Ex Parte Pinheiro et al

Patent Trial and Appeal Board

Dec 21, 2018

14156412 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/156,412 01/15/2014
26379 7590 12/26/2018
DLA PIPER LLP (US )
2000 UNIVERSITY A VENUE
EAST PALO ALTO, CA 94303-2248
FIRST NAMED INVENTOR
Eduardo Jorge Bemposta Pinheiro
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.
383933-991101 9853
EXAMINER
NGUYEN, PHUOC H
ART UNIT PAPER NUMBER
2443
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
PatentDocketing US-PaloAlto@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDUARDO JORGE BEMPOSTA PINHEIRO and
DOMINGOS JORGE SALGADO BRUGES
Appeal2018-003942
Application 14/156,412
Technology Center 2400
Before ALLEN R. MacDONALD, BRADLEY W. BAUMEISTER, and
MICHAEL J. ENGLE, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-32. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants indicate the real party in interest is Muzzley Inc. App. Br. 1.
Appeal2018-003942
Application 14/156,412
Representative Claims
Representative claims 1 and 15 under appeal read as follows
( emphasis, formatting, and bracketed material added):
1. A system for appliance control, comprising:
[A.] a computing device;
[B.] a control client associated with the computing device;
[C.] an appliance having a control component; and
[D.] a backend control unit that is coupable [sic] to the computing
device and the appliance wherein the computing device with the
control client is a virtual controller, based on commands
wirelessly communicated from the control client through the
backend control unit to the control component in the appliance,
for the appliance to perform the commands once the computing
device and appliance are paired with each other using an
electronically provided control address.
15. A computing device, comprising:
[A.] a processing unit[;]
[B.] a memory that stores a control client;
[C.] the control client being executed by the processing unit to
connect to an appliance, receive transformation data from the
appliance when the appliance is connected and providing
control instructions to the appliance when the computing device
has been manipulated so that the computing device is a virtual
control device of the appliance.
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Application 14/156,412
Rejection
The Examiner rejected claims 1-32 under 35 U.S.C. § I02(e) as being
anticipated by Smith (US 2014/0001253 Al; publ. Jan. 2, 2014). Final Act.
2-7.
Appellants argue separate patentability for independent claims 1, 15,
23, and 26. Appellants argue dependent claims 2-14, 16-22, 24, 25, and
27-32 by reference to the arguments for the independent claims from which
they depend. App. Br. 7-9. Except for our ultimate decision, we do not
address claims 2-14, 16-22, 24, 25, and 27-32 further herein.
Issue on Appeal
Did the Examiner err in rejecting claims 1, 15, 23, and 26 as being
anticipated by Smith?
ANALYSIS
We have reviewed the Examiner's rejection in light of Appellants'
Appeal Brief arguments that the Examiner has erred.
A.i.
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § I02(e).
[T]he claim requires "a backend control unit that is coup[l]able
to the computing device and the appliance". As shown in
Figure 2, the backend control unit ( central controller 230) is
coup lab le to the appliance ( one of components 240-248), but is
not coup[l]able to the mobile device (the claimed computing
device) since no connection between the mobile device 202 and
central controller 230 is shown since the communication from
the mobile device 202 passes through the control surface device
201 and the camera 212.
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Application 14/156,412
App. Br. 5---6.
The Examiner presents the following response to Appellants' above
argument.
Smith does read on the claimed language "a backend control unit
that is coupable ( coupleable) to the computing device and the
appliance" as (1) the claimed language using the adjective word
"coupable ( coupleable )" rather than noun or verb to connecting
two elements as intended but that it is capable of connecting two
elements wherein Smith does show in Figures 2/3A and
paragraph [0042] that these components/modules/components
are capable of connecting together and (2) the claimed language
does not require any specific way of coupling/connecting the
computing device and the appliance together and/or the
coupling/connecting must be directly or indirectly
coupling/connecting together. For indirect coupling,
Figures 2/3A show these two elements mobile device and central
controller can be coupled/connected indirectly via the
intermediate control surface device. For direct coupling,
paragraph [0042] clearly discloses that all or parts of the
functionality performed by the individual modules, can/may be
performed by one or more of these modules. With this teaching,
the central controller and the control surface device is belong
within a single device which couple directly to the mobile device.
Ans. 2-3.
We agree with the Examiner's response and adopt it as our own.
A.ii.
Appellants also raise the following arguments in contending that the
Examiner erred in rejecting claim 1 under 3 5 U.S. C. § 102 ( e).
First, while Smith discloses the symbology that may be
used to communicate commands, there is no disclosure of the
claimed control client that is a virtual controller, based on
commands wirelessly communicated from the control client
through the backend control unit to the control component in the
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Application 14/156,412
appliance, for the appliance to perform the commands" as now
set forth in claim 1.
Second, while Smith discloses the symbology, Smith
discloses that cameras (wherein the symbology is an image) are
used to transfer data in the system. In contrast, the claimed [sic]
recite that "the computing device and appliance are paired with
each other using an electronically provided control address"
which is not found in Smith.
(a) Response to Arguments in Final Office Action
In the final office action, the examiner notes that the QR
code is the claimed electronically provided control address. The
claim requires "for the appliance to perform the commands once
the computing device and appliance are paired with each other
using an electronically provided control address" that is still not
found in Smith. Smith does disclose that the mobile device
communicates data/commands to the control surface device
camera 212 and the camera communicates the data onto the
central controller 230. Smith at 0028-0030. However, the
appliance and mobile device 202 in Smith are never paired with
each other and are certainly not paired with each other using the
QR code.
App. Br. 6 ( emphasis omitted).
The Examiner presents the following response to Appellants' above
argument.
Smith does not disclose or contain exact wordings as cited in the
claim as alleged above, but rather Smith discloses the same
context of the claimed limitations as alleged above. ( 1) Smith
definitely discloses mobile device 202 in Figure 2 as a virtual
controller for controlling the appliances 240-248 as the mobile
device 202 is not physical propriety controller for that appliance
but rather it is software based application. In addition, the mobile
device communicates the control device in Figure 2 wirelessly as
there is no physical cable connecting these two components but
rather via wirelessly WiFi and/or Bluetooth connection
(paragraph [0032]) after authentication establishment via
wirelessly the QR coding by scanning the QR code (paragraphs
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Application 14/156,412
[0024-0025]) for controlling the components in the appliances
such as lights, screen, projector, switches and application as
visually seen in Figure 2 or as description seen in paragraph
[0021]. (2) Smith in paragraphs [0026 and 0032] disclose
exactly the context as cited in the last limitation wherein initially
the mobile device and control device must exchanging data in
pa[i]ring process to establish the communication including using
the communicate address. The control device enables the mobile
device to obtain and use the provided IP address for
communication via exchanged QR code embedded with many
information including the IP address, port number, a session key
for security.
Ans. 3--4.
Again, we agree with the Examiner's response and adopt it as our
own.
B.
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 15 under 3 5 U.S. C. § 102 ( e).
[T]here is no disclosure whatsoever ... that the control client
receives transformation data from the appliance when the
appliance is connected.
App. Br. 7 ( emphasis added).
The Examiner presents the following response to Appellants' above
argument.
[T]he mobile device 202 ... receives transformation data as
video and/or annotation graphic application from the appliance
server when it is established.
Ans. 4 ( emphasis added).
We conclude that the Examiner has sufficiently shown that Smith at
paragraph 21 teaches receiving transformation data "from the appliance
server" (Ans. 4 (emphasis added)). However, claim 15 recites "receiv[ing]
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Application 14/156,412
transformation data from the appliance," not from the appliance server. We
do not find the claimed limitation disclosed in Smith. Consistent with
Appellants' arguments, we conclude there is insufficient articulated
reasoning to support the Examiner's finding as to this "from the appliance"
requirement. Therefore, we conclude that there is insufficient articulated
reasoning to support the Examiner's final determination that claim 15 is
anticipated by Smith.
C.
In contending that the Examiner erred in rejecting claim 23 under
35 U.S.C. § 102(e), Appellants raise an argument analogous to that
presented above for claim 15. We reach the same result for the same reason
discussed above for claim 15.
D.
Appellants raise the following argument in contending that the
Examiner erred in rejecting claim 2 6 under 3 5 U.S. C. § 1 02 ( e).
(1) Initialization and Setting Up Claim Elements
Claim 26 recites "initializing a computing device to
control a particular appliance" and "setting up the computing
device to control the particular appliance over the backend
control unit" which is not found in Smith. Specifically, there is
no disclosure whatsoever of "initialization and setting up the
computing device to control a particular appliance using the
backend control unit. At most, Smith discloses the symbology
as described above, but fails to disclose this claimed process and
interaction between the computing device, the appliance and the
backend control unit.
(2) Initialization and Setting Up Claim Elements
Claim 26 also recites "controlling the particular appliance
using the computing device and the backend control unit" which
is not found in Smith.
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While Smith discloses the symbology that may
communicate commands between a mobile device and the
control unit (neither of which is the claimed appliance), Smith
fails to disclose "controlling the particular appliance using the
computing device and the backend control unit" and thus fails to
disclose this claimed process and interaction between the
computing device, the appliance and the backend control unit.
App. Br. 9 ( emphasis omitted).
The Examiner presents the following response to Appellants' above
argument.
Smith shows in Figures 2 and 3A and paragraphs [0021 and
0028] wherein . . . the mobile device 202 in Figure 2 is
considered as a virtual control device of appliance for controlling
the appliances 240-248 as the mobile device 202 is not physical
propriety controller for that appliance but rather it is software
based application for controlling the components of appliances
in Figure 2. In order to control these components in Figures, the
mobile device must communicate the commands/instruction to
the appliance for controlling the components (switches, light,
projector ... ) via QR code as visually seen in Figures 2-3.
Ans. 6-7.
Based on Appellants' argument, we are unpersuaded the Examiner
erred. First, we agree with the Examiner's response. Second, as to
Appellants' above contention, Appellants merely recite the particular
language of claim 26 and assert the cited prior art reference does not disclose
the claim limitations. Without more, this fails to constitute an argument on
the merits. See 37 C.F.R. § 4I.37(c)(l)(iv); In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011).
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CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-14 and 26-32
as being anticipated under 35 U.S.C. § 102(e).
(2) Appellants have established that the Examiner erred in rejecting
claims 15-25 as being anticipated under 35 U.S.C. § 102(e).
(3) Claims 1-14 and 26-32 are not patentable.
( 4) On this record, claims 15-25 have not been shown to be
unpatentable.
DECISION
The Examiner's rejection of claims 1-14 and 26-32 is affirmed.
The Examiner's rejection of claims 15-25 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)(l )(iv).
AFFIRMED-IN-PART
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