Ex Parte THROOP et al

Patent Trial and Appeal Board

Jul 26, 2018

14594520 (P.T.A.B. Jul. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/594,520 01/12/2015
28395 7590 07/30/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Medville Jay THROOP
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.
83492849 8619
EXAMINER
MUSTAFA, IMRAN K
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
07/30/2018 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 MEDVILLE JAY THROOP, LEIGHTON BARNES,
DOUGLAS B. THORNBERG, BRIAN DAVID TILLMAN, and
JOHN WILLIAM SCHMOTZER
Appeal2017-010757
Application 14/594,520
Technology Center 3600
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ford Global Technologies, LLC ("Appellant") 1 appeals under
35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-20,
which are all the pending claims. Appeal Br. (Cover Page). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Ford Global Technologies, LLC is the applicant, as provided in
37 C.F.R. § 1.46, and is identified as the real party in interest. Appeal Br. 1.
Appeal2017-010757
Application 14/594,520
CLAIMED SUBJECT MATTER
Appellant's disclosed invention relates to vehicle telematics. See
Spec. ,r 1. Claims 1, 7, and 12 are independent. Claim 1, reproduced below,
is illustrative of the subject matter on appeal.
1. A vehicle system comprising:
a vehicle electronic control unit (ECU) controlling a
vehicle subsystem and configured to
receive from a remote server via a vehicle
telematics unit (TCU), a parameter definition specifying
processing to be used by the ECU to generate a processed
parameter from a raw parameter generated by the ECU;
generate the processed parameter according to the
parameter definition based on the raw parameter; and
send the processed parameter to a vehicle data
buffer associated with the ECU for upload to the remote
server via the TCU.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Lightner
Basir
US 6,636,790 Bl
US 2008/0294302 Al
REJECTION
Oct. 21, 2003
Nov. 27, 2008
The following rejection is before us for review: Claims 1-20 stand
rejected under 35 U.S.C. § 103 as being unpatentable over Lightner and
Basir. Final Act. 2---6.
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ANALYSIS
Claims 1. 4. 6. 12. and 15-20
Appellant presents arguments against the rejection of independent
claim 1 (see Appeal Br. 5---6), and relies on the same arguments for
independent claim 12 (see id. at 7) and dependent claims 4, 6, and 15-20
(see id. at 9). We select claim 1 as representative of the issues that
Appellant presents together, with claims 4, 6, 12, and 15-20 standing or
falling with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
In rejecting claim 1, the Examiner found that Lightner discloses a
vehicle system including, inter alia, a vehicle electronic control unit (ECU)
"configured to receive from a remote server via a vehicle telematics unit
(TCU), a parameter definition (Column 3 lines 6-21 'Steps i)-iii) (i.e. the
'generating', 'transferring', and 'transmitting' steps) may be performed in
response to a signal sent from the host computer to the vehicle.')." Final
Act. 2-3 (boldface omitted). The Examiner acknowledged that "Lightner
does not explicitly disclose specifying processing to be used by the ECU to
generate a processed parameter from a raw parameter generated by the
ECU." Id. at 3. However, the Examiner found that
Basir teaches specifying processing to be used by the ECU to
generate a processed parameter from a raw parameter generated
by the ECU (Paragraph 11 "[T]he server 22 could also send a
request to the system 10 for information (such as a full upload of
all collected information, summaries, or other information). For
example, if the user reports that the vehicle 12 is stolen, then the
server 22 can send requests to the system 10 to transmit the
location, speed and heading of the vehicle 12.").
Id. (boldface omitted) ( quoting Basir ,r 11 ). The Examiner concluded that,
given the teachings of the prior art, it would have been obvious "to modify
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Lightner with the teachings [ of Basir] specifying processing to be used by
the ECU to generate a processed parameter from a raw parameter generated
by the ECU for the purpose of being able to get the type of data requested
from the vehicle." Id. at 4.
Appellant argues that the cited portion of Basir "does not disclose or
suggest at least 'a parameter definition specifying processing to be used by
the ECU to generate a processed parameter from a raw parameter generated
by the ECU,"' as recited in claim 1. Appeal Br. 6. According to Appellant,
"no 'parameter definition' is mentioned at all [in Basir ], let alone 'a
parameter definition specifying processing to be used by the ECU to
generate a processed parameter from a raw parameter generated by the ECU'
in the context of a 'parameter definition' that is received 'from a remote
server via a vehicle telematics unit (TCU). "' Id. This argument is not
persuasive.
In response to Appellant's argument, the Examiner explains that Basir
discloses that "the system may accumulate the data and then process the data
to generate summaries (statistics, and/or indication of events)," and "[t]he
summary is a processed parameter because it is not just raw sensor data but
rather processed data (i.e. statistics, averages, etc.)." Ans. 4 (citing Basir
,r 11 ). The Examiner takes the position that "one of ordinary skill in the art
should appreciate [that] a summary is not a raw parameter but rather a
processed parameter since[,] in order to arrive at a summary[,] data would
need to be to be collected and analyzed (processed) to generate a summary
of the raw data." Id. In this regard, Appellant further asserts that "the word
'summaries' does not specify any particular 'parameter definition' or
'processing to be used by the ECU to generate a processed parameter from a
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Application 14/594,520
raw parameter generated by the ECU' as recited in the context of claim 1."
Reply Br. 2. However, Appellant does not provide factual evidence or
persuasive technical reasoning to support this assertion and, thus, does not
persuasively refute the Examiner's reasoned position. See Final Act. 3
( citing Lightner, col. 2, 11. 16-21 regarding the parameter definition (i.e., the
processing to be performed) and Basir ,r 11 regarding specifying processing
to be used by the ECU to generate a processed parameter from a raw
parameter).
For the above reasons, Appellant does not apprise us of error in the
Examiner's determination that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and of claims 4,
6, 12, and 15-20 falling therewith, under 35 U.S.C. § 103 as being
unpatentable over Lightner and Basir.
Claim 5
Regarding dependent claim 5, Appellant asserts that "nothing in
claim 5 of Light[ n ]er relates to a 'processed parameter' at all, let alone to a
'unique identifier of the processed parameter."' Appeal Br. 8. This
conclusory assertion is unpersuasive, as it is little more than a recitation of
claim elements with a "naked assertion" that the elements are not found in
the cited portions of the prior art, and thus do not constitute separate
arguments for patentability pursuant to 37 C.F.R. § 4I.37(c)(l)(iv). See In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board had
reasonably interpreted the same language in the prior rule as requiring "more
substantive arguments in an appeal brief than a mere recitation of the claim
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elements and a naked assertion that the corresponding elements were not
found in the prior art").
Moreover, the Examiner clarifies in the Answer that "Lightner
discloses ... generating data that describes various vehicle parameters such
as vehicle mileage, exhaust emissions, engine performance, etc.," and "[i]t is
well known that data would have an identifier which identifies the data value
with the data type." Ans. 8; see also id. (explaining that "Lightner identifies
the raw data (miles, kilometers) with a corresponding identifier such as
miles driven"). In this regard, Appellant asserts that, "even assuming for
sake of argument that data types having an identifier is known, such a
statement still does not disclose or suggest 'wherein the parameter definition
includes a unique identifier of the processed parameter' in the context of the
claim." Reply Br. 3. However, Appellant does not offer factual evidence or
persuasive technical reasoning to refute the Examiner's position and, thus,
does not apprise of error in the rejection.
Accordingly, we sustain the rejection of claim 5 under 35 U.S.C.
§ 103 as being unpatentable over Lightner and Basir.
Claims 7 and 11
In contesting the rejection of independent claim 7, Appellant initially
relies on the same argument set forth with respect to independent claim 1.
See Appeal Br. 6. For the same reasons that Appellant's argument does not
apprise us of error in the rejection of claim 1, this argument likewise does
not apprise us of error in the rejection of claim 7.
Additionally, Appellant argues that the cited portions of Lightner do
not teach or suggest the recitations of claim 7. See Appeal Br. 6-7.
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Appellant asserts that "none of the cited data transfer mechanisms disclose
traversal of data from 'vehicle data buffers' to a 'TCU' over 'a dedicated
data-reporting vehicle network' at all." Id. at 6. According to Appellant,
"the Examiner continue[s] to ignore the word 'dedicated' in the 'dedicated
data-reporting vehicle network' language." Reply Br. 2. This argument is
unpersuasive.
In rejecting independent claim 7, the Examiner found that Lightner
discloses, inter alia, "a plurality of vehicle data buffers, each configured to
receive the processed parameters from the plurality of ECU s and send the
processed parameters to the TCU over a dedicated data-reporting vehicle
network." See Final Act. 5 (citing Lightner, col. 2, 11. 49---65). The
Examiner clarifies in the Answer that Lightner discloses "traversal of data
from vehicle data buffers to a TCU over a dedicated data reporting network
(Fig 1)." Ans. 5. According to the Examiner,
[ v ]ehicle data buffers[,] as interpreted by the [E]xaminer, are
data collection modules which transmit data ... along a network.
In this case[,] the vehicle data buffers are the data collection
modules. As disclosed in Lightner[,] the data collection modules
contain various data such as basic properties of the power train,
manufacturer specific information, etc. This data when queried
by an external system transmits the data to an external
network (Figure 1 ). The data is "traversed" from vehicle data
buffers[](data collector35a) to a TCU[](Figure 1[,] wireless
telephone network 60[]).
Id. In this regard, Appellant's argument does not specifically address or
identify error in the Examiner's finding that Lightner discloses vehicle data
buffers sending processed parameters to a TCU over a dedicated network.
See Final Act. 5; Ans. 5.
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For the above reasons, Appellant does not apprise us of error in the
Examiner's determination that the subject matter of claim 7 would have been
obvious. Accordingly, we sustain the rejection of claim 7, and its dependent
claim 11, for which Appellant relies on the same arguments (see Appeal
Br. 9), under 35 U.S.C. § 103 as being unpatentable over Lightner and Basir.
Claims 2. 3. 8-10. 13. and 14
Dependent claims 2 and 13 recite that "the processed parameter is a
down-sampled version of the raw parameter." Appeal Br. A-1, A-3 (Claims
App.) ( emphasis added). Dependent claim 8 similarly recites that "at least
one of the processed parameters is a down-sampled version of one of the raw
parameters." Id. at A-2 (Claims App.) (emphasis added). The other claims
in this group incorporate these limitations by virtue of their dependency. See
id. at A-1-A-3 (Claims App.). Appellant argues that Lightner, as relied
upon in the rejection, does not teach down-sampling raw parameters. See id.
at 7-8; Reply Br. 3. We agree that the Examiner has not sufficiently
identified credible evidence that Lightner teaches the disputed limitation.
In rejecting claims 2, 8, and 13, the Examiner found that Lightner
discloses a processed parameter that is a down-sampled version of the raw
parameter. See Final Act. 4, 6 ( citing Lightner, col. 3, 11. 6-21 ). The
Examiner explains that one of ordinary skill in the art would recognize that
down-sampling is "reducing the sampling rate of a signal." Ans. 6.
According to the Examiner, Lightner discloses steps that "can be performed
at any time and with any frequency depending on the particular diagnosis
being performed" (id. at 6-7), and "Lightner gives the example[s] of a high
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sampling rate such as an engine performance and of a low sampling rate
[ such as] a smog test" (id. at 7).
Although we appreciate the Examiner's observation that "[ s Jome
diagnos[ e ]s would require a high sampling rate and some would not require
a high sampling rate" (id.), the Examiner does not point to, nor do we
discern, sufficient disclosure in Lightner of actually "reducing the sampling
rate of a signal" (id. at 6 (emphasis added)). The fact that Lightner discloses
examples of diagnoses that would require high and low sampling rates does
not support the Examiner's speculative position that "down sampling of data
would be required." Id. at 7 (emphasis added). In other words, to the extent
that some types of diagnoses disclosed by Lightner may require lower
sampling rates the others, such a fact does not establish that Lightner's raw
parameter data is processed into a down-sampled version (i.e., a raw
parameter having a first sampling rate is processed to have a lower sampling
rate, as the claims require).
Thus, the Examiner has not established a finding supported by a
preponderance of the evidence that Lightner, as relied upon in the rejection
presented, teaches or suggests the disputed limitation. Also, the Examiner
did not articulate any reason why it might have been obvious to modify
Lightner to include processing raw parameter data into a down-sampled
version. See Final Act. 4. Rejections based on obviousness must rest on a
factual basis; in making such a rejection, the Examiner has the initial burden
of supplying the requisite factual basis and may not, because of doubts that
the invention is patentable, resort to speculation, unfounded assumptions, or
hindsight reconstruction to supply deficiencies in the factual basis. See In re
Warner, 379 F.2d 1011, 1017 (CCPA 1967).
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Accordingly, based on the record before us, the Examiner has not met
the burden of establishing a proper case that the claims are unpatentable
based on the cited references. On this basis, we do not sustain the rejection
of claims 2, 3, 8-10, 13, and 14 under 35 U.S.C. § 103 as being unpatentable
over Lightner and Basir.
DECISION
The Examiner's decision rejecting claims 1-20 under 35 U.S.C. § 103
as being unpatentable over Lightner and Basir is AFFIRMED as to claims 1,
4--7, 11, 12, and 15-20, and is REVERSED as to claims 2, 3, 8-10, 13,
and 14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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