Ex Parte Schunder et alDownload PDFPatent Trial and Appeal BoardMar 31, 201613030504 (P.T.A.B. Mar. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/030,504 02/18/2011 28395 7590 04/04/2016 BROOKS KUSHMAN P,CJFG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Mark Schunder 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. 83169763 2842 EXAMINER ISHIZUKA, YOSHIHISA ART UNIT PAPER NUMBER 2865 NOTIFICATION DATE DELIVERY MODE 04/04/2016 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK SCHUNDER, STEVEN JOSEPH SZW ABOWSKI, DIMITAR PETROV FILEV, and PERRY ROBINSON MACNEILLE1 Appeal2014-006696 Application 13/030,504 Technology Center 2800 Before: N. WHITNEY WILSON, WESLEY B. DERRICK, and JULIA HEANEY, Administrative Patent Judges. DERRICK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner's maintained final rejection of claims 1-20. We have jurisdiction pursuant to 35 U.S.C. § 6. We AFFIRM-IN-PART. BACKGROUND Appellants' invention relates to a computer-implemented method of gathering data from a plurality of weather sensors included with vehicles in communication with a vehicle network. Spec. Abstract. 1 Appellants identify Ford Global Technologies, LLC as the Real Party in Interest. Appeal Brief (filed January 13, 2013, "Br."), 2. Appeal2014-006696 Application 13/030,504 Independent claims 1, 10, and 16 are illustrative: 1. A computer-implemented method comprising: querying, via a vehicle computing system (VCS), a plurality of vehicle weather sensors in communication with a vehicle network; for each sensor, determining whether current driving parameters will result in accurate sensor data; storing the data from each sensor when current driving conditions will result in accurate sensor data from that sensor; and sending, from the VCS to a remote network, data from the sensors and current vehicle GPS coordinates . 10. A computer-implemented method comprising: receiving, at a server, a weather report request from a vehicle computing system (VCS), including requesting vehicle GPS coordinates; gathering, via a server-implemented gathering process, a plurality of data-points, corresponding to weather data reported from other vehicles at a time in close proximity to a present time, and wherein the other vehicles reported the data from coordinates \"1ithin a close proximity to the included GPS coordinates; aggregating, via one or more server-implemented aggregation processes, the data to form a weather prediction for the included GPS coordinates; and reporting the weather prediction to the vehicle computing system from the server. 16. A computer-implemented method of providing predictive weather data comprising: receiving, at a server, a request for a weather report from a vehicle computing system, the request including GPS coordinates of a requesting vehicle, a current heading of the requesting vehicle, a current speed of the requesting vehicle, and a future time or location or both for which a weather report is requested; 2 Appeal2014-006696 Application 13/030,504 estimating a location of the vehicle at the future time, if the location for which the weather report was requested was not provided, or estimating a time at which the vehicle will reach the future location, if the future time for which the weather report was requested is not included; gathering, via one or more server-implemented gathering processes, a plurality of points of data, from a database, the points of data corresponding to weather data reported from other vehicles at a time in close proximity to a present time, and wherein the other vehicles reported the data from coordinates within a close proximity to the estimated location of the vehicle at the future time or the included location for which a weather report is requested; aggregating, via one or more server-implemented aggregation processes, the data to form a weather prediction for the included GPS coordinates; and reporting the weather prediction to the vehicle computing system from the server. Br. Claims Appendix 1-3 (emphasis added). THE REJECTIONS The Examiner maintains the rejection of claims 8 and 9 under 35 U.S.C. § 112, second paragraph as being indefinite. The Examiner maintains the rejection of claims 10 and 13-20 under 35 U.S.C. § 102(b) as anticipated by Brulle-Drews.2 The Examiner maintains rejections under 35 U.S.C. § 103(a) of claims 1-8 over Brulle-Drews in view of Jain, 3 claims 11 and 12 over Brulle-Drews in view of Balan, 4 and claim 9 over Brulle-Drews in view of Jain and Nakajima.5 2 Brulle-Drews, US 2005/0187714 Al, published August 25, 2005. 3 Jain et al., US 2010/0286899 Al, published November 11, 2010. 4 Balan et al., US 2009/0093236 Al, published April 9, 2009. 5 Nakajima, US 2010/0163220 Al, published July 1, 2010. 3 Appeal2014-006696 Application 13/030,504 DISCUSSION 6 Upon consideration of the evidence and opposing contentions of the Appellants and the Examiner, we are persuaded the Examiner erred reversibly in rejecting claim 13 as anticipated by Brulle-Drews and in rejecting claims 1-8 and 9 as unpatentable for obviousness over Brulle- Drews in view of Jain and Nakajima. We are unpersuaded, however, that the Examiner erred reversibly in rejecting claims 8 and 9 as indefinite, in rejecting claims 10 and 14-20 as anticipated by Brulle-Drews, or in rejecting claims 11 and 12 as unpatentable for obviousness over Brulle-Drews in view of Balan. We add the following. Rejection under 35 U.S. C. § 112, second paragraph - claims 8 and 9 The Examiner determines the phrase "the driving parameters" in claims 8 and 9 renders the claims indefinite because they do not necessarily relate to "current driving parameters" of claim 1. Final Act. 2-3; Ans. 2. Appellants argue that "current driving parameters" in claim 1 constitutes a sufficient antecedent basis for "the driving parameters" such that claims 8 and 9 are not indefinite. Br. 6. Section 112 requires that the "[t]he specification ... conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 U.S.C. § 112, second paragraph. "As the statutory language of 'particular[ ity]' and 'distinct[ ness]' indicates, claims are required to be cast in clear-as opposed 6 We refer to the Final Office Action (mailed August 9, 2013, "Final Act."), the Appeal Brief (filed January 13, 2014), and the Examiner's Answer (mailed March 17, 2014, "Ans."). 4 Appeal2014-006696 Application 13/030,504 to ambiguous, vague, indefinite-terms." Jn re Packard, 751F.3d1307, 1313 (Fed. Cir. 2014). Our reviewing court has held that when the USPTO has initially issued a well-grounded rejection that identifies ways in which the language in a claim is ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention, and thereafter the applicant fails to provide a satisfactory response, the USPTO can properly reject the claim as failing to meet the statutory requirement the claims be definite. Id. at 1313-14. The court explained a satisfactory response can take the form of modification of the language identified as unclear, a separate definition of the unclear language, or, in appropriate circumstances, "persuasive explanation for the record of why the language at issue is not actually unclear." Id. at 1311. On this record, we find Appellants' response falls short where claims 8 and 9, by omitting the adjective current (claims 8 and 9), includes language the Examiner reasonably determines is ambiguous, vague, incoherent, opaque, or otherwise unclear. Appellants have not persuasively explained why the word "current" is not included in claims 8 and 9. Accordingly, we affirm the indefiniteness rejection. Cf In re Am. Acad. of Sci. Tech. Ctr, 367 F.3d 1359, 1364 (Fed. Cir. 2004) (appeal from reexamination proceeding) ("Construing claims broadly during prosecution is not unfair to the applicant (or, in this case, the patentee), because the applicant has the opportunity to amend the claims to obtain more precise claim coverage."). 5 Appeal2014-006696 Application 13/030,504 Rejection under 35 U.S. C. § 102(b) - claims 10 and 13-20 Appellants argue the claims together, proffering a separate argument only as to claim 13. Br. 6-7. Accordingly, we decide claims 10 and 14-20 on the basis of claim 10 and separately decide claim 13. Claims 10 and 14-20 The Examiner finds Brulles-Drews discloses a computer-implemented method meeting the limitations of claim 10, including collecting weather and location data from multiple vehicles in a region, aggregating collected weather data to provide weather predictions for included locations, and providing a local view of weather conditions to a vehicle operator based on the operator's location. Final Act. 3--4 (citing Brulles-Drews Abstract, ,-i 16); Ans. 3. Appellants argue paragraph 16 of Brulles-Drews is silent as to the data gathered from other vehicles being sufficiently current to be "' [] at a time in close proximity to a present time"' and so "could be quite old by the time it is reported to the vehicle, or could represent a combination of both new and old information." Br. 6. We find Appellants' argument unpersuasive because it is well established that in evaluating references "it is proper to take into account not only the specific teachings of the references but also the inferences that one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401F.2d825, 826 (CCPA 1968) (citation omitted). In particular, we find the inference that data used for providing weather conditions and forecasts along a travel route would include that from "a time in close proximity to a present time" to be well-founded. Ans. 3. 6 Appeal2014-006696 Application 13/030,504 As to the data being "a combination of both new and old information" (Br. 6), Appellants' argument is without persuasive merit. We conclude- upon careful consideration of the Specification-that claim 10 setting forth a method comprising the recited steps-including the step of aggregating data-does not exclude including non-current data with the current data. See, e.g., In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) ("[T]he PTO must give claims their broadest reasonable construction consistent with the specification .... Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.") (citation omitted). We find no basis in the Specification for "a combination of both new and old information" not being an aggregation of new information. For these reasons, we are unpersuaded of reversible error in the Examiner's anticipation rejection of claims 10 and 14-20. Claim 13 Claim 13 adds the further limitation of "weighting the data based on the proximity of GPS coordinates." Appellants argue there is no mention of weighting in Brulle-Drews. (Br. 6-7), The Examiner relies on a broad interpretation of the term "weighting" being met by data being included or not. Ans. 3--4 (citing Brulle-Drews ,-i,-i 16, 24). The Examiner's interpretation of weighting as merely including or not including data is not reasonable. In the Specification, different data that is included in the aggregation is given different weight in weighting the data. See, e.g., Spec. ,-i,-i 41, 72, 75, 90. Further, in claim 13, the data that is weighted is the data that is gathered in claim 10 on the basis of proximity to included GPS coordinates (claims 10, 13) such that there would be no 7 Appeal2014-006696 Application 13/030,504 apparent further limitation to the claimed subject matter by claim 13 if the Examiner's broad interpretation were adopted. For these reasons, we find the Examiner erred in the interpretation of the claim term weighting and, accordingly, we reverse the Examiner's anticipation rejection of claim 13. Rejections under 35 U.S. C. § 103(a) - claims 1-9, 11, and 12 Appellants argue claims 1-8 together on the basis of claim 1 and rely on the dependence of claim 9 from claim 1. Br. 7-8. Similarly, Appellants rely on the dependence of claims 11 and 12 from claim 10. Br. 8. Claims 11 and 12 Appellants contend Balan fails to cure the argued deficiencies of Brulle-Drews with respect to the rejection of claim 10. Br. 7. Having not been persuaded that the Examiner erred in finding Brulle-Drewes anticipates claim 10, it cannot be said that Appellants have identified reversible error in the Examiner's determination that the preponderance of evidence weighs in favor of obviousness of the subject matter recited in claims 11 and 12 within the meaning of 35 U.S.C. §103(a). In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, the Board would not have erred in framing the issue as one of reversible error because it has long been the Board's practice to require an appellant to identify the alleged error in the Examiner's rejections). Claims 1-9 The Examiner relies on Brulle-Drews for the bulk of the limitations of claim 1, but relies on Jain's disclosure as to the limitation that "for each sensor, determining whether current driving parameters will result in accurate sensor data ... when current driving conditions will result in 8 Appeal2014-006696 Application 13/030,504 accurate sensor data from that sensor." Final Act. 7-9 (citing Brulle-Drews Fig. 1, iii! 17, 19, 23-25 and Jain iii! 6, 11); Ans. 4-5 (citing Jain iii! 6, 76). As to Jain's paragraph 6, the Examiner finds that "Jain teaches that data from vehicle probes that is not comprehensive enough to provide satisfactory results may be used to improve the quality of other data. Therefore Jain teaches determining if a sensor is accurate or not." Ans. 5. The Examiner relies on modifying Brulle-Drews in accordance with Jain's teaching. Final Act. 8-9; Ans. 4-5. Appellants contend the Examiner has failed to establish a prima facie case of obviousness because there is no teaching or suggestion of "determining whether or not current driving parameters result in accurate sensor data." Br. 7. Having considered the record, we find Appellants' position well- founded. We find Jain's disclosure, particularly that relied on by the Examiner, describes how vehicle sensor data can be used to improve the quality of other data thereby improving accuracy and how vehicle sensor data is generally more accurate, but is wholly silent as to determining whether a sensor is accurate or not. See, e.g., Jain 6, 7, 11, 76. We decline to scour the record in the first instance for facts that might support the rejection, as our primary role is review, not examination de novo. It follows, therefore, that we reverse the Examiner's rejection of claims 1-8 over Brulle-Drews in view of Jain and of claim 9 over Brulle- Drews in view of Jain and Nakajima. 9 Appeal2014-006696 Application 13/030,504 CONCLUSION The Examiner's rejection of claims 8 and 9 under 35 U.S.C. § 112, second paragraph is AFFIRMED. The Examiner's rejection of claims 10 and 14-20 under 35 U.S.C. § 102(b) is AFFIRMED. The Examiner's rejection of claims 11 and 12 under 35 U.S.C. § 103(a) is AFFIRMED. The Examiner's rejection of claim 13 under 35 U.S.C. § 102(b) is REVERSED. The Examiner's rejection of claims 1-9 under 35 U.S.C. § 103(a) is REVERSED. AFFIRMED-IN-PART 10 Copy with citationCopy as parenthetical citation