Ex Parte Rempel et al

Patent Trial and Appeal Board

Jul 13, 2016

11868350 (P.T.A.B. Jul. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/868,350 10/05/2007
4743 7590 07115/2016
MARSHALL, GERSTEIN & BORUN LLP
233 SOUTH WACKER DRIVE
6300 WILLIS TOWER
CHICAGO, IL 60606-6357
FIRST NAMED INVENTOR
Eric Rempel
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.
31082/42650 1869
EXAMINER
ERB, NATHAN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
07/15/2016 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC REMPEL, TODD BERGER, RYAN KELVER,
ANDREW ASHBUAGH, and JOHN P. COOK
Appeal2014-004126 1
Application 11/868,3502
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
August 21, 2013) and Reply Brief ("Reply Br.," filed February 20, 2014),
and the Examiner's Answer ("Ans.," mailed December 20, 2013), and Final
Office Action ("Final Act.," mailed September 24, 2012).
2 Appellants identify the inventors, Eric Rempel, Todd Berger,
Ryan Kelver, Andrew Ashbuagh, and John Cook, as the real parties in
interest. App. Br. 1.
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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED INVENTION
Appellants' claimed invention "relates generally to data entry systems
and specifically to graphical data entry systems for posting and matching
freight and transportation assets" (Spec. i-f 1 ).
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A method of scheduling transfer of transportation
assets from an origin location to a destination location, the
method comprising:
providing a graphical representation of a map on an
electronic display device;
enabling a user to graphically select a first geographic
location on the map with a cursor and a cursor activation device;
converting the graphically selected first geographic
location into a geographic coordinate;
associating transportation asset data with the graphically
selected first geographic location; and
displaying the transportation asset data associated with the
graphically selected first geographic location on the electronic
display device to facilitate scheduling of a transfer of a
transportation asset from an origin location to a destination
location.
2
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REJECTIONS
Claims 1, 2, 5, 6, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bregman (US 2006/0190360 Al, pub. Aug. 24, 2006) and
Athalye (US 2006/0122767 Al, pub. June 8, 2006).
Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Miller (US 7 ,546,206 B 1, iss. June 9, 2009), Reynolds
(US 2004/0225624 Al, pub. Nov. 11, 2004), and Bloom
(US 2006/0020366 Al, pub. Jan. 26, 2006 (with respect to RESPONSE TO
OFFICIAL NOTICE CHALLENGE)).
Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Bowman (US 2008/0182598 Al, pub. July 31, 2008),
and Bloom (with respect to RESPONSE TO OFFICIAL NOTICE
CHALLENGE).
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Russell (US 2008/0109246 Al, pub. May 8, 2008).
Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Noble (US 2007/0038506 Al, pub. Feb. 15, 2007).
Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Bregman, Athalye, Noble, and Hamblen (US 2005/0171692 Al,
pub. Aug. 4, 2005).
Claims 11 and 13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bregman, Athalye, and Chasen (US 200710192111 A 1,
pub. Aug. 16, 2007).
Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Chasen, and Landon (US 2008/0189364 Al, pub. Aug. 7,
2008).
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Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Levis (US 2006/0235739 Al, pub. Oct. 19, 2006).
Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Scaer (US 2004/0243299 Al, pub. Dec. 2, 2004).
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Nadan (US 2004/0167825 Al, pub. Aug. 26, 2004).
Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Thayer (US 6,832,153 B2, iss. Dec. 14, 2004).
Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Thayer, and Voelk (US 2007/0221791 Al, pub. Sept. 27,
2007).
Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Thayer, and Clark (US 2008/0133724 Al, pub. June 5,
2008).
Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Wied (US 2005/0209913 Al, pub. Sept. 22, 2005), and
Weirich (US 2002/0198774 Al, pub. Dec. 26, 2002).
Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Thacher (US 2007/0129880 Al, pub. June 7, 2007).
Claim 23 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Bregman, Athalye, and Crady (US 2006/0217885 Al, pub. Sept. 28,
2006).
Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Cartwright (US 2008/0046302 Al, pub. Feb. 21,
2008).
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Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, and Wied.
Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bregman, Athalye, Wied, and Daniel (US 2006/0282284 Al, pub. Dec. 14,
2006).
ANALYSIS
Independent claim 1
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting claim 1under35 U.S.C. § 103(a) because neither Bregman
nor Athalye discloses or suggests "associating transportation asset data with
the graphically selected first geographic location," as recited in claim 1
(App. Br. 5-10; Reply Br. 2-3). Instead, we agree with, and adopt the
Examiner's response to Appellants' argument as set forth at pages 5-11 of
the Answer. We add the following discussion for emphasis only.
Bregman is directed to a system for allocating transportation assets,
e.g., vehicles, for the collection and delivery of articles (Bregman i-f 1 ), and
discloses that when new orders are received (e.g., from customers over the
Internet (id. i-f 25) ), the system selects a suitable courier based on a plurality
of variables, including the geographical location of the origin of the articles,
i.e., the collection point (id. i-fi-1 19-21 ), which constitutes the claimed "first
geographical location." We agree with the Examiner that when the "first
geographical location" is assigned to a courier as part of the selection
process, the "first geographical location" is also associated with that
courier's vehicle. Bregman, thus, discloses "associating" transportation
asset data with a first geographical location (Ans. 8).
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The Examiner acknowledges that Bregman does not disclose that the
"first geographical location," i.e., the origin of the articles, is entered by
graphically selecting the location on a map (id.). However, Athalye is
directed to a system for identifying locations that meet user-specified
distance criteria between multiple locations, and discloses a "point and
search tool" that allows the user to obtain information about locations using
markings on the map as inputs (Athalye i-fi-f l, 17).
The Examiner concludes in the Final Office Action that:
It would have been obvious to one of ordinary skill in the art to
modify the invention of Bregman such that the invention enables
a user to graphically select a first geographic location on the map
with a cursor and a cursor activation device; the invention
converts the graphically selected first geographic location into a
geographic coordinate; and the second geographic location is
graphically selected, as disclosed by Athalye, since the claimed
invention is merely a combination of old elements, and in the
combination each element merely would have performed the
same function as it did separately, and one of ordinary skill in the
art would have recognized that the results of the combination
were predictable.
Final Act. 5---6. Appellants charge that the Examiner's statement is merely
conclusory and that the Examiner fails to articulate any reasoning with
rational underpinning to explain why a person of ordinary skill in the art
would be motivated to combine the teachings of Bregman and Athalye (App.
Br. 9-13). But Appellants present no persuasive argument or technical
reasoning to explain why the modification proposed by the Examiner is
more than the predictable use of prior art elements according to their
established functions. As the Examiner explains in the Answer, the
modification takes Bregman' s transportation invention and uses Athalye' s
data entry method in selecting locations for use in the Bregman system, i.e.,
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it combines old elements (Ans. 13); in the combination, each element
performs the same function that it did separately, and the results of the
combination are predictable (id.).
Appellants further argue that "Bregman teaches that reliance on
human controllers is undesirable," and, thus, teaches away from modifying
Bregman to include Athalye's user interface (App. Br. 24--25). We disagree.
Bregman admittedly discloses that "[a]s compared to known courier
systems reliant upon human controllers, a more desirable option is to
provide a system for controlling the transport of articles having a server in
communication with a plurality of mobile communication devices in the
possession of couriers" (Bregman ,-r 8), i.e., that an automated system is
superior to human controlled systems. However, Appellants do not point to
any passage in Bregman that criticizes, discredits, or otherwise discourages
allowing for human entry of information, which is required to establish a
"teaching away"; instead, Bregman merely discloses that an automated
system is "more desirable." See In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994) (A teaching away occurs when a reference discourages one skilled in
the art from following the claimed path, or when the reference would lead
one skilled in the art in a direction divergent from the path that was taken by
the applicant); see also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(The prior art's mere disclosure of more than one alternative does not
constitute a teaching away from any of the alternatives when the disclosure
does not criticize, discredit, or otherwise discourage the solution claimed).
In view of the foregoing, we sustain the Examiner's rejection of
claim 1 under 35 U.S.C. § 103(a).
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Independent claim 17
Appellants' arguments with respect to independent claim 17 (App.
Br. 13-18) are substantially identical to Appellants' arguments with respect
to claim 1, and are unpersuasive for the same reasons.
Therefore, we sustain the Examiner's rejection of claim 17 under
35 U.S.C. § 103(a) for the same reasons set forth above with respect to
claim 1.
Dependent claim 3
Claim 3 depends from claim 1, and recites that the method further
comprises "searching for a transportation hub near the geographic coordinate
before displaying the transportation asset data on the electronic display
device and displaying the transportation hub on the electronic display
device." In rejecting claim 3 under 35 U.S.C. § 103(a), the Examiner
proposes, inter alia, to modify Bregman to search for a transportation hub
near the geographical coordinate, as disclosed in Reynolds (Final Act. 6
(citing Reynolds i-f 37)).
Appellants argue that the Bregman method is intended for intra-city
use; therefore, according to Appellants, there would be no reason for the
method to include searching for a transportation hub of any sort (App.
Br. 18-19). Yet, as the Examiner observes, Bregman expressly discloses
that the method may be used "for same-day deliveries" (Bregman i-f 9), and
"[ m ]any vehicles can travel relatively great distances within one day"
(Ans. 19).
We are not persuaded that the Examiner erred in rejecting claim 3
under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner's rejection.
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Dependent claim 4
Claim 4 depends from claim 1, and recites that the method further
comprises "searching for a city near the geographic coordinate before
displaying the transportation asset data on the electronic display device and
displaying the city on the electronic display device." In rejecting claim 4
under 35 U.S.C. § 103(a), the Examiner proposes, inter alia, to modify
Bregman to search for a city near the geographical coordinate and display
the city on an electronic display device, as disclosed in Bowman (Final
Act. 8 (citing Bowman i-fi-122, 27, 28, 30, 35, 41, 43)).
Appellants' argument with respect to claim 4 is substantially identical
to Appellants' argument with respect to claim 3, and is unpersuasive for the
same reasons (see Ans. 22). Therefore, we sustain the Examiner's rejection
of claim 4 under 35 U.S.C. § 103(a).
Dependent claim 6
Claim 6 depends from claim 1, and recites that the method further
comprises "associating date and/or time information with the transportation
asset data."
In rejecting claim 6 under 35 U.S.C. § 103(a), the Examiner cites
paragraphs 29, 40, 49, and 50 of Bregman as disclosing the claimed feature
(Final Act. 6). Appellants argue that "[t]he final action does nothing more
than cite the above mentioned paragraphs" and "articulates no reasoning as
to how the cited paragraphs support its conclusion" (App. Br. 20). However,
we agree with the Examiner that the cited paragraphs, which expressly
describe providing information regarding the time and date of delivery of an
article, on their face, clearly disclose associating time information with the
transportation asset data (Ans. 22-23).
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Appellants further argue that date and time information related to the
delivery and pickup of an article is different from date and/or time
information related to a transportation asset (App. Br. 20). Yet, as the
Examiner observes, because "vehicles may carry the articles on their routes
from pickup to delivery, the article and the transportation asset travel
together and both are associated with such time information" under a broad,
but reasonable, interpretation of the term "associating" (Ans. 23).3
In view of the foregoing, we sustain the Examiner's rejection of
claim 6 under 35 U.S.C. § 103(a).
Dependent claim 7
Claim 7 depends from claim 6, and recites that the method further
comprises "assigning a level of confidence to the transportation asset data
based on the date and/or time information."
In rejecting claim 7 under 35 U.S.C. § 103(a), the Examiner cites
paragraphs 11 and 28 of Russell as disclosing "assigning a level of
confidence to the transportation asset data based on the date and/or time
information" (Final Act. 9-10). Appellants argue that "[t]he final action
does nothing more than cite the above mentioned paragraphs" and
"articulates no reasoning as to how the cited paragraphs support its
conclusion" (App. Br. 21 ). Yet, again, we agree with the Examiner that the
cited paragraphs, which expressly describe a delivery outcome statistic that
includes "the probability associated with a particular delivery time or date,"
3 Appellants argue, in their Reply, the Examiner has failed to present
evidence sufficient to support a finding that Bregman inherently discloses
"associating date and/or time information with the transportation asset data"
(Reply Br. 4). That argument is not persuasive. The Examiner's rejection is
based on Bregman's express, not inherent, disclosure.
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on their face, clearly disclose assigning a level of confidence to the
transportation asset data based on the date and/or time information (Ans.
24).
Appellants further argue that "[t]here is no teaching or suggestion that
the outcome statistic is based in any part on date and/or time information
associated with a specific transportation asset" (App. Br. 21 ). However,
again, the article and the transportation asset travel together and both are
associated with delivery date and/or time information, under a broad, but
reasonable, interpretation of the term "associating."
Appellants argue for the first time in their Reply Brief that a
"probability of delivery is an objective statistical measure based on historical
data" as contrasted with a level of confidence, which is "a subjective
evaluation of the carrier's ability to complete a delivery" (Reply Br. 4).
Therefore, according to Appellants, "a probability of delivery cannot be
considered equivalent to a level of confidence" (id.).
Appellants' argument is untimely, and is waived here in the absence
of any showing of good cause why the argument could not have been timely
presented in Appellants' Appeal Brief. See In re Hyatt, 211F.3d1367, 1373
(Fed. Cir. 2000) (noting that an argument not first raised in the brief to the
Board is waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837
(BP AI 2010) (informative) (explaining that arguments and evidence not
timely presented in the Principal Brief, will not be considered when filed in
a Reply Brief, absent a showing of good cause explaining why the argument
could not have been presented in the Principal Brief); Ex parte Borden,
93 USPQ2d 14 73, 14 77 (BP AI 2010) (informative) ("Properly interpreted,
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the Rules do not require the Board to take up a belated argument that has not
been addressed by the Examiner, absent a showing of good cause.").
Even were that not so, Appellants have provided no evidence to
support the purported distinction between a "probability of delivery" and a
"level of confidence," which is generally understood to refer to a measure of
the reliability of a result, expressed as a probability. See COLLINS ENGLISH
DICTIONARY, HarperCollins Publishers (2012), accessed at
http://www.dictionary.com/browse/confidence-level (last visited July 1,
2016). Attorney argument cannot take the place of evidence in the record.
See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
In view of the foregoing, we sustain the Examiner's rejection of
claim 7 under 35 U.S.C. § 103(a).
Dependent claim 25
Claim 25 depends from claim 1, and recites that the method further
comprises "associating a source of the transportation asset data with the first
geographical location."
In rejecting claim 25 under 35 U.S.C. § 103(a), the Examiner cites the
abstract of Wied as disclosing "associat[ing] a source of the transportation
asset data with the first geographical location" (Final Act. 16). Appellants
argue that "[t]he final action does nothing more than cite the above
mentioned abstract" and "articulates no reasoning as to how the cited
abstract support its conclusion" and further that the "cited abstract of Wied
fails to disclose or suggest associating a source of transportation asset data
with the first geographical location" (App. Br. 22).
Wied is directed to an internet-based method for facilitating
commerce between shippers and carriers, and discloses that shipment
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requests, including shipment specific criteria and carrier access criteria, are
captured and stored in a database; the shipment requests are presented for
action to remote carriers meeting the carrier access criteria, and these
carriers may reply with fulfillment offers responsive to the presented
shipment requests (Wied, Abstract).
As the Examiner observes, data assigning the vehicle of the carrier
that ultimately transacts with the shipper can reasonably be considered the
"transportation asset data," and the carrier itself may be considered the
"source of the transportation asset data," because the carrier provides the
carrier vehicle (Ans. 25). Wied matches the carrier to the shipper at the
shipper pickup point, i.e., the first geographical location," and, thus,
discloses "associating a source of the transportation asset data with the first
geographical location," as called for in claim 25.
In view of the foregoing, we sustain the Examiner's rejection of
claim 25 under 35 U.S.C. § 103(a).
Dependent claims 2, 5, 8-16, 18-24, and 26
Appellants do not present any arguments in support of the separate
patentability of any of dependent claims 2, 5, 8-16, 18-24, and 26.
Therefore, we sustain the Examiner's rejections of these claims under
35 U.S.C. § 103(a).
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DECISION
The Examiner's rejections of claims 1-26 under 35 U.S.C. § 103(a)
are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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