Ex Parte Moscicki et al

Patent Trial and Appeal Board

Jun 28, 2018

14196796 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/196,796 03/04/2014
100462 7590 07/02/2018
Dority & Manning P.A. and Google LLC
Post Office Box 1449
Greenville, SC 29602
FIRST NAMED INVENTOR
Angelique Moscicki
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.
GGL-286 1066
EXAMINER
DE JESUS LASSALA, CARLOS MANUEL
ART UNIT PAPER NUMBER
2494
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
usdocketing@dority-manning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANGELIQUE MOSCICKI, EDISON TAN,
SACHA CHRISTOPHE ARNOUD, DAVID JOHN ABRAHAM,
MICHAEL CRAWFORD, COLIN MCMILLEN,
JOSEPH ANDREW MCCLAIN, BRYAN ARTHUR PENDLETON,
MARK R. RUSSELL AND LUIS VON AHN
Appeal 2018-001305
Application 14/196, 796 1
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1-8, 10, 15, and 18-202. We have jurisdiction under 35
U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is Google, Inc. App.
Br. 3.
2 Claims 11 and 17 are cancelled, and claims 9, 12-14, and 16 are objected
to.
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Application 14/196, 796
STATEMENT OF THE CASE3
The Invention
Appellants' disclosed embodiments and claimed invention relate to
"computerized CAPTCHA systems and associated methods of operation for
verifying a user based on reputational information." Spec. ,r 2.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal ( emphasis added to contested limitations):
1. A computerized CAPTCHA system configured to
perform operations, the operations comprising:
receiving, by one or more computing devices, a request
to engage in a verification process from a user computing
device;
obtaining, by the one or more computing devices, one or
more reputation signals associated with the user computing
device;
determining, by the one or more computing devices, a
trust score for the user computing device based on the one or
more reputation signals;
selecting, by the one or more computing devices, a
challenge to provide to the user computing device based at least
in part on the trust score;
receiving, by the one or more computing devices, a
response to the challenge from the user computing device;
updating, by the one or more computing devices, the
trust score based on the response to the challenge to obtain an
updated trust score; and
determining, by the one or more computing devices, after
updating the trust score and as a result of the response,
3 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
June 7, 2017); Examiner's Answer ("Ans.," mailed Sept. 18, 2017); Final
Office Action ("Final Act.," mailed Jan. 13, 2017); and the original
Specification ("Spec.," filed March 4, 2014).
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whether to verify the user computing device in response to the
request to engage in the verification process from the user
computing device based on the updated trust score.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Callahan et al. ("Callahan") US 2008/0189768 Al Aug. 7, 2008
Schultz et al. (" Schultz") US 2012/0054847 Al Mar. 1, 2012
Lin et al. ("Lin") US 2015/0007273 Al Jan. 1,2015
Muriello et al. ("Muriello ") US 8,402,548 B 1 Mar. 19, 2013
Johansson et al. ("Johansson") US 8,621,209 Bl Dec. 31, 2013
Rejections on Appeal
RI. Claims 1, 5, 6, 10, 15, and 18 stand rejected under 35 U.S.C.
§ 103 as obvious over the combination of Callahan and Lin. Final Act. 4 4•
R2. Claims 2--4 and 19 stand rejected under 35 U.S.C. § 103 as
obvious over the combination of Callahan, Lin, and Schultz. Final Act. 12.
R3. Claims 7 and 8 stand rejected under 35 U.S.C. § 103 as obvious
over the combination of Callahan, Lin, and Muriello. Final Act. 14.
R4. Claim 20 stands rejected under 35 U.S.C. § 103 as obvious over
the combination of Callahan, Lin, and Johansson. Final Act. 16.
4 Although the heading for Rejection RI in the Final Action ( 4) incorrectly
omits claim 6 and includes claim 19, we find these are typographical errors
by the Examiner. Appropriate correction has been made above, consistent
with the Examiner's detailed statements of rejection for claims 1, 5, 6, 10,
15, and 18, as found under the Rejection RI heading. See Final Act. 4--12.
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CLAIM GROUPING
Based on Appellants' arguments (App. Br. 5-9), we decide the appeal
of Rejection RI of claims 1, 5, 6, 10, 15, and 18 on the basis of
representative claim 1. We address remaining claims in Rejections R2-R4,
not argued separately, infra.
ISSUE
Appellants argue (App. Br. 5-8) the Examiner's Rejection RI of
claims 1, 5, 6, 10, 15, and 18 under 35 U.S.C. § 103 as being obvious over
the combination of Callahan and Lin is in error. These contentions present
us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests 11 [a] determining, by the one or more computing devices, after
updating the trust score and as a result of the response, whether to verify the
user computing device in response to the request to engage in the
verification process from the user computing device based on the updated
trust score, 11 as recited in claim 1?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
which Appellants could have made but chose not to make in the Briefs so
that we deem any such arguments as waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claim 1, and
we incorporate herein and adopt as our own: ( 1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken, and
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(2) the reasons and rebuttals set forth in the Examiner's Answer in response
to Appellants' arguments. We incorporate such findings, reasons, and
rebuttals herein by reference unless otherwise noted. However, we highlight
and address specific findings and arguments regarding claim 1 for emphasis
as follows.
Appellants contend:
Lin fails to disclose, teach, or suggest "determining, ... after
updating the trust score ... whether to verify the user
computing device ... based on the updated trust score," as
recited by claim 1. Instead, Lin describes determining whether
or not to relay an access request before adjusting the trust
metric.
App. Br. 7.
Appellants further argue "[i]t is clear that Lin's determination of
whether or not to relay the access request occurs before the trust metric is
adjusted and is not based on the adjusted trust metric. In contrast, claim 1
recites "determining ... after updating the trust score . .. whether to verify
the user computing device ... based on the updated trust score." App.
Br. 8.
We are not persuaded by Appellants' arguments. The Examiner cites
Lin for teaching a trust heuristic that has a trust level that can be increased or
decreased based on challenge and response exchanges. Lin, Fig. 9, #950,
#930. The Examiner finds Lin teaches the trust of the client node may be
modeled between the client node and the intermediate node if the new client
node successfully responds to the challenges. Ans. 3--4, Final Act. 6, citing
Lin ,r,r 80, 102, 104.
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We agree with the Examiner's finding that the combination of
Callahan and Lin teaches or suggests "determining, by the one or more
computing devices, after updating the trust score and as a result of the
response, whether to verify the user computing device in response to the
request to engage in the verification process from the user computing device
based on the updated trust score," as recited in claim 1. Ans. 3--4. We
agree with the Examiner because Lin's trust level resource may be located in
different locations of the network. Lin ,r 13. Lin's Fig. 9 teaches one
configuration of updating the trust heuristic, but a person of ordinary skill in
that art, without undo experimentation, may also easily update it at other
points in the flow chart.
In agreement with the Examiner's findings, we find the placing of
Lin's Update Trust Heuristic, box 950, for updating the trust score, before
or after verifying the user would have been a mere design choice and would
not have been "uniquely challenging or difficult for one of ordinary skill in
the art." See Leapfrog Ent. Inc. v. Fisher-Price Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007). Thus, we find placing Lin's Update Trust Heuristic, box
950, for updating the trust score, before or after verifying the user is simply
a modification of a familiar prior art practice or act (as taught by Lin) that
would have realized a predictable result. 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). The skilled artisan is "a
person of ordinary creativity, not an automaton." Id. at 420-21.
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We additionally note Appellants' claim 1 is directed to an apparatus
(" A computerized CAPTCHA system configured to perform operations, the
operations comprising .... "). As a matter of claim construction, we
conclude the contested limitation of" determining, by the one or more
computing devices, after updating the trust score and as a result of the
response, whether to verify the user computing device in response to the
request to engage in the verification process from the user computing device
based on the updated trust score" is directed to functional language.
Thus, we conclude the contested limitation does not further limit the
structure of the claimed apparatus. Our reviewing court guides that the
patentability of an apparatus claim "depends on the claimed structure, not on
the use or purpose of that structure." Catalina Marketing Int'!. Inc. v.
Coo/savings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); see also
Superior Industries v. Masaba, 553 Fed. Appx. 986, 991 (Fed. Cir. 2014)
(Rader, J., concurring) ("[A] system claim generally covers what the system
is, not what the system does. Hewlett-Packard Co. v. Bausch & Lomb Inc.,
909 F.2d 1464, 1468 (Fed. Cir. 1990); see also Roberts v. Ryer, 91 U.S. 150,
157 [] (187 5) ('The inventor of a machine is entitled to the benefit of all the
uses to which it can be put, no matter whether he had conceived the idea of
the use or not.'). Thus, it is usually improper to construe non-functional
claim terms in system claims in a way that makes infringement or validity
tum on their function. Paragon Solutions, LLC v. Timex Corp., 566 F.3d
1075, 1091 (Fed. Cir. 2009)."). 5
5 Superior Industries v. Masaba is a non-precedential opinion of the Court
of Appeals for the Federal Circuit. However, we consider the concurring
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We find this reasoning applicable here, as Appellants urge the claimed
apparatus (structure) is patentably distinguished over the prior art based
solely on a non-structural, functional limitations. See Claim 1; App.
Br. 7-8.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 1, and grouped
claims 5, 6, 10, 15, and 18, which fall therewith. See Claim Grouping,
supra. In view of the lack of any substantive arguments directed to
obviousness Rejection R2, R3, and R4 of claims 2--4, 7, 8, and 20 under
§ 103 (see App. Br. 8-9), we sustain the Examiner's rejections of these
claims. Arguments not made are waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
CONCLUSION
The Examiner did not err with respect to obviousness Rejections RI
through R4 of claims 1-8, 10, 15, and 18-20 under 35 U.S.C. § 103 over the
cited prior art combinations of record, and we sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1-8, 10, 15,
and 18-20.
opinion by Chief Judge Rader as guiding because it cites precedential
authority in support.
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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). See 37
C.F.R. § 41.50(±).
AFFIRMED
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