Crowe, John S. et al.

Patent Trials and Appeals Board

Dec 9, 2019

14937003 - (D) (P.T.A.B. Dec. 9, 2019)

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.
14/937,003 11/10/2015 John S. Crowe XRPS920150151-US-NP 3909
127893 7590 12/09/2019
Streets Lawfirm, PC - Lenovo (Singapore) Pte. Ltd.
20319 Corbin Creek Drive
Cypress, TX 77433
EXAMINER
PEREZ GUTIERREZ, RAFAEL
ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
12/09/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
jstreets@streetsiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN S. CROWE, GARY D. CUDAK,
JENNIFER J. LEE-BARON, NATHAN J. PETERSON, AMY L. ROSE,
and BRYAN L. YOUNG

Appeal 2019-002777
Application 14/937,003
Technology Center 3600
____________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL

Appellant, Lenovo Enterprise Solutions (Singapore) Pte. Ltd.,1
appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision
rejecting claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 Appellant is the “applicant” under 37 C.F.R. § 1.42(b) and identifies itself
as the sole real party in interest. Appeal Br. 3.
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STATEMENT OF THE CASE
The Specification
The Specification’s disclosure “relates to methods of limiting the use
of a mobile communication device while driving a vehicle. Spec. ¶1.
The Claims
Claims 1–20 are rejected. Final Act. 1. No other claims are pending.
Id. Claims 1 and 9 are independent. Claim 1 is illustrative and reproduced
below.
1. A method, comprising:
identifying one or more driving conditions along a
roadway associated with a current location of a mobile
communication device, wherein the one or more driving
conditions are accessed from at least one source outside the
mobile communication device;
receiving a notification to be output on the mobile
communication device;
preventing the mobile communication device from
outputting the notification in response to identifying a first
driving condition; and
outputting the notification on the mobile communication
device in response to identifying a second driving condition,
wherein the second driving condition is not the same as the first
driving condition.
Appeal Br. 42.
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The Examiner’s Rejection
The sole rejection before us is: claims 1–20, under 35 U.S.C. § 103,
as unpatentable over Velusamy2 and Eberle.3 Final Act. 5.
DISCUSSION
Claims 1, 3, 4, 6, and 7
Appellant argues the rejection of claims 1, 3, 4, 6, and 7 together.
Appeal Br. 14–41. We select claim 1 as representative of claims 3, 4, 6, and
7. See 37 C.F.R. § 41.37(c)(1)(iv).
Velusamy discloses “providing notifications of a mobile device in
motion to determine call treatment.” Velusamy ¶13. The Examiner found
that Velusamy discloses all of the subject matter of claim 1 except for a
driving condition being “accessed from at least one source outside the
mobile communication device.” Final Act. 5–6 (citing Velusamy ¶¶ 24, 54,
and 56, Fig. 5). The Examiner found that Velusamy discloses a driving
condition, i.e., speed, but that it was accessed from the speedometer and not
“from at least one source outside the mobile communication device,” as
recited in the claim. Final Act. 6; see also Velusamy ¶54 (“Next, the speed
information of the vehicle (effectively the mobile device 109) can be
compared with a predetermined threshold (e.g., 15 mph) to determine what
is a ‘safe’ speed to conduct a phone call.”).
Eberle discloses “a hazard-prevention system for a vehicle.”
Eberle ¶1. The Examiner found that Eberle discloses the use of “ambient
data,” which Eberle describes as data that “is made available by ambient
sensors, telematic systems and by the vehicle communicating with other

2 US 2013/0127614 Al, published May 23, 2013 (“Velusamy”).
3 US 2004/0088095 A1, published May 6, 2004 (“Eberle”).
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vehicles and fixed communication systems.” Final Act. 6–7 (citing Eberle
¶¶4 and 23, Fig. 1) (bold typeface removed) (quoted statement appearing in
Eberle ¶4). The Examiner concluded that it would have been obvious to
modify Velusamy so as to include consideration of Eberle’s ambient data in
Velusamy “because this information allows the determination of whether
‘the vehicle occupants are being put at risk or other road users are being put
at risk.’” Final Act. 7 (quoting Eberle ¶6).
Appellant argues that Velusamy and Eberle are not analogous art and
also that their combination would not have satisfied several limitations of
claim 1. Appeal Br. 14–24. We address Appellant’s arguments below.
Analogous Art
Appellant disputes that Eberle is analogous art, arguing that it is not
directed to preventing car crashes due to driver distraction, as found by the
Examiner. Appeal Br. 23 (citing Final Act. 7). According to Appellant,
Eberle is directed instead “to a ‘hazard-prevention system for a vehicle’,
which is capable of intervening in the braking system and steering system.”
Id. (quoting Eberle, [54], ¶18). However, Eberle states that its system is
designed to intervene if, among other things, “there is no driver reaction [or]
an inadequate driver reaction.” Eberle ¶18. Both scenarios logically could
stem from driver distraction. As the Examiner explains:
Instead of using the word “distraction,” Eberle discusses
the “load” on the driver. See, e.g., Fig. 1, element 101 and
paragraph 0026, stating “the reaction of the driver to the
warning/information is assessed in module 107 and the actions
of the driver are evaluated to determine whether he has perceived
the information/warning. . . . The evaluation of the actions and
reaction of the driver from module 107 is taken into account in
the determination of the driver load factor in module 101.” This
is describing measuring distraction.
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Ans. 6. Moreover, even if Eberle were not directed to the same field as the
inventor (although we determine that it is), Eberle “still is reasonably
pertinent to the particular problem” with which the inventors were involved.
In re Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992).
In this same section of the Appeal Brief, titled “Eberle and Velusamy
are not analogous art,” Appellant additionally argues that the Examiner’s
“simple substitution” rationale for combining Velusamy and Eberle is
erroneous. However, Appellant’s argument in that regard is based on an
obvious typographical error. The Final Action states that “the sensors of
Velusamy may be included in the vehicle of Eberle (e.g., claim 1) as a
matter of simple substitution.” Final Act. 7. It is readily apparent from the
remainder of the rejection that the Examiner inadvertently swapped the
references in the sentence just quoted. For example, the preceding sentence
states, in part: “It would have been obvious . . . to apply the teachings of
Eberle to the teachings of Velusamy such that ambient data of Eberle is
considered in the determination of Ve[lu]samy.” Id.; see also id. 5–6
(Velusamy is relied on for all of the subject matter of claim 1 except “for
wherein the one or more driving conditions are accessed from at least one
source outside the mobile communication device.”); Ans. 7 (“Using the
sensors of Eberle with the speed sensor of Velusamy is exactly the sensor
upgrade that the Supreme Court is describing [in KSR].”).
“identifying one or more driving conditions along
a roadway”
With respect to this limitation, the Final Action cites Velusamy’s
disclosure that “speed information of the vehicle (effectively the mobile
device 109) can be compared with a predetermined threshold (e.g., 15 mph)
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to determine what is a ‘safe’ speed to conduct a phone call.” Velusamy ¶54
(quoted at Final Act. 5).
Appellant argues that speed is not a “driving condition[] along a
roadway associated with a current location of a mobile communication
device.” Appeal Br. 14. Appellant does not dispute that speed affects the
safety of driving a vehicle. Id. at 15 (“Vehicle-specific factors, such as
speed, tire tread wear, and total weight, may affect the safety of driving a
vehicle under the prevailing driving conditions along a roadway where the
vehicle is being operated.”). Appellant nonetheless argues that “vehicle-
specific factors are not themselves ‘driving conditions along a roadway.’”
Id. Appellant urges that the words “‘along the roadway’ . . . emphasizes
that the ‘driving conditions’ are associated with the roadway at a given
location.” Id.
Appellant relies primarily on paragraphs 16 and 17 of the
Specification to support its construction. Id. at 15–16. Neither of those
paragraphs provides a definition of “driving conditions.” See Spec. ¶¶16–
17. Further, paragraph 17 supports the Examiner’s broader construction. It
refers to two general types of driving conditions—“predetermined” and
“variable”—and states the following:
The map data may identify one or more predetermined
driving conditions and/or one or more variable driving
conditions associated with the roadway. For example, the map
data may include one or more predetermined driving conditions
selected from a speed limit, a construction zone, merging lanes,
roadway curves, roadway straight-ways, stop lights, stop signs,
and accident history. These are aspects of the roadway that don't
change frequently. Furthermore, the map data may include one
or more variable driving conditions associated with the roadway,
wherein the one or more variable driving conditions is selected
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from road hazards and traffic conditions. These variable driving
conditions are expected to change frequently, such as reflecting
a traffic accident that has not yet cleared or the morning and
evening rush hour traffic. It is possible that the driving
conditions may be accessed from different sources, such as the
predetermined driving conditions being accessed from a map
service and the variable driving conditions being accessed from
a local metro traffic authority.
Spec. ¶17 (emphasis added). The Final Action explains that “knowing that
the car is travelling above the 15 mph threshold of Velusamy discloses
identifying that the car is not stopped at a stop sign or stop light,” which are
explicitly identified as driving conditions above. Final Act. 2. Additionally,
knowing the speed of the vehicle is informative, although not determinative,
of the speed limit and traffic conditions, both of which are also explicitly
identified as driving conditions. See Spec. ¶17; see also Ans. 8 (“Velusamy
says that the speed data discloses traffic conditions, see paragraph 0021, ‘For
instance, the mobile device 107 can be in a vehicle that is driving through
city traffic in which the car starts and stops frequently.’”); Final Act. 4
(“Because the vehicles are subject to the speed limit, the speed of a car can
be used to identify the speed limit.” . . . “[A] car travelling at 40mph has
identified that it is not stuck in traffic.”).
In addition, the Final Action cites extrinsic evidence that further
supports the Examiner’s construction that a “driving condition[] along a
roadway” would be understood to encompass the speed of a vehicle driving
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along a roadway. See Final Act. 3 (citing Ketzel4; Han5; Phillip6). Appellant
does not dispute that these references support the Examiner’s construction.
Appellant merely argues that they “are not dispositive of the appropriate
claim interpretation.” Appeal Br. 18; see also Reply Br. 4–5 (The
“references referred to by the Examiner are not dispositive of the appropriate
claim interpretation.”).
For the foregoing reasons, we agree with the Examiner’s construction
that “one or more driving conditions along a roadway” encompasses the
speed of a vehicle as disclosed by Velusamy.
“preventing the mobile communication device
from outputting the notification in response to
identifying a first driving condition”
With respect to this limitation, the Final Action cites step 521 of
Velusamy Figure 5. Final Act. 6. Velusamy Figure 5 is reproduced below.

4 M. Ketzel et al., Particle and trace gas emission factors under urban
driving conditions in Copenhagen based on street and roof-level
observations, 37(20) ATMOSPHERIC ENVIRONMENT 2735–49 (2003).
5 H. Han et al., SenSpeed: Sensing Driving Conditions to Estimate Vehicle
Speed in Urban Environments, 15 IEEE Transactions on Mobile
Computing 727–35 (2014).
6 P. Philip et al., Fatigue, sleepiness, and performance in simulated versus
real driving conditions, 28(12) SLEEP 1511–16 (2005).
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Velusamy Figure 5, reproduced above, shows “a flowchart of a process for
providing various call treatments upon detecting a target mobile device
being in motion.” Velusamy ¶8. As can be seen in Figure 5 and discerned
from Velusamy’s description, if a caller attempts to call the telephone of a
vehicle’s driver and (1) the speed of the vehicle exceeds a predetermined
threshold and (2) the caller is not on a priority list, the flowchart process will
not proceed directly to step 517 to initiate the call. Instead, the process will
proceed to step 521, preventing, at least for the moment, any initiation of a
call to the driver. Velusamy ¶¶55, 57, Fig. 5.
Appellant argues that Velusamy’s call prevention at step 521 is not in
response to identifying the driver’s speed, but rather in response to the
calling party not being on the priority list and the calling party not providing
information regarding the urgency of the call. Appeal Br. 22. Accordingly,
Appellant argues, Velusamy does not disclose “preventing the mobile
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communication device from outputting the notification in response to
identifying a first driving condition,” as recited in claim 1. Appeal Br. 22
(quoting claim 1; Appellant’s emphasis).
These arguments are not persuasive. Claim 1 does not require that a
call be prevented solely in response to identifying a driving condition (here,
speed above a threshold). Rather, we agree with the Examiner that “the
claim is written with an open-ended transition (‘comprising’), and the claim
language ‘in response to’ allows other steps between steps 513 and 521.”
Ans. 6.
For the foregoing reasons, we agree with the Examiner that Velusamy
teaches “preventing the mobile communication device from outputting the
notification in response to identifying a first driving condition.”
“outputting the notification on the mobile
communication device in response to identifying a
second driving condition”
With respect to this limitation, the Final Action cites paragraph 56 of
Velusamy. Final Act. 6. Paragraph 56 states, in relevant part:
It is noted that the speedometer reading may be below the
predetermined threshold since the vehicle may be temporarily
slowing down or is about to stop (e.g., at a stop sign or a traffic
light). The threshold value may be accompanied with a timing
parameter (i.e., how long the device has been below the
threshold) to avoid placing the call through when it is expected
that the device 109 will imminently be in motion.
Velusamy ¶56. The Examiner finds that speed is the first driving condition
(here, a speed of zero) and the temporal duration of the car being stopped is
the second driving condition. Final Act. 6. In other words, the second
driving condition being identified in Velusamy is whether, for example, the
car is temporarily stopped at a traffic signal or, alternatively, parked at a
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destination. See also Spec. ¶17 (“[P]redetermined driving conditions [may
be] selected from . . . stop lights [or] stop signs.”). If the former, Velusamy
“avoid[s] placing the call through,” and, if the latter, Velusamy suggests
proceeding to initiate the call. Velusamy ¶56.
Appellant argues that Velusamy does not disclose this limitation
based on two arguments we have already considered and rejected above.
Appeal Br. 22. First, Appellant argues that “vehicle speed is not a driving
condition, and [thus] the absence of speed is similarly not a driving
condition.” Id. Second, Appellant argues that initiating a call after it is
determined that the driver is parked “does not disclose ‘outputting the
notification on the mobile communication device in response to identifying a
second driving condition’” because it is also in response to other factors. Id.
(quoting claim 1). These arguments are likewise not persuasive here.
For the foregoing reasons, we agree with the Examiner that Velusamy
teaches “outputting the notification on the mobile communication device in
response to identifying a second driving condition.”
Accordingly, Appellant does not apprise us of error in the Examiner’s
rejection of claim 1 as unpatentable over Velusamy and Eberle. We thus
affirm it, as well as the rejection of claims 3, 4, 6, and 7, which were not
separately argued. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 2
Claim 2 depends from claim 1 and additionally recites, among other
things, “storing a list of hazardous driving conditions including the first
driving condition.” Appeal Br. 42. With respect to this limitation, the Final
Action cites steps 513 and 519 from Velusamy Figure 5. Final Act. 7.
Appellant argues that:
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Step 513 includes “Is speedometer reading more than a
predetermined threshold?” and step 519 includes “Is mobile
device at a predetermined location?” (see Velusamy, FIG. 5,
steps 513 and 519). These two steps identify questions that do
not disclose “a list of hazardous driving conditions.”
Appeal Br. 24.
The Examiner persuasively responds that Velusamy discloses a list
(i.e., two hazardous driving conditions) although it does not explicitly
describe them as a “list.” Ans. 7; see also In re Schaumann, 572 F.2d 312,
317 (CCPA 1978) “([A]lthough appellants would have us hold that
Hildebrandt fails as an anticipation because it does not contain a description
of the subject matter of the appealed claims, ipsissimis verbis, we cannot
countenance a result which so obviously exhalts [sic] form over
substance.”).
Appellant further argues that “the state of being at or near a
‘predetermined location’ (see Velusamy, para. 56, lines 1–9) is not a
hazardous driving condition.” Appeal Br. 25 (bold typeface removed). To
this, the Examiner persuasively responds that Velusamy “states that the
predetermined location is used [to] ‘decide whether to wait for the person to
arrive at the destination to communicate rather than compromise that
person’s safety.’ Comprising [sic, compromising] the safety discloses the
hazardous aspect of the driving condition.” Ans. 7 (quoting Velusamy ¶56).
The rejection of claim 2 is affirmed.
Claim 5
Claim 5 depends from claim 1 and recites “where the notification is
related to an incoming message from a sender, the method further
comprising: sending an automatic reply message to the sender indicating
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that notifications have been temporarily blocked.” Appeal Br. 43. With
respect to this limitation, the Final Action cites Velusamy Figure 7A. Final
Act. 8. Figure 7A shows “a calling device [having] interface screen 701 that
presents an alert message within text box 703 to indicate that the called party
is possibly driving, as the called device has been detected to be in a motion
state.” Velusamy ¶61. Illustrated on the screen of the calling device (i.e.,
phone) is an “ALERT” that reads: “JOE IS CURRENTLY DRIVING—
PLACING THE CALL NOW IS NOT SAFE AT THIS POINT-WOULD
YOU STILL LIKE THE CALL TO GO THROUGH?” Id. Fig. 7A.
Appellant argues: “Nothing about FIG. 7A indicates that notifications
have been temporarily blocked. The notification to the calling party merely
indicates ‘that the called party is possibly driving’, but gives the calling
party the option to establish the call anyway.” Appeal Br. 26. Appellant’s
argument does not apprise us of error. If the caller opts to establish the call
anyway, such a call necessarily occurs after the call was temporarily
blocked.
The rejection of claim 5 is affirmed.
Claim 8
Claim 8 recites: “The method of claim 6, wherein the map data
identifies one or more variable driving conditions associated with the
roadway, wherein the one or more variable driving conditions is selected
from road hazards and traffic conditions.” The Final Action cites Velusamy
Figure 7C for the “map data” (which is introduced as a limitation by claim 6,
which falls with claim 1, as discussed above), and Velusamy paragraphs 19
and 54 for the additional limitations introduced by claim 8. Final Act. 8–10.
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Appellant argues that Velusamy paragraph 19 discusses
determining merely a vehicle’s speed,” which is “not a traffic condition.”
Appeal Br. 26. The Examiner, however, has the better position, noting that
determining that one is “driving faster than 25 mph discloses . . . that traffic
is not gridlocked.” Final Act. 10; see also Velusamy ¶19 (“For instance,
application 123 associated with user device 107 can determine (solely or in
conjunction with platform 101) whether user device 107 is moving at a rate
of speed as to suggest that the device 107 is being utilized within a
motorized vehicle (e.g., greater than 25 MPH).”).
Appellant also argues that Velusamy’s GPS data (which provides
position of the vehicle/phone on a map) does not constitute “map data”
within the meaning of the claim. Appeal Br. 26 (“GPS readings provide
positional data in the form of latitude and longitude indications. This is not
‘map data.’”). Appellant’s argument about the scope of “map data” is
conclusory and unsupported. Id. Regardless, the Examiner persuasively
responds that “the term ‘map data’ is not limited to data from a map[;] it
encompasses data that is placed on a map, such as GPS coordinates. See,
e.g., Velusamy Fig. 7C showing Joe’s location.” Ans. 8. Appellant’s
Specification explicitly describes map data as inclusive of an “identified
current location.” See Spec. ¶16 (“One or more driving conditions along a
roadway associated with a current location of a mobile communication
device may, in one example, be identified by accessing map data for a
roadway that includes the identified current location of the mobile
communication device.” (emphasis added)).
The rejection of claim 8 is affirmed.
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Claim 9
Claim 9 is an independent claim of somewhat similar scope to
claim 1, the most notable difference being that claim 9 recites “calculating a
driving hazard score as a function of the identified one or more driving
conditions.” Appeal Br. 43–44. To meet this limitation, the Final Action
cites the same Velusamy teaching as it does for claim 1’s recitation of
“identifying one or more driving conditions along a roadway.” See Final
Act. 10 (citing Velusamy ¶54). According to the Examiner, determining
whether or not it is safe constitutes “calculating a driving hazard score”
within the meaning of that term as used in claim 9.
Appellant argues “that the term ‘calculating’ means to determine
something by a mathematical process.” Appeal Br. 29. This argument does
not apprise us of error, as Velusamy employs a mathematical process, albeit
a simple one of determining whether an identified speed is greater than a
threshold. See Velusamy ¶54.
Appellant further argues that “the term ‘score’ means a number” and,
thus, a “safe/unsafe speed is not a ‘score’.” Appeal Br. 29. This argument
does not apprise us of error for two reasons. First, Appellant does not
support its premise that “score” as used in claim 9 is limited to a numerical
score. Id. And the term “score” as commonly understood would other types
of scores such as letter grade scores or pass/fail scores. A pass/fail score
corresponds directly with Velusamy’s safe/unsafe determination. Second,
and even if score were limited to a numerical score, Velusamy would still
teach the limitation because its safe and unsafe determinations correspond to
numerical ranges, respectively, 0–15 mph and greater than 15 mph. See
Velusamy ¶54.
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The remainder of Appellant’s arguments regarding claim 9 are repeats
of arguments presented for claim 1. Compare Appeal Br. 27–32 (claim 9),
with id. at 14–24 (claim 1). They are similarly unpersuasive here.
The rejection of claim 9 is affirmed.
Claim 10
Claim 10 depends from claim 9 and recites:
periodically updating the current location of the mobile
communication device; and then repeating the steps of
identifying one or more driving conditions along a roadway
associated with the current location of the mobile
communication device, and calculating a driving hazard score as
a function of the identified one or more driving conditions.
Appeal Br. 44. To meet these limitations, the Final Actions cites paragraph
21 of Velusamy. Final Act. 12.
Appellant does not dispute Velusamy teaches the first limitation, i.e.,
“periodically updating the current location of the mobile communication
device.” Appeal Br. 32. Appellant does dispute that Velsuamy teaches the
second limitation, i.e., “repeating . . . .” Id. However, Appellant does not
explain why or otherwise rebut the Examiner’s finding that it does. See id.
The rejection of claim 10 is affirmed.
Claim 11
Claim 11 depends from claim 9 and recites:
wherein the identified one or more driving conditions include
two or more identified driving conditions, wherein each of the
identified two or more driving conditions are associated with a
number of driving hazard points, and wherein the driving hazard
score is calculated as a function of the number of driving hazard
points associated with each of the identified two or more driving
conditions.
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Appeal Br. 44. The Examiner cites Velusamy’s statement that
“predetermined [speed] threshold can be based on a particular location for a
given time.” Final Act. 13 (quoting Velusamy ¶54). From this, the
Examiner finds that Velusamy teaches the limitations recited in claim 11,
because Velusamy identifies speed at two different locations or at two
different times. Final Act. 13.
This is not a prima facie case of obviousness. Claim 9, from which
claim 11 depends, recites “identifying one or more driving conditions along
a roadway associated with a current location of a mobile communication
device.” Appeal Br. 43. Thus, claim 11 effectively recites “identifying
[two] or more identified driving conditions along a roadway associated with
a current location.” Id. at 43–44 (emphasis added). The Examiner’s
reliance on Velusamy’s identification of speed at different locations or,
alternatively, at different times does not satisfy the “associated with a
current location” recitation.
The rejection of claim 11 is reversed.
Claims 12 and 13
Claim 12 depends from claim 9 and recites: “identifying a driving
experience level associated with the user of the mobile communication
device; and selecting the first threshold value as a function of the identified
driving experience level.” Appeal Br. 44.
The Examiner found that Velusamy teaches “identifying a driving
experience level associated with the user of the mobile communication
device” because it states that “user information includes . . . information
relating to driving habits,” and, if a driver has a driving habit, it means he
must have at least some driving experience. Final Act. 13 (quoting
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Velusamy ¶22). The Examiner found that Velusamy discloses “selecting the
first threshold value as a function of the identified driving experience level”
because it states that the driver “may manually specify parameters” such as
the speed threshold. Id. (quoting Velusamy ¶21).
Appellant correctly argues that the Examiner has not set out a prima
facie rejection, in part, because Velusamy does not indicate how, if at all, the
manual entry relates to driving habits. Appeal Br. 34. In other words, the
Examiner has not shown the “function[al]” relationship recited in the claim.
The rejection of claim 12 is reversed. The rejection of claim 13,
which depends from claim 12, is also reversed. Cf. In re Fine, 837 F.2d
1071, 1076 (Fed. Cir. 1988) (“Dependent claims are nonobvious under
section 103 if the independent claims from which they depend are
nonobvious.”).
Claim 14
Claim 14 depends from claim 9 and recites: “wherein the notification
is received during a period that the driving hazard score exceeds the first
threshold and is prevented from being output on the mobile communication
device delaying output of the notification until the driving hazard score is
less than the second threshold value.” Appeal Br. 44.
To meet this limitation, the Examiner points to the following excerpt
from Velusamy:
It is noted that the speedometer reading may be below the
predetermined threshold since the vehicle may be temporarily
slowing down or is about to stop (e.g., at a stop sign or a traffic
light). The threshold value may be accompanied with a timing
parameter (i.e., how long the device has been below the
threshold) to avoid placing the call through when it is expected
that the device 109 will imminently be in motion.
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Velusamy ¶56 (quoted at Final Act. 14); see also Final Act. 14 (quoting
Velusamy ¶24: “the call can be placed on hold until the device 107 comes
to a complete stop for a predetermined duration, for instance.” (bold
typeface omitted)).
Appellant argues that “the rejection has not addressed the actual
language of claim 14 and [thus] a prima facie rejection has not been
established” because the rejection of claim 14—in a single instance—
erroneously refers to “the claimed second driving condition” (Appeal Br. 35
(quoting Final Act. 14)), whereas claim 14 recites “second threshold value.”
Earlier in the rejection of claim 14, the Final Action correctly refers to “the
second threshold value.” Final Act. 14. Thus, the Final Action’s subsequent
reference to “second driving condition” in lieu of “second threshold value”
was an obvious typographical error, and one that does not undermine the
rejection. The Final Action identifies teachings by Velusamy on which
claim 14 reads. Id. (citing Velusamy ¶¶24, 56). Although Appellant has
apprised us of a typographical error, it has not apprised us of error in the
rejection of claim 14.
The rejection of claim 14 is affirmed.
Claim 15
Claim 15 depends from claim 9 and recites: “receiving a notification
having a high importance flag; and outputting the notification having the
high importance flag regardless of whether the driving hazard score exceeds
the first threshold value.” Appeal Br. 45.
To meet these limitations, the Final Action cites Figure 5 of Velusamy
with step 515 meeting the “receiving” limitation and the caller being on “the
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priority list” leading to step 517 meeting the “outputting . . . regardless”
limitation. Final Act. 14.
Appellant argues that the Examiner has not “explain[ed] how
Velusamy’s ‘priority list’ discloses ‘receiving a notification having a high
importance flag.’” The Examiner persuasively responds to this argument by
pointing out that “Velusamy discloses that being on a priority list means
that, in some cases, the call goes through. The designation that this call
would go through discloses the claimed importance flag (being on the
priority list discloses the claimed importance).” Ans. 10. Appellant does
not rebut the Examiner or address claim 15 in its Reply Brief. See Reply Br.
11.
The rejection of claim 15 is affirmed.
Claims 16 and 17
Claim 16 depends from claim 9 and recites: “automatically selecting
an output device of the mobile communication device based on the driving
hazard score, wherein the output device is selected from a display screen, a
speaker, and a vibrator.” Appeal Br. 45.
To meet this limitation, the Final Action cites Velusamy Figure 7C,
which shows a display screen, and quotes paragraph 61 of Velusamy as
stating: “Also, the device can produce other types of indicators--e.g.,
playing an audio alert, and/or vibrating.” Final Act. 14 (bold typeface
omitted).
Appellant does not dispute that Velusamy discloses different output
devices but Appellant does dispute whether Velusamy discloses the
automatic selection of one such device based on a hazard score. Appeal Br.
37. In this regard, Appellant apprises us of Examiner error. It is not enough
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for any output device to be employed by Velusamy. The word “selecting” in
the context of claim 16 means that a particular output device (i.e., one of “a
display screen, a speaker, and a vibrator”) corresponds to a particular hazard
score or range of hazard scores. In other words, the output device is a
function of the hazard score. This is the broadest reasonable construction in
light of the Specification, which, in most relevant part, provides:
Further embodiments may automatically select an output
device of the mobile communication device based on the driving
hazard score, wherein the notification is output on the selected
output device. Typical output devices include a display screen, a
speaker, and a vibrator. . . . In one option, automatically
selecting an output device of the mobile communication device
based on the driving hazard score includes automatically
selecting a speaker as the output device in response to the driving
hazard score exceeding the first threshold value.
Spec. ¶27.
The rejection of claim 16 is reversed. The rejection of claim 17,
which depends from claim 16, is also reversed.
Claim 18
Claim 18 depends from claim 9 and recites: “in response to the
driving hazard score exceeding the first threshold value, outputting a
message on the mobile communication device indicating that notifications
are currently being prevented.” Appeal Br. 45.
To meet this limitation, the Final Action cites Velusamy Figure 1A,
which includes multiple structures, one of which is mobile phone 19
corresponding to the “the mobile communication device” recited in the
claim. Final Act. 15. Phone 19 includes a “Vehicle Accident Prevent
Application.” Velusamy Fig. 1A, ref. 125. The Examiner asserts that Figure
1A “shows the application being on screen (note the lines between the
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application and the phone’s screen), thus disclosing the claimed outputting a
message.).” Final Act. 15 (italics removed).
Appellant disputes the Examiner’s interpretation of Figure 1A.
Appeal Br. 38–39. Appellant argues that the words “Vehicle Accident
Prevent Application” convey that the application is part of the phone’s
programming and does not include an outputted message on the phone’s
screen “indicating that notifications are currently being prevented.” Id. We
agree with Appellant.
The rejection of claim 18 is reversed.
Claims 19 and 20
Claim 19 depends from claim 9 and recites:
identifying an planned route of the mobile communication
device; calculating a driving hazard score as a function of the
identified one or more driving conditions at multiple points along
the planned route; estimating a period of time or a distance of
travel after which notifications will no longer be prevented; and
outputting the estimated period of time or distance of travel.
Appeal Br. 45.
To meet these limitations, the Final Action cites various excerpts from
paragraph 22 of Velusamy. Final Act. 15.
Appellant disputes, among other things, the Examiner’s mapping of
the “calculating” limitation to paragraph 22. Appeal Br. 39–40. In
particular, Appellant argues that Velusamy “does not disclose ‘calculating a
driving hazard score as a function of the identified one or more driving
conditions at multiple points along the planned route.’” Appeal Br. 39–40
(quoting claim 19). We are persuaded by this argument of Examiner error.
The Examiner has not shown that Velusamy discloses calculating a hazard
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score (e.g., speed exceeding a threshold) at multiple prospective points, i.e.,
along a planned, but not yet driven, route.
The rejection of claim 19 is reversed. The rejection of claim 20,
which depends from claim 19, is also reversed.

SUMMARY
Claims
Rejected
35 U.S.C. Basis Affirmed Reversed
1–20 § 103 Velusamy,
Eberle
1–10, 14, 15 11–13, 16–
20

AFFIRMED-IN-PART