Ex Parte Shen et al

Patent Trials and Appeals Board

Feb 26, 2019

13791508 - (D) (P.T.A.B. Feb. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/791,508 03/08/2013
144365 7590 02/28/2019
Schwegman Lundberg & Woessner, P.A.
P.O. Box 2938
Minneapolis, MN 55402
FIRST NAMED INVENTOR
Guobin (Jacky) Shen
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.
337989-US-NP
( 1777.257US 1
CONFIRMATION NO.
6787
EXAMINER
LAFONTANT, GARY
ART UNIT PAPER NUMBER
2646
NOTIFICATION DATE DELIVERY MODE
02/28/2019 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):
uspto@slwip.com
SLW@blackhillsip.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUOBIN SHEN, YONGGUANG ZHANG,
and THOMAS MOSCIBRODA
Appeal2017-002786
Application 13/791,508 1
Technology Center 2600
Before CARLA M. KRIVAK, IRVIN E. BRANCH, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITT A, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1, 2, 4, 6-8, 13-19, and 21-27, all the pending claims in the present
application. See Appeal Br. 5. 2 We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify Microsoft Technology Licensing, LLC as the real party
in interest. See Appeal Br. 3.
2 Claims 3, 5, 9-12, and 20 are canceled. See Appeal Br. 63, 65, 67.
Appeal2017-002786
Application 13/791,508
STATEMENT OF THE CASE
Invention
According to Appellants, the invention relates to "generating pathway
maps for use by applications, such as indoor location-based services, by
leveraging the fact that many people walk in buildings while carrying their
mobile devices (such as mobile/smart phones or tablets)." Spec. ,r 13. 3
Specifically, the "mobile devices are configured to identify device perceived
landmarks based on trends in the received signal strengths (RSS) of wireless
signals." Spec. ,r 14. "The device perceived landmarks are located at
positions where the mobile device determines that a trend in RSS switches
from increasing to decreasing or from decreasing to increasing." Id.
Illustrative Claim
Claims 1, 8, and 15 are independent claims. Claim 1 is illustrative
and is reproduced below with the dispositive disputed limitations ( the
"disputed limitation") italicized:
1. One or more computer storage media comprising
instructions which, when executed by one or more processors,
cause the one or more processors to:
receive, from a mobile device, data related to a received
signal strength of a signal from a wireless access point;
receive, from the mobile device, a plurality of inertial
measurements;
3 This Decision refers to: ( 1) Appellants' Specification filed March 8, 2013
("Spec."); (2) the Non-Final Office Action ("Non-Final Act.") mailed
November 19, 2015; (3) the Appeal Brief ("Appeal Br.") filed March 28,
2016; (4) the Examiner's Answer ("Ans.") mailed October 7, 2016; and (5)
the Reply Brief ("Reply Br.") filed December 7, 2016.
2
Appeal2017-002786
Application 13/791,508
monitor a trend of the received signal strength, wherein
the trend of the received signal strength indicates that the
received signal strength is increasing or decreasing;
determine that the trend of the received signal strength
switches either from increasing to decreasing or from
decreasing to increasing;
identify, based at least in part on the determination that
the trend of the received signal strength has switched, a location
as a perceivable landmark; and
based at least in part on identifying the location, perform
a perceivable landmark qualification process by:
determining that the location is a qualified
landmark based at least in part on the plurality of inertial
measurements indicating a stable motion, or
determining that the location is not a qualified
landmark based at least in part on the plurality of inertial
measurements indicating an unstable motion.
Appeal Br. 62 (Claims App.).
REFERENCES AND REJECTIONS
Claims 1, 2, 8, 13-19, and 21-27 stand rejected under 35 U.S.C.
§ I02(e) as anticipated by Das et al. (US 2014/0080514 Al, pub. Mar. 20,
2014) ("Das"). Non-Final Act. 14--22.
Claims 4, 6, and 7 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Das and Alzantot et al., Crowdinside:
Automatic Construction of Indoor Floorplans (Sept. 5, 2012), available at
http://www.cse.unt.edu/-huangyan/6350/paper/p99-alzantot.pdf
("Alzantot"). Id. 22-26.
3
Appeal2017-002786
Application 13/791,508
Our review in this appeal is limited to the above rejections and the
issues raised by Appellants. Arguments not made are waived. See 37
C.F .R. § 41.3 7 ( c )(1 )(iv) (2015).
ISSUE
Based on Appellants' arguments, the dispositive issue presented on
appeal is whether the Examiner erred in finding that Das discloses "monitor
a trend of the received signal strength, wherein the trend of the received
signal strength indicates that the received signal strength is increasing or
decreasing," as recited in claim 1. See Appeal Br. 15-17.
ANALYSIS
In support of the rejection of claim 1, the Examiner relies on Das'
discussion of detecting locations of a mobile device through an area of
location uncertainty. See Non-Final Act. 12 (citing Das ,r,r 22, 52 and
Fig. 6). Figure 6 of Das is reproduced below:
F!G.6
4
Appeal2017-002786
Application 13/791,508
Figure 6 of Das shows various positions of a mobile device at times
Tl-T4 and RSS values Rl-R5 measured along the mobile device path. See
Das ,r 72.
Appellants argue "[ w ]hile Das mentions 'signal characteristics', Das
does not disclose determining if 'a trend' in the signal measurements
'switches from either increasing to decreasing or decreasing to increasing"'
Appeal Br. 17. "For instance, Das, paragraph [0052] makes no mention of
'a trend' of the signal measurements, let alone 'monitor[ing] a trend of the
received signal strength."' Id.
With respect to Das disclosing the "trend of the received signal
strength" as claimed, the Examiner responds:
One of ordinary skill will know that if the signal being
measured is from an access point, the trend of the signal will
depend on how close or how far the mobile monitor device is
from the access point. One ordinary skill in the art will expect
the signal to be increasing as the monitoring device approach
the access point and the signal to be decreasing as the
monitoring device moving away from the access point.
Ans. 8 ( citing Das ,r 52).
We find Appellants' arguments persuasive. Appellants' Specification
describes the claimed monitoring as determining that the RS S is changing
based on a trend indicated by a change in multiple RSS values. See Spec.
,r 25 ("by identifying the tipping point based on a trend in the RSS rather
than value, the location at which a device perceived landmark occurs is more
stable and easily identified, as the change in the trend of the RSS tends to be
more consistent across device types and usage patterns, than the value of the
RSS itself."). As an example, the Specification indicates the trend in the
RS S is monitored by detecting a change in the slope of graph 114 such as by
5
Appeal2017-002786
Application 13/791,508
"compar[ing] the steepness of the slope of the curve to a threshold" and [i]f
the steepness is greater than the threshold a device perceived landmark has
been detected." Spec. ,r 46; see also Spec. ,r,r 24, 64, and Fig. 1.
The portions of Das cited by the Examiner describe measuring RSS
Rl-R5 "as the mobile device is moved along trajectory 602 within an area of
location uncertainty towards an area of location certainty." Das ,r 72. The
Examiner finds "[ o ]ne ordinary skill in the art will expect the signal to be
increasing as the monitoring device approach[ sic] the access point and the
signal to be decreasing as the monitoring device moving away from the
access point." Ans. 8. While this may be true, we agree with Appellants
that the Examiner does not show how these changes disclose monitoring a
trend of the received signal strength, consistent with the Specification. "The
correct inquiry in giving a claim term its broadest reasonable interpretation
in light of the specification is not whether the specification proscribes or
precludes some broad reading of the claim term adopted by the examiner."
In re Smith Int 'l, Inc., 871 F.3d 1375, 1382-83 (Fed. Cir. 2017). Instead, a
proper claim construction analysis endeavors to assign a meaning to a
disputed claim term "that corresponds with ... how the inventor describes
his invention in the specification." Id. at 1383. As discussed above, the
Specification emphasizes the need for monitoring a trend, which determines
that the RSS is changing based on multiple RSS values. See, e.g., Spec.
,r,r 24, 25, 46, 64). The Examiner does not sufficiently explain how a
possible change in value of an RSS from low to high caused by movement
of a mobile device towards an access point, as described in Das, corresponds
with monitoring a trend, as disclosed in Appellants' Specification. See, e.g.,
Spec. ,r,r 24, 25, 46, 64). We also agree with Appellants' argument that "Das
6
Appeal2017-002786
Application 13/791,508
does not disclose determining if 'a trend' in the signal measurements
'switches from either increasing to decreasing or decreasing to increasing,"'
as claimed. Appeal Br. 1 7.
Anticipation is a test of strict identity. Trintec Indus., Inc. v. Top-
US.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir. 2002). That is, to meet the
strict identity test for anticipation, all elements must be disclosed in the same
way as they are arranged or combined in the claim. Therasense, Inc. v.
Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010).
Because the Examiner's decision to reject claim 1 was based on an
erroneous claim construction and the rejection is not supported under the
proper construction, we do not sustain the Examiner's rejection of claim 1
under 35 U.S.C. § 102(e) as anticipated by Das. See, e.g., Smith, 871 F.3d at
1382-84 (reversing an anticipation rejection because it was predicated on an
unreasonably broad claim construction). We also do not sustain the
rejection of independent claims 8 4 and 15, which recite limitations
commensurate in scope to claim 1, or of dependent claims 2, 13, 14, 16-19,
4 We also do not agree with the Examiner's finding that Das discloses
"detecting a location at which the received signal strength is at a maximum,"
as recited in claim 8, because Das' Rl-R5 disclose "[a] max high level
signal intensity." Non-Final Act. 16 (citing Das, Fig. 6). Rather than
indicating that Rl-R5 are locations having maximum signal strength, Das
simply states they are "measurements ... gathered as the mobile device is
moved along trajectory 602 within an area of location uncertainty towards an
area of location certainty." Das ,r 72; see Appeal Br. 34. As noted by the
Examiner, a path falling within an area of location uncertainty suggests a
low or unavailable signal rather than a maximum signal intensity as claimed.
See Ans. 7. Also, the Examiner does not demonstrate that any ofR1-R5 are
detected as having a maximum signal strength. Accordingly, had we not
reversed the Examiner's decision to reject claim 8 on the grounds discussed
above, we would have reversed the decision to reject claim 8 for this reason.
7
Appeal2017-002786
Application 13/791,508
and 21-27. Because we agree with at least one of the dispositive arguments
advanced by Appellants, we need not reach the merits of Appellants' other
contentions.
We also do not sustain the Examiner's 35 U.S.C. § 103(a) rejection of
dependent claims 4, 6, and 7 over the combination of Das and Alzantot, due
to their dependency on claim 1, and because Alzantot does not cure the
deficiencies of Das. App. Br. 59.
DECISION
We reverse the Examiner's decision to reject claims 1, 2, 8, 13-19,
and 21-27 under 35 U.S.C. § 102(e).
We reverse the Examiner's decision to reject claims 4, 6, and 7 under
35 U.S.C. § 103(a).
REVERSED
8