Ex Parte Aldern et alDownload PDFPatent Trial and Appeal BoardFeb 28, 201411520206 (P.T.A.B. Feb. 28, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT ALDERN, ERIC STEPHEN MATTIS, and DARRELL L. KRULCE ____________ Appeal 2011-010749 Application 11/520,206 Technology Center 2600 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejections of claims 1, 5, 6, 8, 10-12, 14, 16, 18-21, and 23. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2011-010749 Application 11/520,206 2 ILLUSTRATIVE CLAIM Illustrative claim 1 is reproduced below. 1. A method of transmitting a message sent to a vehicle via a vehicle communication system and also to a short message service (SMS) communication apparatus of a user, the method comprising the steps of: receiving the message by a network monitoring center; determining if the message does not include an SMS communication address associated with the user; extracting a unique identifier from the message and retrieving the SMS communication address associated with the SMS communication device of the user based on the unique identifier only if the message is determined to not include the SMS communication address associated with the user, wherein the unique identifier uniquely identifies the vehicle in the vehicle communication system; translating the message into a customer selected message in an SMS format based on the unique identifier and an SMS policy, wherein the SMS policy specifies a content of the customer selected message for a specified number of identified mobile SMS communication apparatuses; and transmitting the customer selected message via a wireless carrier to the SMS communication apparatus of the user using the SMS communication address. REJECTIONS The Examiner rejected claims 1, 5, 6, 8, 10, 11, 14, 16, 18-21, and 23 under 35 U.S.C. § 103(a) as unpatentable over WO 2006/058116 A1 to O’Brien and U.S. Patent No. 7,409,428 B1 to Brabec. Ans. 5-10. The Examiner rejected claim 12 under § 103(a) as unpatentable over O’Brien, Brabec, and U.S. Patent No. 6,970,719 B1 to McConnell. Id. at 10. Appeal 2011-010749 Application 11/520,206 3 ANALYSIS Claims 1, 5, 6, 8, 10, 11, 14, 16, 18-21, and 23 Claims 1, 5, 6, 8, 10, 11, 14, 16, 18-21, and 23 are rejected as obvious over O’Brien and Brabec. Claims 1 and 14 are independent. Each of the remaining claims 5, 6, 8, 10, 11, 16, 18-21, and 23 depends from one of claims 1 and 14. Appellants address these claims collectively, arguing that the rejection fails to establish a prior art teaching or suggestion of claim 1’s and 14’s “message content customization for a communication apparatus of a user operating a vehicle based on a unique identifier that is assigned to the vehicle and associated with an address of the communication apparatus.” Br. 12. Appellants state that the rejection asserts only Brabec as teaching the at-issue claim feature (id.) and argue: “Brabec discloses broadcasting the same message to user terminals serviced by a communication gateway, but does not disclose message content customization based on unique identifiers associated with the user terminals” (id. at 13) (emphasis omitted). Appellants’ argument is not persuasive, particularly failing to address the rejection as applied. Contrary to Appellants’ focus on Brabec, the rejection addresses the at-issue claim feature by citing O’Brien as directing a copied message based on an extracted (from the original message) unique vehicle ID and citing Brabec as evidence that it would have been obvious to also reformat the copied message (as compared the original message) based on the ID. Ans. 5-6, 11. Furthermore, we find the Examiner’s determinations are reasonable. O’Brien copies a mobile communication terminal (MCT) message targeting a truck’s on-board terminal into a personal text message targeting the Appeal 2011-010749 Application 11/520,206 4 driver’s cellphone, particularly by corresponding an extracted “message destination indicator” of the MCT message to a mobile telephone number of the driver via a relational database. O’Brien ¶¶ [0022, 25, 27-28, 56]. Brabec sends SMS messages to predefined lists of recipients via text message “gateways.” Brabec col. 1, l. 20 – col. 2, l. 52; col. 3, ll. 10-13; col. 4, ll. 18-26. Brabec teaches reformatting of a singular message (e.g., O’Brien’s copied message), based on a singularly intended recipient of a gateway, insofar as teaching that a gateway may serve a single user terminal (id. at col. 4, ll. 43-45), unique message parameters may be associated with each gateway (id. at col. 11, ll. 11-19), and a message may be converted to a maximum word length set by a gateway’s unique message parameters (col. 22, ll. 30-39). Thus, though Appellants correctly note that a gateway can serve many message recipients (Br. 13 (citing Brabec col. 10, ll. 11-18)), Brabec’s acknowledged “reformatting [of] messages on a per- communication gateway basis” (Br. 13) can indeed reformat a message targeting a single user terminal based on the singularly targeted recipient; that is, based on the single terminal and parameters set by the corresponding gateway. Appellants mention additional claim limitations, but fail to establish (or even assert) any required distinguishing characteristics. For example, Appellants note the claimed SMS policy, but fail to establish what an SMS policy is or represents. Having no required characteristic to evaluate against the proposed combination of O’Brien and Brabec, we cannot determine from the briefs – and will not investigate on Appellants’ behalf – whether the claimed “SMS format based on . . . an SMS policy” is taught or suggested; e.g., by Brabec’s above-addressed determination of an SMS message’s Appeal 2011-010749 Application 11/520,206 5 maximum word length. Appellants’ mere underlining of claim limitations, such as stating the claimed “SMS format [is] based on a unique identifier that uniquely identifies the vehicle and an SMS policy” (Br. 14), does not constitute a specific/meaningful argument for patentability on appeal.1 For the foregoing reasons, the obviousness rejection of representative claim 1, and claims 5, 6, 8, 10, 11, 14, 16, 18-21, and 23 over O’Brien and Brabec is sustained. Claim 12 Claim 12 is rejected as obvious over O’Brien, Brabec, and McConnell. Claim 12 depends from claim 1 and adds a step of “auditing the transmission of the short message service message.” Though the Appeal 1 In other words, Appellants’ further comments allege a difference between the claims and cited prior art teachings, but fail to present evidence of required distinguishing characteristics. See In re Jung, 637 F.3d 1356, 1362- 63 (Fed. Cir. 2011) (addressing the burdens of production for examiners and applicants on appeal); Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (addressing the Board’s standard of review). Absent a self- evident difference between an asserted claim limitation and cited prior art feature, mere presenting of the limitation (i.e., the claim recitation) and the cited feature (i.e., the reference’s description) does not alone satisfy an appellant’s burden of meaningfully comparing a claimed invention against the prior art. See Jung, 637 F.3d at 1365 (affirming partly because appellant “merely argued that the claims differed from [the prior art], and chose not to proffer a serious explanation of this difference.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted [37 C.F.R. § 41.37(c)(1)(vii)] to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); In re Baxter Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art.”). Appeal 2011-010749 Application 11/520,206 6 Brief addresses claim 12 under separate heading (Br. 15-16), the brief does not present specific/meaningful arguments for patentability on appeal. For example, Appellants’ comments do not identify a meaning of the claimed “auditing,” much less establish a required distinguishing characteristic. In short, only the alleged deficiency of O’Brien and Brabec as to claims 1 and 14 is addressed. See supra pp. 4-5 and note 1 (addressing an Appellants’ burden of production on appeal). Accordingly, the obviousness rejection of claim 12 over O’Brien, Brabec, and McConnell is sustained. DECISION The Examiner’s decision rejecting claims 1, 5, 6, 8, 10-12, 14, 16, 18- 21, and 23 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)(iv). AFFIRMED msc Copy with citationCopy as parenthetical citation