Ex Parte Albertsson et al

Patent Trial and Appeal Board

Dec 26, 2018

12472552 (P.T.A.B. Dec. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/472,552 05/27/2009
23405 7590 12/26/2018
HESLIN ROTHENBERG FARLEY & MESITI PC
5 COLUMBIA CIRCLE
ALBANY, NY 12203
UNITED ST A TES OF AMERICA
Stig Albertsson
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.
0204.072A 7890
EXAMINER
RAPILLO, KRISTINE K
ART UNIT PAPER NUMBER
3626
MAIL DATE DELIVERY MODE
12/26/2018 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 STIG ALBERTSSON and WILLIAM L. SMITH
Appeal2017-007484
Application 12/472,552
Technology Center 3600
Before JAMES R. HUGHES, JENNIFER S. BISK, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 46-48, 50-55, 64--83, 86-100, and 102-106, which
are all of the claims pending in this application. 2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Aquatic Development
Group, Inc. App. Br. 1.
2 Claims 1--45, 49, 56-63, 84, 85, and 101 have been canceled. See Final
Act. 2.
Appeal2017-007484
Application 12/472,552
INVENTION
Appellants' invention relates to a collision avoidance for gravity
propelled vehicles. Abstract. Claim 86 is illustrative and reads as follows:
86. (previously presented) A gravity driven cart operable
by a rider on a rail system having twists and turns disposed on a
pitched terrain, said gravity driven cart consisting of:
a body for supporting the rider;
a chassis attached to said body, said chassis comprising:
a plurality of wheels for supporting said gravity driven cart
on the rail system; and
a braking system for manually and automatically slowing
down said gravity driven cart disposed on the rail system as said
gravity driven cart traverses the length of the rail system; and
a collision avoidance system for avoiding a likelihood of
collision between said gravity driven cart defining an
approaching gravity driven cart operated by the rider traversing
the rail system and a forward gravity driven cart on the rail
system operated by a second rider traversing the rail system, said
collision avoidance system comprising:
a processor operable, based on monitoring of distances
and/or locations along the linear length of the rail system
between said approaching gravity driven cart operated by the
rider in said approaching gravity driven cart traversing the rail
system and the forward gravity driven cart operated by the
second rider in the forward gravity driven cart traversing the rail
system when the rider in said approaching gravity driven cart
does not sufficiently manually apply said braking system in said
approaching gravity driven cart to manually slow down said
approaching gravity driven cart to avoid the likelihood of
collision with the forward gravity driven cart, for automatically
controlling application of said braking system to slow down said
approaching gravity driven cart; and
said processor operable, based on monitoring of distances
and/or locations along the linear length of the rail system
between said approaching gravity driven cart operated by the
rider in said approaching gravity driven cart traversing the rail
system and the forward gravity driven cart operated by the
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second rider in the forward gravity driven cart traversing the rail
system, for automatically controlling release of the automatically
controlled application of said braking system, and wherein the
rider in said approaching gravity driven cart being operable to
sufficiently manually apply said braking system to manually
slow down said approaching gravity driven cart to avoid the
likelihood of collision with the forward gravity driven cart.
REJECTIONS
Claims 46-48, 50, 54, 64--68, 70, 73-77, 79, 82, 86, 88, 90-92, 94--
96, 98-100 and 102-104 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over the combination of Way II et al. (US 2004/0113378 Al;
published June 17, 2004) ("Way"), Bush, S., "Jiminy Peak: A Year Round
Destination," May 25, 2006, iBerkshires.com, retrieved from
http://search.proquest.com) ("Bush"), and Price (US 7,602,311 B2; issued
Oct. 13, 2009) ("Price").
Claims 52, 53, 55, 59, 69, 71, 72, 78, 80, 81, 83, 87, 89, 105, and 1063
stand rejected under 35 U.S.C. § I03(a) as unpatentable over the
combination of Way, Bush, Price, and Johnson et al. (US 5,305,693; issued
Apr. 26, 1994) ("Johnson").
Claims 93 and 97 stand rejected under 35 U .S.C. § I03(a) as
unpatentable over the combination of Way, Bush, Price, and Sakamoto et al.
(US 7,286,080 B2; issued Oct. 23, 2007) ("Sakamoto).
Claim 51 stands rejected under 35 U.S.C. § I03(a) as unpatentable
over the combination of Way, Bush, and Blum et al. (US 2007/0074638 Al;
published Apr. 5, 2007) ("Blum").
3 The Examiner did not identify claims 105 and 106 in the header of the
rejection, but included claims 105 and 106 in the body of the rejection.
Final Act. 28, 32-33. For clarity, we include claims 105 and 106 in the list
of rejected claims.
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ANALYSIS
We have reviewed the rejections of claims 46-48, 50-55, 64--83, 86-
100, and 102-106 in light of Appellants' arguments that the Examiner erred.
We have considered in this decision only those arguments Appellants
actually raised in the Briefs. Any other arguments Appellants could have
made, but chose not to make, in the Briefs are waived. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
Appellants' arguments are not persuasive of error. We agree with and
adopt as our own the Examiner's findings of facts and conclusions as set
forth in the Answer and in the Action from which this appeal was taken. We
provide the following explanation for emphasis.
Claims 86, 92, 94, and 95
With respect to claims 86, 92, and 95, Appellants contend "a prima
facie case of obviousness does not exist" because an artisan of ordinary skill
would not have modified the gravity drive steerable vehicle of Way to
operate on a rail system, as taught in Bush. App. Br. 10-11. Appellants
argue the claimed invention "is not merely a combination of old elements
nor would the combination of each element merely have performed the same
function as it did separately." Id. at 12. Appellants further argue "the
Examiner has provided no articulated reasoning as to how or why one
skilled in the art would modify the gravity driven steerable vehicle of Way et
al. to operate on a constrained rail system." Id. Appellants also argue, "the
Examiner has not articulated what components would be needed and how
those components would be assembled if a modification were even possible
to the gravity driven steerable vehicle of Way et al. to be constrained and
operable on a rail system." Id.
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We are not persuaded by Appellants' arguments. The test for
obviousness is not whether the claimed invention is expressly suggested in
any one or all of the references, but whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413,425
( CCP A 1981 ). Here, the Examiner concluded it would have been obvious to
modify the vehicle taught by Way, with wheels attached to the vehicle, to
use the rail system of Bush, as both inventions are directed to gravity driven
vehicles that include a chassis comprising a body for supporting the rider.
See Ans. 3--4 (citing Way ,r,r 2, 11, 14, 23, 68, Abstract; Bush ,r,r 4, 5). The
Examiner found all the claimed elements were known in the prior art and
one skilled in the art could have combined the elements as claimed by
known methods with no change in their respective functions, and the
combination yielded nothing more than predictable results to one of ordinary
skill in the art. Final Act. 3-5; KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007).
Appellants do not provide evidence sufficient to demonstrate that the
claimed elements were not known in the prior art, or that combining the
teachings of Way and Bush would have been "uniquely challenging or
difficult for one of ordinary skill in the art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor have
Appellants provided any objective evidence of secondary considerations,
which our reviewing court guides "operates as a beneficial check on
hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., Inc.,
725 F.3d 1341, 1352 (Fed. Cir. 2013).
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Appellants next argue the Examiner erred because the braking system
taught in Way is different from the recited "automatic braking system" in
claim 86. App. Br. 13. Appellants argue that Way's braking system is a
manual braking system having a safety feature. Id. Appellants further argue
that, unlike Way's manual brake having a safety feature, the claimed braking
system automatically overrides the actions of the rider whether the rider is
applying or not applying the manual brake. Id. at 14.
We are not persuaded the Examiner erred. The Examiner found Way
teaches an automatic brake that actuates upon release of the hand grips (Way
,r 68) and a manual braking where a ski assembly has a ski brake assembly
that causes a brake blade to extend below the ski running surface when the
brake assembly is engaged by the operator (Way ,r 23). Ans. 4. Appellants
have not persuasively rebutted the Examiner's findings. In particular,
Appellants have not persuaded us that the recited "braking system for
manually and automatically slowing down said gravity driven cart" requires
automatically overriding the actions of the rider or prohibiting the rider from
using the braking system at all. See App. Br. 14; Ans. 4.
Appellants further contend the Examiner erred in combining Way,
Bush, and Price because the combination changes the principle of operation
of the gravity driven steerable vehicle of Way. App. Br. 14. Appellants
argue the Examiner's proposed combination "would require a substantial
reconstruction and redesign of the elements shown in Way et al. as well as a
change in the basic principle under which Way et al. construction was
designed to operate." Id. at 16.
We disagree. Appellants' conclusory argument based on the
"substantial reconstruction and redesign of the elements required," is
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insufficient to persuade us that the Examiner erred. See id. It is well settled
that "a determination of obviousness based on teachings from multiple
references does not require an actual, physical substitution of elements." In
re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citations omitted). Nor is
the test for obviousness whether a secondary reference's features can be
bodily incorporated into the structure of the primary reference. See Keller,
642 F.2d at 425. The Supreme Court has held that "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
person of ordinary skill in the art would employ." KSR, 550 U.S. at 418.
Appellants next contend the Examiner erred because the cited portions
of Way, Bush, and Price do not teach or suggest a collision avoidance
system that monitors distances and/ or locations along the linear length of a
rail system. App. Br. 17. Appellants argue Price "employs a straight line of
sight for distance and velocity measurement." Id. at 18. Appellants argue
the straight line of sight radar collision monitoring of Price would fail to
slow down an approaching gravity driven cart relative to a forward gravity
driven cart around a tum of the rail system. Id.; Reply Br. 8.
We are not persuaded that the Examiner erred. The Examiner found
Price teaches a vehicle distance measuring safety warning system in which a
distance sensor is connected to an electric control unit that provides signal
processing, distance/speed calculations, and decision logic to implement the
vehicle distance measuring safety warning system. Ans. 6. The Examiner
further found the vehicle distance measuring safety warning system may
include any number of distance sensors to provide the detection field
desired. Id. (citing Price col. 6: 6-47). Appellants have not provided
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sufficient objective evidence or persuasive argument to rebut the Examiner's
findings or to persuade us that Price, when combined with the teachings of
Way and Bush, does not teach or suggest the disputed limitation.
Appellants further contend modifying Way with the teachings of Bush
and Price to include collision avoidance changes the principle of operation
of Way's gravity driven vehicle. App. Br. 20. In particular, Appellants
argue the proposed combination "would defeat the ability of the gravity
driven vehicle of Way et al. being operable as a downhill racing cart." Id. at
21.
We are not persuaded that the Examiner erred. As was the case
above, Appellants do not provide evidence sufficient to demonstrate that
combining the teachings of Way, Bush, and Price would have been
"uniquely challenging or difficult for one of ordinary skill in the art."
Leapfrog, 485 F.3d at 1162. Nor have Appellants provided any objective
evidence of secondary considerations, which our reviewing court guides
"operates as a beneficial check on hindsight." Cheese Sys., 725 F.3d at
1352.
For these reasons, we are not persuaded the Examiner erred in finding
the combination of Way, Bush, and Price teaches or suggests the disputed
limitations of claims 86, 92, and 95. We also are not persuaded the
Examiner erred in concluding the claims would have been obvious.
Accordingly, we sustain the Examiner's § 103(a) rejection of claims
86, 92, and 95, not argued separately. We also sustain the Examiner's
§ 103(a) rejection of claim 94, for which Appellants present no substantive
arguments. Arguments not made are waived. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
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Claims 88, 90, 91, 96, 98, and 99
Appellants contend the Examiner erred in rejecting claims 88, 96, and
99 for the same reasons as claims 86, 92, and 99, discussed above. App. Br.
22. For the reasons discussed above for claims 86, 92, and 99, we are not
persuaded of error.
Appellants further argue that one skilled in the art "would not have
attempted to modify a plurality of the gravity driven steerable vehicles of
Way et al. for operation on a rail system." Id. Appellants' argument,
however, is conclusory, as Appellants do not provide any basis for this
argument. 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).
For these reasons, we are not persuaded the Examiner erred in
rejecting claims 88, 96, and 99 for obviousness. Accordingly, we sustain the
Examiner's§ 103(a) rejection of claims 88, 96, and 99. We also sustain the
Examiner's§ 103(a) rejection of claims 90, 91, and 98, for which Appellants
present no substantive arguments. Arguments not made are waived. See
37 C.F.R. § 4I.37(c)(l)(iv).
Claims 64-68 and 70
Appellants contend the Examiner erred in rejecting claims 64 and 70
because the cited portions of the prior art do not teach or suggest "a
transmitter for transmitting signals to an approaching gravity driven
cart disposed on the rail system" and "a receiver for receiving signals
transmitted from a forward gravity driven cart disposed on the rail system."
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App. Br. 22. In particular, Appellants argue Price teaches that a reflected
signal from the forward motorized vehicle is used in the approaching
motorized vehicle to determine distance and speed. Id. Appellants argue the
recited plurality of gravity driven carts have a transmitter for transmitting
signals (not reflecting a signal) to an approaching gravity driven cart. Id.
We are not persuaded of error. The Examiner found Price teaches that
distance sensors are provided at the rear of the vehicle and directed
rearwards to detect the distance of the following vehicle. Ans. 7. The
Examiner also found Price teaches using an alarm to warn the driver of a car
tailgating too closely. Id. (citing Price col. 5:21-26). The Examiner further
found that the distance sensor has a radar transmitter element and a receiver
element in the housing of the distance sensor, and that the sensors detect the
distance and speed of an approaching vehicle. Id. ( citing Price col. 5: 64--
66). Appellants have not provided sufficient objective evidence or
persuasive argument to rebut the Examiner's findings.
For these reasons, we sustain the Examiner's§ 103(a) rejection of
claims 64 and 70. We also sustain the Examiner's§ 103(a) rejection of
claims 65---68, for which Appellants present no substantive arguments.
Arguments not made are waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
Claims 73-77 and 79
Appellants contend claims 73 and 79 are nonobvious for the reasons
argued for claims 64 and 70-72 above. App. Br. 23. For the reasons
discussed above, we are not persuaded of Examiner error, and we sustain the
Examiner's§ 103(a) rejection of claims 73 and 79. We also sustain the
Examiner's§ 103(a) rejection of claims 74--77, for which Appellants present
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no substantive arguments. Arguments not made are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Claims 46--48, 50, 54, and 82
Appellants contend claims 46-48, 50, and 54 are nonobvious for the
reasons argued for claims 64 and 70-72 above. App. Br. 23. For the
reasons discussed above, we are not persuaded of Examiner error.
In addition, Appellants argue the cited portions of the prior art
references fail to teach or suggest activating and deactivating a warning
"based on monitoring of distances and/ or locations along the linear length of
the rail system between said approaching gravity driven cart ... traversing the
rail system" and "the forward gravity driven cart ... traversing the rail
system." Id.
Appellants' argument is conclusory, merely reciting the claim
limitation and stating the limitation is not taught. Id. Rule 41.37 "require[ s]
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." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011). Accordingly, we are not persuaded by Appellants' argument that the
Examiner erred in rejecting the claims, and we sustain the Examiner's
§ 103(a) rejection of claims 46-48, 50, and 54. We also sustain the
Examiner's§ 103(a) rejection of claim 82, for which Appellants present no
substantive arguments. Arguments not made are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
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Claims 100 and 102-104
Appellants contend that the rejection of claims 100 and 102-104 is
improper for the same reasons argued for claims 86, 92, and 95, discussed
above.
For the reasons set forth above, we are not persuaded the Examiner
erred. Accordingly, we sustain the Examiner's§ 103(a) rejection of
independent claims 100 and 102-104.
Claims 52, 53, 55, 69, 71, 72, 78, 80, 81, 83, 87, 89, 105, and 106
Appellants contend that the rejection of claims 52, 53, 55, 69, 71, 72,
78, 80, 81, 83, 87, 89, 105, and 106 is in error for the same reasons argued
for claims 86, 92, and 95, discussed above. App. Br. 25. For the reasons set
forth above, we are not persuaded the Examiner erred.
Appellants also argue Johnson teaches away from encoders (claim 52)
and position tracking devices ( claim 53). App. Br. 25 ( citing Johnson col.
8:53-56).
Appellants' "teaching away" argument fails because Appellants have
not identified where Johnson actually criticizes, discredits, or otherwise
discourages encoders and position tracking devices. See In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004); DePuy Spine, Inc. v. Medtronic Sofamor
Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) ("A reference does not
teach away, however, if it merely expresses a general preference for an
alternative invention but does not 'criticize, discredit, or otherwise
discourage' investigation into the invention claimed") ( citing Fulton).
Appellants further argue the Examiner erred because Johnson does not
teach or suggest an "encoder" or a "position tracking device." App. Br. 25.
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We are not persuaded of error. The Examiner found Johnson teaches
mounting sensors, in association with the rail or track, to monitor location of
vehicles, which teaches or suggests a position tracking system. Ans. 9. The
Examiner also concluded an "encoder" is a "position tracking device." Id.
( citing Spec. ,r 3 7).
Appellants have not persuasively rebutted the Examiner's findings
and conclusions. The test for obviousness is not whether the claimed
invention is expressly suggested in any one or all of the references, but
whether the claimed subject matter would have been obvious to those of
ordinary skill in the art in light of the combined teachings of those
references. See In re Keller, 642 F.2d 413,425 (CCPA 1981). Moreover,
Appellants do not persuasively show the Examiner's interpretation of
"encoder" is overly broad, unreasonable, or inconsistent with the
Specification. See Reply Br. 13.
Appellants also argue Johnson does not teach or suggest "a brake
system in a gravity driven cart engageable with a rail system," as recited in
claim 55. App. Br. 25. Appellants argue that the speed of the motorized
vehicle in Johnson is reduced by reducing the amount of electricity to an
electric motor, not by the application of brakes engaging a rail system. Id.
Appellants' arguments are not persuasive. The Examiner found the
braking system taught in Johnson is engagable with the rail system. Final
Act. 29 (citing Johnson col. 1:46-col. 2:27). The cited portion of Johnson
teaches a braking system that slows a rearwardly approaching vehicle
relative to the speed of a preceding vehicle on a track (Johnson col. 2: 20-
27), which teaches or at least suggests the disputed limitation of claim 55.
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Next, Appellants argue that Johnson fails to teach a speed restrictor
that provides an upper limit to the speed of a gravity driven cart may obtain
on a varying terrain rail system, as claim 72 requires. App. Br. 26.
Appellants' argument is conclusory, merely reciting the claim
limitation, the teachings of Johnson, and stating that the two are not the
same. Id. As stated by the Federal Circuit, Rule 41.37 "require[s] 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." In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
For these reasons, we are not persuaded the Examiner erred in finding
the combination of Way, Bush Price, and Johnson teaches or suggests the
disputed limitations. Accordingly, we sustain the Examiner's§ 103(a)
rejection of claims 52, 53, 55, 69, 71, 72, 78, 80, 81, 83, 87, 89. 105, and
106, not argued separately.
Claims 93 and 97
The Examiner rejected claims 93 and 97 for obviousness over the
combination of Way, Bush, Price, and Sakamoto. Final Act. 33-34.
Appellants argue the combination of Way, Bush, Price, and Johnson fails to
disclose certain limitations of the rejected claims. Appellants' arguments are
conclusory. Rule 41.37 "require[s] 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." Lovin, 652 F.3d
at 1357.
For the reasons discussed for claims 64 and 70, above, we are not
persuaded by Appellants' arguments in the Reply Brief that Price does not
teach or suggest that collision avoidance is based on signals from the
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transmitter of a forward gravity driven cart that are received by a receiver in
the approaching gravity driven cart and used to slow down the approaching
gravity driven cart. See Reply Br. 14.
Accordingly, we are not persuaded by Appellants' argument that the
Examiner erred in rejecting claims 93 and 97 under 35 U.S.C. § 103(a).
Claim 51
Claim 51 depends from claim 46. Appellants contend that the
rejection of claim 51 is in error for the same reasons argued for claims 86,
92, and 95, discussed above. App. Br. 28. For the reasons set forth above,
we are not persuaded the Examiner erred.
Appellants further contend Blum does not teach or suggest "said
collision avoidance system comprises at least one transmitter locatable
external to said approaching gravity driven cart," as recited in claim 51. Id.
Appellants argue that the external transmitter in Blum is used to define the
path of the vehicle, not for collision avoidance, as claim 51 requires. Id.
We are not persuaded that the Examiner erred. Appellants attack
Blum individually, even though the Examiner relied on the combination of
Way, Bush, Price, and Blum in rejecting claim 51. Mouttet, 686 F.3d at
1332) ( citing Keller, 642 F .2d at 425) ("The test for obviousness is what the
combined teachings of the references would have suggested to those having
ordinary skill in the art."). Nonobviousness cannot be established by
attacking the references individually when the rejection is predicated upon a
combination of prior art disclosures. See Merck, 800 F .2d at 1097.
Moreover, it is sufficient that the references suggest doing what
Appellants did, although the Appellants' particular purpose was different
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from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir.
1983) (citing In re Gershon, 372 F.2d 535, 538-39 (CCPA 1967)).
For these reasons, we are not persuaded the Examiner erred in finding
the combination of Way, Bush, Price, and Blum teaches or suggests the
disputed limitation of claim 51. Accordingly, we sustain the Examiner's
§ 103(a) rejection of claim 51.
DECISION
We affirm the decision of the Examiner rejecting claims 46-48, 50-
55, 64--83, 86-100, and 102-106.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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