Kris Keyton

Patent Trials and Appeals Board

Nov 3, 2021

2020005432 (P.T.A.B. Nov. 3, 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.
16/122,866 09/05/2018 Kris Keyton BECEL.00004CON 1172
120981 7590 11/03/2021
Braxton Perrone, PLLC
5 Cowboys Way
Suite 300, Unit 32
Frisco, TX 75034
EXAMINER
BLOUNT, ERIC
ART UNIT PAPER NUMBER
2684
NOTIFICATION DATE DELIVERY MODE
11/03/2021 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):
braxton@braxtonperrone.com
butz@braxtonperrone.com
perrone@braxtonperrone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KRIS KEYTON
Appeal 2020-005432
Application 16/122,866
Technology Center 2600
Before JASON V. MORGAN, ADAM J. PYONIN, and AMBER L. HAGY,
Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Kris Keyton.
Appeal Br. 2.
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Application 16/122,866

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STATEMENT OF THE CASE
Introduction
The Application is directed to confirming the location of various
individuals, such as particular incarcerated individuals, individuals released
from custody on bail, unlicensed motor vehicle operators, or realtors.
Spec. ¶ 2, 6. Claims 1–5 and 13–17 are pending. Appeal Br. 12–13. Claim
1, the sole independent claim, is reproduced below for reference:
1. A system for confirming the location of an incarcerated
individual, comprising a mobile device, a global positioning
system receiver, a microprocessor and a wireless communication
transceiver coupled to the global positioning system receiver;
a user interface, comprising a display and a physical
characteristic input for recording an attribute of the incarcerated
individual; and
a storage medium, wherein the mobile device is
programmed to send device location and physical characteristic
data to a remote system and receive a request for the mobile
device location confirmation.
References and Rejections
The Examiner relies on the following prior art:
Name Reference Date
Eros US 2005/0116811 A1 June 2, 2005
Kozlay US 2005/0285747 A1 Dec. 29, 2005
Buck US 8,493,219 B2 July 23, 2013
Vardi US 9,064,391 B2 June 23, 2015

Claims 1, 2, 4, and 5 are rejected under 35 U.S.C. § 103 as being
unpatentable over Eros in view of Vardi. Final Act. 4
Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Eros, Vardi, and Buck. Final Act. 5.
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Claim 1 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kozlay in view of Eros. Final Act. 6.2
Claims 13–17 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kozlay, Eros, and Vardi. Final Act. 7
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv).
We disagree with Appellant that the Examiner erred and adopt as our
own the findings and reasons set forth by the Examiner, to the extent
consistent with our analysis below. We add the following primarily for
emphasis.

Claim 1 in view of Eros and Vardi
Appellant argues the Examiner’s first obviousness rejection of claim 1
is in error, because “there is no incentive or motivation to modify Eros as
suggested.” Appeal Br. 6. Particularly, Appellant contends “Eros notes that
its bracelet can be worn on the ankle,” and “Eros does not describe any
system where any data, or messages, are received by the device.” Id.
Therefore, according to Appellant, “a display offers no benefit to the device

2 The Examiner refers to Vardi in the heading of this rejection; however, the
substance of this rejection relies solely on Kozlay and Eros. See Final Act.
6.
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of Eros” and Eros’s “device would have to be changed significantly to be
able to receive and display messages.” Id.
We are not persuaded the Examiner errs. First, Eros discloses the
“bracelet is secured to the wrist or to the ankle.” Eros, Abstract (emphasis
added). Appellant does not challenge the Examiner’s reliance on Eros’s
wrist bracelet teaching.3 See Final Act. 2. Second, Eros, as cited by the
Examiner, teaches “a step is provided of receiving, by bracelet 1, a
verification signal 42 by a central unit.” Eros ¶ 50; see also Eros abstract
(“When requested, the individual that wears the bracelet on a first arm
receives a verification signal.”); Final Act. 4; Ans. 11. Thus, Appellant’s
argument—that Eros’s device does not receive data—mischaracterizes the
teachings of the reference, and fails to persuade us that one of ordinary skill
would not modify Eros with Vardi’s display teachings. See Appeal Br. 6;
Final Act. 4; Vardi Fig. 1. Accordingly, we do not find the Examiner errs in
finding the limitations of claim 1 to be obvious in view of the combined
teachings of Eros and Vardi. See Ans. 11.
Accordingly, we are not persuaded the Examiner errs in finding the
limitations of claim 1 to be obvious in view of the combined teachings of
Eros and Vardi.

Claim 3 in view of Eros, Vardi, and Buck
Appellant states the Examiner’s obviousness rejection of claim 3 is in
error, because “Claim 3 further requires a breath analyzer,” and the

3 Separately, Appellant does not explain (or provide evidence to show) why
one of skill in the art would not want a display on an ankle worn device.
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“Examiner has failed to demonstrate how the breath analyzer can be
implemented into Eros.” Appeal Br. 7.
Appellant does not persuade us of Examiner error. Appellant’s
contention is essentially a bare assertion that the Examiner has not provided
a prima facie case of obviousness, which is not sufficient to rise to the level
of a substantive argument. See, e.g., In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.”).
Further, to the extent Appellant presents a substantive argument with
respect to claim 3, we find this argument appears to presume a requirement
for the bodily incorporation of Buck’s breath analyzer into the system of
Eros. See Appeal Br. 7. Such bodily incorporation is not required. See,
e.g., Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir.
1984) (“Neither is the practitioner in reading the Avrea patent disclosure
compelled to adopt every single aspect of its teaching without the exercise of
independent judgment.”). Here, we find the Examiner has presented
findings and analysis sufficient to justify the legal conclusion of
obviousness, as we agree with the Examiner that one of ordinary skill would
exercise their independent judgment in order to combine known breathalyzer
teachings (as evidenced by Buck) in the system of Eros. See Ans. 12; Final
Act. 5; Buck 6:10–18 (“measuring for the presence of alcohol and/or other
drugs present in human subject 110 may be included in some embodiments
of bracelet monitor”).
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Accordingly, we are not persuaded the Examiner errs in finding the
limitations of claim 3 to be obvious in view of the combined teachings of
Eros, Vardi, and Buck.

Claim 1 in view of Kozlay and Eros
Appellant argues the Examiner’s second obviousness rejection of
claim 1 is in error, because “Kozlay discloses getting continuous
updates,”(Reply Br. 3) and “[a]s such there is no benefit or incentive in
modifying Kozlay, which provides continuous updates, to only providing
updates when requested in view of Eros.” Appeal Br. 8.
We are not persuaded the Examiner’s second obvious rejection is in
error. The Examiner finds, “it would have been obvious to the skilled
artisan to pursue the known options for querying, sending, and receiving
data regarding a mobile device (as shown by Eros) that were within his/her
technical grasp[].” Ans. 14. We agree, as one of ordinary skill would have
found it obvious to apply Eros’s requested updates, as a predictable
variation, to the system of Kozlay. See KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 417 (2007) (“If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability.”).
Moreover, Appellant’s argument mischaracterizes the Examiner’s
rejection—the Examiner does not find that the combination of art would
only provide updates when requested. Contra Appeal Br. 8. Rather, the
Examiner finds the teachings of Eros would be included in Kozlay, by an
ordinarily skilled artisan. See Final Act. 6. Thus, the Examiner’s
combination would be able to both receive updates continuously and on
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request. See id.; Kozlay ¶ 43 (“probation release supervisory features which
can be adjusted ‘on the fly’ in response to changing circumstances”).
Accordingly, we do not find the Examiner errs in finding the
limitations of claim 1 to be obvious in view of the combined teachings of
Kozlay and Eros. See Ans. 14.

Claim 14 in view of Kozlay and Eros
Claim 14 recites “[t]he system of claim 1 further comprising a
wearable monitoring band which communicates with said mobile device.”
Appeal Br. 13.
First, Appellant argues the Examiner’s obviousness rejection of claim
14 is in error, because “Kozlay teaches away from the modification
proposed.” Appeal Br. 9. Particularly, Appellant contends Kozlay describes
that using a tethered device, such as a wearable band, “offers less
operational flexibility and more restrictive . . . operations.” Id. (quoting
Kozlay ¶ 11).
We are not persuaded that Kozlay teaches away from the Examiner’s
combination. “A known or obvious composition does not become
patentable simply because it has been described as somewhat inferior to
some other product for the same use.” In re Gurley, 27 F.3d 551, 553 (Fed.
Cir. 1994). Kozlay states that the tethered device of the prior art—although
appearing to be somewhat inferior—has “merit and utility for some
applications.” Kozlay ¶ 11; Ans. 15, 16. Kozlay, accordingly, does not
“discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). Rather, we agree with the Examiner that the “skilled artisan
would have had good reason to try providing a physical tether/wearable band
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in the invention of Kozlay when it was determined to be useful by the
artisan.” Ans. 16; Final Act. 7.
Second, Appellant argues the Examiner’s obviousness rejection of
claim 14 is in error, because the “Examiner has not suggested what role the
wearable monitoring band would play in Kozlay.” Appeal Br. 10.
Particularly, Appellant contends “Kozlay already teaches a fingerprint
sensor and location identification features,” and questions “[h]ow would this
additional monitoring band integrate into the system, and what role would it
play?” Id.
We are not persuaded the Examiner’s rejection is in error. The
Examiner finds “Vardi discloses a wearable monitoring band for
communicating with a cellular device (column 11, lines 10–27),” and “it
would have been obvious to the skilled artisan to modify the invention of
Kozlay to include a wearable monitoring band so that the device could be
attached to the individual and not easily lost, misplaced, or forgotten.” Final
Act. 7; see Ans. 16. We find the Examiner has presented a prima facie case
of obviousness. Appellant’s argument provides a general allegation that the
rejection is insufficient, without evidence or reasoning to show the Examiner
errs. Accordingly, we are not persuaded of error in the obviousness
rejection of claim 14.
We sustain the Examiner’s rejection of claim 14. Appellant argues
the Examiner’s errs in rejecting 15 and 16 for the same reasons provided for
claim 14. See Appeal Br. 10. Accordingly, we sustain the Examiner’s
rejection of claims 15 and 16 for the same reasons discussed above.
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CONCLUSION
We are not persuaded the Examiner errs in rejecting claims 1, 3, and
14–16 as obvious in view of the cited references. Appellant does not present
separate substantive arguments for the remaining claims. See Appeal Br. 5,
7, 9. Thus, we sustain the Examiner’s obviousness rejections of claims 1–5
and 13–17.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4, 5 103 Eros, Vardi 1, 2, 4, 5
3 103 Eros, Vardi, Buck 3
1 103 Kozlay, Eros 1
13–17 103 Kozlay, Eros,
Vardi
13–17
Overall
Outcome
1–5, 13–17

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED