Ex Parte Pekofsky

Patent Trial and Appeal Board

Feb 27, 2018

13428106 (P.T.A.B. Feb. 27, 2018)

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.
13/428,106 03/23/2012 Gregory PEKOFSKY 2011-0292US01 1093
74739 7590 03/01/2018
Potomac Law Group, PLLC (Oracle International)
c/o P3 Solutions
1451 Dolley Madison Blvd.
Suite 310
McLean, VA 22101
EXAMINER
NICHOLAS, WENDY K
ART UNIT PAPER NUMBER
2174
NOTIFICATION DATE DELIVERY MODE
03/01/2018 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):
patents @ potomaclaw. com
bgoldsmith@potomaclaw.com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY PEKOFSKY
Appeal 2017-002701
Application 13/428,1061
Technology Center 2100
Before CARL W. WHITEHEAD JR., KARA L. SZPONDOWSKI, and
DAVID J. CUTITTA II, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1, 5, 6, 8-11, 15,
16, 20, 21, and 23-28 under 35 U.S.C. § 134(a). Appeal Brief 4. We have
jurisdiction under 35 U.S.C. § 6(b) (2012).
We affirm.
Introduction
The invention “is directed to a development mode system that
activates a development mode of a software application that is executed on a
mobile device.” Specification, 3.
1 According to Appellant, the real party in interest is Oracle International
Corporation. Appeal Brief 2.
Appeal 2017-002701
Application 13/428,106
Illustrative Claim
1. A non-transitory computer-readable medium having instructions
stored thereon that, when executed by a processor, cause the processor
to activate a development mode of a software application that is
executed on a mobile device, the activating comprising:
detecting, at an acceleration measuring device operatively
coupled to an application programming interface, an acceleration of
the mobile device over a plurality of time periods;
calculating a delta acceleration by calculating a difference of
the acceleration of mobile device during a current time period and the
acceleration of the mobile device during a time period preceding the
current time period;
repeating the calculating the delta acceleration for subsequent
time periods to create a plurality of delta accelerations;
calculating a total delta acceleration by summing the plurality
of delta accelerations;
determining that the total delta acceleration exceeds an
acceleration threshold;
in response to the total delta acceleration exceeding the
acceleration threshold, calculating a total duration by summing
respective durations of the time periods of the plurality of delta
accelerations;
determining that the total duration exceeds a duration threshold;
displaying a user interface within the mobile device in response
to the determining that the total delta acceleration exceeds the
acceleration threshold and in response to the determining that the total
duration exceeds the duration threshold, wherein the user interface
displays a message requesting confirmation to activate the
development mode;
receiving a user interaction within the user interface, wherein
the user interaction indicates the confirmation to activate the
development mode; and
activating the development mode in response to the
determining that the total delta acceleration exceeds the
acceleration threshold, in response to the determining that the
total duration exceeds the duration threshold, and in response to
the receiving the confirmation to activate the development
mode;
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Application 13/428,106
wherein the development mode provides access to one or more
features of the software application that are not available during
conventional execution of the software application.
Rejections on Appeal
Claims 1, 5, 6, 8-11, 15, 16, 20, and 24-28 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Spangler (US Patent
Application Publication 2011/0087870 Al, published April 14, 2011),
Yamamoto (US 2011/0124369 Al, published May 26, 2011), Nasiri (US
Patent Application Publication 2009/0184849 Al, published July 23, 2009),
Mucignat (US Patent 8,587,515 Bl, issued November 19, 2013), and Rgbm
(“Filtering Accelerometer data noise”
http://stackoverflow.com/questions/1638864/filtering-accelerometer-
data-noise). Final Rejection 2-13.
Claims 21 and 23 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Yamamoto, Nasiri, Spangler, Mucignat, and Rgbm.
Final Rejection 13-20.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed August 5, 2016), the Reply Brief (filed
December 6, 2016), the Final Action (mailed January 11, 2016) and the
Answer (mailed October 16, 2016) for the respective details.
Appellant contends:
The Examiner expressly admits that Spangler et al. does not
teach, inter alia, displaying a user interface within the mobile
device in response to the determining that the total delta
acceleration exceeds the acceleration threshold and in response
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to the determining that the total duration exceeds the duration
threshold, wherein the user interface displays a message
requesting confirmation to activate the development mode, and
activating the development mode in response to the determining
that the total delta acceleration exceeds the acceleration
threshold, in response to the determining that the total duration
exceeds the duration threshold, and in response to the receiving
the confirmation to activate the development mode. See 01/11
/16 Office Action at pages 2-8.
Each of the claimed features recited above describes the
performance of a function (e.g., displaying, and activating) in
response to completion of an event (e.g., exceeding various
thresholds). Rather than address each of these individual
features, the Examiner improperly parses these features and
summarily alleges that it would have been obvious to combine
the teachings of five references to achieve the claimed invention.
Appeal Brief 5-6; see Reply Brief 2-4. Appellant further argues the
Examiner used impermissible hindsight in combining the references.
Appeal Brief 6-7; Reply Brief 3-4.
The Examiner responds to Appellant’s arguments regarding the “in
response” claim limitations as follows:
Applicant argues that the Examiner has failed to address all
features (described functions and events) of the independent
claim and summarily alleges that it would have been obvious to
combine the cited references to achieve the claimed invention.
Applicant attacks references individually for not teaching claim
limitations that the Examiner has admitted were not taught by
each reference and therefore, did not rely upon the reference for
teaching said limitations in the rejection of the independent
claims.
Answer 2.
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Application 13/428,106
The Examiner finds “Spangler teaches activation of development
mode based upon various switching methods (Spangler, FIGS. 3-5,
paragraph 0031).” Final Action 3. Spangler’s switching methods include a
“mode-selection input device,” a “barcode reader” or “other appropriate
forms.” Spangler, 31. The Examiner further finds, “Yamamoto teaches
mode activation based upon an acceleration input exceeding a threshold and
a confirmation received through a user interface not expressly taught by
Spangler.” Final Action 4. Yamamoto discloses in paragraph 98, “the CPU
100 repeats a series of processes at each acquisition of the acceleration a to
calculate the cumulative acceleration a and compares the calculated
cumulative acceleration a with the threshold value (33.” Yamamoto also
teaches a determining step based upon the accumulation acceleration a in
paragraph 99. The Examiner concludes:
It would have been obvious to one of ordinary skill in the art at
the time the claimed invention was made to modify Spangler to
include use of an intentional acceleration by a user and a
confirmation input via a user interface to select a mode per
Yamamoto for reasons taught by Yamamoto.
Final Action 6; see also Answer 3.
The Examiner further finds in regard to modifying the combination of
Spangler and Yamamoto that:
It would have been obvious to one of ordinary skill in the art at
the time the claimed invention was made to modify Spangler and
Yamamoto to include an application programming interface to
couple an acceleration measuring device to higher level software
processes per Nasiri for reasons taught by Nasiri. Nasiri teaches
this architecture to allow easier development of application
programs using complex motion sensor data, porting of
application programs between different devices with different
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hardware and operating systems and provides easier maintenance
of systems (Nasiri, paragraph 0011).
Final Action 7; see also Answer 3—4.
The Examiner further modifies the combination of Spangler,
Yamamoto and Nasiri:
It would have been obvious to one of ordinary skill in the art at
the time the claimed invention was made to modify Spangler in
view of Yamamoto and Nasiri to include a motion determination
based upon both acceleration data exceeding a threshold and the
duration of an acceleration exceeding a duration threshold per
Mucignat for reasons taught by Mucignat. Mucignat teaches this
method to eliminate false positive detections of non-intentional
motion based upon accelerometer data (Mucignat, column 3,
lines 19-37).
Final Action 8; see also Answer 4.
The Examiner further modifies the combination of Spangler,
Yamamoto, Nasiri and Mucignat:
It would have been obvious to one of ordinary skill in the art to
use the first difference filtering algorithm in view of Rgbm for
the high pass filter taught by Mucignat. The rationale to support
a conclusion that claim 1 would have been obvious in view of
Rgbm is that the substitution of one known element (first
difference filter) for another (high pass filter) yields predictable
results (motion detection method including calculated delta
accelerations and total delta acceleration) which would have
been recognizable to one of ordinary skill in the art at the time
the claimed invention was made (see MPEP § 2143, KSR
exemplary rationale B).
Final Action 9; see also Answer 5.
Additionally, the Examiner finds:
Spangler teaches activating development mode ‘in response to’
operation of a switch or some other appropriate means.
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Yamamoto teaches controlling the mode of a mobile device ‘ in
response to’ a shake gesture or acceleration input exceeding a
threshold. Mucignat also teaches the use of shake gestures to
determine operations in a mobile device ‘in response to’ the
detection of a shake input and improves the shake detection
algorithm with the addition of a duration threshold determination
to distinguish intended inputs from arbitrary motion of the device
and a high pass filter to remove gravitational effects on
acceleration data. All of the cited references perform actions ‘in
response to’ user inputs. One of ordinary skill in the art would
understand intentions of a user may be input to a mobile device
in various ways; making it obvious to substitute one input
method for another.
Answer 6-7.
We agree with the Examiner’s findings. The test for obviousness is
what the combined teachings of the references would have suggested to one
of ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir.
2006), In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991) and In re Keller, 642
F.2d 413, 425 (CCPA 1981). For the sake of brevity, we do not reproduce
all of the Examiner’s findings, however, we adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief, except where
noted. See Final Action 2-21; Answer 2-8. We find the Examiner has
established a prima facie case of obviousness and once the Examiner has
satisfied the burden of presenting a prima facie case of obviousness, the
burden then shifts to Appellant to present evidence and/or arguments that
persuasively rebut the Examiner’s prima facie case. See In re Oetiker, 977
F.2d 1443, 1445 (Fed. Cir. 1992). Appellant does not particularly point out
errors in the Examiner’s reasoning to persuasively rebut the Examiner’s
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prima facie case of obviousness and therefore we sustain the Examiner’s
obviousness rejection of independent claims 1, 11, 16, and 21, as well as
dependent claims 5, 6, 8-10, 15, 20, and 23-28 not separately argued. See
Appeal Brief 8.
DECISION
The Examiner’s obviousness rejections of claims 1, 5, 6, 8-11, 15, 16,
20, 21, and 23-28 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(l)(v).
AFFIRMED
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