Ex Parte Siwak et al

Patent Trials and Appeals Board

Mar 5, 2019

14795815 - (D) (P.T.A.B. Mar. 5, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/795,815 07/09/2015
22822 7590
LEWIS RICE LLC
ATTN: BOX IP DEPT.
600 Washington Ave.
Suite 2500
ST LOUIS, MO 63101
03/07/2019
FIRST NAMED INVENTOR
Greg Siwak
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.
579/2278US 1049
EXAMINER
SWARTHOUT, BRENT
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
03/07/2019 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):
IPDEPT@LEWISRICE.COM
KDAMMAN@LEWISRICE.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREG SIWAK, TED SIEBENMAN, and MAX WITT 1
Appeal2018-006016
Application 14/795,815 2
Technology Center 2600
Before JAMES R. HUGHES, LINZY T. McCARTNEY, and
BETH Z. SHAW, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
1 Practecol, LLC ("Appellant") is the applicant as provided in 37 C.F.R.
§ 1.46 and is identified as the real party in interest. Appeal Br. 4.
2 The application on appeal has an effective filing date of July 9, 2014.
Therefore, the Leahy-Smith America Invents Act (AIA) amendments to the
U.S. Code(§§ 102, 103) are applicable. See MPEP § 2159.02 (9th ed. 2018)
( the amended sections "apply to any patent application that contains ... a
claimed invention that has an effective filing date that is on or after March
16, 2013.").
Appeal2018-006016
Application 14/795,815
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-20. Claim 21 has been canceled.
Final Act. 1; Br. 6. 3 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appellant's Invention
The invention at issue on appeal generally concerns "intrusion
detection, and more specifically to an intrusion monitor useable without the
need to install electronics into a residence" (Spec. ,r 2}-specifically
intrusion detection monitors (apparatuses), intrusion detection systems, and
methods for detecting an unauthorized intruder. See Spec. ,r,r 10, 17, 25.
The apparatus includes a wireless communication system, an intrusion
detection system, a microprocessor, and a power supply. The apparatus also
includes a housing enclosing the components. The microprocessor is
connected to the wireless communication system and the intrusion detection
system, determines if the intrusion detection system detects ( that the output
indicates) a human intruder and, if so, causes the wireless communication
system to transmit a monitoring signal. See Spec. ,r,r 10-30; Abstract.
3 We refer to Appellant's Specification ("Spec.") filed July 9, 2015
(claiming benefit of US 62/022,530 filed July 9, 2014), and Appeal Brief
("Br.") filed Jan. 31, 2018. We also refer to the Examiner's Final Office
Action (Final Rejection) ("Final Act.") mailed July 7, 2017, and Answer
("Ans.") mailed Feb. 22, 2018.
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Application 14/795,815
Illustrative Claim
Independent claims 1 and 16, reproduced below, further illustrate the
invention:
1. A standalone, self-contained intrusion detection
monitor comprising:
a housing;
a wireless communication system enclosed in said
housing;
one or more intrusion detection systems enclosed in said
housing;
a microprocessor enclosed by said housing and operatively
coupled to said wireless communication system and operatively
coupled to said one or more intrusion detection systems, said
microprocessor causing said wireless communication system to
transmit a monitoring signal if said microprocessor determines
that the output of at least one of said one or more intrusion
detection systems is indicative of a human intruder; and
a power supply supplying power to said wireless
communication system, said microprocessor, and said one of
more intrusion detection systems.
16. A computer-implemented method for detecting an
unauthorized intruder comprising:
receiving, by an application executing on a handheld user
device communicably coupled to an intrusion detection system
over a wireless telecommunications network, a digital video feed
comprising digital video data generated by said intrusion
detection system placed in a residence;
displaying, by said application on a display of said
handheld user device, said received digital video feed;
displaying, by said application on said display, a graphical
user interface comprising a user input component configured for
a user of said handheld user device to indicate whether said
displayed digital video feed indicates the presence of an
unauthorized intruder in said residence;
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receiving, from said user via said user input component,
an indication that said displayed digital video feed indicates the
presence of an unauthorized intruder in said residence; and
in response to said received indication of the presence of
an unauthorized intruder in said residence, storing on a non-
volatile computer-readable medium of said handheld device a
copy of said received digital video feed.
Rejection on Appeal
The Examiner rejects claims 1-20 under 35 U.S.C. § 103 as being
unpatentable over Hevia et al. (US 2013/0155242 Al, published June 20,
2013) ("Hevia") and Kates (US 2008/0042824 Al, published Feb. 21, 2008).
See Final Act. 2---6.
ISSUES
Based upon our review of the record, Appellant's contentions, and the
Examiner's findings and conclusions, the issues before us are as follows:
1. Did the Examiner err in concluding that Hevia and Kates
collectively would have taught or suggested "a microprocessor ... causing
said wireless communication system to transmit a monitoring signal if said
microprocessor determines that the output of at least one of said one or more
intrusion detection systems is indicative of a human intruder" within the
meaning of claim 1, and the commensurate limitations of claim 8?
2. Did the Examiner err in concluding that Hevia and Kates
collectively would have taught or suggested "displaying, by said application
on a display of said handheld user device, said received digital video feed"
and "in response to said received indication of the presence of an
unauthorized intruder in said residence, storing on a non-volatile computer-
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readable medium of said handheld device a copy of said received digital
video feed," as recited in claim 16?
ANALYSIS
Claims 1-5 and 8-15
Appellant argues independent claims 1 and 8, and dependent claims
2-5 and 9-15, together as a group with respect to the§ 103 rejection. See Br.
16-25. We select independent claim 1 as representative of Appellant's
arguments with respect to claims 1-5 and 8-15. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner rejects representative independent claim 1 as being
obvious over Hevia and Kates. See Final Act. 2-3; Ans. 4--7. The Examiner
cites Hevia as teaching every feature of Appellant's claim 1, except the
"microprocessor determin[ing] that the output of ... [the] intrusion detection
systems is indicative of a human intruder" ( claim 1 ). The Examiner cites
Kates as teaching this feature-"Kates teaches desirability of using camera
images to detect size of an intruder so that it can be detected if intruder is a
human adult, so as to avoid false alarms" (Final Act. 3). See Final Act. 2-3;
Ans. 4--7. Specifically, the Examiner cites Hevia as teaching the recited
"wireless communication system" ( claim 1) (see Final Act. 2; Ans. 4--5
( citing Hevia ,r,r 23-25, 3 5)) and Kates as teaching human detection utilizing
an imaging device (see Final Act. 3; Ans. 6-7 (citing Kates ,r,r 16, 90, 98)).
Appellant contends that Hevia and Kates do not teach the disputed
limitation of claim 1, and that Hevia and Kates are not properly combinable.
See Br. 16-25. Specifically, Appellant contends That Hevia does not
describe a wireless communication system-"the Examiner's interpretation
of Appellant's claimed term 'wireless communication system' as reading on
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the 'communication circuitry' 16 of Hevia, or modem 18 of Hevia, is
unreasonably broad" (Br. 22). See Br. 18-22. Appellant also contends the
combination of Hevia and Kates does not teach human detection and one of
ordinary skill in the art would not have combined Hevia and Kates because
Hevia already addresses preventing false alarms using video images (making
the addition of Kates superfluous). See Br. 23-25.
We disagree with Appellant that Hevia and Kates do not teach the
disputed features of claim 1, that the references are not properly combinable,
and that the Examiner's interpretation of the at-issue claim limitations and
references was overly broad. The Examiner provides an explanation how
Hevia and Kates teach or suggest the disputed features of Appellant's claim
1. We adopt as our own: ( 1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken (Final Act. 2-3), and
(2) the reasons set forth by the Examiner in the Examiner's Answer (Ans. 4--
7) in response to Appellant's Appeal Brief. We concur with the findings and
conclusions reached by the Examiner, and we address specific findings,
conclusions, and arguments for emphasis as follows.
We agree with the Examiner's findings (see Final Act. 3; Ans. 6-7)
that Kates describes a wireless communication system. As pointed out by
the Examiner (see Final Act. 2; Ans. 4--5) and conceded by Appellant (see
Br. 19-22) Hevia describes communication circuitry and a modem that
transmit alarm signals over the intemet----e.g., a "'hot spot."' See Hevia
,r,r 23-25. Hevia also describes the alarm system as being portable. See
Hevia ,r 35. Additionally, Hevia describes the alarm system communicating
directly with a mobile device application. See Hevia ,r 32; see also Hevia
,r,r 30-31. It is notoriously well-known that mobile devices (such as an
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iPhone or Android device (see Hevia ,r 30)) utilize wireless communication
protocols. Therefore, in view of these disclosures, we conclude Hevia at
least suggests the disputed wireless communication system of Appellant's
claim 1.
We also agree with the Examiner's findings (see Final Act. 3; Ans. 6-
7 (citing Kates ,r,r 16, 90, 98)) that Kates detecting a human utilizing an
imaging device. Appellant does not directly dispute these findings. Instead,
Appellant contends one would not have made the combination proffered by
the Examiner. See Br. 23-25. Initially, we note Hevia suggests human
detection-"the video verification feature allows the user to determine if the
intruder is actually an authorized person" (Hevia ,r 35). Further, as pointed
out by the Examiner "Hevia does not specifically state that human intruder
detection is determined, use of Kates as a secondary reference is proper."
Ans. 6-7.
Further, with respect to Appellant's combinability arguments-that
one of ordinary skill in the art would not have combined Hevia and Kates
because Hevia already addresses preventing false alarms and that the
Examiner did not provide a proper rationale for combining Hevia and Kates
(see Br. 23-25}-we disagree. The Examiner provides a rationale for
combining Hevia and Kates-"Kates teaches providing a more specific
prevention of false alarms ... and it would have been obvious to one of
ordinary skill in the art to use such a false alarm technique in conjunction
with the Hevia system, in order to ... provid[ e] more comprehensive false
alarm protections, leading to a more reliable intruder detection system."
Ans. 6; see Final Act. 3; Ans. 6-7. Contrary to Appellant's arguments, this
is not an instance where the rejection attempts to combine references where
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"the primary reference already solves the problem purportedly addressed by
the secondary reference." Br. 24; see Br. 23-25. Instead as pointed out by
the Examiner (supra), Kates discusses preventing specific types of false
alarms not addressed by Hevia.
The Supreme Court has held that in analyzing an obviousness
rationale, the Examiner "need not seek out precise teachings directed to the
specific subject matter of the challenged claim, [ and may] take account of
the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
Also, the Examiner may consider "the background knowledge possessed by
a person having ordinary skill in the art." KSR, 550 U.S. at 418 (quoting In
re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Further, an artisan is
presumed to possess both skill and common sense. See KSR, 550 U.S. at
421 ("A person of ordinary skill is also a person of ordinary creativity, not
an automaton."). For the all the reasons set forth above, we find the
Examiner provided a legally cognizable rationale for the combination of
Hevia and Kates, in that the Examiner "'articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness."'
KSR, 550 U.S. at 418 (quoting In re Kahn, 441 F.3d at 988).
We further find that it would have been within the skill of an
ordinarily skilled artisan to combine the video alarm system of Hevia and
video human detection as taught by Kates. See KSR, 550 U.S. at 417 ("[I]f a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill."). We are not persuaded that combining the
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respective familiar elements of the cited references in the manner proffered
by the Examiner would have been "uniquely challenging or difficult for one
of ordinary skill in the art" at the time of Appellant's invention. Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418).
Additionally, Appellant failed to file a Reply Brief addressing the
Examiner's clarified findings and additional discussion (see Ans. 4--7) of
Hevia and Kates, the disputed limitations of claim 1, the Examiner's
rationale for combining Hevia and Kates, or otherwise rebutting the findings
and responsive arguments made by the Examiner in the Answer.
Accordingly, Appellant's contentions do not persuade us of error in the
Examiner's obviousness rejection of representative independent claim 1.
Therefore, we affirm the Examiner's rejection of representative claim 1,
independent claim 8 that includes limitations of commensurate scope, and
dependent claims 2-5 and 9-15, not separately argued with particularity
(supra).
Claims 16-20
The Examiner rejects independent claim 16 as being obvious over
Hevia and Kates. See Final Act. 2-5; Ans. 7-8. As with claim 1 (supra),
the Examiner cites Hevia as teaching every feature of Appellant's claim 16,
with the exception that Hevia does not show storing digital video at a mobile
device. See Final Act. 4--5 (citing Hevia ,r,r 23-25, 28, 30, 31, 35; Figs. 1,
3-5). The Examiner explains that "it would have been obvious to use digital
storage for the video on the smartphone, since smartphones typically use
digital storage for camera and video imaging" and this "would have merely
involved the simple substitution of a known video storage element for
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another well-known video storage element." Ans. 8; see Final Act. 5; Ans.
7-8.
Appellant contends that Hevia and Kates do not teach the disputed
limitations of claim 16. See Br. 26-31. Specifically, Appellant contends,
inter alia, that Hevia does not describe storing the received digital video
feed on a handheld device - that is, "response to said received indication of
the presence of an unauthorized intruder in said residence, storing on a non-
volatile computer-readable medium of said handheld device a copy of said
received digital video feed" ( claim 16). See Br. 3 0-31.
We agree with Appellant that the Examiner does not sufficiently
explain how Hevia's description of transmitting video (Hevia ,r,r 28, 30, 31;
Fig. 4), storing video to a server (Hevia ,r 27; Fig. 3), and sending "alarm
signals" to a mobile device application (Hevia ,r,r 25, 28, 30, 31; Figs. 4, 5)
describes storing on a handheld device (mobile device) a copy of received
digital video in response to a received indication of the presence of an
unauthorized intruder as required by claim 16. At best Hevia describes
transmitting and storing a video clip to a remote server and sending separate
alarm signals to a mobile application. Without further explanation, we are
left to speculate on how Hevia describes responsively storing video on a
mobile device. Cf Final Act. 4--5; Ans. 7-8 ( citing Hevia ,r,r 25, 30, 31;
Figs. 3, 5) and Br. 26-31.
Consequently, we are constrained by the record before us to find that
the Examiner erred in concluding Hevia and Kates render the disputed
features of Appellant's claim 16 obvious. Claims 17-20 depend from and
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stand with claim 16. Accordingly, we do not sustain the Examiner's
obviousness rejection of claims 16-20.
Claims 6 and 7
Appellant provides separate arguments with respect to dependent
claims 6 and 7. See Br. 31-35. Specifically, Appellant contends Hevia and
Kates do not describe human detection similar to claim 1 (supra). See Br.
31-34. Appellant also contends Hevia and Kates do not describe
transmitting a monitoring signal includes video data (generated by a digital
video camera). See Br. 34--35. We agree with the Examiner (see Final Act.
2-3; Ans. 8-9) that Hevia and Kates at least suggest these disputed features.
Hevia and Kates describes human detection. See discussion of claim 1
(supra). Further, contrary to Appellant's arguments (see Br. 31-34) the
prior art need only describe one of the specified factors. Appellant concedes
Hevia at least describes "'measuring a size and movement track of the
intruder"' (Br. 33 (quoting Hevia ,r 16)), which we find meets the disputed
limitation of "determin[ing] [the] output is indicative of a human intruder
based upon ... the size of a detected moving object" ( claim 6). With respect
to claim 7, Hevia describes transmitting video (see discussion of claim 16
(supra); Hevia ,r,r 25, 28; Figs. 1, 3, 4). Contrary to Appellant's arguments
(see Br. 34--35) this is all claim 7 requires. Thus, Appellant's contentions do
not persuade us of error in the Examiner's obviousness rejection of
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dependent claims 6 and 7. Accordingly, we affirm the Examiner's rejection
of claims 6 and 7.
CONCLUSIONS
Appellant has not shown the Examiner erred in rejecting claims 1-15
under 35 U.S.C. § 103.
Appellant has shown the Examiner erred in rejecting claims 16-20
under 35 U.S.C. § 103.
DECISION
We affirm the Examiner's rejections of claims 1-15, and reverse the
Examiner's rejections of claims 16-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED-IN-PART
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