Ex Parte Mejegård et al

Patent Trial and Appeal Board

Jun 15, 2017

14383649 (P.T.A.B. Jun. 15, 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.
14/383,649 09/08/2014 Peter Mejegard 3 8004/09814/P2744US01 4473
100577 7590 06/19/2017
Nelson Mullins Riley & Scarborough LLP
IP Department
100 North Tryon Street, 42nd Floor
Charlotte, NC 28202-4000
EXAMINER
PADOT, TIMOTHY
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
06/19/2017 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):
ip@nelsonmullins.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER MEJEGARD,
PER WAHLSTROM,
STEFAN HOLMBERG,
TORBJORN BIRGING,
FRANCISCO JAVIER DAVILA GARCIA,
GARY PHILPOTT,
and HAKAN WAHLGREN
Appeal 2017-007340
Application 14/383,649
Technology Center 3600
Before ANTON W. FETTING, ROBERT J. SILVERMAN, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-007340
Application 14/383,649
STATEMENT OF THE CASE1
Peter Mejegard, Per Wahlstrom, Stefan Holmberg, Torbjom Birging,
Francisco Javier Davila Garcia, Gary Philpott, and Hakan Wahlgren
(Appellants)2 seek review under 35 U.S.C. § 134 of a Final Rejection of
claims 2—15, 17, 19, and 21—31, the only claims pending in the application
on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
The Appellants invented a way of automated operator-equipment
pairing. Specification 1:Title.
An understanding of the invention can be derived from a reading of
exemplary claim 2, which is reproduced below (bracketed matter and some
paragraphing added).
2. An apparatus
for automatically pairing one or more operators with one
or more pieces of equipment
where each of the one or more operators carries an
identification unit having an identification code stored
therein,
and wherein each piece of equipment comprises an
equipment data sensor configured to wirelessly receive
the identification code in any identification units within a
particular range,
the apparatus comprising:
1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed August 1, 2016) and Reply Brief (“Reply Br.,” filed April 10,
2017), and the Examiner’s Answer (“Ans.,” mailed February 8, 2017), and
Final Action (“Final Act.,” mailed March 7, 2016).
2 Appellants identify Husqvama AB as the real party in interest (App. Br. 1).
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[1] an input device for receiving a plurality of different
identification codes in data received from a particular
equipment data sensor,
wherein for each of the different identification codes the
data comprises signal information about strength or
frequency of the one or more wireless signals through
which each identification code was received by the
particular equipment data sensor;
and
[2] a processing device communicably coupled to the input
device and configured to determine an operator of the
equipment associated with the particular equipment data sensor
based at least in part on a comparison of the signal
information associated with each identification code,
wherein, in response to receiving at least two
identification codes in association with data received
from the particular equipment data sensor,
the processing device is configured to determine
the operator of equipment associated with the
particular equipment data sensor based at least in
part on comparing signal strength associated with
each respective identification code.
The Examiner relies upon the following prior art:
Claims 2—15, 17, 19, and 21—31 stand rejected under 35 U.S.C. § 101
as directed to non-statutory subject matter.
Park US 2002/0123340 A1 Sept. 5, 2002
US 2008/0266110 A1 Oct. 30, 2008
US 2009/0015410 A1 Jan. 15, 2009
US 2010/0289744 A1 Nov. 18, 2010
Hayford
Puzio
Cohen
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Application 14/383,649
Claims 17 and 19 stand rejected under 35U.S.C. § 101 as directed to
non-statutory subject matter.
Claims 17 and 19 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Puzio.
Claims 2, 3, 8, 9, 15, 21, 22, and 26 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Hayford and Park.
Claims 4, 5, 7, 10-12, 23, 24, and 27—29 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Hayford and Cohen.
Claims 13 and 30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hayford, Cohen, and Park.
Claims 6 and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hayford, Park, and Cohen.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than an abstract idea and whether the claims encompass
human beings as part of their structure. The issues of novelty turn primarily
on whether the reference applied senses actual machine operation. The
issues of obviousness turn primarily on whether the claims sense actual
operation or only make some association between an operator and a machine
irrespective of actual operation.
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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of
“operator.”
Facts Related to the Prior Art
Puzio
02. Puzio is directed to security management systems for wireless
asset monitoring. Puzio para. 2.
03. Puzio describes an asset monitoring and security system that
assigns a unique identifier to an asset. Puzio describes
transmitting an identification signal embodying the identifier over
a wireless communications link. A data store maintains a list of
the assets and privileges associated with the assets for authorized
users of the assets. A control unit receives identification signals
from the assets and monitors positions of the assets within a
defined area based on the identification signals. The control unit
communicates with the data store and initiates an alarm when
privileges associated with a given asset for authorized users of the
asset are exceeded. Puzio para. 6.
04. Puzio’s asset identification devices may be RFID chips. Puzio
para. 36.
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Application 14/383,649
05. Puzio describes a user identification device that is assigned a
unique identifier and operable to transmit an identification signal
in a manner similar to its asset identification device. Puzio para.
8.
06. Puzio’s user identification devices may be RFID chips. Puzio
para. 40.
07. Puzio describes the master control device automatically
detecting a user that currently has possession of a given asset. In
this case, the master control device detects a user identification
device within a predetermined distance of an asset to associate the
asset with a user to whom the user identification device is
assigned. Puzio para. 59. Subsequently, the master control device
may detect when an asset 14 assigned to the user is not within a
predetermined distance of the user. Puzio para. 60.
08. Puzio describes its master control device determining that a
particular user is assigned to an asset when the user identification
device of the user is within a predefined distance of the asset. For
example, a minimum distance of three feet may be required
between the asset and user identification device before the master
control device assigns the asset to the user. Puzio para. 66.
09. Puzio describes its master control device determining whether
the user to whom the asset is assigned has exceeded any allowed
privileges. Puzio para. 67.
10. Puzio describes an assignment status identifies the current user
to whom an asset is currently assigned. For example, the master
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Application 14/383,649
control device may determine that a user possesses a device when
a user identification device assigned to the user is within a
predetermined distance of the asset. Puzio para. 74.
Hayford
11. Hayford is directed to tracking personnel and equipment.
Hayford para. 6.
12. Hayford describes using personnel tags and equipment tags
based on industry-standard Radio Frequency Identification (RFID)
technology. Hayford para. 49.
13. These tags have transmitters that periodically send
identification data to a system of deployed antennas. Hayford
para. 50.
14. The personnel tags and equipment tags periodically each send a
digital radio message containing an ID code that can be received.
The personnel tag is worn by a single person. The equipment tag
is placed on a piece of equipment to be tracked. Hayford para. 52.
15. After the antenna networks are fully initialized, reception of
information from the personnel tags and the equipment tags will
commence. In the exemplary system, data packets are received
with the on-board antenna, and are relayed to each port separately.
Each port has its own RF modulator. Any unused ports may be
deprecated to conserve energy. In the event that signals from one
or more of the tags are received by more than one antenna, the
antennas determine the strength of the signal received from each
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of the tags in order to deduce the closest of the antennas. Hayford
para. 77.
Park
16. Park is directed to mobile stations in a mobile
telecommunication environment enabling mobile
telecommunication service providers to roam among themselves.
Park para. 3.
17. Park describes using signal strength to distinguish among
operators of equipment. Park para. 18.
ANALYSIS
Claims 2—15, 17, 19, and 21—31 rejected under 35 U.S.C. § 101 as directed
to non—statutory subject matter
We are persuaded by Appellants’ argument that using a comparison of
signal strength received from devices to distinguish among those devices is
more than an abstract idea.
Claims 17 and 19 rejected under 35 U.S.C. § 101 as directed to non—
statutory subject matter
The Examiner found that the operator in independent claim 17 could
be a human being and therefore rejected the claim for encompassing a
human being. Ans. 9. The Examiner based this rejection on Section 33(a)
of the America Invents Act, and on the policy promulgated in MPEP § 2105,
based on Animals - Patentability, 1077 O.G. 24, April 21, 1987, that the
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Patent and Trademark Office would consider nonnaturally occurring,
non hum an multicellular living organisms, including animals, to be
patentable subject matter within the scope of 35 U.S.C. § 101. This O.G.
Notice further stated that the grant of a limited, but exclusive property right
in a human being is prohibited by the Constitution. The Appellants contend
that the recited operator may be a robot. App. Br. 17.
Thus, the issue before us is, whether claims 17 and 19, if patented,
would encompass a human being, or a part of a human being. Claim 19
recites a system comprising a plurality of operators. The Specification states
that “except in the case of robotic equipment, the equipment is typically
operated by one or more operators, who may be different persons.” Spec.
6:13—14. This explicitly equates operators with persons. It does not allow
for robots as operators, but instead says that with robots there may not be an
operator. The remaining two references to robots describe them as
equipment rather than operators. Thus, the claims do encompass persons,
i.e., human beings, as operators, such that the Appellants do not identify an
error in the Examiner’s determination that the claims do not recite eligible
subject matter.
It is likely Appellants meant to recite a plurality of identification units
each attached to one of a plurality of operators, but the claims as drafted
unambiguously recite human operators as structural components.
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Claims 17 and 19 rejected under 35 U.S.C. § 102(b) as anticipated by Puzio
We are persuaded by Appellants’ argument that
Puzio discloses only a control device that is able to detect when
any authorized user is in a pre-defmed area near an asset and
give permission to or allow any authorized user located within
the pre-defmed area to use the asset. . . . The only
determination in Puzio is whether a user has permission to use
an asset. Therefore, all authorized users in range of the asset
can use the asset. Puzio never discloses that the control device,
even when in instances where only one authorized user is in
range of the asset, makes a determination of whether the
authorized user is actually using the asset. Moreover, Puzio
never discloses determining, when multiple authorized users are
in range of the asset, which single user is actually using the
asset. Accordingly, Puzio does not teach or suggest
determining which particular operator is operating the particular
piece of equipment associated with one of the equipment
identification codes at least in part on a comparison of the
signal information associated with each respective one of the
operator identification codes.
App. Br. 7 (emphasis omitted). These claims recite a device “configured to
determine which particular operator is operating the particular piece of
equipment.” The Examiner finds that Puzio describes associating a user
with a piece of equipment. Final Act. 9—12 and Ans. 10—12. We agree, but
association is not operating. The Examiner finds that the word “using” is
broad and may encompass possession. Id. Again we agree, but the claims
determine who is operating rather than using the equipment. Puzio does not
make a determination of whether equipment is operating, but instead assigns
equipment irrespective of whether the equipment is operating. The instant
claims sense actual operation.
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Claims 2, 3, 8, 9, 15, 21, 22, and 26 rejected under 35 U.S.C. § 103(a) as
unpatentable over Hayford and Park
We are not persuaded by Appellants’ argument that “Hayford never
discloses determining, when multiple authorized users are in range of the
equipment, which single user is actually using the equipment.” App. Br. 8.
Unlike claim 17, claim 2 does not recite operating the equipment, but instead
recites “the operator of equipment associated with the particular equipment
data sensor.” Thus, claim 2 recites finding an operator that is somehow
associated with a particular piece of equipment. An operator is, of course,
someone capable of operating something, and the word does not connote
actual operation at any particular time. The claim does not recite that any
sensor senses actual use, unlike claim 17. Although the claim recites “the
operator of equipment,” if plural operators are using the equipment,
associating any one of them would associate the operator with the
equipment, as (a) the claim does not specify that one out of plural such
operators must be winnowed down, and (b) the claim only recites making an
association, so making such an association with any one alone would be
within the claim scope.
The remaining claims are argued on the basis of claim 2.
Claims 4, 5, 7, 10—12, 23, 24, and 27—29 rejected under 35 U.S.C. § 103(a)
as unpatentable over Hayford and Cohen
These claims are argued on the basis of claim 2.
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Claims 13 and 30 rejected under 35 U.S.C. § 103(a) as unpatentable over
Hayford, Cohen, and Park
These claims are argued on the basis of claim 2.
Claims 6 and 25 rejected under 35 U.S.C. § 103(a) as unpatentable over
Hayford, Park, and Cohen
These claims are argued on the basis of claim 2.
CONCLUSIONS OF LAW
The rejection of claims 2—15, 17, 19, and 21—31 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter is improper.
The rejection of claims 17 and 19 under 35 U.S.C. § 101 as directed to
non-statutory subject matter is proper.
The rejection of claims 17 and 19 under 35 U.S.C. § 102(b) as
anticipated by Puzio is improper.
The rejection of claims 2, 3, 8, 9, 15, 21, 22, and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Hayford and Park is proper.
The rejection of claims 4, 5, 7, 10-12, 23, 24, and 27—29 under
35 U.S.C. § 103(a) as unpatentable over Hayford and Cohen is proper.
The rejection of claims 13 and 30 under 35 U.S.C. § 103(a) as
unpatentable over Hayford, Cohen, and Park is proper.
The rejection of claims 6 and 25 under 35 U.S.C. § 103(a) as
unpatentable over Hayford, Park, and Cohen is proper.
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DECISION
The rejection of claims 2—13, 15, 17, 19, and 21—30 is affirmed.
The rejection of claims 14 and 31 is 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) (2011).
AFFIRMED-IN-PART
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