Ex Parte Basir

Patent Trial and Appeal Board

Jul 29, 2016

12126045 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/126,045 05/23/2008
26096 7590 08/02/2016
CARLSON, GASKEY & OLDS, P,C
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
Otman A. Basir
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.
60449-195PUS 1 5675
EXAMINER
CHEUNG, MARY DA ZHI WANG
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
08/02/2016 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OTMAN A. BASIR
Appeal2013-008961
Application 12/126,045 1
Technology Center 3600
Before MICHAEL L. HOELTER, THOMAS F. SMEGAL, and
BRANDON J. WARNER, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Otman A. Basir (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner's final rejection of claims 20, 23, 26, 32, 35, 37-39, 42, 44,
45, 47, 59, 63, and 64.2,3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellant, the real party in interest is Intelligent Mechatronic
Systems Inc. Appeal Br. 1.
2 Our DECISION ON APPEAL dated August 24, 2015, and our DECISION
ON REQUEST FOR REHEARING dated December 10, 2015, have been
vacated and remanded by the Court of Appeals for the Federal Circuit
(CAFC). See Decision by the CAFC issued May 6, 2016, instructing us to
reconsider claims 20, 23, 26, 32, 35, 37-39, 42, 44, 45, 47, 59, 63, and 64 in
this appeal. Per the Decision by the CAFC, we hereby withdraw these
previous decisions and issue the present decision in their place.
3 The Examiner's final rejections of claims 24, 25, 27-31, 33, 34, 36, 43,
46, 48, 49, 51-58, and 60-62, remain pending, but these claims and their
Appeal2013-008961
Application 12/126,045
CLAIMED SUBJECT MATTER4
An understanding of the invention can be derived from a reading of
independent claims 20 and 39, which are reproduced below, with disputed
limitations emphasized.
20. A method of monitoring a vehicle including the steps of:
a) determining that a mobile device is near the
vehicle, said mobile device including a cell phone
including a GPS receiver;
b) determining a location of the mobile device by
determining the location of the cell phone via the GPS
receiver; and
c) determining a location of the vehicle based upon
said steps a-b ).
39. A mobile device for monitoring a vehicle, wherein the
mobile device is programmed to:
determine that the mobile device is near a vehicle,
wherein the mobile device includes a cell phone and a
GPS receiver;
determine a location of the mobile device; and
., , • ... 1 1•1 1 1 monnor operauon or 1ne vemc1e oasea upon a
determination that the mobile device is near the vehicle
and based upon the location of the mobile device.
rejections were not remanded to us by the CAFC for reconsideration.
Because these claims are not before us for review, we must leave to the
Examiner their ultimate disposition, should there be further prosecution of
this application.
4 Should there be further prosecution of this application (including any
review for allowance), the Examiner may wish to review the claims for
compliance under 35 U.S.C. § 101 in light of the recent guidance on patent
eligible subject matter. See 2014 Interim Guidance on Patent Subject Matter
Eligibility, 79 Fed. Reg. 74618 (Dec. 16, 2014); "Preliminary Examination
Instructions in view of the Supreme Court Decision in Alice Corporation
Pty. Ltd. v. CLS Bank International, et al.," Memorandum to the Examining
Corps, June 25, 2014; see also July 2015 Update on Subject Matter
Eligibility, 80 Fed. Reg. 45429 (July 30, 2015).
2
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Application 12/126,045
REJECTIONS ON APPEAL
Per the joint motion granted by the CAFC, the following Examiner's
rejections are before us for review. 5
1. Claims 32, 35, 39, 44, 45, and 47 are rejected under 35 U.S.C.
§102(b) as anticipated by Bauer (US 2004/0153362 Al, pub. Aug. 5, 2004).
2. Claims 37, 38, and 42 are rejected under 35 U.S.C. §103(a) as
unpatentable over Bauer.
3. Claims 20, 23, 26, 59, 63, and 64 are rejected under 35 U.S.C.
§103(a) as unpatentable over Bauer and Camhi (US 5,825,283, iss. Oct. 20,
1998).6
ANALYSIS
Anticipation of Claims 32, 35, 39, 44, 45, and 47 by Bauer
Claim 32
In contesting the rejection of claim 32, dependent from claim 30,
Appellant acknowledges "Figure 4 of Bauer includes a communication link
418, which could be a cell phone circuit," but contends that "the navigation
system 420 and the communications link 418 cannot both be the 'vehicle
unit' while the device 300 is the 'mobile device."' Appeal Br. 5. Appellant
also asserts that "[i]f the communications link 418 and the navigation system
420 are both part of the 'vehicle unit,' they do not transmit vehicle data via
the on-board device 300." Reply Br. 3.
5 See supra notes 2 and 3. The Examiner's Final Rejection was modified by
the Advisory Action dated August 31, 2012. See Ans. 3.
6 Claim 20 was amended to include the limitations of dependent claim 50
and intervening dependent claim 21 in an Amendment after Final filed
August 23, 2012. See Ans. 3; see also Appeal Br. 3.
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Application 12/126,045
However, in rejecting independent claim 30,7 the Examiner found that
"any of the vehicle components that are programmed to be associated with
the mobile device/on-board device 300 would be satisfied as the 'vehicle
unit."' Ans. 12. Thus, we agree with the Examiner that "the limitations [of
claim 32] merely claim [that] the vehicle unit includes ... a cell phone," and
that "Bauer teaches ... the cellular phone [is] included or added to or to be
involved [with] the vehicle unit," relying on the interpretation of "vehicle
unit" as applied by the Examiner to claim 30. Ans. 12 (citing Bauer, para.
51 and 55; Fig. 4). Based on the foregoing, we do not find Appellant's
arguments to be persuasive.
For the reasons set forth above, we discern no error in the Examiner's
findings and agree that Bauer anticipates claim 32. Thus we sustain the
Examiner's rejection of claim 32 under 35 U.S.C. §102(b) as anticipated by
Bauer.
Claim 35
Appellant recites the limitation of dependent claim 35, and contends
that "the on-board devices in Bauer do not analyze the vehicle operating
data." Appeal Br. 5. Appellant also argues that "[i]n Bauer ... the data is
analyzed at the server, remote from the vehicle." Reply Br. 3 (citing Bauer,
paras. 181and198).
However, the Examiner explains that "Bauer teaches the vehicle unit
[which] analyzes the vehicle operating data ... can be interpreted as many
7 See supra notes 2 and 3. Appellant is no longer challenging the
Examiner's final rejection of claim 30, from which claims 32, 35, 37 and 38
directly or indirectly depend. See JOINT MOTION FOR REMAND filed
April 8, 2016. Thus, the Examiner's rejection of claim 30 is not before us
for review.
4
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Application 12/126,045
components in Bauer's teaching." Ans. 12. The Examiner also determines
that "[t]he vehicle unit[] in Bauer receives data and output[s] data based on
the received data; therefore, the vehicle unit analyzes the data." Ans. 12-13
(citing Bauer's vehicle unit components 410, 412, 414, and 414 in Fig. 4).
Appellant has not apprised us of any error in the Examiner's findings or
conclusions, and we find none.
For the reasons set forth above, we agree that Bauer anticipates claim
35. Thus we sustain the Examiner's rejection of claim 35 under 35 U.S.C.
§ 102(b) as anticipated by Bauer.
Claims 39, 44, and 45
We are persuaded by the Appellant's arguments that the Examiner
fails to establish a prima facie showing of anticipation in rejecting claims 39,
44, and 45 over Bauer. Appeal Br. 5-7; Reply Br. 3-5.
The Examiner finds, inter alia, that "Bauer teaches the mobile
device ... 300 utilizes a cell phone and a GPS receiver ... to determine the
location of the vehicle." Ans. 13 (citing Bauer, paras. 51, 55, 194, and 206)
(emphasis added). Appellant responds that the Examiner's rejection is based
on having found that Bauer's "on-board device is the 'mobile device'
because it 'utilizes' a cell phone and a GPS receiver," and correctly explains
"that's not what the claim requires." Reply Br. 4. We agree with Appellant
that "[t]he claim requires that the mobile device 'includes a cell phone and a
GPS receiver."' Id. (emphasis added). Thus, on the record before us, the
Examiner has failed to sufficiently identify elements in Bauer for us to
sustain the rejection of claim 39 as anticipated by the disclosure in Bauer.
[U]nless a reference discloses within the four comers of the
document not only all of the limitations claimed but also all of
the limitations arranged or combined in the same way as recited
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Application 12/126,045
in the claim, it cannot be said to prove prior invention of the thing
claimed and, thus, cannot anticipate under 35 U.S.C. § 102.
Net MoneyIN, Inc., v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
For the foregoing reasons, we do not sustain the Examiner's rejection
of independent claim 39, and claims 44 and 45 depending therefrom, as
anticipated by Bauer under 35 U.S.C. § 102(b).
Claim 47
The Examiner finds that Bauer anticipates independent claim 4 7 by
teaching a computer readable medium storing instructions which when
executed by a mobile computing device, inter alia, performs the step of
"determining that the mobile computing device is near an associated
vehicle." Ans. 6 (citing Bauer, paras. 51, 206 and Fig. 4 ). More
specifically, the Examiner explains that Bauer teaches that mobile device
300 is near an associated vehicle by "using a mobile device [300] to
determine the location of the vehicle." Id. at 13 (citing Bauer, paras. 55,
194, and 206).
In response, Appellant merely contends that "Bauer does not disclose
a mobile device or determining that one is near an associated vehicle," as
recited by claim 47. Appeal Br. 7. See also Reply Br. 5. However,
Appellant's contentions amount to unsupported attorney argument, and thus
are entitled to little, if any, weight. See In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984) (holding that arguments and conclusions unsupported by
factual evidence carry no evidentiary weight). Furthermore, as described in
paragraph 51, Bauer teaches that " [ t ]racking of the vehicle for location
identification can be implemented by the device 300 through navigation
signals obtained from a GPS (global positioning system) antenna, a
differential GPS or other locating system 312."
6
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For the reasons set forth above, we discern no error in the Examiner's
findings and agree that Bauer anticipates claim 4 7. Thus we sustain the
Examiner's rejection of claim 47 under 35 U.S.C. § 102(b) as anticipated by
Bauer.
Obviousness of Claims 37, 38, and 42 over Bauer
Claims 37
The Examiner finds that "Bauer teaches the vehicle unit stores a last
location received from the mobile device," but does not specifically teach
the last location information is stored after a connection with the mobile
device is lost." Final Act. 6. However, the Examiner reasons that "[i]t
would have been obvious to ... allow the last location information to be
stored after the connection with the mobile device is lost for better tracking
the location of the vehicle." Id.
Appellant responds that "[ n Jo location in Bauer is stored anywhere
after a connection with a mobile device is lost," and that "paragraphs [194
and 206] do not deal with loss of a connection." Appeal Br. 7. Appellant
continues by disputing that "'storing the last location of the vehicle after the
connection with the communication circuit in Bauer is lost' [would] improve
tracking." Id.
The Examiner replies, in relevant part, that "storing the most recent
received data after the lost the [sic] connection is the knowledge generally
available to one of ordinary skill in the art," because "such technology is
used to prevent data loss during loss of power." Ans. 14.
However, the key to supporting any rejection under 35 U.S.C. § 103 is
the clear articulation of the reason(s) why the claimed invention would have
been obvious. The Supreme Court in KSR International Co. v. Teleflex Inc.,
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Application 12/126,045
550 U.S. 398, 418 (2007), noted that the analysis supporting a rejection
under 35 U.S.C. § 103 should be made explicit. Furthermore, the Federal
Circuit has stated that "rejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006)
(cited with approval inKSR, 550 U.S. at 418).
The Examiner has failed to articulate a reason how Bauer's "vehicle
unit stores a last location received from the mobile device after a connection
with the mobile device is lost," as recited by claim 37. Accordingly, we
agree with Appellant that, based on the evidence before us, the Examiner has
not demonstrated that the claimed subject matter would have been obvious
to one having ordinary skill in the art.
For the foregoing reasons, we do not sustain the rejection of claim 37
as unpatentable over Bauer.
Claim 38
Claim 38 further limits claim 37 from which it depends. For the same
reason as set forth above for not sustaining the rejection of claim 3 7, we do
not sustain the Examiner's rejection of claim 38.
Claim 42
Claim 42 depends from claim 39. For reasons similar to those
previously expressed with respect to claim 39 (as well as those expressed
infra), we are persuaded by Appellant's argument that the Examiner fails to
establish a prima facie showing of obviousness in rejecting claim 42 over
Bauer under 35 U.S.C. § 103(a). See Appeal Br. 8 and Reply Br. 6.
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Application 12/126,045
While acknowledging that "Bauer does not specifically teach
indicating the stored location of the vehicle to a user on the mobile device
after determining that the mobile device is no longer near the vehicle," the
Examiner still determines that "[i]t would have been obvious to ... allow
indication of the stored location after determining the mobile device is no
longer near the vehicle for better tracking the location of the vehicle." Final
Act. 6-7.
However, Appellant explains that "where Bauer indicates that the on-
board device 300 can be removed from the vehicle ... it is only for the
purpose of uploading the recorded data," so that "[t]here is no need to track
the vehicle while the data is being uploaded from the onboard device 300."
Appeal Br. 8. We agree.
Furthermore, the Examiner's response appears to misapprehend
Appellant's argument in stating it to be that "there is no teaching,
suggestion, or motivation to combine the references." Ans. 14. Because the
Examiner's rejection of claim 42 is not based on a combination of
references, we agree with the Appellant that "[t]he Examiner's Answer does
not contain a new argument that requires a reply." Reply Br. 6.
Thus, on the record before us, we are unable to sustain the Examiner's
rejection of claims 42 as unpatentable over Bauer under 35 U.S.C. § 103(a).
Obviousness of Claims 20, 23, 26, 59, 63, and 64 over Bauer and
Camhi
Claim 20
The Examiner first finds that Bauer teaches that on-board device 300
is a mobile device. See Final Act. 2 (citing to Bauer, para. 51 ). In the final
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Application 12/126,045
rejection of claim 50,8 the Examiner also finds that "Bauer teaches the
mobile device includes a cell phone [but] does not specifically teach [that
the] cell phone includes a GPS receiver [for] determining the location of the
cell phone via the GPS receiver." Final Act. 7. The Examiner then looks to
Camhi for teaching "a mobile device RESCU [that] uses GPS and cellular
technology that includes [a] GPS receiver and a voice-activated cellular
phone, wherein the RESCU uses the GPS to determine the current location
[of the mobile device]." Id. (citing Camhi, col. 5, 1. 60-col. 6, 1. 15). From
the foregoing, the Examiner reasons that "[i]t would have been obvious ...
to allow the [cell] phone system in Bauer's teaching to include the feature as
taught by Camhi so that the location can be better determined and
communication to the location can be better achieved." Id.; see also Ans. 8.
In response, Appellant first contends that "Bauer does not disclose
[the step of] determining that a mobile device is near the vehicle," because
device 300 "is installed hardware on the vehicle," and "communication
circuits 418 in Bauer are always in the vehicle." Appeal Br. 9. However, at
page 14 of the Answer, the Examiner incorporates the discussion of claim 39
explaining that Bauer teaches "using a mobile device (e.g. device 300) to
determine the location of the vehicle," citing Bauer, paras. 55, 194, 206. See
Ans. 13. We agree.
Appellant also contends that "Bauer already includes a GPS receiver
in the navigation subsystem, so there is no reason to add another GPS
8 When Appellant amended claim 20 to include the limitations of claim 50,
the Examiner's final rejection of claim 50 became the final rejection of
claim 20. Compare pages 3 and 7 of the Final Rejection with page 8 of the
Answer.
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Application 12/126,045
receiver to the cell communication link in Bauer." Appeal Br. 9.
Additionally, Appellant contends that "Camhi only discloses that location
can be determined by a GPS receiver and cellular technology, but this does
not mean that the GPS receiver has to be in a cell phone." Id.
The Examiner determines Appellant's contention to be that "there is
no teaching, suggestion, or motivation to combine references," and reasons
that "a cell phone [that] includes a GPS receiver is the knowledge generally
available to one of ordinary skill in the art." Ans. 14--15.
While observing that "[t]he Examiner argues that cell phones that
include GPS receivers are known," Appellant contends that "this still does
not make it obvious to replace some of the hardware in Bauer with a cell
phone," where "Bauer appears to share the common belief that all the
hardware had to be installed in the vehicle in order to monitor the driving of
the vehicle." Reply Br. 6. However, Appellant is simply attacking Bauer in
isolation for lacking support for findings not relied upon by the Examiner,
rather than addressing the Examiner's combination of Bauer and Camhi.
Nonobviousness cannot be established by attacking references individually
when the rejection is predicated upon a combination of prior art disclosures.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ..
For the reasons set forth above, we discern no error in the Examiner's
findings and sustain the rejection of claim 20 over Bauer and Camhi.
Claim 23
We are persuaded by Appellant's arguments that the Examiner fails to
establish a prima facie showing of obviousness in rejecting claim 23 over
Bauer and Camhi. See Appeal Br. 3, 10 and Reply Br. 6.
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Regarding claim 23, even though observing that "Bauer does not
specifically teach indicating the stored location of the vehicle to a user on
the mobile device after determining that the mobile device is no longer near
the vehicle," the Examiner concludes that "[i]t would have been obvious ...
to allow [an] indication of the stored location after determining the mobile
device is no longer near the vehicle for better tracking the location of the
vehicle." Final Act. 6-7; see also Ans. 8-9.
However, we agree with the Appellant that "Bauer never determines
that the communication circuit 418 is 'no longer near the vehicle' as recited
by claim 23 because it is always 'near [on] the vehicle."' Appeal Br. 1 O; see
also Reply Br. 6.
Furthermore, the Examiner appears to misapprehend Appellant's
argument regarding claim 23 by relying upon reasons for rejecting claim 42
at page 14 of Answer, including the Examiner having observed that "there is
no teaching, suggestion, or motivation to combine the references."9 Ans. 14.
We are unable to find any argument by Appellant to which the Examiner's
response is directed. Thus, the record before us lacks a sufficient basis on
which to sustain the Examiner's rejection of claims 23 as unpatentable over
Bauer and Camhi under 35 U.S.C. § 103(a).
Claim 26
We are persuaded by Appellant's argument that the Examiner fails to
establish a prima facie showing of obviousness in rejecting claim 26 over
Bauer and Camhi. See Appeal Br. 3, 10 and Reply Br. 6.
9 Claim 42 is rejected over Bauer alone, not a combination of references.
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The Examiner finds that Bauer teaches all the steps of claim 26, citing
Bauer, para. 194. Final Act. 4. However, Appellant explains that "Bauer
does not disclose anything about 'reestablishing communication with a
mobile device' or 'determining whether the vehicle has been moved without
the mobile device,"' as recited by claim 26, because "Bauer only determines
the time that the on-board device 300 has been removed from the vehicle,
but cannot determine whether the vehicle has been moved in the meantime."
Appeal Br. 1 O; see also Reply Br. I 0.
In response, at page 15 of the Answer, the Examiner relies only on
arguments previously advanced for claim 44, which we did not find
persuasive, including that "it does not make sense how to determine whether
the vehicle has been moved 'without the mobile device' based on the
comparison because the current location is determined 'with the mobile
device. "'10 See Ans. 13.
The Examiner has not explained adequately where Bauer (or Camhi)
teaches "determining whether the vehicle has been moved without the
mobile device," as recited by claim 26. Accordingly, we agree with the
Appellant that, based on the evidence before us, the Examiner has not
demonstrated that the claimed subject matter would have been obvious to
one having ordinary skill in the art.
For the foregoing reasons, we do not sustain the rejection of claim 26
as unpatentable over Bauer and Camhi.
1° Claim 44 is rejected as being anticipated by Bauer, while claim 26 is
rejected as being obvious over Bauer and Camhi.
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Claims 59, 63, and 64
Claim 59 is an independent claim from which claim 64 depends
directly, and from which claim 63 depends indirectly through claim 60,
which is not among the claims remanded for our review. 11 We are
persuaded by Appellant's argument that the Examiner fails to establish a
prima facie showing of obviousness in rejecting claims 59, 63, and 64 over
Bauer and Camhi. See Appeal Br. 10-11 and Reply Br. 7-8.
The Examiner finds that Bauer and Camhi combine to teach a method
of monitoring a vehicle including, inter alia, "determining that a cell phone
carried by a user is near the vehicle," as recited by claim 59. Final Act. 8-9
(citing Bauer, paras. 55 and 206, and Fig. 4); see also Ans. 10-11.
However, Appellant persuasively explains that "the cell circuit and GPS
receiver in Camhi are both installed in the vehicle, not . .. 'carried by a
user,"' as recited by claim 59. Appeal Br. 10 (emphasis added).
The Examiner responds that while Appellant argues that "cell circuit
and GPS receiver in Camhi are not ... carried by a user," that "[t]he primary
reference Bauer teaches the conventional cell phone and GPS receiver."
Ans. 15 (citing Bauer, para. 55).
However, Appellant replies that "cell circuit 418 [of Bauer] is
installed in the vehicle, not 'mobile' or 'carried by a user,"' and that "[t]he
'navigation sub-system 420' is also a separate conventional component
[that] is also installed in the vehicle." Reply Br. 7. Thus, the Examiner has
not explained adequately where Bauer (or Camhi) teaches "determining that
a cell phone carried by a user is near the vehicle," as recited by claim 59.
11 See supra notes 2 and 3.
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Appeal Br. 16, Claims App. (emphasis added). Accordingly, we agree with
the Appellant that, based on the evidence before us, the Examiner has not
demonstrated that the claimed subject matter would have been obvious to
one having ordinary skill in the art.
For the foregoing reasons, we do not sustain the rejection of
independent claim 59, and claims 63 and 64 depending either directly or
indirectly therefrom, as unpatentable over Bauer and Camhi.
DECISION
We REVERSE the Examiner's decision to reject claims 39, 44, and
45 as anticipated by Bauer under 35 U.S.C. §102(b).
We AFFIRM the Examiner's decision to reject claims 32, 35, and 47
as anticipated by Bauer under 35 U.S.C. § 102(b ).
We REVERSE the Examiner's decision to reject claims 37, 38, and
42 as obvious over Bauer under 35 U.S.C. § 103(a).
We AFFIRM the Examiner's decision to reject claim 20 as obvious
over Bauer and Camhi under 35 U.S.C. § 103(a).
We REVERSE the Examiner's decision to reject claims 23, 26, 59,
63, and 64 as obvious over Bauer and Camhi under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
15