Ziv, Aran et al.

Patent Trials and Appeals Board

Feb 19, 2020

11434818 - (D) (P.T.A.B. Feb. 19, 2020)

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.
11/434,818 05/17/2006 Aran Ziv 10519/1201
(MSA-0918-US)
5636
67813 7590 02/19/2020
BGL/
P.O. BOX 10395
CHICAGO, IL 60610
EXAMINER
NILFOROUSH, MOHAMMAD A
ART UNIT PAPER NUMBER
3685
MAIL DATE DELIVERY MODE
02/19/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte ARAN ZIV and MORDECHAI TEICHER
____________________

Appeal 2019-000520
Application 11/434,818
Technology Center 3600
____________________

Before JOSEPH L. DIXON, JOHN A. EVANS, and JUSTIN BUSCH,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 38–40, 44–47, 49, 52–55, 57–63, 65,
67–73, 75, and 78–85, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant’s disclosure “relates to a hardware token for authenticating
a transaction over a communication network.” Spec. 1:4–15. More

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as SanDisk IL Ltd.
Appeal Br. 2.
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specifically, embodiments of Appellant’s claimed invention relate to
peripheral devices (e.g., a hardware token) and methods that generate
outputs (e.g., an audio or visual signal intended to prompt a user to provide
input via a user interface (e.g., a keyboard) on a host), receive a report from
the host regarding the user input, confirm the user is interacting with the host
in person based on receiving the report and determining the report was
received within a predetermined time period, and generate an authentication
token. Spec. 12:13–13:2, 14:13–15:3, 17:15–18:21, 20:3–21:2, Figs. 1–
2A,5. Claim 38, which is representative of the claimed subject matter,
recites:
38. A method of confirming by a peripheral device, which is
operationally connected to a host, that a user is interfacing with
the host in person, the method comprising:
determining, based on communicating with the host, that
the peripheral is to confirm that the user is interfacing with the
host in person in order for the peripheral device to generate an
authentication token;
in response to determining that the peripheral device is to
confirm that the user is interfacing with the host in person,
generating at least one output at a peripheral device-user output
on the peripheral device;
receiving a report from the host on user input that is input
via the host;
determining that the report was received within a
predetermined time since generating the at least one output;
confirming, in response to the received report and in
response to determining that the report was received within the
predetermined time since generating the at least one output, that
the user is interfacing with the host in person; and
in response to confirming that the user is interfacing with
the host in person:
generating the authentication token; and
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sending, to the host, the authentication token in
order to authenticate a transaction between the host and a
third-party computing device.
REJECTIONS
Claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–73, 75, and 78–85
stand rejected under 35 U.S.C. § 112, first paragraph, for failing to provide
written description support for the claimed subject matter. Final Act. 4–6.
Claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–73, 75, and 78–85
stand rejected under 35 U.S.C. § 112, second paragraph, as indefinite. Final
Act. 6–7.
Claims 38–40, 45–47, 52–55, 58–63, 67–73, and 79–85 stand rejected
under 35 U.S.C. § 103 as obvious in view of Holdsworth (US 2005/0033702
A1; Feb. 10, 2005), Ortiz (US 2002/0091937 A1; July 11, 2002), and Emigh
(US 8,112,483 B1; Feb. 7, 2012). Final Act. 8–12.
Claims 44, 49, 57, 65, 75, and 78 stand rejected under 35 U.S.C. § 103
as obvious in view of Holdsworth, Ortiz, Emigh, and Simmons (US
8,473,336 B1; June 25, 2013). Final Act. 12–13.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv).
THE 35 U.S.C. § 112, FIRST PARAGRAPH, REJECTIONS
The Examiner rejects claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–
73, 75, and 78–85 under 35 U.S.C. § 112, first paragraph, as lacking written
description support. Final Act. 4–5. In particular, the Examiner finds
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insufficient written description support for “generate the authentication
token,” as recited in independent claims 38, 45, 61, and 71. Final Act. 4–5.
The Examiner also finds insufficient written description support for
“determining that the report was received within a predetermined time since
generating the at least one output [on the peripheral device]” (the
“determining receipt” limitation), as recited in independent claims 38 and
commensurately recited in independent claims 45, 61, and 71. Final Act. 5.
The Examiner also rejects the dependent claims because each dependent
claim incorporates these limitations via their dependency from one of
independent claims 38, 45, 61, and 71. Final Act. 6.
To satisfy the written description requirement, the disclosure must
reasonably convey to an ordinarily skilled artisan that Appellant possessed
the claimed invention as of the filing date. See Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). Specifically,
“the description must ‘clearly allow persons of ordinary skill in the art to
recognize that [the inventor] invented what is claimed,’” and “the
specification must describe an invention understandable to that skilled
artisan and show that the inventor actually invented the invention claimed.”
Ariad Pharms., Inc., 598 F.3d at 1351. Additionally, the Examiner has the
initial burden of presenting evidence or reasons why persons skilled in the
art would not recognize in an applicant’s disclosure a description of the
invention defined by the claims. In re Wertheim, 541 F.2d 257, 265 (CCPA
1976).
Regarding the rejection of “generating an authentication token,” the
Examiner finds the Specification describes existing authentication tokens
(e.g., authentication token 112 depicted in Figure 1) and further describes
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the existing authentication tokens generating authentication token data, but
the Specification fails to describe generating the authentication token itself.
Final Act. 4–5; Ans. 4–5. The Examiner also finds the Specification
explicitly discloses that the token is a device (e.g., a smart card, USB key, or
expansion card) that may be “a standalone device, or form part of another
device such as a USB flash memory disk.” Ans. 5 (quoting Spec. 4:1–5).
Based on the Specification’s definition of a token, the Examiner finds “the
limitation would require generating a portable device,” which the
Specification does not support. Ans. 5.
Appellant points to the Specification’s disclosure that a token may
include authentication data. Appeal Br. 8. Appellant notes the Examiner
acknowledges there is support for generating authentication token data.
Appeal Br. 8 (citing Spec. 4:1–5). Without further explanation, Appellant
concludes the Specification supports generating an authentication token.
Appeal Br. 8.
Appellant does not dispute that the recited authentication token is a
physical device. Instead, Appellant argues support for generating token data
included in a token supports generating the token itself. But written
description support for generating data based on an existing token does not
support generating the token itself. Appellant’s argument is similar to
arguing that a specification describing calculator functions supports
generating the calculator itself simply because the specification describes
generating a sum of two numbers.
Accordingly, we are not persuaded by Appellant’s assertion. As the
Examiner explains, and Appellant does not dispute, the Specification
describes a token as a physical device. Spec. 4:1–2; see also Spec. 15:20–
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17:5 (describing authentication 112 as being “disconnected and . . .
inaccessible to host 150” or as “disabled”), 17:4–6 (describing a goal of the
invention as protecting an owner from “unnoticed false transactions made by
malicious program 160 activating authentication token 112 on his or her
behalf”). The token may be a standalone device, or the token may “form
part of another device such as a USB flash memory disk.” Spec. 4:4–5. On
the other hand, the Specification describes the existing “the token generates
token authentication data only if the token detects a prescribed human
action.” Spec. 8:9–10. Therefore, we find the Examiner sufficiently
explains why an ordinarily skilled artisan would understand the
Specification to describe (1) generating authentication token data but not
(2) generating the “authentication token” itself.
On the other hand, we are persuaded the Examiner erred in finding the
Specification does not support the determining receipt limitation. Among
other things, the Examiner finds the Specification supports: (1) “that an
actual authentication operation will take place within a predetermined time
interval”; (2) instantly reporting “whenever a key is pressed”; (3) confirming
a person’s presence “only if each report is received by the peripheral device
substantially synchronously with the generation of the corresponding output
by the host”; (4) “[r]eceipt of these reports substantially synchronously with
the generation of the corresponding signals constitutes detection by the
token of the prescribed human action”; and (5) “pressing a key within a
second after hearing a signal is synchronous with the signal, whereas
pressing a key twenty seconds after hearing a signal is not synchronous with
the signal.” Final Act. 5; Ans. 4 (citing Spec. 9:21–10:8. The Examiner
finds these disclosures support “‘synchronously’ or ‘within normal human
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reaction time,’” but not the determining receipt limitation. Final Act. 5.
More specifically, the Examiner finds the Specification discloses
determining the report was received within a time after “hearing a signal,”
which is different than a determination within “a predetermined time since
generating the at least one output.” Ans. 4.
Appellant points to the same section of the Specification the Examiner
refers and asserts the Specification supports the determining receipt
limitation. Appeal Br. 7–8 (citing Spec. 9:21–10:8). Appellant argues the
disclosure of pressing a key within one second being considered
synchronous with the signal is one example that supports the determining
receipt limitation. Appeal Br. 8. Appellant argues the Examiner’s
distinction between the Specification’s disclosed time period “after hearing a
signal” and the recited predetermined time period “since generating the at
least one output” ignores the disclosed context in which the signals are
generated. Reply Br. 2 (citing Spec. 9:11–20).
The Specification describes embodiments involving a user’s direct
interaction with the token. Spec. 9:11–20. One exemplary action includes
disconnecting and reconnecting the token, then “manipulating a (minimal)
user interface with which the token has been configured.” Spec. 9:12–16.
Alternatively, the Specification discloses a user’s indirect interaction
with the token—i.e., “mediated by the host rather than being directly with
the token.” Spec. 9:21–10:8. One disclosed exemplary indirect interaction
includes the user pressing a key on the host keyboard “substantially
synchronously with each of at least one signal.” Spec. 9:22–25. In such an
embodiment, “the host immediately reports receipt of the input(s) to the
token.” Spec. 10:2–3. The token detects the prescribed human action if the
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reports are received “substantially synchronously with the generation of the
corresponding signals.” Spec. 10:3–5. The Specification explains that
synchronicity is relative to human reaction times and provides the example
that “pressing a key within a second after hearing the signal is synchronous
with the signal, whereas pressing a key twenty seconds after hearing a signal
is not synchronous with the signal.” Spec. 10:5–8.
The Specification also discloses an element that generates an audio
and/or visual signal. Spec. 14:19–20, 17:18–20, Fig. 1. When the element
generates the signal, the user must press a key on the user interface, such as
a keyboard connected to the host. Spec. 20:7–10. An application on the
host detects the user input (e.g., key press) and instantly reports the key
press(es) to the token, whether a standalone device or part of another device.
Spec. 20:4–6. Thus, the Specification indicates that a human hears the
signal substantially at the same time as the signal is generated or output.
Given this combination of disclosures in the Specification, we find a person
of ordinary skill in the art would understand the inventor to have been in
possession of the determining receipt limitation.
For the above reasons, we are persuaded the Examiner erred in
determining the Specification lacks written description support for the
determining receipt limitation. However, we agree with the Examiner that
the Specification lacks written description support for the “generating the
authentication token” limitation recited in independent claims 38, 45, 61,
and 71 and incorporated into the dependent claims via their dependency
from one of claims 38, 45, 61, and 71. Because we agree with one of the
Examiner’s bases for rejecting the pending claims under 35 U.S.C. § 112,
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first paragraph, we sustain the Examiner's rejection under 35 U.S.C. § 112(a)
of claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–73, 75, and 78–85.
THE 35 U.S.C. § 112, SECOND PARAGRAPH, REJECTION
The Examiner rejects claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–
73, 75, and 78–85 under 35 U.S.C. § 112, second paragraph, as indefinite.
Final Act. 7. In particular, the Examiner finds “the user input that is input
via the host” (the “user input” limitation”), recited in independent claims 38,
45, 61, and 71, is indefinite. Final Act. 7. The Examiner also rejects the
dependent claims because each dependent claim incorporates these
limitations via their dependency from one of independent claims 38, 45, 61,
and 71. Final Act. 7.
The Examiner finds the claims indefinite because the claims are
directed only to a peripheral device or actions performed by a peripheral
device. Final Act. 7; Ans. 5–6. The Examiner finds requiring steps that
must be performed by the host renders the claim scope unclear. Final Act. 7;
Ans. 5–6.
Appellant argues the user input limitation does not claim the step or
act of inputting the user input via the host. Appeal Br. 9. Rather, Appellant
asserts the user input limitation merely defines the content of the report the
peripheral device receives. Appeal Br. 9; see also Reply Br. 3 (“The
received report contains ‘x’ where x is information on user input that was
input at the host.”).
On this record, we disagree with the Examiner. Appellant is correct
that no actual step of entering user input via the host is claimed. See Appeal
Br. 9; Reply Br. 3. Accordingly, the claims do not require an actual step of
inputting user input via the host. Rather, the claims merely require that the
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peripheral device receives a report “on user input that is input via the host.”
Although the user input limitation is broad, we disagree that this breadth
renders the claims indefinite.2 In addition to merely reciting the content of
the report, we note the claim merely relates to “user input that is input via
the host,” which is much broader than reciting user input that is directly
input at the host. For these reasons, we find the Examiner erred in rejecting
claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–73, 75, and 78–85 as
indefinite under 35 U.S.C. § 112, second paragraph.
THE 35 U.S.C. § 103 REJECTIONS
The Examiner finds the combination of Holdsworth, Ortiz, and
Emigh, or Holdsworth, Ortiz, Emigh, and Simmons teaches or suggests
every limitation recited in claims 38–40, 44–47, 49, 52–55, 57–63, 65, 67–
73, 75, and 78–85. Final Act. 8–13. Of particular relevance to this Appeal,
the Examiner finds Holdsworth teaches or suggests “confirming . . . that the
user is interfacing with the host in person.” Final Act. 8 (citing Holdsworth
¶¶ 116, 143, Fig. 9B).
Specifically, the Examiner finds Holdsworth’s user terminal generates
a cryptogram using a personal identifier (e.g., a PIN (personal identification
number) or a biometric, such as a fingerprint) that the user must enter at a
user terminal. Ans. 7–8 (“because the generation of the cryptogram, or the
claimed authentication token, requires the user terminal to prompt the user

2 We leave to the Examiner to consider whether this broad language
constitutes non-functional descriptive material. Based on that determination
and other factors, we also leave to the Examiner to consider whether the user
input limitation may patentably distinguish Appellant’s claim over prior
art—i.e., whether prior art that teaches or suggests the claimed subject
matter other than the user input limitation renders the claims obvious.
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for a PIN, biometric, or other personal identifier, it requires that the user
terminal confirm that the user who is making the request to the
authentication authority is physically present”), 11 (citing Holdsworth ¶¶ 38,
116, 133, 134, 137). The Examiner finds that, because the user enters the
identifier at the user terminal in person, Holdsworth’s “user terminal
confirms that the user is interfacing with the host in person.” Ans. 11–12
(emphasis added); see Ans. 8–9, 12–13. Notably, the Examiner finds
Holdsworth’s user terminal teaches or suggest the recited “peripheral
device” and Holdsworth’s “authentication authority” teaches or suggest the
recited “host.” See Ans. 7 (“Here, the user terminal performs the functions
of the claimed peripheral, and communicates with the authentication
authority, which performs the functions of the claimed host.”), 9 (“the
functions of the claimed peripheral device are mapped to the user terminal of
Holdsworth, rather than the token of Holdsworth”).
Among other arguments, Appellant contends Holdsworth fails to
teach or suggest determining whether the user is interfacing with the host in
person, as recited in independent claim 38 and commensurately recited in
independent claims 45, 61, and 71. Appeal Br. 20–23, 26–27. Appellant
argues a user entering a PIN or other personal identifier fails to address the
recited feature relating to confirming the personal presence of the user at the
host. Appeal Br. 22; Reply Br. 5. Appellant contends Holdsworth’s
authentication method merely verifies certain factors (e.g., a PIN or a
fingerprint), but does not confirm the user is interfacing with the host in
person. Appeal Br. 22. Appellant argues the Background of the
Specification provides context that highlights Holdsworth’s deficiencies
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with respect to the claimed user presence confirmation. Appeal Br. 22;
Reply Br. 5 (citing Spec. 1–3).
Appellant’s invention relates to closing a loophole in conventional
authentication tokens that malicious programs may exploit. Spec. 1:14–
3:24.
In the context of Appellant’s invention, an authentication token (or
just “token”) is a standalone portable device (e.g., a smart card or USB key)
or a part of another device (e.g., a USB memory flash disk) “that includes
data and/or processing power for authenticating a unique identity associated
with the device.” Spec. 4:1–5. A host is a computing device (e.g., desktop
or laptop computers, cell phones, or handheld computers) for executing
transactions with a provider or server (e.g., a merchant or financial
institution). Spec. 4:6–9. A malicious program is software fraudulently
installed on a host that generates fraudulent transactions through false
authentications. Spec. 5:13–15. The malicious program may be able to (1)
intercept authentication factors (e.g., a PIN, password, or fingerprint)
entered via devices (e.g., a keyboard or fingerprint reader) connected to the
host and (2) access a token connected to the host. Spec. 5:15–18.
A conventional token may be issued by a provider, such as a financial
institution. Spec. 2:1. When connecting the conventional token to a host,
the token sends authentication data to the provider’s server, which then
validates the token’s authenticity (i.e., “authenticates the token”). Spec. 2:1–
6. Although such a procedure authenticates the token itself, this
conventional process does not authenticate the token’s owner is using the
token. Spec. 2:6–7. The server may authenticate the token even if the token
is in someone else’s possession (i.e., the token was lost or stolen) or if a
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malicious program is operating the token and generating false transactions.
Spec. 2:7–11. Conventional tokens use multi-factor authentication to
overcome the problem of lost or stolen tokens. Spec. 2:11–14. Multi-factor
authentication requires, in addition to possession of the token, at least one
other authentication factor, such as a password, PIN, or biometric (e.g.,
fingerprint or retinal scan). Spec. 2:12–14.
However, multi-factor authentication does not necessarily prevent a
malicious program from generating false transactions without the token
owner’s knowledge or authorization. A malicious program may intercept a
PIN or other second authentication factor entered via the host and reuse that
information to activate false transactions using the token when it is
connected to the host. Spec. 2:15–20. Incorporating an input interface into
the token itself (and requiring the input from that device) may prevent such
problems but requires a bulkier and more expensive token to incorporate
such an interface. Spec. 2:23–3:2. Another solution is to require entry of a
code that only a human can read. Spec. 3:3–6. However, certain malicious
programs may intercept this code and send it to a human at a remote location
to enter the information. Spec. 3:6–8.
Appellant’s invention protects a token from malicious programs
without incorporating a biometric or keyboard input interface into the token
by requiring a human action that can be performed only when the user is
present near the host and the token. Spec. 3:16–24, 5:19–25, 6:7–10. In
other words, “the focus of the present invention is on confirming that a
human operator is actually present and in control, for preventing a malicious
program from operating a token by itself.” Spec. 21:10–12. The invention’s
goal solves the same problem that incorporating a keypad and/or biometric
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scanner into the token would address without making the token bulkier or
more expensive. Spec. 6:11–15.
The claims recite, in relevant part “confirming . . . that the user is
interfacing with the host in person.” As noted above, the Examiner finds
Holdsworth’s user terminal teaches or suggests the claimed peripheral
device and Holdsworth’s authentication authority teaches or suggests the
claimed host. See, e.g., Ans. 7. Therefore, in order to teach or suggest the
confirming limitation, Holdsworth, alone or in combination with other prior
art, must teach or suggest confirming that the user is interfacing with
Holdsworth’s authentication authority in person.
On this record, the Examiner’s findings are problematic. The
Examiner does not find the additionally cited references modify Holdsworth
with respect to the confirming limitation, so we look only to the Examiner’s
findings regarding Holdsworth’s teachings with respect to the confirming
limitation. The Examiner finds Holdsworth teaches confirming the user is
interacting with the host in person because the user enters a PIN at
Holdsworth’s user terminal. Final Act. 8 (citing Holdsworth ¶¶ 116, 143,
Fig. 9B); Ans. 11–12 (citing Holdsworth ¶¶ 38, 116, 133, 134, 137). The
Examiner also finds Holdsworth’s user interfaces with the authentication
authority because the authentication authority sends a request message to the
user terminal in response to a user-initiated transaction. Ans. 7; see
Ans. 11–12.
The Examiner-cited portions of Holdsworth support findings that (1) a
user is interfacing with the user terminal in person and (2) a user is
interfacing with the authentication authority. However, given the
Examiner’s mappings, the Examiner has failed to demonstrate that
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Holdsworth teaches or suggests a user interfacing with the authentication
authority in person, as required by the claims. For these reasons, we are
constrained by the record to reverse the Examiner’s rejection of independent
claims 38, 45, 61, and 71 under 35 U.S.C. § 103. For the same reason, we
must reverse the Examiner’s rejections of all pending dependent claims,
which incorporate the confirming limitation by their ultimate dependency
from one of independent claims 38, 45, 61, and 71.
CONCLUSION
We sustain the Examiner’s decision to reject claims 38–40, 44–47, 49,
52–55, 57–63, 65, 67–73, 75, and 78–85 as failing to comply with the
written description requirement under 35 U.S.C. § 112, first paragraph.
We reverse the Examiner’s decision to reject claims 38–40, 44–47,
49, 52–55, 57–63, 65, 67–73, 75, and 78–85 as indefinite under 35 U.S.C.
§ 112, second paragraph.
We reverse the Examiner’s decision to reject claims 38–40, 44–47,
49, 52–55, 57–63, 65, 67–73, 75, and 78–85 under 35 U.S.C. § 103.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References/
Basis
Affirmed Reversed
38–40, 44–47, 49,
52–55, 57–63, 65,
67–73, 75, 78–85
112, first
paragraph
Written
Description
38–40, 44–47, 49,
52–55, 57–63, 65,
67–73, 75, 78–85

38–40, 44–47, 49,
52–55, 57–63, 65,
67–73, 75, 78–85
112, second
paragraph
Indefinite 38–40, 44–47, 49,
52–55, 57–63, 65,
67–73, 75, 78–85
38–40, 45–47, 52–
55, 58–63, 67–73,
79–85
103 Holdsworth,
Ortiz, Emigh
38–40, 45–47,
52–55, 58–63,
67–73, 79–85
44, 49, 57, 65, 75,
78
103 Holdsworth,
Ortiz, Emigh,
Simmons
44, 49, 57, 65, 75,
78
Overall
Outcome
38–40, 44–47, 49,
52–55, 57–63, 65,
67–73, 75, 78–85

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)(1)(iv).

AFFIRMED