adidas AG

Patent Trials and Appeals Board

Apr 2, 2020

14088715 - (D) (P.T.A.B. Apr. 2, 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.
14/088,715 11/25/2013 Andrew J. GRAHAM 2483.098000I/RDC/GCP 2369
63504 7590 04/02/2020
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
NGUYEN, CUONG H
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
04/02/2020 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):
e-office@sternekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREW J. GRAHAM, ALAN R. LEE, and JON H. WERNER
___________

Appeal 2018-007046
Application 14/088,715
Technology Center 3600
____________

Before BENJAMIN D. M. WOOD, BRETT C. MARTIN, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject under 35 U.S.C. § 103(a): (1) claims 1–8 and 162 as
unpatentable over Vitikainen (US 2004/0172191 A1, published Sept. 2,
2004) and Sakumoto (US 6,449,583 B1, issued Sept. 10, 2002); and (2)

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as adidas AG. Appeal
Brief (“Appeal Br.”) 3, filed Feb. 2, 2018.
2 Claim 4 is not included in the heading of the rejection but is discussed in
the body of the rejection. Final Office Action (“Final Act.”) 3–5, dated Sept.
6, 2017. We consider the omission of claim 4 in the heading of the rejection
to be a typographical error.
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claims 11–15 and 17–23 as unpatentable over Vitikainen, Sakumoto, and
Clarke (US 2002/0007297 A1, published Jan. 17, 2002). Claims 9 and 10
have been canceled. An Oral Hearing in accordance with 37 C.F.R.
§ 41.47 was held on February 12, 2020. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “methods for presenting
comparative athletic performance information.” Spec. ¶ 2, Fig. 5C.3 Claims
1 and 16 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A method for presenting route traversal information,
comprising:
displaying a route map comprising electronic route
path information representing a route previously traversed
by an athlete, the electronic route path information
including global positioning satellite waypoints of the
route;
receiving a plurality of parameter data points based
on the athlete's previous traversal of the route and the
electronic route path information;

3 During the Oral Hearing, Appellant’s Representative noted a discrepancy
in the as-filed Specification, namely that the as-filed Specification includes
two paragraphs 100 and two paragraphs 101. See Transcript (“Tr.”) 2:14–
21, dated Mar. 5, 2020; see also Spec. pp. 22–23, dated Nov. 25, 2013. The
Board further noted a number discrepancy in Figure 5B, namely that element
“425a” should be element “452a.” See Tr. 2:22–3:4; see also Fig. 5B.
Appellant’s Representative acknowledged that this appears to be a
typographical error. See Tr. 3:5–9.
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generating a visual cue based on at least one of the
plurality of parameter data points; and
displaying the visual cue on the route path,
wherein the visual cue comprises a color, and
wherein a variation of the color corresponds
to a variation in a value of at least one of the
plurality of parameter data points.

ANALYSIS

Obviousness over Vitikainen and Sakumoto
Claims 1–8 and 16
Independent claim 1 is directed to a method for presenting route
traversal information including, inter alia, the steps of “generating a visual
cue based on at least one of [a] plurality of parameter data points” and
“displaying the visual cue on [a] route path,” “wherein the visual cue
comprises a color, and wherein a variation of the color corresponds to a
variation in a value of at least one of the plurality of parameter data points.”
Appeal Br. 18 (Claims App.).4 The Examiner finds that Vitikainen discloses
“using a dynamic visual graph to represent data (see Vitikainen et al., Fig. 6,
path 604)” and using “a colored cue with changing color (‘visual’ and ‘using
different attributes’ already implies about using different/dynamic colors to
draw/distinguishing attentions from a user – via processing/determination) to
display navigation data.” Final Act. 3. The Examiner also finds that

4 Independent claim 16 recites similar limitations. See Appeal Br. 19–20
(Claims App.). The Examiner relies on the same findings in Vitikainen and
Sakumoto as those discussed above for claim 1 in support of the rejection of
claim 16. See Final Act. 3–4.
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Vitikainen “clearly indicate a ‘visual cue’ in claim 14, and paragraph
[0052].” Id.
Appellant acknowledges that Vitikainen “mentions a visual cue” but
contends that “this mention of a visual cue does not disclose the claimed
visual cue because there is no disclosure or suggestion in Vitikainen of a
visual cue that is displayed on the route path, as recited in claim 1.” Reply
Br. 2–35; see also Appeal Br. 8–9. Appellant contends that “as disclosed in
Vitikainen, the ‘path’ is represented by 608 and the ‘attribute’ is represented
by 612. And as shown in FIG. 6 [of Vitikainen], attributes 612 (i.e., word
boxes) are offset from path 608 and are not on path 608.” Reply Br. 3; see
also Appeal Br. 9. According to Appellant, “[t]hese attributes are displayed
in word boxes on the display that also shows the map, but not on the route
path itself”; whereas, “[i]n contrast, the visual cues described and claimed in
the present application––represented by 504a, 504b, and 504c––are
displayed on the route path 504.” Reply Br. 3; see also Appeal Br. 9.
As an initial matter, Appellant does not define the term “visual cue” in
the Specification. See Spec., passim. Nor does Appellant’s disclosure
define bands 504a-c as constituting “visual cues.” See id. In fact, in the
description of Figure 5C, Appellant’s Specification discloses:
[R]oute path 504 of route map 500 comprises a plurality of bands
504a-c, each of which represents a respective route, performance
or environmental parameter quantified at the waypoints recorded
along the route. The value of the respective route, performance
or environmental parameter is preferably charted along route
path 504 utilizing gray scale or color shade variation to represent
the instantaneous quantity of the route, performance or
environmental parameter at each point along the route. Thus, in

5 Reply Brief (“Reply Br.”), filed July 2, 2018.
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FIG. 5C, the different hatching applied to each of bands 504a-
504c represents a different color and a varying spacing between
the hatches represents the display of the colors at varying levels
of intensity along the route path, depending upon the value of the
parameters at each point along the path. The value associated
with each shade of color or each level of gray scale is generally
graphically represented in an accompanying legend 506.
Spec. ¶ 100 at p. 23, Fig. 5C.6
Vitikainen discloses:
At step 212, the user may enter certain preferences to allow
customized facilitation of the desired route plotting exercise. . . .
Since the user is interested in defining a [] jogging path, she is
able to enter supportive preference information as desired, to
serve as prioritization parameters used by the mobile terminal to
intelligently aid in the formation of a highly pleasurable and
fulfilling jogging path. Preferential data may include, for
example, the preferred route type, such as highway, scenery road,
footpath, paved bicycle route, etc. . . . Topographical data to
include elevation, maximum uphill or downhill slope, and
mountainous terrain may also prove beneficial when plotting an
extra vigorous jogging route.

Vitikainen ¶ 38, Fig. 2. Vitikainen also discloses that “[b]y entering
preferential data, the user activates a feature of the present invention that
allows the routing tool to highlight potential paths to be taken within the
region of interest that pertains to her most highly prioritized features” and
that “[t]he user then may select the prioritized path as it is displayed on the
mobile terminal.” Id. ¶ 39 (emphasis added). Vitikainen further discloses
that “for the ‘attributes’ entry, any one or more notification outputs such as
audio (A), visual (D), tactile (T), and the like may be used to communicate
attributes of a route to the user” and that “[s]uch attributes may include path

6 See footnote 3 above.
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condition . . . or any other type of information of interest along the route.”
Vitikainen ¶ 43 (emphasis added); see also id. ¶ 41, Table 1.
Upon review of Appellant’s Specification and Vitikainen’s disclosure,
we note similarities between route paths 504a-c of the subject application
and route paths 604 and 608 of Vitikainen, in that route paths 604 and 608
are similarly charted along the route path (i.e., displayed on the route path)
utilizing respective highlighted solid and dashed patterns to represent a
parameter (e.g., an environmental/topographical parameter) of those given
routes. Compare Vitikainen ¶¶ 50, 51, Fig. 6 with Spec. ¶ 100 at p. 23, Fig.
5C. In addition, word boxes 612 and 614 of Vitikainen are similar to legend
506 of the subject application, in that word boxes 612 and 614 similarly
provide a description of the parameters of the given route. Compare
Vitikainen ¶¶ 50, 51, Fig. 6 with Spec. ¶ 100 at p. 23, Fig. 5C.
Consequently, under the broadest reasonable interpretation, which is
consistent with Appellant’s Specification, we do not find error in the
Examiner’s finding that Vitikainen discloses the method step of “displaying
the visual cue on the route path,” as recited in claim 1.
Appellant contends that Vitikainen fails to disclose “a variation in
color that corresponds to a variation in a value of data points.” Appeal Br.
11; see also Reply Br. 5–6. Specifically, Appellant contends that
“Vitikainen only displays different attributes. Vitikainen does not display
changes or variations in those attributes themselves.” Appeal Br. 11.
According to Appellant, “[a]s shown in FIG. 6 [of Vitikainen], the[] 5
different attributes (residential, 2.5 km, smooth, fast, and level) are displayed
to the user, but the attributes do not disclose or suggest a variation in any of
those attributes.” Appeal Br. 11.
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In response to Appellant’s contention, the Examiner finds that in
paragraph 52 of Vitikainen, “it is desired to show a path that has tactile and
visual cues for the user. For example, figure 6 shows a contrast by depicting
the elements in white and black; this figure is a representation and uses
variation in color to show the described limitations.” Ans. 4.7 The
Examiner also finds that “[t]here would have to be a change of color or
variation so that the disclosed tactile features are represented to the user”
and that Vitikainen “suggest[s] th[e] claimed limitation [of variations in the
visual cue] in Fig. 6, refs. 604, or 608 (highlighted black, or dotted black
colors).” Id.
As an initial matter, we agree with Appellant that “‘[t]actile’ by
definition relates to touch and feeling. It has nothing to do with color, sight,
or visual cues” and that “a tactile cue does not convey or require any color
or any variation in a color.” Reply Br. 5 (emphasis added). As such, we
further agree with Appellant that the Examiner fails “to explain how such a
tactile cue[] might disclose variations in color, as claimed.” Id.; see also
Ans. 4.
We also agree with Appellant that the Examiner “[does] not elaborate
on how the[] ‘highlighted black’ or ‘dotted black’ lines [of Figure 6 of
Vitikainen] ‘correspond[] to a variation in a value of at least one of the
plurality of data points.’” Reply Br. 6; see also Ans. 4; Final Act. 3. Under
the broadest reasonable interpretation, the solid black and dotted black paths
604 and 608, respectively, of Vitikainen represent different “pattern”
variations, but they fail to constitute variations in the color black let alone
“correspond[] to a variation in a value of at least one of the plurality of

7 Examiner’s Answer (“Ans.”), dated May 18, 2018.
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parameter data points.” See Vitikainen ¶¶ 50, 51, Fig. 6; see also Appeal Br.
18 (Claims App.). Here, we agree with Appellant that “‘highlighted black’
route 604 and ‘dotted black’ route 608 [of Vitikainen] are alternative routes
that a user may take . . . , and the difference between the two (solid versus
dotted) does not relate to a variation in a parameter data point.” Reply Br. 6.
Additionally, we note that claim 1 recites “displaying a route map
comprising electronic route path information representing a route previously
traversed by an athlete”; whereas, claim 16 recites “displaying a route path
as an overlay on the route map of the route currently being traversed by the
athlete.” Appeal Br. 18, 20 (Claims App.) (emphasis added). The Examiner
appears to only address the “previous” traversal of a route of claim 1 and
does not appear to address the “current” traversal of a route of claim 16. See
Final Act. 3–4; see also Appeal Br. 13–14 (The Examiner “rejected
independent claims l and 16 . . . under the same rationale while completely
ignoring the differences among those claims.”); Reply Br. 8–10.
Here, the Examiner finds that Figure 16 of Sakumoto discloses
“displaying a route map comprising a route path representing a route
previously traversed.” Final Act. 4. We agree with Appellant that Figure 16
of Sakumoto discloses “measured data” and that “that data is limited to ‘data
for each lap including the speed, the cover distance, the lap time, and the
split time.’” Appeal Br. 12; see also Reply Br. 7; Sakumoto 3:62–64, 9:4–
15, Fig. 16. As such, we agree with Appellant that the data presented in
Figure 16 of Sakumoto “is not a route map and is completely unrelated to
displaying a route or map of a route.” Appeal Br. 12; see also Reply Br. 7;
Sakumoto 3:62–64, 9:4–15, Fig. 16.
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To the extent the Examiner relies on the teachings of Vitikainen for
disclosing the step of “displaying a route map comprising a route path
representing a route previously traversed” (see Final Act. 3; see also Ans. 4),
we agree with Appellant that paragraphs 66 and 67 of Vitikainen “discuss
generating a route and associated data for a future workout. These data are
unrelated to an ‘athlete’s previous traversal of the route’ as claimed.” Reply
Br. 7–8.
We note that paragraph 67 of Vitikainen also discloses that “the
present invention may include emergency procedures that would provide a
map of the user’s current position to appropriate response personnel, in the
event that the user is in need of rescue” and that “[s]till other applications
include the navigational capability of the present invention in . . . perhaps
logging interesting waypoints of a trip already taken.” However, providing a
map of a user’s current “position” does not necessarily mean that the current
“route” being traversed by the user is provided. In addition, logging
“waypoints of a trip already taken” by a user (i.e., Global Positioning
System “points” of interest of a previous trip taken by a user) does not
necessarily mean that the previous “route” traversed by the user is logged.
Accordingly, for these reasons, we do not sustain the Examiner’s
rejection of claims 1–8 and 16 as unpatentable over Vitikainen and
Sakumoto.
Obviousness over Vitikainen, Sakumoto, and Clarke
Claims 11–15 and 17–23
Claims 11–15 ultimately depend from claim 1 and claims 17–23
ultimately depend from claim 16. See Appeal Br. 19–21 (Claims App.).
The Examiner does not rely on the teachings of Clarke to remedy the
deficiencies of Vitikainen and Sakumoto. See Final Act. 5–9. Accordingly,
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for reasons similar to those discussed above for claims 1 and 16, we do not
sustain the Examiner’s rejection of claims 11–15 and 17–23 as unpatentable
over Vitikainen, Sakumoto, and Clarke.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–8, 16 103(a) Vitikainen,
Sakumoto
1–8, 16
11–15,
17–23
103(a) Vitikainen,
Sakumoto, Clarke
11–15, 17–
23
Overall
Outcome
1–8, 11–23

REVERSED