2020000980 (P.T.A.B. Jul. 2, 2021)

Ganesh Ananthakrishnan

Patent Trials and Appeals BoardJul 2, 2021

2020000980 (P.T.A.B. Jul. 2, 2021)

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. 13/196,990 08/03/2011 Ganesh Ananthakrishnan 4366YDT-87 4876 48500 7590 07/02/2021 SHERIDAN ROSS P.C. 1560 BROADWAY, SUITE 1200 DENVER, CO 80202 EXAMINER BURWELL, JOSEPH R ART UNIT PAPER NUMBER 2143 NOTIFICATION DATE DELIVERY MODE 07/02/2021 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): cjacquet@sheridanross.com edocket@sheridanross.com pair_Avaya@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GANESH ANANTHAKRISHNAN Appeal 2020-000980 Application 13/196,990 Technology Center 2100 Before ELENI MANTIS MERCADER, JAMES W. DEJMEK, and SCOTT E. BAIN, Administrative Patent Judges. Opinion for the Board filed by MANTIS MERCADER, Administrative Patent Judge. Opinion Dissenting filed by DEJMEK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, 5, 8, 9, 11–14, 17–20, 22, 26, 27, and 29. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as Avaya Inc. Appeal Br. 2. Appeal 2020-000980 Application 13/196,990 2 We REVERSE. CLAIMED SUBJECT MATTER The claims are directed to an exclusion of selected data from access by collaborators. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for restricting the dissemination of information comprising: detecting, by a processor, that sensitive information should be one or more of hidden, obfuscated, or replaced; and when a device is handed from a first party allowed to see the sensitive information to a second party, performing, by the processor, the one or more of hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed, wherein performing the one or more of hiding, obfuscating, or replacing the sensitive information until the identity of the second party is confirmed is based on detecting when the device changes hands from the first party allowed to see the sensitive information to the second party, wherein detecting when the device changes hands from the first party allowed to see the sensitive information to the second party is based on one or more of an electrical, an inductive, or a resistive characteristic associated with how the parties hold a case of the device. Appeal 2020-000980 Application 13/196,990 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Liu US 2010/0235881 A1 Sept. 16, 2010 Motoyama US 2012/0221963 A1 Aug. 30, 2012 Poon US 2013/0023234 A1 Jan. 24, 2013 Klein2 US 2013/0191908 A1 July 25, 2013 REJECTIONS Claims 1, 11, 17, 20, 22, and 29 are rejected under 35 U.S.C. § 102(e) as being anticipated by Klein, U.S. Patent Application Publication Number 2013/0191908 A1, published July 25, 2013, titled “Methods, devices, and systems for unobtrusive mobile device user recognition” (hereinafter “Klein”), which claims priority from U.S. Provisional Patent Application Number 61/430,549, filed January 7, 2011, titled “Systems, methods, and media for unobtrusively recognizing an authorized user by a mobile device” (hereinafter “the Klein Provisional”). Claims 3, 8, 12–14, 18, 26, and 27 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Klein in view of Poon, U.S. Patent Application Publication Number 2013/0023234 A1, published January 24, 2013, titled “Systems and methods for providing mislead information to intruders when intrusion occur” (hereinafter “Poon”). Final Act. 8. Claims 9 and 19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Klein in view of Motoyama, U.S. Patent Application Publication Number 2012/0221963 A1, published August 30, 2012, titled 2 The Examiner relies upon Klein’s U.S. Provisional Patent Application 61/430,549, which is referred to as “Klein Prov,” filed January 7, 2011. We refer to this Klein Provisional as “the Klein Provisional” in our Opinion. Appeal 2020-000980 Application 13/196,990 4 “Electronic meeting management for mobile wireless devices with post meeting processing” (hereinafter “Motoyama”). Final Act. 12. Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Klein in view of Liu et al., U.S. Patent Application Publication Number 2010/0235881 A1, published September 16, 2010, titled “Enabling sharing of mobile communication device” (hereinafter “Liu”). Final Act. 13. Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1, 11, 17, 20, 22, 29 102(e) Klein 3, 8, 12–14, 18, 26, 27 103(a) Klein, Poon 9, 19 103(a) Klein, Motoyama 5 103(a) Klein, Liu OPINION Claims 1, 11, 17, 20, 22, and 29 Claim 1 recites in pertinent part “when a device is handed from a first party allowed to see the sensitive information to a second party, performing, by the processor, the one or more of hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed.” See claim 1 (emphasis added). Appellant argues that the Klein Provisional teaches that sensitive information is displayed until it confirms that the second party is not the owner, and that claim 1 does not recite that the sensitive information is displayed until an identity of the second party is confirmed. Appeal Br. 7. The Examiner rebuts Appellant’s arguments by finding that the Klein Provisional does not teach that sensitive information is displayed until it confirms the second party is not the owner, rather “it merely teaches that an unauthorized user, i.e., a user for whom device Appeal 2020-000980 Application 13/196,990 5 features have been blocked, exhibits a different usage repertoire than that of an authorized user.” Ans. 18. We agree with Appellant. As a preliminary matter, Appellant’s arguments and the Examiner’s findings are based upon the Klein Provisional. The anaylsis needs to focus on whether Klein is entitled to the benefit of the provisional’s filing date. The critical reference date under pre- AIA 35 U.S.C. 102(e) of a U.S. patent, a U.S. patent application publication, as well as an international application publication having prior art effect under pre-AIA 35 U.S.C. 102(e), may be the filing date of a relied upon provisional application only if at least one of the claims in the reference patent, patent application publication, or international application publication is supported by the written description of the provisional application in compliance with pre-AIA 35 U.S.C. 112, first paragraph, or 35 U.S.C. 112(a). See Amgen Inc. v. Sanofi, 872 F.3d 1367, 1380 (Fed. Cir. 2017); Dynamic Drinkware, LLC, v. National Graphics, Inc., 800 F.3d 1375 (Fed. Cir. 2015). We find that Klein is entitled to the benefit of the provisional’s filing date because claims 1–12, for example, of the originally filled application are supported by Figure 2 of the Klein Provisional. Our decision herewithin will be referring to Klein and not the Klein Provisional, because Klein is the prior art and the Klein Provisional is utilized to provide the critical date of Klein’s priority date. Figure 3 of Klein (i.e., corresponding to Figure 2 of the Klein Provisional) is reproduced below: Appeal 2020-000980 Application 13/196,990 6 Figure 3 shows a flowchart of the major process steps for performing continuous background monitoring and learning of a user’s human computer interaction (HCI) behavior pattern from a mobile device. Klein para. 80. At step 302 a user begins interacting with the device via a touch screen and these touch screen events (step 304) cause the system to sample parameters caused by the touch screen events including event type, screen position, and elapsed time. Id. at para. 81. At step 308, the device orientation parameters such as azimuth, pitch, and roll, are sampled and at step 310 the system discretizes the parameters to be used in a Bayesian network. Id. para. 81–82. These discretized parameters are then tested against prior collected values to determine if the usage is consistent with an authorized user. Id. If the Appeal 2020-000980 Application 13/196,990 7 values are not consistent, but the learning mode is set, then access is still granted, and the Bayesian network prediction model is updated. Id. at para. 87. If the values are not consistent and the learning mode flag is not set, then the system notifies the user that he or she is not authorized to use the device, and blocks access to protected features of the device. Id. at para. 88. That is, Klein requires that the user is granted access until the touch pattern and screen orientation discretized parameters are outside of the modeled Bayesian values, which would indicate an authorized user. When these values are not consistent with the Bayesian model of an authorized user, the user currently using the device is blocked access. In other words, an unauthorized user will have access to the displayed content from step 302 of “monitor touch events from device” 302 through steps 308 until the system determines that the user is an unauthorized user at which time access is blocked at step 320. See Klein Fig. 3. Claim 1 recites in pertinent part when a device is handed from a first party allowed to see the sensitive information to a second party, performing, by the processor, the one or more of hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed, . . . based on detecting when the device changes hands . . . based on one or more of an electrical, an inductive, or a resistive characteristic associated with how the parties hold a case of the device. See Claim 1 (emphasis added). Appellant argues that Klein does “not hide, obfuscate, or replace sensitive information when the device is handed from a first party allowed to see the sensitive information to a second party as recited in claim 1.” Appeal Br. 7. Appellant further argues that claim 1 recites that the sensitive information is hidden, obfuscated, or replaced Appeal 2020-000980 Application 13/196,990 8 “until an identity of the second party is confirmed.” Appeal Br. 7. Appellant argues that Klein discloses that the sensitive information is displayed until it confirms that the second party is not the owner. Id. We agree with Appellant’s argument. “‘A rejection for anticipation under section 102 requires that each and every limitation of the claimed invention be disclosed in a single prior art reference.’” See In re Buszard, 504 F.3d 1364, 1366 (Fed. Cir. 2007) (quoting In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994)). In the instant case, the limitations of claim 1 reciting hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed, . . . based on detecting when the device changes hands . . . based on one or more of an electrical, an inductive, or a resistive characteristic associated with how the parties hold a case of the device are not disclosed in Klein. The disputed limitations require hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed. Thus, upon detection that the device has been handed to another user the sensitive information is blocked. Appellant’s Specification states that the detection of changing hands can be made with a variety of ways including motion detector, accelerometer, GPS or geofence. Spec. 4:15–28. On the contrary, as discussed supra in Klein the user is allowed to interact with the touch screen and have access until it is determined that the user’s usage characteristics are outside the bounds of a Bayesian modeled authorized user. See also Klein Fig. 3. The disputed claim limitation requires“hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed” as opposed to allowing access to interact with the touch screen until it is determined that Appeal 2020-000980 Application 13/196,990 9 the user’s usage characteristics do not match an authorized user and then block access. Thus, Klein does not disclose the disputed limitation of “when a device is handed from a first party allowed to see the sensitive information to a second party, performing, by the processor, the one or more of hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed.” See claim 1. Accordingly, we reverse the Examiner’s rejection of claim 1. We also reverse the Examiner’s rejection of claims 11, 17, 20, 22, and 29 for the same reasons. Claims 3, 5, 8, 9, 12–14, 18, 19, 26, and 27 We also reverse the Examiner’s rejections of claims 3, 5, 8, 9, 12–14, 18, 19, 26, and 27 because the additionally cited references do not cure the above cited deficiencies. CONCLUSION The Examiner’s rejections are REVERSED. The Examiner’s decision to reject claims 1, 3, 5, 8, 9, 11–14, 17–20, 22, 26, 27, and 29 is REVERSED. Appeal 2020-000980 Application 13/196,990 10 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 11, 17, 20, 22, 29 102(e) Klein 1, 11, 17, 20, 22, 29 3, 8, 12–14, 18, 26, 27 103(a) Klein, Poon 3, 8, 12–14, 18, 26, 27 9, 19 103(a) Klein, Motoyama 9, 19 5 103(a) Klein, Liu 5 Overall Outcome 1, 3, 5, 8, 9, 11–14, 17– 20, 22, 26, 27, 29 REVERSED Appeal 2020-000980 Application 13/196,990 11 DEJMEK, Administrative Patent Judge, dissenting opinion. I respectfully dissent from the Majority’s decision reversing the Examiner’s rejection of claims 1, 3, 5, 8, 9, 11–14, 17–20, 22, 26, 27, and 29. As set forth below, I would determine that Klein qualifies as prior art to Appellant’s application and anticipates Appellant’s claimed invention. As such, I would affirm the Examiner’s rejections. In rejecting independent claim 1, inter alia, the Examiner finds Klein anticipates Appellant’s claimed invention. See Final Act. 3–6. In the body of the rejection, the Examiner cites to specific portions of Klein and to a provisional application (provisional application no. 61/430, 549) (“the ’549 Provisional” or “Klein Provisional”) to which Klein claims the benefit of priority. See Final Act. 3–6. The Examiner explains citing to both applications as a response to a previous assertion by Appellant that Klein does not qualify as prior art because the ’549 Provisional fails to disclose the subject matter in Klein relied upon by the Examiner. See Final Act. 14; see also Ans. 15–16; Amdt. 3 (filed Oct. 4, 2018). Appellant asserts that because the pending application was filed prior to Klein, “the Examiner can only rely upon the disclosure of [the ’549 Provisional] as prior art. Thus, any arguments made by the Examiner using sections of Klein are irrelevant and should not be considered.” Appeal Br. 6. On its face, I find Appellant’s argument imprecise. A provisional application is not published and does not qualify as prior art. If the various requirements are met (discussed infra), a non-provisional application may claim the benefit of, and be entitled to the earlier filing date of a provisional application. However, it is the non-provisional application that is the prior art reference. If Klein is entitled to the filing date of the ’549 Provisional, Appeal 2020-000980 Application 13/196,990 12 the Examiner’s findings (not arguments) with respect to Klein are the relevant findings. A threshold issue, therefore, is whether Klein qualifies as prior art. Klein is a published National Phase application (application no. 13/823,107), published July 25, 2013, of PCT International Application No. PCT/IL12/00006, filed on January 5, 2012. See Klein [21, 22, 43, 86]. The National Phase application completed all requirements for entry into the National Stage on March 14, 2013, (i.e., § 371(c)(1),(2) date). See Klein [86]. The National Phase application identifies the ’549 Provisional, filed on January 7, 2011, as a related application. See Klein [60]. On June 21, 2016, Klein matured into U.S. Patent No. 9,372,979 (“the ’979 Patent”). Manual of Patent Examining Procedure (“MPEP”) § 211.01(a) (9th ed., Rev. 10.2019, June 2020) sets forth the requirements for a later-filed application to claim the benefit of a prior-filed provisional application under 35 U.S.C. § 119(e). These requirements include that the non-provisional application or international application be filed no later than 12 months after the filing date of the provisional application. MPEP § 211.01(a)(1). As discussed above, the ’549 Provisional was filed on January 7, 2011 and the PCT International Application was filed on January 5, 2012. Thus, the PCT International Application was timely filed. In addition, the prior-filed provisional application must name the inventor or a co-inventor named in the later-filed international application. MPEP § 211.01(a)(2). Here, both the ’549 Provisional and the National Phase application identify at least one common inventor (e.g., Geoff Klein). Further, as discussed above, the National Phase application was amended to refer to the ’549 Provisional, and such amendment was during the pendency of the National Phase application. See MPEP § 211.01(a)(3)–(4); see also Klein ¶ 1. Appeal 2020-000980 Application 13/196,990 13 In Dynamic Drinkware, LLC v. National Graphics, Inc., 800 F.3d 1375 (Fed. Cir. 2018), our reviewing court explained that “[f]or a patent to claim priority from the filing date of its provisional application . . . the specification of the provisional must . . . [comport with the requirements of 35 U.S.C. § 112] to enable an ordinarily skilled artisan to practice the invention claimed in the non-provisional application.” Dynamic Drinkware, 800 F.3d at 1378 (citation and internal quotations omitted, emphasis omitted); see also Amgen Inc. v. Sanofi, 872 F.3d 1367, 1380 (Fed. Cir. 2019) (explaining the requirement of the specification of the provisional application must provide § 112 ¶ 1 support for the invention claimed in the non-provisional application).3 MPEP § 2136.03(III) underscores the requirements of Dynamic Drinkware and Amgen that the written description of a provisional application must provide § 112 support for at least one of the claims in the published non-provisional application as well as provide § 112 support for “the subject matter relied upon in the reference patent or publication to make the rejection.” Klein generally relates to a system for “unobtrusive user recognition and user authentication of mobile devices.” Klein ¶¶ 2, 44. Klein describes a technique in which the mobile device is able to recognize an authorized user by comparing current and previously recorded HCI (human computer interface) behavior metrics. Klein ¶¶ 13, 75. Klein describes that HCI 3 As the court noted in Dynamic Drinkware, the relevant portion of 35 U.S.C. § 102(e)(2) was reorganized into newly designated under the provisions of the Leahy-Smith America Invents Act (AIA) as 35 U.S.C. § 102(d)(2). Dynamic Drinkware, 800 F.3d at 1377 n.1. Similar to the application at issue in Dynamic Drinkware, Appellant’s application was filed before the provisions of the AIA took effect (i.e., Appellant’s filing date is August 3, 2011). As such, the pre-AIA version of § 102 applies. Appeal 2020-000980 Application 13/196,990 14 behavior patterns may be tracked by using various sensors that may be located within a mobile device. Klein ¶ 8; see also Klein ¶ 22 (identifying exemplary sensors). Klein further describes an embodiment wherein upon detection of motion characteristics not associated with an authorized user, a defensive action is triggered. Klein ¶¶ 18–20. The defensive actions may include deleting or encrypting sensitive data, or blocking access to selected applications. Klein ¶ 20. Klein discloses “the step of detecting is performed repeatedly during normal device usage, thereby providing perpetual protection of the device from unauthorized usage.” Klein ¶ 21. Claim 36 of Klein is reproduced below:4 36. A method for unobtrusively recognizing a user of a mobile device, the method comprising the steps of: (a) unobtrusively collecting motion data from the mobile device during normal device usage by monitoring standard authorized-user interaction with the device, without any form of challenge or device-specified action; (b) demarcating said motion data into user motion- sequences based on changes in a motion-state or an elapsed time- period without an occurrence of said changes, wherein said motion-state refers to a placement and speed of the mobile device at a point in time; (c) calculating user motion-characteristics from said user motion-sequences; and (d) generating a motion-repertoire from said user motion- characteristics, whereby said motion-repertoire enables unobtrusive recognition of the user. 4 Claims 1–35 were previously canceled. See Klein 11 (indicating claims 1– 35 were canceled). I note that claim 36 of Klein differs from claim 1 of the ’979 Patent. However, because the Examiner relies on findings made with respect to Klein (as opposed to the issued patent), I confine my analysis to Klein. Appeal 2020-000980 Application 13/196,990 15 Klein describes a motion sequence as “a collection of motion data parameters extracted from one or more sensors on the device simultaneously over a period of time.” Klein ¶ 47. As recited, motion sequences are demarcated from a continual stream of collected sensor data. Klein ¶ 47. Klein describes the calculation of motion characteristics as an aggregation of data contained in each motion sequence. Klein ¶ 48. For Klein to get the benefit of the earlier filing date of the ’549 Provisional, the ’549 provisional must provide adequate written description support at least for Klein’s claimed invention. See Dynamic Drinkware, 800 F.3d at 1378; see also Amgen, 872 F.3d at 1380. To satisfy the written description requirement, “the disclosure of the application relied upon [must] reasonably convey[] to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citations omitted). “Although the exact terms need not be used in haec verba, . . . the specification must contain an equivalent description of the claimed subject matter.” Lockwood v. American Airlines, 107 F.3d 1565, 1572 (Fed. Cir. 1997) (citing Eiselstein v. Frank, 52 F.3d 1035, 1038 (Fed. Cir.1995) (“[T]he prior application need not describe the claimed subject matter in exactly the same terms as used in the claims . . . .”). The ’549 Provisional describes a system “for unobtrusively recognizing an authorized user by a mobile device . . . based on a comparison between current and previously-recorded [sic] Human- Computer Interaction (HCI) behavior metrics.” ’549 Provisional at 1:9–13, 6:23–24. As in Klein, the ’549 Provisional describes that mobile devices may be equipped with various sensors to track HCI behavior patterns, which Appeal 2020-000980 Application 13/196,990 16 are used to create usage repertoires that reflect unique usage patterns of specific individuals, thereby allowing the mobile device to recognize an authorized user. ’549 Provisional at 2:21–25; 3:1–14. Example data that can be measured include geographic location, velocity and direction, time of day, and intervals between idle and active usage. ’549 Provisional at 3:1– 11. “By measuring the frequency and coincidence of different event patterns, the system is able to detect usage patterns.” ’549 Provisional at 5:16–19. In a disclosed embodiment, the ’549 Provisional describes discretizing the values sampled for each of the parameters that have continuous values. ’549 Provisional at 10:3–6; see also ’549 Provisional at 11:17–21 (providing an example of discretizing collected data based on positioning). The ’549 Provisional describes that “[m]etrics can be selected and combined from a range of HCI usage-behavior ‘signals’ collected by a mobile device.” ’549 Provisional at 5:7–8. Based on the selected set of metrics, the mobile device can learn and recognize an authorized user of the device. ’549 Provisional at 5:3–11. Based on my review of the ’549 Provisional (discussed above), I find the ’549 Provisional provides sufficient written description support for claim 36 of Klein. See also Dynamic Drinkware, 800 F.3d at 1378; see also Amgen, 872 F.3d at 1380. Appellant’s claim 1 recites, in relevant part that “when a device is handed from a first party allowed to see the sensitive information to a second party, performing, by the processor, the one or more of hiding, obfuscating, or replacing the sensitive information until an identity of the second party is confirmed.” Claim 1 further details that performing the one or more of hiding obfuscating, or replacing is based on detecting when the device changes hands from an authorized user to an unknown user (i.e., the second Appeal 2020-000980 Application 13/196,990 17 party) and that detection that the device has changed hands “is based on one or more of an electrical, an inductive, or a resistive characteristic associated with how the parties hold a case of the device.” In other words, when the condition has been detected that the device has changed hands from an authorized user to a second user, the processor performs the protection of sensitive data (i.e., by hiding or obfuscating the data). It is axiomatic, therefore, that until it has been detected that the device has been handed from an authorized user to a second user, the device is in not in the protected state in which sensitive data is hidden or obfuscated. Appellant argues that the prior art5 fails to disclose detecting an unauthorized user from “a simple orientation of the device.” Appeal Br. 6. Further, Appellant asserts the prior art describes a process that takes a substantial period of time (i.e., several hours) to recognize an authorized user. Appeal Br. 7. As such, Appellant argues the prior art fails to describe hiding or obfuscating sensitive information when the device is handed from a first (authorized user) to a second user until it is confirmed that the second user is authorized. Appeal Br. 7. That is, Appellant asserts the prior art allows the sensitive information to be displayed (or be otherwise unprotected) until it can be confirmed that the second user is not an authorized user. Appeal Br. 7–8. Appellant acknowledges that the prior art describes “identify[ing] possible users in order to protect sensitive information,” but asserts that the prior art fails to describe that the protecting steps (e.g., hiding or obfuscating the sensitive information) are performed based on detection of the device 5 Appellant’s arguments are made with respect to the ’549 Provisional. See Appeal Br. 6–11. As discussed above, Appellant should direct the arguments to the Examiner’s findings regarding Klein. Appeal 2020-000980 Application 13/196,990 18 changing hands. Appeal Br. 8–9. In other words, Appellant argues the prior art discloses “that the identity of the unauthorized user occurs at some point after the user starts interacting with the touch screen of the device.” Appeal Br. 9. Further, Appellant argues the prior art does not disclose detecting when the device changes hands based on how a user holds a case of the device. Appeal Br. 9–10. Instead, Appellant argues the prior art merely describes the use of a gyroscope to determine an orientation of the device. Appeal Br. 9–10. As an initial matter, claim 1 does not recite detecting an unauthorized user from a simple orientation of the device. As such, Appellant’s argument is not commensurate with the scope of claim 1 and is not persuasive of error. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not appearing in the claims cannot be relied upon for patentability). As discussed above, I understand claim 1 to require broadly that when a device is handed from an authorized user (i.e., a first party allowed to see the sensitive information) to a second party, the processor in the device performs protection activities (i.e., one or more of hiding, obfuscating, or replacing) regarding the sensitive information until an identity of the second party is confirmed. Moreover, the express claim language requires that performing the protection steps (e.g., hiding or obfuscating sensitive information) is based on detecting when the device changes hands from the authorized user to a second user. Further, the claim language recites that the detection of when the device changes hands is “based on one or more of an electrical, an inductive, or a resistive characteristic associated with how the parties hold a case of the device.” Thus, it is not until it has been detected that the device has been handed from an authorized user to a second user (based on one or more of an electrical, an inductive, or a resistive Appeal 2020-000980 Application 13/196,990 19 characteristic associated with how the parties hold a case of the device), that the processor of the device performs the actions of hiding or obfuscating the sensitive information. The Examiner finds Klein’s disclosure of obtaining motion data (i.e., HCI metrics) from a sensor, such as a gyroscope, describes the generation of “some type of electrical signaling characteristic of holding the case of the device.” Final Act. 4 (citing Klein ¶ 906). Moreover, the Examiner finds Klein describes monitoring a coincidence of HCI-event signals such as device orientation and touch screen events to differentiate between users. Final Act. 5–6 (citing Klein ¶¶ 73, 75–77). As an initial matter, in addition to claim 36 of Klein being supported by the written description of the ’549 Provisional (see above), I note that the relied upon portions of Klein also find adequate support in the ’549 Provisional. See ’549 Provisional at 3:1–11 (describing measuring HCI metrics using a gyroscope or motion detector), 7:23–8:4 (describing device orientation as an exemplary category of HCI-event signals), 8:13–25 (describing the that monitoring the coincidence of HCI-event signals such as device orientation and touch-screen events provides a strong differentiation between users). Thus, Klein is entitled to the benefit of the earlier filing date of the ’549 Provisional and qualifies as prior art to Appellant’s claimed invention. Moreover, contrary to Appellant’s arguments, I find Klein’s use of device orientation, which is based on an electric characteristic associated with how the parties hold a case of the device (as indicated by an output 6 Although the Examiner cites paragraph 90, it appears that the quoted language is from paragraph 22 of Klein. Appeal 2020-000980 Application 13/196,990 20 signal from a gyroscope or motion sensor), to differentiate users holding the device discloses detecting when the device changes hand from a first party to a second party. Klein further describes when the usage pattern does not match a known behavior (i.e., the user is not authorized), the device blocks the user from accessing the sensitive information (i.e., protected features). Klein ¶ 90.7 For the reasons discussed supra, I would agree with the Examiner that Klein qualifies as prior art and anticipates Appellant’s claimed invention. Accordingly, I respectfully dissent. 7 Support for paragraph 90 of Klein may be found at page 9, lines 8 through 16 of the ’549 Provisional.