Ex Parte Allen et al

Patent Trials and Appeals Board

Jan 30, 2019

14192839 - (D) (P.T.A.B. Jan. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/192,839 02/27/2014
27890 7590 02/01/2019
STEPTOE & JOHNSON LLP
1330 CONNECTICUT A VENUE, N.W.
WASHINGTON, DC 20036
FIRST NAMED INVENTOR
Erik Allen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
20155.0002 (PitRho-la) 1043
EXAMINER
NGUYEN,ANV
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
02/01/2019 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):
hfox@steptoe.com
ipdocketing@steptoe.com
lfielding@steptoe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIK ALLEN, KYLE JENSEN, GILMAN CALLSEN,
JOSHUA BROWNE, KEVIN SCHAFF,
PAUL HARRAKA, and JOEL MOXLEY
Appeal2017-006636 1
Application 14/ 192, 83 92
Technology Center 2400
Before JAMES R. HUGHES, JOHN D. HAMANN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1---60. We have jurisdiction under
35 U.S.C. § 6(b). We reverse.
1 Our Decision relies upon Appellants' Appeal Brief ("App. Br.," filed Sept.
8, 2016), Reply Brief ("Reply Br.," filed Mar. 17, 2017), and Specification
("Spec.," filed Feb. 27, 2014), as well as the Examiner's Answer ("Ans.,"
mailed Jan. 18, 2017) and the Final Office Action ("Final Act.," mailed Dec.
11,2015).
2 According to Appellants, the real party in interest is Pit Rho Corporation.
App. Br. 1.
Appeal2017-006636
Application 14/192,839
THE CLAIMED INVENTION
Appellants' claimed invention relates to "providing ... derived data
for use in multivariable component systems and activities." Spec. ,r 2.
Claims 1, 2, and 56 are illustrative of the subject matter of the appeal and are
reproduced below.
1. A determinative system for obtaining, evaluating and
displaying in a predictive manner, information and data
regarding the activities of units in a multivariable component
system, the determinative system comprising:
a. a source of raw data regarding activities of a first
plurality of units of a multi variable component system;
b. a source of derived data regarding activities of a
second plurality of units of the multivariable component
system;
c. wherein, at least one unit of the first plurality of
units is the same as a unit of the second plurality of units,
and wherein at leas[t] one of the first plurality of units is
different from a unit of the second plurality of units;
d. a processor in communication with the source of
derived data and the source of raw data, the processor
capable of performing a weighted multi-approach
system;
e. the processor capable of performing a first
predictive computation to determine a change of state
event in the multivariable component system from the
raw data and the derived data; and,
f. whereby the processor determines predictive
information comprising a probability for the change of
state event, and wherein the processer communicates the
predictive information to a display.
2. The system of claim 1, wherein the multivariable
component system comprises a NASCAR sanctioned event; and
wherein the system comprises a means for reducing a latency
period.
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Application 14/192,839
56. A method of combining information about a race for later
viewing, the method comprising: storing data containing a video
image of the race; associating in a time synchronized manner
with the video image actual, predictive and derived data; storing
the associated video and data; and making the associated video
and data available for viewing; and wherein the actual data is
obtained from the group consisting of transponders, speed
transponders, location transponders, direction transponders,
optical switches, magnetic sensors, motor temperature, unit
speed, unit motor rpm, unit fuel, unit fuel flow rate, unit oil
pressure, unit brake pressure, unit chassis performance, and
driver biometrics; wherein the derived data is obtained from a
derived data source selected from the group consisting of support
vector machines, normalized lap time, adjusted lap time, unit
position relative to lap time, unit position relative to a caution
sequence, and unit position relative to different unit tire change
sequence; and wherein the predictive data is obtained from a
weighted multi-approach.
REJECTIONS ON APPEAL
(1) The Examiner rejected claims 1-55 and 5 8---60 under
35 U.S.C. § 112, first paragraph, for failing to comply with the written-
description requirement. Final Act. 4.
(2) The Examiner rejected claim 2 under 35 U.S.C. § 112, second
paragraph, 3 as being indefinite because claim 2 uses a trademark or
tradename (i.e., "NASCAR"). Final Act. 8.
(3) The Examiner rejected claims 1, 2, 7-9, 14--16, and 26-28
under 35 U.S.C. § 102(b) as being anticipated by Walker et al. (US
3 The Examiner withdrew the 35 U.S.C. § 112 rejection of claim 2 as being
indefinite with respect to "a means for reducing a latency period." See Ans.
2; Final Act. 8.
3
Appeal2017-006636
Application 14/192,839
2009/0262137 Al; published Oct. 22, 2009) (hereinafter "Walker"). Final
Act. 9--14.
(4) The Examiner rejected claims 3, 5, 12, and 25 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Walker and
Pendleton et al. (US 2008/0186330 Al; published Aug. 7, 2008) (hereinafter
"Pendleton"). Final Act. 15-16.
(5) The Examiner rejected claims 4, 11, 20-22, 24, 29, 31, 32, 34,
35, and 37 under 35 U.S.C. § I03(a) as being unpatentable over the
combination of Walker and Glansk et al. (WO 2007/061346 Al; published
May 31, 2007) (hereinafter "Glansk"). Final Act. 17-22.
(6) The Examiner rejected claims 6, 10, 13, and 17 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Walker and Bove et
al. (US 2012/0249424 Al; published Oct. 4, 2012) (hereinafter "Bove").
Final Act. 22-23.
(7) The Examiner rejected claims 38, 39, and 41--45 under
35 U.S.C. § I03(a) as being unpatentable over the combination of Walker
and Herbrich et al. (US 2004/0266506 Al; published Dec. 30, 2004)
(hereinafter "Herbrich"). Final Act. 23-24.
(8) The Examiner rejected claim 40 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Walker, Herbrich, and
Pendleton. Final Act. 24--25.
(9) The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Walker, Glansk, and Pendleton.
Final Act. 25-26.
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Application 14/192,839
(10) The Examiner rejected claims 19 and 23 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Walker, Glansk, and
Bove. Final Act. 26-27.
(11) The Examiner rejected claims 30, 33, and 36 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Walker, Glansk, and
Hardacker (US 2002/0115454 Al; published Aug. 22, 2002) (hereinafter
"Hardacker"). Final Act. 27-28.
(12) The Examiner rejected claims 56 and 57 under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Walker, Logan et al.
(US 2012/0087637 Al; published Apr. 12, 2012) (hereinafter "Logan"), and
Koehler et al. (US 2001/0042105 Al; published Nov. 15, 2001) (hereinafter
"Koehler"). Final Act. 29-35.
(13) The Examiner rejected claims 58---60 under 35 U.S.C. § I03(a)
as being unpatentable over the combination of Walker and Koehler. Final
Act. 35-39.
ISSUES
The dispositive issues for this appeal are:
(1) Whether the Specification provides sufficient support to comply
with § 112 's written-description requirement with respect to "wherein, at
least one unit of the first plurality of units is the same as a unit of the second
plurality of units, and wherein at leas[t] one of the first plurality of units is
different from a unit of the second plurality of units";
(2) Whether claim 2 is indefinite with respect to the term
"NASCAR sanctioned event";
(3) Whether Walker discloses a source of raw data regarding
activities of a plurality of units; and
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(4) Whether Walker or Logan teach or suggest associating in a time
synchronized manner with a video image actual, predictive, and derived
data.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
contentions that the Examiner errs. We find Appellants' arguments
discussed herein4 persuasive.
(1) § 112. first paragraph. reiection
Appellants argue the Examiner errs in rejecting claims 1-55 and
58---60 under the written-description requirement of§ 112 because the
Specification supports the disputed limitation (i.e., claim 1 's "wherein, at
least one unit of the first plurality of units is the same as a unit of the second
plurality of units, and wherein at leas[t] one of the first plurality of units is
different from a unit of the second plurality of units"). See App. Br. 9-10;
Reply Br. 3-5. Specifically, Appellants argue that the Specification is
replete with examples supporting the disputed limitation, which merely
describes two groups having only some of their members overlapping (e.g.,
"individual cars in a partial overlapping relation to other cars and other
groups"). App. Br. 9-10 (citing Spec. ,r,r 5, 8-10, 18, 20, 26, 52, 54, 58, 62,
64, 70-72, 82, 92-94, 99, 114, 118, Figs. 1, 6, 7, IOA-IOC). Appellants
argue that the Examiner "improperly conflat[ es] the units and the data, to
create [a] ... negative claim limitation that 'there is not data for some of the
units."' Reply Br. 4 ( quoting Ans. 5).
4 Because we agree with at least one of the dispositive arguments advanced
by Appellants as to each rejection, we need not reach the merits of
Appellants' other arguments.
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The Examiner finds that the Specification fails to provide sufficient
support to satisfy the written-description requirement for the disputed
limitation. Ans. 2-8; Final Act. 4--7. The Examiner concludes that when
"[r]eading th[e] claim in context, it requires that at least one unit has both
derived and raw data, and at least unit has either raw or derived data but not
both, and the weighted calculation is based on this data." Ans. 2. "[I]t is not
enough for limitation to be as Appellant states ' ... a simple and
straightforward way to describe two groups with some overlapping
members,"' the Examiner finds. Id. ( citation omitted). "The [S]pecification
would have to [support] that the groups only partially overlap and that the
data available for these units only partially overlap. In essence, it would
have to ... state that there is not data for some of the units in the first and
second plurality." Id. at 5.
We agree with Appellants that the Examiner incorrectly conflates the
units and the data. The claims, and the disputed limitation in particular, only
require two groups of units having only some of their members overlapping.
E.g., App. Br. 63 (reciting claim 1). The claims do not require that the
source of the raw data and the source of the derived data be limited to only
certain units, as the Examiner finds. Id.
The proper interpretation of the claim language is supported by the
Specification's disclosure of "at least one unit of the first plurality of units is
the same as a unit of the second plurality of units," which sufficiently
conveys that at least some of the units of the first plurality of units are not
the same as units of the second plurality. E.g., Spec. ,r 18. We find one of
ordinary skill in the art would reasonably conclude that Appellants had
possession of this aspect of the claimed invention at the time the
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Specification was filed. See In re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir.
1989); Spec. ,r,r 18, 20.
Our reasoning applies to each of the independent claims subject to this
rejection (i.e., claims 1, 38, 46, and 58), as well as their dependent claims.
Accordingly, we do not sustain the Examiner's§ 112, first paragraph,
rejection.
(2) § 112. second paragraph. reiection
Appellants argue that claim 2 is not indefinite with respect to the term
"NASCAR sanctioned event." App. Br. 11-12; Reply Br. 5. More
specifically, Appellants argue that "[t]here is no lack of clarity or ambiguity
about the term NASCAR. It is a well know[n], and well established entity,
which anyone of skill in the art would understand and recognize (arguably,
even the majority of those not of skill in the art would know of this entity)."
App. Br. 12 (emphasis omitted).
The Examiner finds that the term "NASCAR sanctioned event" is
indefinite because NASCAR is a trademark or trade name which "is used to
identify a source of goods, and not the goods themselves." Final Act. 8
( citing Ex parte Simpson, 218 USPQ 1020 (BP AI 1982) ). The Examiner
concludes, thus, "[ t ]he claim scope is uncertain since the trademark or trade
name cannot be used properly to identify any particular material or product."
Id.
The test for definiteness is whether "those skilled in the art would
understand what is claimed when the claim is read in light of the
specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F .2d
1565, 1576 (Fed. Cir. 1986) (citations omitted); see also Ex parte Miyazaki,
89 USPQ2d 1207, 1210-13 (BPAI 2008) (precedential) (applying the
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Orthokinetics standard). We agree with Appellants that one of ordinary skill
in the art would understand the meaning of the claim in the context of the
invention. See Ex parte O'Farrell, Appeal 2011-011075, 2014 \VL
2112325, at *4 (PTAB l\1ay 19, 2014) (non-precedential) (finding "Java
code" definite because "'Java' is a well-known and widely-used term
identifying a particular programming language"). NASCAR is a well-
known and widely used descriptor in the context of racing and the scope of
the claims. See, e.g., Spec. ,r,r 3--4.
Accordingly, we do not sustain this rejection.
(3) § 102(b) reiection
Appellants argue that Walker fails to disclose "a source of raw data
regarding activities of a first plurality of units of a multi variable component
system," as recited in independent claim 1. More specifically, Appellants
argue that the Examiner-cited portions of Walker "only relate to obtaining
raw data from a single unit, a base player, a race car," and that "Walker is
limited to obtaining, processing information regarding a single unit." App.
Br. 13-14 (citing Walker ,r,r 71, 85, 93-94). According to Appellants,
Walker does not disclose "obtaining raw data 'regarding activities of a
plurality of units of a multi variable component system."' Id. ( emphasis and
citation omitted); see also Reply Br. 7 (citing Ans. 12) (arguing Walker fails
to disclose using telemetric data in the manner described by the Examiner).
The Examiner finds that Walker discloses the disputed limitation.
Ans. 12; Final Act. 10. The Examiner finds that in Walker "telemetry data is
used to measure the position of a player during a sports [contest]." Final
Act. 10 (citing Walker ,r,r 71, 85). More specifically, the Examiner finds
that in Walker the "telemetric data comes from multiple sources. In the
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baseball example, it is the ball as thrown by the pitcher, and the bat as swung
at by the batter that determines the prediction as to whether the batter has f!
high probability of hitting the ball." Ans. 12 (citing Walker ,r 17). The
Examiner finds "[t]hese are a plurality of units of raw data." Id.
Based on the evidence of record, we are constrained to agree with
Appellants that the Examiner errs in finding that the cited portions of Walker
disclose the disputed limitation. We agree with Appellants that these
portions of Walker do not disclose a source of raw data regarding activities
of a plurality of units. See Walker ,r,r 17, 71, 85. Rather, the cited portions
of Walker disclose examples of multiple sources of raw data with respect to
a single unit (e.g., a wireless accelerometer fitted on a player's bat, a radar
gun for pitch speed, a range finder for distance of a player). Simply put, the
portions of Walker the Examiner relies upon do not support the Examiner's
findings. Id.
Accordingly, we do not sustain the Examiner's§ 102(b) rejection of
independent claim 1, nor claims 2, 7-9, 14--16, and 26-28, which depend
therefrom.
(4) § 103(a) reiections
(i) Claims depending from independent claim 1
The Examiner rejects under§ 103(a) (i) claims 3, 5, 12, and 25;
(ii) claims 4, 11, 20-22, 24, 29, 31, 32, 34, 35, and 37; (iii) claims 6, 10, 13,
and 17; (iv) claim 18; (v) claims 19 and 23; and (vi) claims 30, 33, and 36.
Each of these claims depends, directly or indirectly, from independent
claim 1. In making these rejections, the Examiner relies on the above
discussed findings from Walker regarding a source of raw data regarding a
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plurality of units. Accordingly, for the reasons discussed above (paragraph
3), we do not sustain the Examiner's§ 103(a) rejections of these claims.
(ii) Independent claim 38
The Examiner rejects under§ 103(a) (i) claims 38, 39, and 41--45 and
(ii) claim 40. Claim 3 8 is an independent claim and claims 39--45 depend
therefrom. In making these rejections, the Examiner relies on the above
discussed findings from Walker regarding a source of raw data regarding a
plurality of units. Accordingly, for the reasons discussed above (paragraph
3), we do not sustain the Examiner's§ 103(a) rejections of these claims.
(iii) Independent claims 56 and 57
Appellants argue that the combination of Walker, Logan, and Kohler
fails to teach or suggest "associating in a time synchronized manner with the
video image actual, predictive and derived data," as recited in independent
claim 56 and similarly recited in independent claim 57. App. Br. 21-23;
Reply Br. 13-14. In particular, Appellants argue that Walker teaches
slightly delaying a broadcast to load a graphic, but fails to teach
synchronizing "actual, predictive and derived data." App. Br. 22; Reply Br.
13-14. As to Logan, Appellants argue that it is "void of any reference to or
discussion of, derived data and predictive data." App. Br. 23 (citing Logan
, 47). Appellants also argue that "Logan's 'chalk talk' upon which the
Examiner relies is a mere guess of an individual, or a subjective illustration.
It is not derived data, and is not predictive data." Id.
The Examiner finds that the combination teaches the disputed
limitation. See Ans. 23; Final Act. 29-30. The Examiner finds that "Walker
teaches that [a] ... prediction is presented to the audience as the play is
happening, it is also updated in a time synchronized matter with the
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presented video." Ans. 23 (citing Walker ,r 17). As to Logan, the Examiner
finds that Logan teaches that an information panel "may be used to present a
variety of different kinds of information about [a] ... game, including a
'chalk talk' description of the play." Final Act. 29--30.
Based on the evidence of record, we are constrained to agree with
Appellants that the Examiner errs in finding that the combination, including
the cited portions of Walker and Logan, disclose the disputed limitation. We
agree with Appellants that these portions of Walker and Logan do not teach
synchronizing with the video image all three types of data (i.e., actual,
predictive, and derived data). See Walker ,r 17; Logan ,r 47. Rather, the
cited portions of Walker, at best, teach using updated actual data to
determine new predictive data. Walker ,r 17. The Examiner does not clearly
identify where in this passage derived data is taught, nor where
synchronizing actual, predictive and derived data occurs. Similarly, the
Examiner does not clearly identify how Logan's chalk talk constitutes a
relevant type of data, nor synchronization with the video image.
Accordingly, we do not sustain the Examiner's§ 103(a) rejection of
claims 5 6 and 5 7.
(iv) Independent claim 58
The Examiner rejects under§ 103(a) claims 58---60. Claim 58 is an
independent claim and claims 59 and 60 depend therefrom. The Examiner
relies on the above discussed findings and reasoning from Walker regarding
a source of raw data regarding a plurality of units. Accordingly, for the
reasons discussed above (paragraph 3), we do not sustain the Examiner's
§ 103(a) rejection of these claims.
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DECISION
We reverse the Examiner's decision rejecting claims 1-60.
REVERSED
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