Ex Parte 5694322 et al

Patent Trial and Appeal Board

Sep 27, 2013

90011789 (P.T.A.B. Sep. 27, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
90/011,789 07/08/2011 5694322 13114-0012 1504
26171 7590 09/30/2013
FISH & RICHARDSON P.C. (DC)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
BONSHOCK, DENNIS G
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
09/30/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte VEHICLE IP, LLC
Patent Owner & Appellant
____________________

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Technology Center 3900

____________

Before HOWARD B. BLANKENSHIP, KEVIN F. TURNER, and
STANLEY M. WEINBERG, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Patent Owner appeals under 35 U.S.C. § 134(b) from the final
decision of the Examiner to reject claims 1-6, 8-16, 18-33, 35-43, 45, 46, 49,
50, 53-64, 67, 68, 71, 72, 75-86, 89-91, 94, 96, 97, 100-112, 115-129, 132,
134, 136, 138, 139, 142-173, 176-184, 187-204, and 221-225. We have
jurisdiction under 35 U.S.C. § 306. Oral hearing was on May 2, 2013.
We affirm.

Invention
The '322 patent relates to determining a tax for a vehicle based on the
distance traveled within a taxing region. '322 patent Abstract. An apparatus
for determining a tax for a vehicle 20 (Fig. 1) includes a positioning system
(e.g., GPS) 50 to determine a plurality of vehicle positions along a route
traveled by the vehicle. A memory 102 (Fig. 9) stores geographic
information defining a plurality of taxing regions through which the vehicle
passes. An odometer 109 measures the distance traveled by the vehicle. A
processor 100 receives vehicle positions from the positioning system,
geographic information from the memory, and optionally the measured
distance from the odometer. The processor determines the tax for the
vehicle in at least one taxing region through which the vehicle passes in
response to the vehicle positions. Id.

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Claims
The original '322 patent contained 45 claims that were determined to
be patentable in an earlier ex parte reexamination. Dependent claims 47-186
were added during that reexamination. Ex Parte Reexamination Certificate
US 5,694,322 C1, issued Sep. 13, 2011. Claims 1-225 are subject to
reexamination in this proceeding. Claims 1-6, 8-16, 18-33, 35-43, 45, 46,
49, 50, 53-64, 67, 68, 71, 72, 75-86, 89-91, 94, 96, 97, 100-112, 115-129,
132, 134, 136, 138, 139, 142-173, 176-184, 187-204, and 221-225 stand
rejected. Claims 7, 17, 34, 44, 47, 48, 51, 52, 65, 66, 69, 70, 73, 74, 87, 88,
92, 93, 95, 98, 99, 113, 114, 130, 131, 133, 135, 137, 140, 141, 174, 175,
185, 186 and 205-220 are indicated as patentable and/or confirmed. Final
Rejection 75-77.1
Claim 1, reproduced below, is representative.
1. A system for determining a tax for a vehicle equipped with a
mobile unit, comprising:

the mobile unit operable to determine a plurality of
position fixes along a route traveled by the vehicle, the mobile
unit further operable to transmit the position fixes;

a communications link coupled to the mobile unit, the
communications link operable to receive the position fixes from
the mobile unit; and

1 The Final Rejection, after stating the rejections for claim 112 (at 34 and
67), indicates that the claim is patentable (at 76). However, claim 112 does
not set forth the features attributed to the claim. Further, we find no
rejection for claim 113 in the Final Rejection or the Answer. Further in view
of the language of claim 113, we conclude that “112” on page 76 of the
Answer is a typographical error for “113.”
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a dispatch remote from the vehicle and coupled to the
communications link, the dispatch operable to receive the
position fixes determined by the mobile unit using the
communications link, the dispatch further operable to store
geographic information comprising a plurality of predetermined
vehicle positions, the dispatch further operable to associate the
position fixes With [sic] the predetermined vehicle positions,
the dispatch further operable to automatically determine a
distance traveled by the vehicle within a region using the
predetermined vehicle positions, the dispatch further operable
to automatically determine a tax for the vehicle in response to
the distance traveled by the vehicle within the region.

Prior Art
Haendel US 5,359,528 Oct. 25, 1994
Kyrtsos US 5,550,743 Aug. 27, 1996
Maki US 5,577,524 Sep. 17, 1996
Fenichell, “A Research Report from Waters Information Services,”
Digital Road Mapping, an Industry Report (Waters Information
Services), 1993 (“Fenichell”).

Rockwell, “Rockwell Onboard Unit Passes ‘Validity Test’ in
AMASCOT Project” (Water Information Services), 1994
(“Rockwell”).

Inside IVHS, “Commercial Vehicle: Operational Test Project Eyes
Satellite Location for State Fee Payment,” 1993 (“IVHS”).

Appellant’s Contentions
Appellant contends that the Examiner erred in rejecting the claims for
obviousness under 35 U.S.C. § 103(a), applying the prior art as follows:

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References Claim(s)

Haendel, Fenichell, Kyrtsos
1, 3-6, 8-16,18-26, 46, 49, 50,
53-64, 67, 68, 71, 72, 75-86,
89-91, 94, 96, 97,100-112,
115, 118-129, 132, 162-165,
176, 177, 187-195, 221,
and 222

Haendel, Fenichell
27-33, 35, 37-43, 45, 116,
117, 134, 136, 138, 139, 142-
161, 166-173, 178-184, 196-
204, and 223-225

Haendel, Fenichell, Kyrtsos,
Rockwell

2

Haendel, Fenichell, Rockwell

36

IVHS, Maki2
1-6, 8-16, 18-33, 35-43, 45,
46, 49, 50, 53-59, 62-64, 67,
68, 71, 72, 75-80, 84-86, 89-
91, 94, 96, 97, 100-107, 110-
112, 118-129, 132, 134, 136,
138, 139, 142-149, 152-155,
159-167, 170-173, 176-179,
182, 184, and 187-204

2 The Examiner’s Answer (at 4-5) includes claim 69 in the rejection over
IVHS and Maki. The Final Rejection both rejects the claim over IVHS and
Maki (at 67) and provides reasons why the claim is determined to be
patentable (at 76). Because none of the claims that recite limitations that
correspond to those of claim 69 are rejected (claims 44, 47, 92, 130, and
135), we presume that claim 69 is not rejected. See Final Rejection 76.
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ANALYSIS
Claim Interpretation
Claim language in this proceeding should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The
Office must apply the broadest reasonable meaning to the claim language,
taking into account any definitions presented in the specification. Id. (citing
In re Bass, 314 F.3d 575, 577 (Fed. Cir. 2002)).

I. “Predetermined Vehicle Positions”
“Predetermined vehicle positions are defined as significant
geographical points, such as cities, towns, boundaries between taxing
regions, or intersections of major highways.” '322 patent col. 9, ll. 40-43.
Although there is disagreement with respect to how far the '322 patent’s
definition may extend, Appellant acknowledges that state boundaries are
“predetermined vehicle positions.” App. Br. 5. For purposes of this appeal,
and giving the claim its broadest reasonable interpretation, we interpret the
relevant term’s scope as including at least state boundaries.

II. Prosecution History
Claim 1 recites determining a distance traveled by the vehicle within a
region “using the predetermined vehicle positions.” According to Appellant,
“using” the predetermined vehicle positions must be interpreted as limited to
making the determination based “directly” on predetermined vehicle
positions. E.g., Reply Br. 2. Appellant does not offer any persuasive
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reasoning in support of why reading the claims in light of the '322 patent
disclosure requires an interpretation that is narrower than the plain language
of the claims. In fact, Appellant implicitly admits that the Specification does
not require the narrow interpretation by relying on the prosecution history of
the original '322 patent. See, e.g., App. Br. 5-8.
However, Appellant cites no authority for the proposition that
prosecution history must be considered, or can be determinative, in
proceedings where, as here, claims can be amended. Appellant does not
identify any controlling case where prosecution history made a difference in
the interpretation of claims that were required to be interpreted under the
broadest reasonable interpretation standard. When claims can be amended,
we are required to give claim language its broadest reasonable interpretation
consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d
at 1364; In re Morris, 127 F.3d 1048, 1053-54 (Fed. Cir. 1997); In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989); In re Yamamoto, 740 F.2d 1569, 1571-
72 (Fed. Cir. 1984).
Appellant submits that “the broadest reasonable interpretation must
remain a reasonable interpretation, and thus, it must not ignore a clear
disavowal or an express disclaimer of claim scope.” Reply Br. 8. Appellant
cites In re Abbott Diabetes Care, Inc., 696 F.3d 1142 (Fed. Cir. 2012), as
support for the statement. Id., n. 21. In Abbott Diabetes Care our reviewing
court held that the Board erred in interpreting the term “electrochemical
sensor” as failing to preclude external cables and wires to connect the sensor
to its control unit, based in part on inconsistency with the language of the
claims and with disparaging remarks in the specification with respect to
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external cables and wires required by prior art sensors. In re Abbott
Diabetes Care, Inc., 696 F.3d 1142 at 1149. The “clear disavowal” or
“express disclaimer” of claim scope thus arose from the specification, not
from the prosecution history.
Appellant further submits that in “a District Court litigation, the
Patent Owner would be unable to assert and obtain an interpretation of the
claim terms that are as broad as the Office suggests, if only because the
original prosecution clearly disavowed any such interpretation.” App. Br. 9.
We will not speculate how a Federal District Court might interpret the claim
terms, using all the tools of claim construction that are identified in Phillips
v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). Cf. DePuy Spine,
Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir.
2006) (“In determining the meaning of the disputed claim limitation, we
look principally to the intrinsic evidence of record, examining the claim
language itself, the written description, and the prosecution history, if in
evidence.”) (citing Phillips, 415 F.3d at 1312-17). In this proceeding, we are
not required to ascertain what subject matter may or may not have been
disclaimed during prosecution of the patent, because in a reexamination the
claims can be amended and the public thereby provided with the metes and
bounds of the subject matter that remains, as set forth in clear, precise, and
unambiguous terms.
In any event, we disagree with Appellant’s argument that the '322
patent prosecution would establish the clear disavowal of subject matter that
is now urged. Appellant cites to an amendment and arguments in the '322
patent application (Application No. 08/437,404) directed to what is now
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claim 1. App. Br. 6. The applicants amended claim 38 (now claim 1) to
further define the “dispatch remote”:
a dispatch remote from the vehicle and coupled to the
communications link, the dispatch operable to receive the
position fixes determined by the mobile unit using the
communications link, the dispatch further operable to store
geographic information comprising a plurality of
predetermined vehicle positions, the dispatch further
operable to associate the position fixes with the
predetermined vehicle positions, the dispatch further operable
to automatically determine a distance traveled by the vehicle
within a region using the [position fixes] predetermined
vehicle positions, the dispatch further operable to automatically
determine a tax for the vehicle in response to the distance
traveled by the vehicle within the region.

Amendment to claims filed March 17, 1997 in '404 Application.
The applicants submitted:
To further clarify the invention, Applicants amend each
of the independent claims to include “predetermined vehicle
positions.” As recited in the independent claims and described
in more detail in the specification, position fixes are associated
to predetermined vehicle positions, which are in turn used to
calculate distance traveled by the vehicle within a region.
Neither Haendel nor Gooch, alone or in combination, disclose,
teach, or suggest Applicants’ use of “predetermined vehicle
positions” to calculate distance traveled by the vehicle within a
region.

Remarks accompanying amendment filed March 17, 1997 in '404
Application at 13.
In the claim interpretation now proposed by Appellant, the
predetermined vehicle positions “must be used directly to calculate distance
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or tax.” App. Br. 6. While the above-quoted remarks during prosecution of
the '322 patent may be read as consistent with the position Appellant now
proposes, the amendments and remarks do not represent a clear disavowal of
claim scope so as to require the interpretation now urged. For the doctrine
of prosecution disclaimer to apply, a statement in prosecution must
constitute a clear and unmistakable disclaimer of claim scope. Omega
Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1326 (Fed.Cir. 2003). In this
case, the applicant did not, for example, use the word “direct” or “directly”
to qualify how the predetermined vehicle positions are used in determining
the distance traveled by the vehicle within a region -- nor do the claims. Cf.
App. Br. 6 (alleging that the claims require “direct use” of the
predetermined vehicle positions to determine distance).

Claims 1, 14, 25, 27, 37, and 42 -- Haendel, Fenichell, Kyrstos
Appellant argues independent claims 1, 14, 25, 27, 37, and 42 as a
group. Accordingly, we select claim 1 as representative of those claims and
will decide the appeal on that basis. See 37 C.F.R. § 41.37(c)(1)(iv).
Haendel is applied against the independent claims in combination
with Fenichell, or in combination with Fenichell and Kyrstos.

I. Haendel
Haendel describes a truck monitoring system 100 (Fig. 1) that
includes a GPS receiver 104 and an odometer 108. A memory device 112
contains memory of geographic state boundaries. Col. 2, ll. 51-66.
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As depicted in Figure 2, geographic coordinates are determined from
the GPS receiver and compared to the latitude/longitude with stored memory
coordinates of boundaries of all states. The comparison results in a
determination of what state the vehicle is in. If the comparison results in a
different state from the previous state determination, data are recorded that
include the new state, the latitude/longitude, and the odometer mileage. The
data are downloaded and used by state taxing authorities to determine the
actual mileage driven by the vehicle in a particular state. Haendel col. 3, ll.
5-41.

II. Haendel and Predetermined Vehicle Positions
Appellant argues that the Examiner erred in the rejection of claim 1
because Haendel does not teach determining a distance traveled by the
vehicle within a region using the predetermined vehicle positions. However,
Appellant acknowledges that Haendel teaches using predetermined vehicle
positions (state boundaries) in determining distance travelled within a
region, but characterizes Haendel’s description as “indirect involvement” of
the state boundaries, since the actual mileage is ultimately determined from
odometer readings. App. Br. 5-6; Reply Br. 7. But in view of our claim
interpretation section, supra, Appellant relies on an unduly narrow
interpretation of the plain language of the claim. Moreover, Appellant’s
reading appears to be even narrower than that expressed by Appellant. In
Haendel, the state boundaries are “directly used” in determining the distance
travelled by the vehicle within a region. If the state boundaries were
unavailable, the distance travelled within a region could not be determined.
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The state boundaries are “directly used” at least in the sense that they are
critical in the determination of distance travelled.
Appellant’s additional arguments and evidence in support of claim 1
seek to rebut the idea that Finichell or Kyrstos suggests modifying Haendel
to determine distance using predetermined vehicle positions. As we are not
persuaded that Haendel requires any such modification to meet the limitation
in controversy, the additional arguments also fail to persuade us of error in
the Examiner’s rejections.

Dependent Claims 49, 71, 96, and 138 -- Haendel, Fenichell, Kyrstos
Appellant quotes language from dependent claim 49 but relies on the
arguments presented with respect to base claim 1. App. Br. 13-14. We are
therefore not persuaded of error in the rejection of dependent claims 49, 71,
96, and 138. 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.”).

Dependent Claims 67, 89, 115, and 158 -- Haendel, Fenichell,
Kyrstos

Appellant submits that claim 67 recites interpolating between the
position fixes to generate one or more additional position fixes. App. Br. 14.
The Examiner finds that Fenichell teaches interpolating as claimed. Ans.
21-22. In particular, the Examiner finds that Fenichell’s system uses a
combination of dead reckoning, map matching, and external position
signaling (e.g., GPS). Each of the three techniques is supplemented by the
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others; e.g., supplementing two adjacent positions with a third (intermediate)
position. Id.; Fenichell 94-95.
Fenichell teaches that GPS may provide another vehicle positioning
reference that can be used in conjunction with dead reckoning and map-
matching “to correct for any errors in mapping a vehicle’s location.”
Fenichell 95. Fenichell provides more than adequate support for the
Examiner’s finding that it teaches interpolating as claimed. Using three
different data points (position fixes) to estimate the actual location (position
fix) of the vehicle is interpolation between the position fixes to generate one
or more additional position fixes, as claimed. We are not persuaded of error
in the rejections applied against argued claim 67. Claims 89, 115, and 158
fall with claim 67. See 37 C.F.R. § 41.37(c)(1)(iv).

Claims 1, 14, 25, 27, 37, and 42 -- IVHS, Maki
Appellant argues independent claims 1, 14, 25, 27, 37, and 42 as a
group. Accordingly, we select claim 1 as representative of those claims and
will decide the appeal on that basis. See 37 C.F.R. § 41.37(c)(1)(iv).

I. IVHS
IVHS describes the use of GPS and on-board computers to track the
number of miles that trucks travel and when they cross state lines. IVHS 2.
In the first phase of the project, equipment installed on one vehicle will track
its mileage and state line crossings, and compare the data to observations
made by a person in the vehicle. Id. In the second phase, equipment on a
number of trucks will collect and store location data. Periodically, motor
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carriers will upload that information to an operations center. Correlating the
location reports with mileage data in Rand McNally’s Milemaker System,
the miles traveled by state will be calculated. Electronic reports will be
provided for state authorities. Id.

II. IVHS and Predetermined Vehicle Positions
Appellant argues that the second, “completely separate” phase
described by IVHS does not suggest any involvement of state line crossings.
App. Br. 17-18. That begs the question as to why equipment to track state
line crossings was to be verified in the first phase, if such equipment was not
to be used in the second phase. In any event, Appellant admits that, at the
least, IVHS discloses a system that is no different than that described by
Haendal. App. Br. 17; Goldberg Decl. ¶ 45.3 Thus, Appellant’s arguments
are founded on an erroneous interpretation of instant claim 1.
The additional arguments (App. Br. 18) as to why there might not be
suggestion to modify IVHS to determine the distance using predetermined
vehicle positions are inapposite, as such a modification is not required. We
are therefore not persuaded of error in the § 103(a) rejection of claim 1 over
IVHS and Maki.

Dependent Claims 49, 71, 96, and 138 -- IVHS, Maki
Dependent claim 49 recites:
[t]he system of claim 1 wherein, to associate the position
fixes with the predetermined vehicle positions, the dispatch is

3 Declaration provided by Steven H. Goldberg, Ph.D. (Appeal Brief
Evidence Appendix).
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further operable to associate a first plurality of position fixes
with a first, single predetermined vehicle position and associate
a second plurality of position fixes with a second, single
predetermined vehicle position, where the first and second
predetermined vehicle positions are distinct.4

With respect to the § 103(a) rejection of the claim over IVHS and
Maki, the Examiner submits that IVHS teaches (p. 2, ¶ ¶ 1-5) collecting and
storing location data across multiple states where locations mapped to a first
state are in one area and form one set of data and locations mapped to a
second state are in a second area and form a second set of data points. Final
Rej. 88. Appellant responds that “Claim 49 [sic; base claim 1] recites
‘determine a distance traveled by the vehicle within a region using the
predetermined vehicle positions.’” App. Br. 19. Appellant contends that, as
such, the IVHS “state” can at best be mapped to a “region” but not to a
“predetermined vehicle position.” Id. The Examiner responds in turn that
the “state” of IVHS could be both a region and a predetermined vehicle
position, and that the “state line crossing” can be treated as the
predetermined vehicle position that is utilized to track mileage per state.
Ans. 24.
We agree with Appellant to the extent that that base claim 1 sets forth
a “region” and a “predetermined vehicle position” as separate limitations,
such that the “state” cannot serve as both a region and a predetermined
vehicle position. However, mapping (or associating) locations (position

4 The Appeal Brief Claims Appendix recites a first and second “set of
multiple” position fixes rather than a first and second plurality of position
fixes. However, there is no indication in the record that claim 49 has been
amended in this reexamination.
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fixes) to a state also maps the locations to the state boundary (a single,
predetermined vehicle position), as a state is defined by its boundary. We
are thus not persuaded that the Examiner erred in rejecting claim 49 over
IVHS and Maki. Claims 71, 96, and 138, not separately argued, fall with
claim 49.

Dependent Claims 67, 89, 115, and 158 -- IVHS, Maki

Appellant argues that Maki does not describe or suggest interpolating
between the position fixes to generate one or more additional position fixes
as recited in claim 67. App. Br. 20. According to Appellant, Maki
describes, instead, interpolation between the “good precise position” and
velocity data points. Id.
The Examiner finds that Maki teaches that a mathematical
interpolation is made between position data points when the GPS signal
drops. Ans. 25; Maki col. 7, ll. 8-13. In view of the IVHS reference’s
teachings of position fixes by means of a GPS receiver, we are not
persuaded of error in the Examiner’s combination of IVHS and Maki as
applied to claim 67. Claims 89, 115, and 158, not separately argued, fall
with claim 67.

Summary/Conclusion
We have considered all of Appellant’s arguments and evidence relied
upon in response to the rejections applied against the claims. In view of the
foregoing, we sustain each of the Examiner’s rejections.

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DECISION
The Examiner’s decision to reject claims 1-6, 8-16, 18-33, 35-43, 45,
46, 49, 50, 53-64, 67, 68, 71, 72, 75-86, 89-91, 94, 96, 97, 100-112, 115-
129, 132, 134, 136, 138, 139, 142-173, 176-184, 187-204, and 221-225 is
affirmed.
Extensions of time for taking any subsequent action in connection
with this appeal are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R.
§ 41.50(f).

AFFIRMED

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PATENT OWNER:
Fish & Richardson, PC
P.O. Box 1022
Minneapolis, MN 55440-1022

THIRD PARTY REQUESTER:
Howard I. Sherman
Kaye Scholer, LLP
901 Fifteenth Street, NW
Washington, DC 20005

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