Sergio de Oliveira et al.

Patent Trials and Appeals Board

Jun 25, 2020

2019007016 (P.T.A.B. Jun. 25, 2020)

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.
14/147,180 01/03/2014 Sergio Schulte de Oliveira CRN 687 PA2 2819
29673 7590 06/25/2020
STEVENS & SHOWALTER LLP
7019 CORPORATE WAY
DAYTON, OH 45459-4238
EXAMINER
GOLDBERG, IVAN R
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
PTO@sspatlaw.com
ssllp@speakeasy.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SERGIO SCHULTE DE OLIVEIRA, ROBERT J. KELLEY,
BENJAMIN J. PURRENHAGE, and PHILIP W. SWIFT1
____________

Appeal 2019-007016
Application 14/147,180
Technology Center 3600
____________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.

NEW, Administrative Patent Judge.

DECISION ON APPEAL

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Crown Equipment Corporation as the
real party-in-interest. App. Br. 1.

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SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Non-Final Rejection of claims 1–8 and 10–22.
Specifically, claims 1, 2, 4–6, and 16–22 stand rejected as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of
Wellman (US 2008/0154712 A1, June 26, 2008) (“Wellman”), Kote et al.
(US 2012/022642 A1, September 6, 2012) (“Kote”), and Storzum et al. (US
2009/0063238 A1, March 5, 2009) (“Storzum”).
Claims 3, 10, and 12 stand rejected as unpatentable under 35 U.S.C.
§ 103(a) as being obvious over the combination of Wellman, Kote, Storzum,
and Hulen et al. (US 2006/0161471 A1, July 20, 2006) (“Hulen”).
Claims 7, 8, 11, 13, and 14 stand rejected as unpatentable under 35
U.S.C. § 103(a) as being obvious over the combination of Wellman, Kote,
Storzum, and Adendorff et al. (US 2005/0071737 A1, March 31, 2005)
(“Adendorff”).
Claim 15 stands rejected as unpatentable under 35 U.S.C. § 103(a) as
being obvious over the combination of Wellman, Kote, Storzum, and
Williams et al. (US 2008/0125933 A1, May 29, 2008) (“Williams”).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

NATURE OF THE CLAIMED INVENTION
Appellant’s claimed invention is directed to a method and system of
measuring industrial vehicle activity based upon operator performance by
evaluating a current state of performance measures from across multiple data
domains. Spec. Abstr. ¶¶ 5, 6.
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REPRESENTATIVE CLAIM
Independent claim 1 is representative of the claims on appeal and
recites:
1. A method of measuring industrial vehicle activity based
upon operator performance, the method comprising:

customizing an operator-specific performance profile
instance for a vehicle operator of an industrial vehicle, the
operator-specific performance profile instance having a
performance measure characterized by a rule that defines how to
measure industrial vehicle activity associated with a
predetermined vehicle task;

defining a window that limits a scope of data that can
contribute to evaluating a current state of the operator-specific
performance profile instance; and

updating continuously, the current state of the operator-
specific performance profile instance by:

automatically collecting industrial vehicle usage
information during the defined window as the industrial vehicle
is used in operation;

linking an identification of the vehicle operator of the
industrial vehicle to the industrial vehicle usage information;

querying at least one data source to retrieve task records
associated with the predetermined vehicle task of the
performance measure within the defined window;

utilizing the retrieved task records to verify and select the
industrial vehicle usage data that is linked to the identification
of the vehicle operator and that is needed to evaluate the
performance measure according to the associated rule; and

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processing the performance measure of the operator-
specific performance profile instance utilizing the selected
industrial vehicle usage data according to the associated rule;

generating at least one score based upon the evaluated
operator-specific performance profile instance; and

wirelessly transmitting, to the industrial vehicle, data
representing at least a portion of the current state of the
operator-specific performance profile instance for display on a
vehicle display device as a graphical representation of a
progress meter such that the current state of the operator-
specific performance profile instance is dynamically updated in
real-time.

App. Br. 30–31.

ISSUES AND ANALYSIS
Appellant argues all of the claims together. See App. Br. 29. We
agree with, and expressly adopt, the Examiner’s findings, reasoning, and
conclusion that the claims are prima facie obvious over the combined cited
prior art. We address below the arguments raised by Appellant.

Issue 1
Appellant argues that the Examiner erred in finding the combined
cited prior art references teach or suggest the limitation of claim 1 reciting
an: “operator-specific performance profile instance having a performance
measure characterized by a rule that defines how to measure industrial
vehicle activity associated with a predetermined vehicle task.” App. Br. 19.

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Analysis
The Examiner finds that Wellman teaches a method of measuring the
performance of an industrial vehicle operator including a customized work
environment that automatically configures performance characteristics and
other industrial vehicle related parameters based upon a received operator
logon. Non-Final Act. 5. The Examiner finds that Wellman teaches that
“[t]he system may also provide statistics and/or other feedback on operator
efficiency and/or improvements so that new operators can actively monitor
whether they understand their assigned tasks, the usage of the [industrial
vehicle] and to confirm that they are developing their skill at an appropriate
target rate.” Id. at 12. The Examiner finds that Wellman further teaches that
the system may provide an operator rating based upon actual-monitored
measures of operator capabilities, by monitoring and logging the industrial
vehicle’s operation and wirelessly transmitting the information. See id.
The Examiner finds that Wellman teaches measuring impacts as a
performance measure to evaluate operator skill. See Non-Final Action at 5.
The Examiner finds that Wellman teaches measuring impacts with an
intelligent shock-sensing system that distinguishes between impacts or
shocks depending on given applications or intended users. See id.
The Examiner finds that Kote teaches a system for creating a digital
signature for a vehicle operator. Non-Final Act. 7. The Examiner finds that
Kote teaches developing the digital signature by observing a vehicle
operator’s driving behavior and habits over a time window sufficient for the
system to collect enough operational data to match with the signature kept
on file for that operator. Id. The Examiner finds that Kote teaches
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measuring different types of data, filtering the data using mathematical
operations, and processing the data. Id. at 13.
The Examiner finds that Storzum teaches a system for measuring
performance metrics for evaluating workers including an execution station
with a planned workload receiver and a completion indicator. See Non-Final
Act. 15. The Examiner finds that Storzum teaches measuring the execution
time and comparing a planned execution time to an actual execution time to
indicate the performance of a worker. See id.
The Examiner concludes that, at the time of Appellant’s invention, it
would have been prima facie obvious to one of ordinary skill in the art, “to
modify the system and method of assessing the performance of operators of
vehicles/forklifts in Wellman to further determine numeric representations
of a person’s performance … as disclosed in Kote,” and “to utilize a
completion indicator and track planned times as well as actual completion
times as disclosed in Storzum.” Non-Final Act. 16–18. The Examiner
arrives at this conclusion because the references are directed to solving the
same problem of assessing worker performance, and the claimed invention is
merely a combination of old elements. See id.
Appellant contends the prior art does not teach “a performance
measure characterized by a rule that defines how to measure industrial
vehicle activity associated with a predetermined vehicle task.” App. Br. 19–
20. Appellant asserts that the Examiner “stitch[es] together non-related
sections of Wellman that go beyond what is permitted, even by the Broadest
Reasonable Interpretation Standard.” Id. at 20. Appellant asserts the
Examiner “attempts to aggregate several examples in Wellman of ‘rules,’”
including target rate, performance tuning, and key performance indicators,
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but does not identify performance measures characterized by task-associated
rules. Id. at 22 (citing Wellman ¶¶ 147, 157, 205).
We are not persuaded by Appellant’s argument. We begin with the
interpretation of the claimed feature of an “operator-specific performance
profile instance having a performance measure characterized by a rule that
defines how to measure industrial vehicle activity associated with a
predetermined vehicle task.” App. Br. 30. Appellant contends “[t]he
operator-specific performance profile instance includes (at least one)
performance measure (FIG. 3 [ ]) characterized by a rule/definition (FIG. 4
[ ]) that defines how to measure industrial vehicle activity associated with a
predetermined vehicle task.” Id. at 13. Figure 4 is reproduced below:

Figure 4 “is a block diagram illustrating an organization of a
performance measure into one or more criteria, thresholds and
algorithms.” Spec. ¶ 10.

The Specification states “performance measure 210 comprises a definition
212, an optional threshold 214 … and an optional algorithm 216 to evaluate
or assist in the evaluation of the corresponding definition 212.” Spec. ¶ 43
(emphasis added). The Specification further states “[t]he definition 212
includes at least one criterion (or set of related criteria) that are used to
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evaluate the corresponding metric … each criterion may be expressed as a
rule that specifies conditions, requirements, or both, to evaluate the metric or
an aspect thereof.” Id. at ¶ 44. The Specification does not provide any
express definition that limits the claimed “rule” apart from the plain meaning
of the claims, and we do not agree that the Examiner erred in broadly
interpreting this limitation.
Appellant repeatedly asserts that the prior art does not teach the “rule”
limitation, but does not explain or define the scope of the limitation or how it
can be distinguished from the teachings of the prior art. Appellant asserts
that the Examiner impermissibly combines non-related sections of Wellman.
However, “picking and choosing may be entirely proper in the making of a
103, obviousness rejection, where the applicant must be afforded the
opportunity to rebut with objective evidence any inference of obviousness
which may arise from the similarity of the subject matter which he claims to
the prior art.” In re Arkley, 455 F.2d 586, 587–88 (C.C.P.A. 1972).
We agree with the Examiner that Wellman teaches customizing an
operator-specific profile for a mobile asset (vehicle) work environment.
Wellman ¶¶ 145, 146. Wellman teaches the operator-specific profile
includes performance measures, i.e., statistics or feedback on operator
efficiency so that operator can actively monitor tasks and skills. Id. at ¶ 147.
Wellman teaches using the monitoring and logging information to create an
operator rating based on actual performance measures. Id. at ¶ 158.
Wellman also teaches performance measures characterized by rules: “[f]or
example, if an operator trips the impact sensors 60 a predetermined number
of times, or when traveling at certain speeds, the corresponding performance
rating may be adjusted.” Id. Accordingly, we find that Wellman teaches an
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example of a rule in terms of a metric (impacts) with a given threshold
(number of times or speed) and algorithm (rating adjustment) associated
with a predetermined vehicle task. See id. at ¶¶ 127, 158.

Issue 2
Appellant argues that the Examiner erred in finding the combined
cited prior art references teach or suggest the limitation of claim 1 reciting:
“updating continuously, the current state of the operator-specific
performance.” App. Br. 23.

Analysis
Appellant contends that Wellman’s paragraphs 0157–0158 teach a
static performance rating and do not teach “updating continuously.” App.
Br. 23. Appellant contends that Wellman’s teaching of various aspects of
the system in paragraphs 0115 (checklist verification), 0178 (warehouse
management system (“WMS”) integration), and 0205 (dashboard), do not
teach the “species of groups of elements” which make up the separate steps
for “updating continuously.” See id. at 23–25.
We are not persuaded by Appellant’s argument. As discussed supra,
Wellman teaches that the operators may actively monitor their assigned
tasks and skills using statistics or feedback provided by the system.
Wellman ¶ 147. Wellman further teaches assigning operator ratings using
actual-monitored measures by monitoring and logging vehicle operation. Id.
at ¶ 158. We find that, by combining active monitoring and feedback with
monitoring actual measures for operator ratings, the prior art suggests
continuously updating an operator-specific profile performance instance.
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Appellant specifically contends that the prior art does not teach the
separate steps of: (1) “querying at least one data source …”; (2) “utilizing
the retrieved task records …”; and (3) “processing the performance measure
… .” See App. Br. 23–25. We address each separate step below.
With respect to the step of “querying at least one data source to
retrieve records associated with the predetermined vehicle task” within a
defined window, Wellman teaches the WMS as a data source for task
records. See Wellman ¶ 178. Wellman teaches that the WMS informs the
operator about tasks with performance measures, e.g., pick-up and
placement location, and the vehicle’s information-linking device records the
operator’s activity. See id. at ¶ 179. Wellman teaches that “the information-
linking device 38 may be able to understand the WMS instructions to the
[vehicle] operator. Accordingly, the information-linking device 38 may be
able to provide feedback to the [vehicle] operator to indicate that the proper
loads are being handled and that load movements and other activities are
being performed correctly.” Id. Wellman therefore teaches querying the
WMS to retrieve records associated with predetermined vehicle tasks within
a defined window by blending vehicle data on performance measures with
WMS assigned tasks, as is further taught by Kote. See Wellman ¶¶ 170,
178, 179; see also Kote ¶¶ 44, 49.
With respect to the step of “utilizing the retrieved task records to
verify and select the industrial vehicle usage data that is linked to the
identification of the vehicle operator and that is needed to evaluate the
performance measure,” Kote teaches using vehicle data to create a digital
signature for a driver and thereby identify authorized vehicle users. Kote
¶ 44. Accordingly, Kote teaches using task records to verify and select data
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linked to vehicle operator identification. See id. Furthermore, Wellman
teaches that “when the operator logs into the [vehicle] … the customized
settings are automatically recalled and implemented.” Wellman ¶ 146.
Accordingly, Wellman teaches retrieving data linked to vehicle operator
identification. See id. at ¶¶ 145, 146. Blending vehicle task data from the
WMS with operator identification data would have been motivated in order
to enable a system to verify and link the correct data with operators to
evaluate actual-monitored performance measures for feedback and operator
ratings. See id. at ¶¶ 147, 158, 178.
With respect to the step of “processing the performance measure of
the operator-specific performance profile instance utilizing the selected
industrial vehicle usage data according to the associated rule,” Wellman
teaches processing WMS data and vehicle data for specific vehicle operators
to indicate correctly performed activities. See Wellman ¶ 179. Wellman
teaches that the system may further monitor actions implemented by vehicle
operators and assign corrections. See id. at ¶¶ 143, 144. As discussed
supra, Wellman teaches processing performance measures for vehicle
operators by measuring specific thresholds and adjusting performance rating
when performance measures exceed the thresholds. See id. at ¶ 158.
Accordingly, Wellman teaches the step of processing performance measures
of operator-specific profiles using vehicle data according to the associated
rule.

Issue 3
Appellant argues that the Examiner erred in finding the combined
cited prior art references teach or suggest a progress meter. App. Br. 26.
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Analysis
Appellant contends Storzum’s “‘completion indication’ [ ] cannot be
reasonably construed as a progress meter as claimed.” App. Br. 26.
Appellant argues that “the system in Storzum merely assigns tasks, provides
an ‘expectation’ of the time it takes to complete the tasks, and measures the
actual time to complete the assigned tasks … Thus, Storzum is a stopwatch
that requires task completion before any analysis is performed.” Id.
(emphasis omitted).
We are not persuaded by Appellant’s argument. “Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references. . . .
[The reference] must be read, not in isolation, but for what it fairly teaches
in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). As discussed supra, Wellman and Kote teach
or suggest a system for continuously updating the current state of a vehicle
operator’s performance profile. See supra. Wellman teaches a customized
display that provides feedback based on an operator’s profile so that the
operator can actively monitor their assigned tasks. Wellman ¶¶ 147, 197.
Storzum teaches a specific graphical display of “completion indicator 244”
that “enables a worker to indicate completion of a work task.” Storzum
¶ 40. It would have been obvious to a person of ordinary skill to provide
Wellman’s display with a completion indicator or progress meter to actively
monitor the progress of assigned tasks. “[T]he analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
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person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). Accordingly, we are not persuaded that the
Examiner erred.

Issue 4
Appellant argues that the prior art cannot be combined because the
combination would change the prior art’s principle of operation. App. Br.
27.

Analysis
Appellant contends that “the Examiner must make numerous changes
in the principle of operation of all of the cited references.” App. Br. 27.
Appellant contends that “the Examiner repeatedly commingles numerous
unrelated features of Wellman to attempt to force the cited reference to read
on the claimed invention.” Id.
As discussed supra, picking and choosing from a prior art reference is
entirely appropriate in an obviousness rejection. Appellant has not provided
any evidence that such picking and choosing would have been beyond the
level of ordinary skill in the art. See generally App. Br. “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSR, 550 U.S. at 421.
Appellant further contends that “the Examiner would have to change
the principle of operation of Storzum from a ‘stopwatch’ that requires a task
to be actually completed before reporting, to a progress meter.” App. Br. 27.
We are not persuaded by Appellant’s argument. The prior art
references teach monitoring and assessing worker performance. Using a
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progress meter or stopwatch interchangeably or concurrently would not have
resulted in an “inoperable” monitoring system. See In re Urbanski, 809 F.3d
1237, 1244 (Fed. Cir. 2016) (“Nothing in the prior art teaches that the
proposed modification would have resulted in an ‘inoperable’ process or a []
product with undesirable properties”).
Finally, Appellant contends that combining Wellman’s user logon
with Kote’s automatic user identification “would necessarily render the
invention unsatisfactory for its intended purpose.” App. Br. 28.
We are not persuaded by Appellant’s argument. Kote expressly
teaches that the digital signature may be used in cooperation with a user
logon. See Kote ¶ 36. Specifically, Kote teaches “[a] fact that the vehicle
operator may have a communications appliance that may identify the
operator or even a pass card or card key is not conclusive evidence that the
carrier of the communications appliance or key is actually the owner of same
who is operating the vehicle.” Id. Kote teaches that “using a combination of
data from a mobile communications appliance connected to the network . . .
in combination with data that is not necessarily linked to active driving
might provide better evidence of who may actually be operating the vehicle
at any given period.” Id. Accordingly, Kote expressly suggests combining
the digital signature with Wellman’s logon system for actively monitoring
and updating a vehicle operator’s performance profile.
We consequently affirm the Examiner’s rejection of claim 1.
Appellant reiterates the arguments against claim 1 with respect to claims 2–8
and 10–22. App. Br. 28–29. For the reasons set forth supra, we affirm the
Examiner’s rejection of claims 2–8 and 10–22.

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CONCLUSION
The rejection of claims 1–8 and 10–22 as unpatentable under 35
U.S.C. § 103(a), is 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)(1).

AFFIRMED

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4–6,
16–22
103(a) Wellman, Kote,
Storzum
1, 2, 4–6,
16–22

3, 10, 12 103(a) Wellman, Kote,
Storzum, Hulen
3, 10, 12
7, 8, 11, 13,
14
103(a) Wellman, Kote,
Storzum, Adendorff
7, 8, 11, 13,
14

15 103(a) Wellman, Kote,
Storzum, Williams
15
Overall
Outcome
1–8, 10–22