12694551 (P.T.A.B. Mar. 24, 2016)

Ex Parte Jennings

Patent Trial and Appeal BoardMar 24, 2016

12694551 (P.T.A.B. Mar. 24, 2016)

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. 12/694,551 01/27/2010 Kenneth Jennings CT-CRD-013/US (P399) 6234 71739 7590 03/25/2016 Concert Technology Corporation 5400 Trinity Road, Suite 303 Raleigh, NC 27607 EXAMINER WITZENBURG, BRUCE A ART UNIT PAPER NUMBER 2166 MAIL DATE 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 KENNETH JENNINGS1 ________________ Appeal 2014-000253 Application 12/694,551 Technology Center 2100 ________________ Before JEAN R. HOMERE, JASON V. MORGAN, and JOYCE CRAIG, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–3 and 5–27. Claim 4 is canceled. Appeal Br. 9. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Invention Appellant discloses a sharable item sharing rule based on an element of aggregate profile data for a current location of a user or a crowd 1 Appellant identifies Waldeck Technology, LLC, as the real party in interest. App. Br. 3. Appeal 2014-000253 Application 12/694,551 2 characteristic of one or more crowds that are currently relevant to the current location of the user. Abstract. Exemplary Claims Claims 1 and 21, reproduced below with key limitations emphasized, is representative: 1. A method of operation for a computing device of a user, comprising: configuring a sharing rule for a sharable item stored by the computing device, the sharing rule being based on an element of aggregate profile data for a current location of the user, wherein the aggregate profile data is generated by comparing a user profile for the user with anonymized user profiles for users relevant to the current location and the element corresponds to a number of user matches for a keyword in the user profile found during the comparison; obtaining the element of the aggregate profile data for the current location of the user; resolving the sharing rule for the sharable item based on the element of the aggregate profile data for the current location of the user to provide a resolution result; and sharing the sharable item according to the resolution result for the sharing rule. 21. A method of operation for a computing device of a user, comprising: configuring a sharing rule for a sharable item stored by the computing device, the sharing rule being based on at least one characteristic of a crowd of users currently relevant to a current location of the user; obtaining the at least one characteristic of the crowd of users; resolving the sharing rule for the sharable item based on the at least one characteristic of the crowd of users to provide a resolution result; and Appeal 2014-000253 Application 12/694,551 3 sharing the sharable item according to the resolution result for the sharing rule. Rejection The Examiner rejects claims 1–3 and 5–27 under 35 U.S.C. § 103(a) as being unpatentable over Davis et al. (US 2009/0201896 A1, published Aug. 13, 2009) and Feldman et al. (US 2008/0086741 A1, published Apr. 10, 2008).2 Final Act. 2–9. ISSUES 1. Did the Examiner err in finding the combination of Davis and Feldman teaches or suggests an “aggregate profile data [that] is generated by comparing a user profile for the user with anonymized user profiles for users relevant to the current location” of the user, as recited in claim 1? 2. Did the Examiner err in finding the combination of Davis and Feldman teaches or suggests “at least one characteristic of a crowd of users,” as recited in claim 21? ANALYSIS We agree with and adopt as our own the Examiner’s findings of facts and conclusions as set forth in the Answer and in the Action from which this appeal was taken. Final Act. 2–3; Ans. 3–8. We have considered Appellant’s arguments, but do not find them persuasive of error. We provide the following explanation for emphasis. 2 The Examiner incorrectly lists canceled claim 4 in and omits claims 25–27 from the statement of the rejection. Final Act. 2. Claims 25–27 are addressed in the body of the rejection. Id. at 8–9. Both typographical mistakes are harmless and do not affect this decision. Appeal 2014-000253 Application 12/694,551 4 Claims 1, 19, and 20 In rejecting claim 1, the Examiner finds that the automatic transfer of data in Davis among co-located sensors based on proximity and other factors—such as commonality of user interests or activities or membership in a social network—teaches or suggests a sharing rule based on an element of aggregate profile data for a current location of a user. Final Act. 2 (citing, e.g., Davis ¶¶ 9, 61–63, 182, 185, Abstract). The Examiner relies on Feldman’s identification of networks using audience commonality metrics (e.g., identifying a market segment as “Hockey Enthusiasts”) to teach or suggest generating aggregate profile data by comparing a user profile for the user with anonymized user profiles for users relevant to the current location of the user. Final Act. 3 (citing Feldman ¶¶ 24–26, 29, and 34). Appellant contends the Examiner erred because Feldman fails to teach or suggest anonymized user profiles, Davis fails to teach or suggest comparing a user profile, and the combination of Davis and Feldman at best teaches or suggests anonymizing a user profile without generating aggregate profile data. See Appeal Br. 11. Appellant’s arguments are unpersuasive of error because they are unresponsive to the Examiner’s rejection. As the Examiner acknowledges, Davis focuses on one-to-one sharing (Ans. 4) or, as Appellant puts it, “determining a relationship between two users who are co-located and then transferring data based on the relationship and the location of the two users” (Appeal Br. 12). Thus, Davis teaches or suggest generating aggregate profile data—identifying that users are personally or professionally related—by comparing user profiles for co-located devices (i.e., identifying Appeal 2014-000253 Application 12/694,551 5 commonalities among or comparing user interests or activities or social network memberships). See Ans. 3–4; Davis ¶¶ 182–83. The Examiner correctly relies on Feldman, rather than Davis, to teach or suggest the use of anonymized user profiles because Feldman teaches or suggests sharing or opening a channel (e.g., selecting a network) based on favorable audience commonality metrics (i.e., anonymized user profiles). See Ans. 4; Feldman ¶ 34 (“by identifying networks with favorable audience commonality metrics, the advertiser may . . . be able to reach [a] target audience”). Thus, rather than characterizing individual profiles, Feldman teaches or suggests characterizing them as a group (e.g., as “Hockey Enthusiasts”). See Feldman ¶ 29. Appellant further argues the Examiner erred because in Davis “[t]here is no indication at all that the commonality of user interests and/or activities are a keyword in a user profile or that they are the element that corresponds to a number of user matches for a keyword in the user profile found during the comparison.” Reply Br. 5. However, Appellant does not address the Examiner’s reliance on Feldman—which describes descriptive commonalities such as “Hockey Enthusiasts”—to teach or suggest a keyword and the claimed number of user matches for the keyword. See Ans. 3 (citing Feldman ¶¶ 24–26, 29, and 34). Appellant further argues that claim 1’s recitations require “the sharing rule is resolved after the element that corresponds to a number of user matches for a keyword in the user profile found during the comparison is determined. Thus, the aggregate profile data is not created when the sharing rule is resolved.” Reply Br. 6. That is, Appellant argues the Examiner erroneously construes the claim as being directed to generating aggregate Appeal 2014-000253 Application 12/694,551 6 profile data after resolving a sharing rule, rather than being directed to generating aggregate profile data before such resolution in order to facilitate such resolution. However, the Examiner merely finds the combination of Davis and Feldman teaches or suggests that “‘aggregate profile data’ is created as this sharing rule outcome data is based on comparing user profile data for a specific or even idealized demographic user with the overall aggregate found.” Ans. 5. That is, the Examiner finds that sharing rule outcome data (i.e., resolution of the sharing rule) is based on compared user profile data (i.e., the combination teaches generating aggregate profile data before resolution of a sharing rule). Appellant’s misreading of the Examiner’s findings conjures a non-existent claim construction disagreement. Because there is no disagreement as to the meaning of the disputed recitation, and because the Examiner’s findings show that the combination of Davis and Feldman teaches or suggested the disputed recitation as construed by Appellant, Appellant’s argument is unpersuasive of error. Appellant argues combining the teachings and suggestions of Davis and Feldman would result in an inoperative system in which “two anonymous profiles are compared to determine whether to share data.” Reply Br. 6. However, Appellant does not provide persuasive arguments or evidence that the combined teachings and suggestions of Davis and Feldman are limited to the anonymization of user profiles for both the device having a sharable item and the devices having anonymized user profiles used to determine whether to share the sharable item. For these reasons, we agree with the Examiner that the combination of Davis and Feldman teaches or suggests “aggregate profile data [that] is Appeal 2014-000253 Application 12/694,551 7 generated by comparing a user profile for the user with anonymized user profiles for users relevant to the current location” of the user, as recited in claim 1. Final Act. 2–3. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claim 1. Appellant makes similar arguments with respect to claims 19 and 20. Appeal Br. 10. For similar reasons, we also sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claims 19 and 20. Claims 2, 3, 5–18, and 21–27 The Examiner rejects claim 21, which has similar recitations to claim 1, for substantially the same reasons as claim 1. Final Act. 7. Appellant argues the Examiner erred because claim 21 recites at least one characteristic of a crowd of users, but Davis is “only pertinent to a one- to-one sharing environment and [thus cannot] also be intended for an entire crowd of people.” Reply Br. 7; see also Appeal Br. 13. However, as the Examiner finds, Davis determines whether to share data from one device to another (Ans. 4 (citing Davis ¶¶ 181–206)) while Feldman teaches or suggests recitations directed to the use of anonymized user profiles for users, such as audience commonality metrics or demographics representing collective information about an audience (i.e., a crowd) (Ans. 4 (citing, e.g., Feldman ¶ 34)). Thus, we agree with the Examiner that Feldman’s audience commonality metrics or demographics, especially in light of the proximity- based ad hoc network construction of Davis, teaches or suggests characteristics of a crowd of users. See Ans. 4; Feldman ¶ 34, Davis Abstract. Moreover, Appellant does not persuasively distinguish the claimed “crowd of people” from the transfer of “user data to one or more other sensors” in Davis. Davis ¶ 185 (emphasis added). Appeal 2014-000253 Application 12/694,551 8 Appellant further argues the Examiner erred because Davis describes problems in pairing Bluetooth devices together. Reply Br. 8 (citing Davis ¶ 181). However, Davis explicitly teaches alternatives to sharing over Bluetooth devices such as using an intermediary to allow for sharing among devices that otherwise would not be compatible. See, e.g., Davis ¶ 189 (“data sharing manager 2120 can transfer data between and among WiFi devices, cellular telephones and Bluetooth™ devices that would not normally be able to detect or communicate with each other”). For these reasons, we agree with the Examiner the combination of Davis and Feldman teaches or suggests “at least one characteristic of a crowd of users,” as recited in claim 21. Final Act. 7; Ans. 7–8. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claim 21. Appellant argues claims 2, 3, 5–18, and 22–27 are patentable because they depend from either claim 1 or claim 21, or because they have similar recitations to the disputed recitation of claim 21. Appeal Br. 13–14. Thus, for the same reasons discussed above, we also sustain the Examiner’s 35 U.S.C. § 103(a) rejection of these claims. Appeal 2014-000253 Application 12/694,551 9 DECISION3 We affirm the Examiner’s decision rejecting claims 1–3 and 5–27. 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. § 41.50(f). AFFIRMED 3 In the event of further prosecution, we recommend the Examiner ascertain whether claims 20 and 27, each directed to a computer readable medium storing software, encompass signals and thus should be rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356–57 (Fed. Cir. 2007) (“A transitory, propagating signal like Nuitjen’s is not a ‘process, machine, manufacture, or composition of matter.’ . . . [T]hus, such a signal cannot be patentable subject matter.”); MPEP § 2106(I) (“Non-limiting examples of claims that are not directed to one of the statutory categories . . . [include] transitory forms of signal transmission (for example, a propagating electrical or electromagnetic signal per se.”)); Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential).