Lucomm Technologies, Inc.

Patent Trials and Appeals Board

Mar 9, 2022

2021001254 (P.T.A.B. Mar. 9, 2022)

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. 15/974,398 05/08/2018 Lucian Cristache LUCM-1-1021 6902 25315 7590 03/09/2022 LOWE GRAHAM JONES, PLLC 1325 Fourth Avenue SUITE 1130 SEATTLE, WA 98101 EXAMINER KHAN, OMER S ART UNIT PAPER NUMBER 2683 NOTIFICATION DATE DELIVERY MODE 03/09/2022 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): docketing-patent@lowegrahamjones.com patentdocketing@lowegrahamjones.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LUCIAN CRISTACHE Appeal 2021-001254 Application 15/974,398 Technology Center 2600 Before JOSEPH L. DIXON, JASON J. CHUNG, and JOYCE CRAIG, Administrative Patent Judges. CRAIG, 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 rejecting claims 1-3 and 5-29, which are all of the claims pending in the application.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies Lucomm Technologies, Inc. as the real party in interest. Appeal Br. 1. 2 Appellant represents that claim 4 has been canceled. Appeal Br. 21 (Claims App.). We agree with Appellant because the Examiner indicated that the Final Action was responsive to the amendment, filed on March 31, 2020, which canceled claim 4. Appeal Br. 2. Appeal 2021-001254 Application 15/974,398 2 CLAIMED SUBJECT MATTER According to Appellant, the claims are directed to object localization and path identification based on radio frequency identification (RFID) sensing. Spec. ¶ 2. Claim 1, reproduced below, illustrates the claimed subject matter: 1. An access control system for enabling access to a secured endpoint by a user having a mobile device connected to a data network, the system comprising: a computer system having stored programming instructions configured to cause the computer system to: receive an input from the user via an input device positioned for facilitating access to the secured endpoint, the input device being in communication with the computer system; identify the user at an area-based location based on the input received from the user; send, via the data network, a first message comprising a first access code to the mobile device representing additional validation information for the user; receive, by the computer system and from the user within a predefined period of time, a second message from the mobile device over the data network, the second message having the first access code; and unlock the access to the secured endpoint based on a determination that the first access code received by the computer system from the mobile device is valid. Appeal Br. 20 (Claims App.). Appeal 2021-001254 Application 15/974,398 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Satoh et al. (“Satoh”) US 6,381,536 B1 Apr. 30, 2002 Zimmerman et al. (“Zimmerman”) US 2005/0242921 A1 Nov. 3, 2005 Krishna et al. (“Krishna”) US 2006/0022800 A1 Feb. 2, 2006 ROBINTON et al. (“Robinton”) US 2016/0019733 A1 Jan. 21, 2016 Cristache US 2017/0053143 A1 Feb. 23, 2017 REJECTIONS Claims 1-3 and 5-29 stand rejected under 35 U.S.C. § 112(b) as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. Final Act. 3-4. Claims 1, 2, 5, 6, 18-24, and 29 stand rejected under 35 U.S.C. § 103 as unpatentable over Zimmerman and Robinton. Final Act. 4-21. Claim 3 stands rejected under 35 U.S.C. § 103 as unpatentable over Zimmerman, Robinton, and Krishna. Final Act. 21-24. Claims 7-17 and 25-28 stand rejected under 35 U.S.C. § 103 as unpatentable over Zimmerman, Robinton, and Satoh. Final Act. 24-33. ANALYSIS Rejection of Claims 1-3 and 5-29 Under 35 U.S.C § 112(b) Appellant argues that the Examiner erred in rejecting claims 1-3 and 5-29 as “incomplete for omitting essential elements” because there is no relationship between the claimed “input device” and the claimed “mobile device.” Appeal Br. 8; see Final Act. 3-4 (citing MPEP § 2172.01 (9th ed. Rev. 10.2019, rev. June 2020)). The Examiner concluded the claims are indefinite because it is unclear how the claimed computer system knows Appeal 2021-001254 Application 15/974,398 4 which mobile device should receive “a first message comprising a first access code” because there is no established relationship between “receive an input from the user via an input device” and the claimed “mobile device.” Final Act. 4. According to the Examiner, it is also unclear to one of skilled in the art how to send “a first message comprising a first access code to the mobile device” without reading the Specification into the claims. Id. We are persuaded that the Examiner erred. MPEP § 2172.01 states that “essential matter may include missing elements . . . described by the applicant(s) as necessary to practice the invention . . . [and a claim which] fails to interrelate essential elements of the invention as defined by applicant(s) in the specification, the claim may be rejected” as indefinite. (MPEP § 2172.01 (emphases added).) Also, MPEP § 2172.01 cites MPEP § 2164.08(c) for further discussion of essential/critical features and states that “[b]road language in the disclosure, (including the abstract) omitting an allegedly critical feature, tends to rebut the argument of criticality.” Here, the Examiner identified no clear disclosure in Appellant’s Specification describing or defining the missing elements as essential. Appellant, on the other hand, points out that the Specification describes the invention in broad terms without the allegedly essential description of the relationship between the input device and the mobile device. See, e.g., Appeal Br. 9. Appellant argues that “the written description refers to interaction of the system with respect to the input device 62 and the mobile device 72 [of Figure 1].” Id. (citing Spec. Fig. 1, ¶ 25). According to Appellant, a person of ordinary skill in the art would recognize that an input device may be a keypad terminal or touch screen (for example) positioned near the access point or door, while the mobile device is a separate device of Appeal 2021-001254 Application 15/974,398 5 the user. Id. Appellant explains that “[e]ach of these two devices is in communication with the computer system, in the manner as claimed.” Id. We conclude that a preponderance of the evidence does not support the Examiner’s rejection of claims 1-3 and 5-29 for indefiniteness. Accordingly, we reverse the Examiner’s rejection of claims 1-3 and 5-29 under 35 U.S.C. § 112(b). Rejections of Claims 1-3 and 5-29 Under 35 U.S.C. § 103 Based on Appellant’s arguments, we select claim 1 as representative of claims 2, 3, 5, 6, and 18-20, claim 21 as representative of claims 22-24 and 29, and claim 7 as representative of claims 8-17 and 25-28. See 37 C.F.R. § 41.37(c)(1)(iv). With regard to claim 1, Appellant argues that the Examiner erred in finding that the combined wireless/RFID mobile key in Zimmerman teaches or suggests the “mobile device,” as recited in claim 1. Appeal Br. 10-11. Appellant argues that “[a] mobile device in accordance with the claims has user messaging and phone capabilities and allows the user to communicate with the system ‘over a network such as an external phone or data network.’” Id. at 11. Appellant further argues that “[a] person of ordinary skill in the art, having read the claims and the written description, would not interpret an RFID tag as being the claimed mobile device,” and that “a person of ordinary skill would never equate them.” Id. (citing Spec. ¶¶ 15, 25, 27). Appellant argues that Zimmerman “also treats these two components as being different from one another,” citing Zimmerman’s disclosure that “[t]he wireless device may include mobile telephone or other network communication circuitry 204 connected to the antenna 205, and to an incorporated RFID chip 206.” Id. at 12 (citing Zimmerman ¶ 44) (some Appeal 2021-001254 Application 15/974,398 6 emphases omitted). Appellant further argues that “[e]ven if Robinton describes access codes being resident on both an RFID-based identification card and a mobile device in the form of a mobile phone, Robinton still does not describe a system which uses these objects in the manner as claimed.” Id. at 14. For similar reasons, Appellant argues that Zimmerman does not teach or suggest the “send,” “receive,” and “unlock” limitations of claim 1. Id. at 12-13. We are not persuaded that the Examiner erred for the reasons set forth in the Final Action (Final Act. 4-17) and the Examiner’s Answer (Ans. 5- 15), which we incorporate here by reference. In addition, Appellant has not persuaded us that the Examiner erred at least because Appellant attacks Zimmerman and Robinton individually, even though the Examiner relied on the combination of Zimmerman and Robinton in rejecting claim 1. In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)) (“[T]he test for obviousness is what the combined teachings of the references would have suggested to those having ordinary skill in the art.”). Because Appellant has not addressed persuasively what the combined teachings of Zimmerman and Robinton would have suggested to an artisan of ordinary skill, Appellant’s arguments are not commensurate in scope with the Examiner’s rejection. Moreover, Appellant’s argument that the recited “mobile device” be interpreted to have “user messaging and phone capabilities and allows the user to communicate with the system ‘over a network such as an external phone or data network’” has insufficient support. See Spec. ¶¶ 15, 25, 27. We give claim 1 its broadest reasonable interpretation consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The Appeal 2021-001254 Application 15/974,398 7 cited portions of the Specification cited by Appellant do not define “mobile device” in a manner that excludes the RFID connected to a data network in Zimmerman as modified by Robinton’s teaching that the mobile device 104 may comprise a mobile device 104B such as a Radio Frequency Identification ( RFID) card (e.g., operating at 13.56 MHz and/or 125 kHz), an Integrated Circuit (IC) card, a smart card, a key fob, ... a tag, a Near Field Communications (NFC) enabled mobile communication device, a portable computer, and the like. As such, the mobile device 104B may be a portable device that is used to complete transactions with an access control reader 116. An example of a mobile device 104B is an RFID smartcard having data stored thereon allowing a user 108 access to an asset protected by a reader 116, for example, a structure or building 120 protected by the access control reader 116. See Ans. 6-7 (citing Zimmerman Fig. 1, ¶¶ 14, 37, 38, 44; Robinton ¶ 37). Appellant has not persuaded us that the Examiner’s conclusion that “mobile device” is sufficiently broad to encompass Zimmerman’s combined wireless/RFID mobile key in combination (see Zimmerman ¶ 13) with Robinton’s teaching of a portable device such as a RFID card, an RFID smartcard having data stored thereon, and “a Near Field Communications (NFC) enabled mobile communication device,” among other devices (see Robinton ¶ 37), is overly broad, unreasonable, or inconsistent with the Specification. For these reasons, we are not persuaded that the Examiner erred in finding that the combination of Zimmerman and Robinton teaches or suggests the disputed “mobile device” limitation, as recited in claim 1. For the same reasons, we are not persuaded that the combination of Zimmerman teaches or suggests the disputed “send” and “unlock” limitations, for which Appeal 2021-001254 Application 15/974,398 8 the Appellant argued the absence of a teaching of a “mobile device.” See Appeal Br. 12-14. With regard to the disputed “receive” step, we are not persuaded that the Examiner erred by failing to find a teaching of a “mobile device,” as discussed above. See Appeal Br. 13. We separately address Appellant’s argument that “Zimmerman does not teach the transmission of the access code, previously received from the computer system and then sent by the mobile device to the computer system within a predefined period of time.” Appeal Br. 13. The Examiner found that Zimmerman teaches that the RFID uses the codes that were provided by the control unit, the user provides these codes via the RFID to the access point, and the codes are only good for a period of time. Ans. 10-12 (citing Zimmerman ¶¶ 6, 10, 14, 17, 41, 127). The Examiner also found that Robinton teaches that “the access control key of interest depends on one or more other access control keys having been utilized. Additionally, an access control key may become valid according to a specific time and/or for a specific time duration.” Id. at 11 (citing Robinton ¶ 42). Appellant argues that Zimmerman’s teachings of an access code that is only valid for an expiring period of time “is not at all the same thing as requiring the computer system to receive the second message within a predefined time in order to unlock access to the secured input, because the examiner overlooks the initial triggering device of first receiving an input from the user via an input device.” Reply Br. 7. Appellant’s argument is not persuasive because it is conclusory, merely reciting the claim limitation, the teachings of Zimmerman, and Appeal 2021-001254 Application 15/974,398 9 stating that the two are not the same. Rule 41.37 “require[s] 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.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Moreover, the plain language of claim 1 does not require that the “predefined period of time” be measured from the sending of the first message. On this record, we will not limit claim 1 to require that the first message somehow triggers the time period in which the second message must be sent. For these reasons, we are not persuaded that the Examiner erred in finding that the combination of Zimmerman and Robinton teaches or suggests the disputed limitations of claim 1. Accordingly, we affirm the Examiner’s obviousness rejection of claim 1, and well as of claims 2, 3, 5, 6, and 18-20, argued as a group with claim 1. Turning to claim 21, in addition to the arguments made for claim 1, discussed above, Appellant argues that the cited portion of Zimmerman does not teach or suggest determining a user permission of access based on an input from the user via an input device positioned for facilitating access to a secure area, the input device being in communication with the computer system, and further based on an identification of a mobile device associated with the user and a localization of the user within an area. Appeal 2021-001254 Application 15/974,398 10 Appeal Br. 15.3 Appellant argues that paragraph 58 of Zimmerman, cited by the Examiner, does not teach or suggest “(1) user input via an input device; (2) identification of a mobile device; and (3) localization of the user,” as claim 21 requires in the first “determining” limitation. Id. We are not persuaded that the Examiner erred. Appellant again argues Zimmerman separately, even though the Examiner relied on the combination of Zimmerman and Robinton in rejecting claim 21. See Mouttet, 686 F.3d at 1333. Moreover, the Examiner found that Zimmerman teaches a biometric input device that collects biometric data from a person and that identification numbers are associated with the user’s biometric data (Zimmerman ¶ 61), “multiple RFID antennas may be located so as to locate a mobile key by proximity to a nearest antenna” (id. ¶ 58), and “[a]s the user approaches an RFID reader at an access control device for the event, the reader excites the 3 In the event of further prosecution, we leave it to the Examiner to determine whether the limitation “for facilitating access to a secure area” lacks patentable weight because it amounts to a statement of intended purpose. “An intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Such statements often appear in a claim’s preamble, but can appear elsewhere in the claim. See In re Stencel, 828 F.2d 751, 754 (Fed. Cir. 1987). It is well settled that statements of intended use can arise in method claims, where such statements do not add structural limitations to the claims. See, e.g., TomTom, Inc. v. Adolph, 790 F.3d 1315, 1317, 1323-24 (Fed. Cir. 2015) (construing generating language in a recited method for generating and updating data for use in a destination tracking system as mere intended use of the invention); In re Anderson, 662 F. App’x 958, 963 (Fed. Cir. 2016) (non-precedential) (agreeing with the Board that claimed “for use” language is a statement of intended use that did not add a structural limitation to the claimed system or method). Appeal 2021-001254 Application 15/974,398 11 chip to respond with the access code, which is supplied to system controller. Access may then be permitted through an access control device to the bearer of the mobile key, with . . . further confirmation of the user’s identity.” Id. ¶ 18. The Examiner found, therefore, that Zimmerman teaches RFID identification numbers associated with a user’s location data. See Ans. 16. The Examiner further found that Robinton teaches that an access control key may become valid within 100 meters of an asset, within 100 meters of another mobile device, after having passed within 100 meters of a particular location and/or another mobile device, or based on a combination of criteria. Id. (citing Robinton ¶ 42). Appellant has not rebutted the Examiner’s findings persuasively. Rather, in the Reply Brief, Appellant argues that “there is no sending and receiving in the cited references, as required by claim 21.” Reply Br. 8. As we explained earlier, we are not persuaded that the Examiner erred in finding that the cited portions of Zimmerman and Robinton teach or suggest the “sending” and “receiving” steps, as recited in claim 21, for the same reasons given above in the context of claim 1. For these reasons, we are not persuaded that the Examiner erred in finding that the combination of Zimmerman and Robinton teaches or suggests the disputed limitations of claim 21. Accordingly, we affirm the Examiner’s obviousness rejection of claim 21, and well as of claims 22-24, argued as a group with claim 21. Turning to claim 7, Appellant argues that the Examiner erred in interpreting the claim term “oriented links” as “possible paths that an RFID could take.” Appeal Br. 16. Appellant argues that an “oriented link” is not merely a path between two endpoints over which it is “theoretically or Appeal 2021-001254 Application 15/974,398 12 physically possible for a tag to travel,” but is defined as “two endpoints and the sequence of travel between them, stored in a network model to define a permitted path in the network model.” Id. (emphases omitted). Appellant argues that the Specification describes “[t]wo endpoints and their sequence define an oriented link . . .” (Spec. ¶ 32), and that oriented links “represent possible paths that an RFID tag could take between spatial locations associated with the endpoints” (id. ¶¶ 33-35). Appeal Br. 17. Appellant further argues that Satoh does not teach “oriented links” because “Satoh implicitly presumes that it is always possible to travel in either direction between every segment.” Id. Appellant also relies on the previous prosecution of two related patent applications to show that Satoh does not teach “oriented links.” See Appeal Br. 17-19. We are not persuaded that the Examiner erred. The previous prosecution of the two related applications does not shed sufficient light on the issue before us because it did not address whether Satoh, in combination with Zimmerman and Robinton, teaches or suggests “oriented links,” as recited in claim 7. Moreover, the Specification explicitly describes that oriented links “represent possible paths that an RFID tag could take between spatial locations associated with the endpoints.” Ans. 17 (citing Spec. ¶ 33) (emphases omitted). Such description is entirely consistent with the Examiner’s broad, reasonable interpretation of “oriented links.” Further, the Examiner found that Satoh teaches endpoints (P0, P1) and oriented links (oriented road segments from P0 to P1). Ans. 18 (citing Satoh Fig. 10). The Examiner also found that Satoh teaches “an apparatus for generating road information on a route over which a vehicle may move, the apparatus comprising: a stored map database having data identifying roads on the Appeal 2021-001254 Application 15/974,398 13 route, said roads of said stored map database being stored as road segments each having endpoints.” Id. (citing Satoh 2:35-40) (emphases omitted). And, with respect to “wherein at least a subset of the oriented links is associated with semantic attributes,” the Examiner found that Satoh teaches road conditions, i.e., radius of road curve, and “determining that the road segments have tight curve when a radius of road curve is less than a threshold value.” Ans. 18-19 (citing Satoh 7:31-33). Appellant has not persuasively rebutted the Examiner’s findings or persuaded us that the Examiner’s interpretation of “oriented links” is overly broad, unreasonable, or inconsistent with the Specification. See Reply Br. 8-9. For these reasons, we are not persuaded that the Examiner erred in finding that the cited portions of Zimmerman, Robinton, and Satoh teach or suggest the disputed limitations of claim 7. Accordingly, we sustain the Examiner’s obviousness rejection of independent claim 7, as well as claims 8-17 and 25-28, grouped therewith. CONCLUSION We reverse the Examiner’s decision rejecting claims 1-3 and 5-29 as indefinite under 35 U.S.C. § 112(b). We affirm the Examiner’s decision rejecting claims 1-3 and 5-29 as obvious under 35 U.S.C. § 103.4 Because we affirm at least one ground of rejection with respect to each claim on appeal, the Examiner’s decision rejecting claims 1-3 and 5- 29 is affirmed. See 37 C.F.R. § 41.50(a)(1). 4 In the event of further prosecution, the Examiner may wish to reconsider whether the claimed subject matter is judicially-excepted from patent eligibility under 35 U.S.C. § 101. See MPEP § 2106 (2019). Appeal 2021-001254 Application 15/974,398 14 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5-29 112(b) Indefiniteness 1-3, 5-29 1, 2, 5, 6, 18-24, 29 103 Zimmerman, Robinton 1, 2, 5, 6, 18-24, 29 3 103 Zimmerman, Robinton, Krishna 3 7-17, 25-28 103 Zimmerman, Robinton, Satoh 7-17, 25-28 Overall Outcome 1-3 and 5- 29 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