Ga¿tan MartensDownload PDFPatent Trials and Appeals BoardOct 30, 201913932067 - (D) (P.T.A.B. Oct. 30, 2019) Copy Citation 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. 13/932,067 07/01/2013 Gaëtan Martens 2092/US 7771 75090 7590 10/30/2019 TOMTOM INTERNATIONAL B.V. IP Creation De Ruyterkade 154 AMSTERDAM, 1011 AC NETHERLANDS EXAMINER ALMANI, MOHSEN ART UNIT PAPER NUMBER 2159 NOTIFICATION DATE DELIVERY MODE 10/30/2019 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): patents@tomtom.com tony@parklegal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GAËTAN MARTENS ____________ Appeal 2018-009100 Application 13/932,067 Technology Center 2100 ____________ Before JOSEPH L. DIXON, JAMES W. DEJMEK, and STEPHEN E. BELISLE, Administrative Patent Judges. BELISLE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1, 3–11, 16, and 18–23, but appeals only rejected claims 1, 3, 6, 16, 19, and 23. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2017). Appellant identifies the real party in interest as TomTom Global Content, B.V. App. Br. 1. Appeal 2018-009100 Application 13/932,067 2 STATEMENT OF THE CASE The Claimed Invention Appellant’s invention generally relates to “methods of identifying locations at which discrepancies or deviations exist between real world features and digital map data intended to represent those features.” Spec. 1:10–11. Claim 1, reproduced below, is representative of the subject matter on appeal: 1. A method for identifying discrepancies in digital map data, comprising: selecting one or more candidate locations as a subset of locations within positional data relating to the movement of a plurality of devices with respect to time in an area; determining a distribution of travel directions of the devices at each one of the candidate locations as a directional histogram, the directional histogram comprising a plurality of bins, each bin being associated with a different travel direction for traversal of the candidate location, and each bin storing a representation of a number of devices that traversed the candidate location in a corresponding travel direction; allocating each of the candidate locations to one or more predetermined categories based upon the directional histogram at each candidate location; and comparing the candidate locations against a database of map data and identifying locations of possible discrepancies in the digital map data based upon the category of each candidate location. App. Br. 19 (Claims Appendix). Appeal 2018-009100 Application 13/932,067 3 The Applied References The Examiner relies on the following references as evidence of unpatentability of the claims on appeal: Johnson US 2010/0256903 A1 Oct. 7, 2010 Porikli US 2012/0207384 A1 Aug. 16, 2012 Janssen, S.T.M.C., Design and Classification of Roads From the Viewpoint of Driving Task Analysis, Institute for Road Safety Research SWOV, The Netherlands (1976) (“Janssen”). The Examiner’s Rejections The Examiner made the following rejections of claims 1, 3–11, 16, and 18–23, and those of claims 1, 3, 6, 16, 19, and 23 are on appeal: Claims 1, 3–11, 16, and 19–23 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Johnson and Porikli. Final Act. 2–12. Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Johnson, Porikli, and Janssen. ANALYSIS2 Appellant disputes the Examiner’s finding that Johnson and Porikli render obvious claims 1, 3, 6, 16, 19, and 23 (of finally rejected claims 1, 3– 11, 16 and 19–23), including independent claims 1, 16, and 19. App. Br. 3, 9–18; Reply Br. 2–3. Appellant does not appeal the Examiner’s finding that 2 Throughout this Decision, we have considered Appellant’s Appeal Brief filed December 3, 2017 (“App. Br.”); Appellant’s Reply Brief filed September 24, 2018 (“Reply Br.”); the Examiner’s Answer mailed July 23, 2018 (“Ans.”); the Final Office Action mailed May 24, 2017 (“Final Act.”); and Appellant’s Specification filed July 1, 2013 (“Spec.”). Appeal 2018-009100 Application 13/932,067 4 Johnson, Porikli, and Janssen render obvious dependent claim 18. App. Br. 3. Appellant argues the appealed claims in three groups, namely (i) independent claims 1, 16, and 19, (ii) dependent claims 3 and 23, and (iii) dependent claim 6. See App. Br. 9–18. Thus, for purposes of our analysis, we select independent claim 1 and dependent claims 3 and 6 as representative claims, and any claim not argued separately will stand or fall with our analysis of the rejection of claims 1, 3, or 6. See 37 C.F.R. § 41.37(c)(1)(iv). Independent Claim 1 Appellant argues “Johnson does not describe or suggest . . . anything like determining a distribution of travel directions at candidate location[s], particularly as a histogram.” App. Br. 10–11. Appellant also argues “Johnson has collections/clusters of similar off-route data, but does not have the functional equivalent of the distribution of travel directions for candidate locations.” Id.; see Reply. Br. 2–33 (“Johnson does collect off- route data into groups for analysis. Johnson does not ‘determine a distribution of travel directions of the devices at each one of the candidate locations.’”). Appellant further argues “[w]ithout the directional histograms for the distribution of travel directions at each one of the candidate locations, it is not possible that Johnson describes an allocating operation based upon the directional histograms for the distribution of travel directions.” App. Br. 11. 3 Appellant’s Reply Brief on record does not contain the required signature and patent practitioner registration number. See 37 C.F.R §§ 1.4, 1.33(b), 11.18. Appeal 2018-009100 Application 13/932,067 5 The Examiner responds Johnson teaches all limitations as recited in claim 1, except for the “histogram” feature, but Porikli teaches that feature, and it would have been obvious to the skilled artisan to modify Johnson based on knowledge of “histograms” as known data structures to arrive at the invention of claim 1. See Ans. 3–10. In particular, the Examiner finds Johnson teaches, inter alia: (a) “[I]dentifying a location representing an off-route occurrence by analyzing GPS data generated by vehicles that in certain time and certain location rerouted from a planned route.” Ans. 4 (citing, e.g., Johnson ¶ 24 (“[T]he off-route data includes vehicle data necessary to determine both its location and heading.”)). (b) Determining “a distribution of travel directions of vehicles by distributing off-route occurrences/number of vehicles rerouted in a location from a planned route to a particular cluster/bin which is associated with the direction of the rerouted vehicles. In other words, each cluster/bin represents at least a location where a number of off-route [occurrences] occurred in [a] certain travel direction.” Ans. 5 (citing, e.g., Johnson ¶ 27 (“[A] cluster can be defined as a set of off-route occurrences for which the associated vehicles have a location and heading that each meet a pre- established requirement.”)). (c) “[A] plurality of clusters/bins, each cluster being associated with a different travel direction for traversal of the candidate location, and each cluster storing a representation of a number of devices that traversed the candidate location in a corresponding travel direction.” Ans. 6. We agree with and adopt as our own the Examiner’s findings and conclusions in the Final Action and Answer concerning claim 1, including Appeal 2018-009100 Application 13/932,067 6 those listed above, and find Appellant’s arguments as to claim 1 unpersuasive of Examiner error. In particular, we agree that Johnson teaches identifying off-route occurrences of devices and distributing data (including location and heading or travel direction data) concerning each such occurrence into data clusters or bins for further analysis. See Johnson ¶¶ 24– 27. Johnson’s data clusters define “a set of off-route occurrences for which the associated vehicles have a location and heading that each meet a pre- established requirement.” Johnson ¶ 27. As such, Johnson’s clusters may include multiple clusters defined by the same location but different headings or travel directions to which Johnson assigns or distributes off-route occurrences. Based on the foregoing, we find Appellant does not show persuasively that the Examiner erred in finding that the combination of Johnson and Porikli teaches “determining a distribution of travel directions of the devices at each one of the candidate locations,” as broadly recited in claim 1. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (During prosecution, an application’s claims are given their broadest reasonable scope consistent with the specification.). Moreover, contrary to Appellant’s statement (App. Br. 9), Appellant argues against Johnson and Porikli individually (App. Br. 9–14), and then concludes “neither Johnson nor Porikli separately describe or suggest the independent claims. There is further no combination of Johnson and Porikli that describes or suggests the independent claims” (App. Br. 14; see Reply Br. 2–3). One cannot show nonobviousness by attacking references individually where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Also, we find Appellant’s conclusory Appeal 2018-009100 Application 13/932,067 7 attorney argument concerning the combination of Johnson and Porikli unpersuasive of Examiner error. Indeed, it is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). Accordingly, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of independent claim 1. For similar reasons, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of independent claims 16 and 19, which recite commensurate limitations and were not argued separately. Additionally, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of claims 4, 5, 7–11, and 20–22, which depend therefrom and were not argued separately.4 Dependent Claims 3 and 23 Appellant argues “Porikli does not describe or suggest the language of dependent claims 3 and 23.” App. Br. 15. In particular, Appellant argues “Porikli . . . is limited to using the mean of the gradients to reorient histogram bins . . . . Porikli, aside from the superficial use of some of the same general terms, does not describe or suggest an operation that is equivalent to the operation in dependent claims 3 and 23.” App. Br. 16. 4 The Examiner should consider whether, in light of the recent Office Guidance concerning subject matter eligibility, the claims satisfy 35 U.S.C. § 101 or are instead directed, for example, to sorting data (e.g., travel directions) into bins to form a directional histogram, i.e., mathematical concepts (e.g., mathematical relationships, formulas, equations, or calculations) and, therefore, an abstract idea. Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See MPEP § 1213.02. Appeal 2018-009100 Application 13/932,067 8 The Examiner responds “[t]here is no computational detail or specific computational requirement associated with ‘determining a rotation invariant histogram based upon the directional histogram’ in claim 3.” Ans. 11. The Examiner finds “[c]laim 3 simply adds another term ‘a rotation invariant histogram’ to be determined based on ‘the directional histogram’ without any specific detail how a rotation invariant histogram is determined from a count value.” Ans. 11. The Examiner explains “Porikli is used for showing that a histogram is just a data structure that can be used alternatively for representing selected data points that have associated direction determined by a decision function of a classifier.” Ans. 11–12 (citing Porikli ¶¶ 86–90). The Examiner finds “Porikli also shows . . . how a value in [a] histogram bin can be represented as [a] rotation invariant of the value” (Ans. 12 (citing Porikli ¶ 90 (“[T]he histogram bins are reoriented accordingly . . . to achieve the rotation invariance of the descriptor.”))), “and this is what claim 3 requires, determining a rotation of a value that is included in a histogram bin” (Ans. 12). Appellant’s Reply Brief does not address these findings and conclusions by the Examiner. See generally Reply Br. We agree with and adopt as our own the Examiner’s findings and conclusions in the Final Action and Answer concerning claim 3, including those listed above, and find Appellant’s arguments as to claim 3 unpersuasive of Examiner error. In particular, we agree with the Examiner that Porikli teaches that histograms are data structures that can be used as an alternative for representing selected data points, and that such a data structure also can be represented in a rotation invariant form, so as to provide a rotation invariant histogram. See Ans. 11–12; Porikli ¶¶ 86–90. Furthermore, Appellant’s argument as to claim 3 merely repeats disclosure Appeal 2018-009100 Application 13/932,067 9 in Porikli and then asserts Porikli does not describe or suggest the language of dependent claims 3, without substantive explanation as to why the combination of Johnson and Porikli do not do so. We find such an argument unpersuasive. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Based on the foregoing, we find Appellant does not show persuasively that the Examiner erred in finding that the combination of Johnson and Porikli discloses “determining a rotation invariant histogram based upon the directional histogram,” as broadly recited in claim 3. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364. Accordingly, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of dependent claim 3. For similar reasons, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of dependent claim 23, which recites commensurate limitations and was not argued separately. Dependent Claim 6 Appellant argues “Johnson does not describe or suggest the language of dependent claim 6.” App. Br. 17. In particular, Appellant argues Johnson “has nothing to do with” the limitations of claim 6, and “does not mention proximate candidate locations, associations between proximate candidate locations . . ., and/or some determination of associations of locations based on a distribution of travel directions at each location.” App. Br. 17. We find Appeal 2018-009100 Application 13/932,067 10 Appellant’s argument unpersuasive, because Appellant merely recites the language of claim 6 and makes a naked assertion that Johnson does not mention that language. See 37 C.F.R. § 41.37(c)(1)(iv); In re Lovin, 652 F.3d at 1357. Regardless, the Examiner finds Johnson discloses “a new and/or moved road is identified by determining the distance and heading of each re- route occurrence in a cluster to the distance and heading of the nearest road segment in a map database,” and this teaches determining an association between proximate candidate locations based upon the distribution of travel directions at each candidate location. Final Act. 9 (quoting Johnson ¶ 33). We agree, and note that Johnson teaches associating clusters with various road conditions (see Johnson ¶ 34 (“The clusters can also be associated with other road conditions.”)), and determining whether an association exists between off-route occurrences at different locations (see Johnson ¶ 28 (“[I]f the two points do not pass this threshold distance test, then it is assumed that all other off-route data positioned beyond this point in the ordered list will also not pass this threshold distance test and so for those points the additional tests (comparisons) need not be made.”)). Based on the foregoing, we find Appellant does not show persuasively that the Examiner erred in finding that the combination of Johnson and Porikli teaches “determining an association between proximate candidate locations based upon the distribution of travel directions at each candidate location,” as broadly recited in claim 6. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364. Accordingly, we sustain the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of dependent claim 6. Appeal 2018-009100 Application 13/932,067 11 CONCLUSION Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3–11, 16, 19–23 103 Johnson, Porikli 1, 3–11, 16, 19–23 18 103 Johnson, Porikli, Janssen 18 Overall Outcome 1, 3–11, 16, 18–23 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation