface.
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because “neither of Dunko’s Primary User Interface nor Secondary User
interface has the capability for output.” Br. 19. According to Appellants,
“the provided rationale ... is not supported as the inoperable combination
would result as well as the Dunko’s reference’s clear failure to provide
output at least in its Secondary User Interface.” Br. 19-20.
The Examiner finds Dunko does not teach “a distinct primary access
interface separate from the auxiliary interface,” presumably because the
display (146) is shared between the primary user interface (142) and the
secondary user interface (144). Final Act. 7. The Examiner further finds
Chen’s use of a housing (110) that includes a first display unit 120 and a
second display unit 130 teaches that it was known to utilize distinct user
interfaces to separately provide both input and output. Ans. 7.
We agree with the Examiner’s finding that a person of ordinary skill
in the art would have sought to improve Dunko by adding the two separate
display units taught by Chen to replace the single display unit as taught by
Dunko. Ans. 7. More specifically, we agree with the Examiner that
Dunko’s use of a primary user interface and a secondary user interface
suggests the desirability of having separate user interfaces to provide
different input and output functions. As correctly found by the Examiner,
this suggestion in Dunko would have prompted a person of ordinary skill in
the art to incorporate Chen’s display configuration because doing so would
have allowed each user interface to be used to provide input and output
separately. Ans. 7. Moreover, we note this incorporation would not result in
the incompatibility Appellants suggest, as we see nothing in Dunko that
would preclude the modification of its display (146) to include two separate
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display areas as taught by Chen. Accordingly, we are not persuaded the
Examiner has erred in finding Dunko and Chen properly combinable.
Fourth Issue
Appellants contend the Examiner has erred in finding dependent
claims 2—6 rendered obvious by Dunko and Chen and claims 7—16 rendered
obvious by Dunko, Chen, and Kagay, Jr. Br. 21—22. We note that each of
these claims recite limitations that are specific to the content or type of
“message to the user” as recited in claim 1. The Examiner finds claims 2—6
rendered obvious by Dunko. Final Act. 8 (citing Dunko col. 5,11. 54—64 and
Figs. 4, 5). Appellants argue the Examiner did not provide a sufficiently
detailed explanation of the basis of the rejection of claim 2. Br. 22
(“[Appellants] have respectfully demanded evidence where the teachings of
claims 2—6 are disclosed, on a line-by-line basis in either the Dunko or Chen
reference, but none was forthcoming.”) We disagree.
With respect to claim 2, we agree with the Examiner that Dunko
renders it obvious. The Examiner finds, and we agree, various types of
messages are provided through Dunko’s Secondary User Interface, including
graphical images. Dunko col. 5,1. 57. Moreover, as recognized by
Appellants these messages include voice mail messages, and Dunko teaches
providing voicemail messages via the Secondary User Interface. Br. 21
(“Dunko . . . mentions listening to a voice mail message . . . .”). A voice
mail message is an audio message, which is one of the types of messages
recited in claim 2. Accordingly, we sustain the rejection of claim 2.
Providing voicemail via Dunko’s Secondary User Interface also
renders obvious claim 3 which depends from claim 2 and recites “wherein
[the] content in the message was received by an account owned by the user
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within a predetermined period of time.” As was well-understood at the time
the invention was made, voicemail is “an electronic communication system
in which spoken messages are recorded or digitized and stored for later
playback to the intended recipient.” Merriam-Webster’s Collegiate
Dictionary 1401 (11th ed 2007). Thus, we find Dunko’s voicemail is
digitally stored for later playback (a predetermined period of time) upon
receipt and thus, teaches or at least suggests the disputed limitation.
Accordingly, we sustain the rejection of claim 3. Claim 4, which depends
from claim 2, recites “wherein [the] content in the message is stored in a
database.” Because a database is “a usu. large collection of data organized
esp. for rapid search and retrieval” {id. at 316), we are unpersuaded a person
of ordinary skill in the art would have failed to understand Dunko’s
voicemail messages to be stored in a database, we also sustain the rejection
of claim 4.
Claim 5 recites the limitation “wherein the content in the message is
chosen from the database based on a random selection.” Although Dunko
teaches a database that stores voicemail messages, nothing in Dunko
suggests randomized selection voicemails from the database. Whether
randomized data selection was well-known at the time of invention, the
Examiner has not provided evidence supporting such a finding. Constrained
by this record, we must reverse the rejection. For the same reasons, we are
also constrained by this record to reverse the rejection of claim 6, which
recites the limitation “wherein the selected message is chosen from the pre­
stored collection based on at least one of: the current date; the current time;
and the current location of the electronic device.” The Examiner does not
explain, nor is it evident to us, how the selection of voicemail messages in
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Dunko is based on any of the current date, current time, or current location
of the device. We, therefore, do not sustain the rejection of claims 5 and 6.
Fifth Issue
Appellants also present arguments for patentability of claims 7—16,
which stand rejected under 35 U.S.C. § 103(a) as being obvious over Dunko,
Chen, and Kagay, Jr. In rejecting these claims, the Examiner generally finds
the lost phone finder feature described in column 3 of Kagay, Jr. discloses
the recited limitations. Final Act. 8—10 (citing Kagay, Jr. col. 3,11. 7—60).
Claim 7, depends from claim 1, and recites the limitation “wherein the
message indicates that the current time is a preferred time to begin a
communication.” Claim 8, which depends from claim 7, adds the limitation
“providing a prompt to the user with instructions regarding how to initiate
the communication.” With respect to claims 7 and 8, Appellants argue the
Examiner has provided insufficient explanation for the rejection, and the
cited passage in Kagay, Jr. does not mention time or provide any
instructions. Br. 23. We disagree.
Kagay, Jr. teaches the use of a security module (120) on a mobile
telephone device which displays device status information on the display
(140). Kagay, Jr. col. 3,11. 7—8. Kagay, Jr. further teaches the security
module “may also enable an alert sequence such as ... a sequence of other
audio, visual, or tactile signals . . . .” Kagay, Jr. col. 3,11. 35—40. The alert
sequence may “continue until the callback number is dialed,” {id. at col. 3,
11. 45 46). The alert “include[s] a callback number for the finder to dial to
contact the owner of a lost mobile communication device,” and the alert
sequence and associated callback number notify the finder the phone is lost.
Id. at col. 3,11. 10-12, 45^46. Because the alert sequence continues until the
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callback number is dialed, it indicates the current time is the preferred time
to initial a communication (dial the callback number). Thus, we agree with
the Examiner that Kagay, Jr.’s alert sequence is a message which “indicates
that the current time is a preferred time to begin a communication,” as
recited in claim 7.
We also agree with the Examiner that Kagay, Jr.’s alert sequence
renders obvious claim 8. The security module (120) in Kagay, Jr. includes
“instructions useful for a finder of a lost mobile communication device” and
those instructions may include “a callback number for the finder to dial.” Id.
at col. 3,11. 11—12. As such, Kagay, Jr. teaches providing a prompt to the
user with instructions (the useful instructions) regarding how to initiate the
communication (the instructions include a phone number to call).
Accordingly, we sustain the rejection of claims 7 and 8.
Claim 9 recites the limitation “wherein the message comprises a
message digest, the message digest comprising” summaries regarding
various different forms of message content. Initially, whether Kagay, Jr.
teaches a “message digest” as recited in claim 9 turns on the meaning of
“message digest.” Neither Appellants nor the Examiner provide a
construction for “message digest.” As noted previously, we accord claim
limitations their broadest reasonable construction in light of the
Specification. Here, the Specification makes clear that a “message digest” is
simply a summary of some type of information. See Spec. 1148. Based on
the broadest, reasonable interpretation, in light of the Specification, we agree
with the Examiner that Kagay, Jr. teaches the recited “message digest.” In
particular, Kagay, Jr. teaches the security module (120) displays instructions
for a finder of a mobile communication device, see Kagay, Jr. col. 4,11. 7—
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17, which corresponds to the claimed “summary regarding tasks needing
attention” because the instructions summarize the steps the finder needs to
take to return the phone to its rightful owner. Accordingly, we sustain the
rejection of claim 9.
Claim 10 recites “[t]he method as defined in Claim 9, wherein the
summary regarding text messages received includes at least one of a number
of messages received and at least part of the content of a text message.”
Importantly, claim 10 does not specify the “message digest” from claim 9
must be a “summary regarding text messages.” Rather, it merely requires
that if the “message digest” comprises a summary “regarding text messages
received,” the summary regarding text messages received must include “at
least one of a number of messages received and at least part of the content of
a text message.” Claim 9 does not require the message digest comprise a
summary “regarding text messages received.” Rather, its scope is such that
claim 9 is rendered obvious when any one of the more than a dozen
enumerated options is taught in the prior art.
As a result, if the prior art applied by the Examiner is such that the
message digest comprises one of the other enumerated items in the lengthy
list of claim 9, the limitation in claim 10 does not need to be met, as the
limitation only need to be met if the “message digest” comprises a
“summary regarding text messages received.” Cf. Ex Parte Schulhauser,
Appeal No. 2013-007847 (PTAB April 28, 2016) (“Schulhauser”) (holding
that under broadest reasonable interpretation conditional steps in process
claims need not be carried out to be within the scope of the claim). Here, the
Examiner correctly found Kagay, Jr. teaches one of the other enumerated
items in the lengthy list of claim 9, namely “a summary of tasks needing
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attention.” Because the prior art teaches claim 9, and because under the
broadest reasonable interpretation, the Examiner need not present evidence
of the obviousness of claim 10, we sustain the rejection of claim 10.
Like claim 10, claims 11 and 12 also depend from claim 9, and are
similar in scope and structure. Claim 11 recites the limitation “wherein the
summary regarding status of the provided electronic device[4] includes at
least one of [six enumerated options].” Claim 12, which depends from claim
11, recites the limitation “wherein the accessibility mode comprises at least
one of: [four enumerated options].” For the same reasons as set forth with
respect to claim 10, we sustain the rejections of these claims.
Claim 13 depends from claim 1 and recites “wherein the message
comprises a time-sensitive alert message, the time-sensitive alert message
comprising one of more of: an urgent communication request from an
authorized third party; an urgent notice from an authorized security
authority; [two additional enumerated types of notices].” The Examiner
finds Kagay, Jr. renders obvious claim 13, citing column 3, lines 35—60.
Appellants contend the cited portion of Kagay, Jr. does not render claim 13
obvious because it “appears to teach outputting beeps to help locate a
device.” Br. 24. We are not persuaded by Appellants’ argument.
The cited passage in Kagay, Jr. teaches the use of “an alert sequence”
which maybe “audio, visual, or tactile signals.” Kagay, Jr. col. 3,11. 35—38.
The alert sequence may be initiated periodically (i.e., is time-sensitive),
4 We further note the recitation in claim 11 of “the summary regarding status
of the provided electronic device” lacks antecedent basis. Although we do
not exercise our discretion to enter a new ground of rejection under 35
U.S.C. § 112, second paragraph, should there be further prosecution, the
Examiner’s attention is drawn to this matter.
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utilizing intervals ranging from “every ten seconds” to “every five minutes.”
Id. at 11. 39-42. Additionally, Kagay, Jr.’s time-sensitive alert sequence is
both “an urgent communication request from an authorized third party” and
an “urgent notice from an authorized security authority” because it requests
that the user of the phone dial a callback number, and “the alert sequence
may continue until the callback number is dialed.” Id. at 11. 45—48.
Accordingly, we agree with the Examiner that claim 13 is rendered obvious
by the prior art, and we sustain this rejection.
Like claims 10—12, claims 14 and 15 each recite conditional
limitations that need only be taught by the prior art if time-sensitive alert
message in claim 13 is a “notice that the provided electronic device is in the
vicinity of a business that is providing a special commercial offer.” Because
the Examiner correctly finds the prior art teaches other ones of the
enumerated list items in claim 13, the Examiner does not need to provide
evidence of obviousness of these claims. Accordingly, under Schulhauser,
we also sustain the rejections of claims 14 and 15.
Claim 16 also depends from claim 13, and specifies “the time-
sensitive alert message comprises notice of an impending dangerous event
including at least one of: [several enumerated types of notices]... a notice
of attempted unauthorized access to a computer system . . . [several
additional enumerated types of notices].” Appellants present the same
argument for claim 16 as for claim 13—that Kagay, Jr. is limited to teaching
outputting beeps to help locate a device. Br. 24. Appellants’ argument does
not persuade us of Examiner error. As discussed above, Kagay, Jr. teaches a
security module that initiates an alert sequence that may be used “to assist in
locating the mobile communication device.” Kagay, Jr. col. 3,11. 37-40.
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The security module continues the alert sequence when the user seeks to
access the electronic device, unless a security code is entered. Id. at col. 3,
11. 45—48. By continuing the alert sequence after a user attempts to use the
device, the alert sequence provides a notice of attempted unauthorized
access to the device. Accordingly, we find the Examiner’s rejection to be
supported by a preponderance of evidence, and we sustain the rejection of
claim 16.
Nonfunctional Descriptive Matter
We additionally note various dependent claims including claims 2 and
9—16 each further limit their base claim only by virtue of the content stored
in the message. As such, they differ from the prior art only based on non­
functional descriptive material.5 Under our precedent, “the nature of the
information being manipulated does not lend patentability to an otherwise
unpatentable computer-implemented product or process.” See Ex parte
Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). In addressing
issues relating to the claiming of nonfunctional descriptive material, we have
noted “if the prior art suggests storing a song on a disk, merely choosing a
particular song to store on the disk would be presumed to be well within the
level of ordinary skill in the art at the time the invention was made.” Ex
5 For example, claim 2 recites “[t]he method as defined in Claim 1, wherein
the message comprises one or more of: an alarm; an audio message; a music
performance; a video message; a graphical image; a reminder to purchase
items low in inventory; a television program currently available for viewing;
instructions describing how a found device may be returned to its rightful
owner; a current date; a current time; and a prompt soliciting the user to
enter a response to a request.” Br. 29 (Claims Appendix) (line spacing
removed).
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parte Mathias, 84 USPQ2d 1276, 1279 (BPAI 2005) (informative), affd
191 F. App’x. 959 (Fed. Cir. 2006) (Rule 36).
Here, we found in affirming the rejection of claim 1, the prior art
suggests providing the recited “message” to the user. In claim 2 (as well as
in claims 9—16) Appellants merely choose particular types of information to
convey with the message, which is no different than the Ex Parte Mathais
example of choosing a particular song to store on a disk. Accordingly, we
find the limitations in claims 2 and 9—16 which amount to no more than
choosing information to convey in the message, were well within the level of
ordinary skill in the art at the time the invention was made, and we sustain
the rejection of claims 2 and 9—16 for this additional reason.
Remaining Claims
Appellants do not present any separate arguments with respect to the
remaining dependent claims 17—35. As all of these claims depend from
claim 1, and they are not argued separately, they fall with claim 1.
Accordingly, we sustain the rejections of claims 17—35 under 35 U.S.C.
§ 103(a).
DECISION
The Examiner’s rejections of claims 1—4 and 7—35 are affirmed.
The Examiner’s rejections of claims 5 and 6 are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
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AFFIRMED-IN-PART
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