Ex Parte Diggelen

Patent Trial and Appeal Board

Mar 12, 2018

13026050 (P.T.A.B. Mar. 12, 2018)

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.
3875.4560001 4017
EXAMINER
ISSING, GREGORY C
ART UNIT PAPER NUMBER
3646
MAIL DATE DELIVERY MODE
13/026,050 02/11/2011 Frank van Diggelen
26111 7590 03/13/2018
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
03/13/2018 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 FRANK VAN DIGGELEN
Appeal 2017-000642
Application 13/026,050
Technology Center 3600
Before BRETT C. MARTIN, LYNNE H. BROWNE, and
THOMAS F. SMEGAL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Frank Van Diggelen (Appellant)1 seeks our review under 35 U.S.C.
§ 134 of the Examiner’s rejections2 under 35 U.S.C. § 112, first paragraph,
of claims 1—9, 11—19, 21, and 22 as failing to comply with the written
description requirement; under 35 U.S.C. § 102(b) of claims 1—3, 9, 11—13,
19, 21, and 22 as anticipated by Raman (US 2009/0115656 Al, pub. May 7,
1 According to Appellant, the real party in interest is Broadcom Corporation,
Appeal Br. 4.
2 Appeal is taken from the adverse decision of the Examiner as set forth in
the Non-Final Office Action, dated December 24, 2014 (“Non-Final Act.”),
as further modified by the Advisory Action, dated September 16, 2015 and
the Final Office Action, dated June 5, 2015 (“Final Act.”).
Appeal 2017-000642
Application 13/026,050
2009); and under 35 U.S.C. § 103(a) of claims 4—8 and 14—18 as
unpatentable over Raman and Liccardo (US 8,065,074 Bl, iss. Nov. 22,
2011).3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claims 1,11, and 21 are independent. Claim 1, reproduced below,
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A method comprising:
collecting global navigation satellite system (GNSS)
measurement data based on a GNSS signal received by a GNSS
radio;
collecting non-GNSS sensor data based on a non-GNSS
signal received by a non-GNSS sensor;
formatting the collected non-GNSS sensor data into a data
format that is compliant with a format of the collected GNSS
measurement data;
computing hybrid navigation information based on the
collected GNSS measurement data and the formatted non-GNSS
sensor data;
estimating expected non-GNSS sensor data based on the
hybrid navigation information; and
calibrating the non-GNSS sensor using the hybrid
navigation information in response to determining the expected
non-GNSS sensor data does not match the collected non-GNSS
sensor data.
3 Claims 10 and 20 were canceled. See Appeal Br. 25, 27.
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ANALYSIS
First Ground of Rejection: Lack of Written Description of Claims 1—9,
11-19, 21, and 22
We are persuaded by Appellant’s arguments that the Examiner erred
in rejecting claims 1—9, 11—19, 21, and 22 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
The purpose of the written description requirement in 35 U.S.C.
§ 112, first paragraph, is to ‘“clearly allow persons of ordinary skill in the art
to recognize that [the inventor] invented what is claimed.’” AriadPharms.,
Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)
(quoting Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)).
“[T]he test for sufficiency is whether the disclosure of the application relied
upon reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Id.
The Examiner contends that “[regarding the independent claims 1,
11 [,] and 21, the step of ‘'estimating expected non-GNSS sensor data based
on the hybrid navigation information'' is insufficiently disclosed in the
specification as originally filed,” thereby failing “to sufficiently describe
how the expected or derived non-GNSS sensor data is estimated based on
the hybrid navigation information.” Non-Final Act. 2. Although
acknowledging that “the specification describes such [an] intended result at
. . . [paragraph 41] by the language fijn step 504, the conformance driver
322 may derive or estimate navigation information expected in the collected
non-GNSS sensor data based on the navigation information output from the
GNSS application or function 326, ’” the Examiner finds that “the
[Specification] fails to adequately teach any manner in which the
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expected/derived data is estimated,” and observes that “[t]he remaining
portion of that paragraph simply refers to the use of the derived navigation
information.” Id. at 2—3.
Based upon the foregoing, the Examiner concludes that “[t]he
specification merely identifies steps that appear to correspond to the claim
language but does not describe the claimed invention in sufficient detail that
one skilled in the art can reasonably conclude that the inventor had
possession of the claimed invention.” Id. at 8.
In taking issue with the Examiner’s findings and conclusions,
Appellant contends “[t]he claims satisfy § 112, | l’s written description
requirement because the Specification demonstrates that the Inventor was in
possession of the claimed invention-including the disputed ‘estimating’ and
‘calibrating’features.” Appeal Br. 11. More specifically, Appellant
explains that “[a]s shown in the claim charts in Section III(B) of this Appeal
Brief, the Specification provides ample support for the claimed features,
including the disputed ‘estimating’ and ‘calibrating’ features.” Id. at 13.
Appellant also reasons that “the Examiner's concern, leading to the
outstanding § 112 rejections, is that the disputed features are (allegedly)
‘insufficiently described’ in the Specification,” which would “at best
challenge [] enablement, not written description.” Id. We agree with
Appellant that challenging the enablement requirement “requires an analysis
of the Wands factors to determine whether a person of ordinary skill in the
art can make and use the invention without undue experimentation.” Id.
(citing In re Wands, 858 F.2d 731 (Fed. Cir. 1988)). However, as Appellant
points out, “the Examiner has not analyzed the Wands factors to show that
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undue experimentation is required to practice the ‘estimating’ and
‘calibrating’ features.” Id.
Based on the foregoing, we do not sustain the Examiner’s rejection of
claims 1—9, 11—19, 21, and 22 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
Second Ground of Rejection: Anticipation of Claims 1—3, 9, 11—13,
19, 21, and 22 by Raman
Appellant initially argues claims 1—3, 9, 11—13, 19, 21, and 22
together in contesting the rejection of these claims as anticipated by Raman.
See Appeal Br. 14—18; Reply Br. 3—4, 5—8. We select claim 1 as the
representative claim for this group, and the remaining claims stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). Appellant also presents
additional arguments for dependent claims 3,9, 13, and 22 (Appeal Br. 18—
19), which we address infra.
The Examiner finds that Raman discloses a method for determining a
position using a device illustrated in Figure 3 that
includes a GNSS receiver (330) for collecting the GNSS
measurement data, inertial sensors (310) for collecting non-
GNSS sensor data, navigator (315) for formatting the collected
non-GNSS sensor data into a data format (317) compliant with a
format of the GNSS data (337), a mixer (320) for computing
hybrid navigation information and a navigation filter (340), such
as a Kalman filter, that can generate and transmit feedback
information (310) relating to accelerometer and gyro drift
correction.
Non-Final Act. 9-10 (citing Raman || 28, 35).
The Examiner also determines that “navigation filter (340) estimates
position, velocity, attitude and accelerometer and gyro errors [0025],” while
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“inertial sensors (310) can use the information related to accelerometer and
gyroscope drift correction for calibration of the inertial sensor, leading to
better inertial measurements.” Id. at 10. Furthermore, the Examiner reasons
that
Raman’s disclosure of the navigation filter transmitting feedback
information to the non-GNSS sensors for the purpose of
calibrating such as well as the fact that the navigation filter
estimates, due to the predictive processing afforded by a Kalman
filter, position, velocity, [and] sensor errors is deemed to disclose
the claimed steps of “estimating expected non-GNSS sensor
data” as well as “calibrating the non-GNSS sensor using the
hybrid navigation information.”
Id.
From the foregoing, the Examiner concludes that “the calibration,
which is a process for correcting/compensating erroneous information,
occurs only in response to an error between the sensor data and the estimated
data and thus anticipates the claims.” Id.
In contesting the rejection, Appellant first argues that the § 102(b)
rejection “improperly combine[s] elements from different embodiments of
Raman,” including “elements from the apparatus of FIG. 3 of Raman and
steps from the method of FIG. 8 of Raman [that are used] to reject the
independent claims.” Appeal Br. 14.
However, we agree with the Examiner that “[t]he rejection sets forth
the steps of the method on the basis of identifying examples associated with
Fig. 8,” that include “structural components that are capable of providing the
information associated with the claimed method are a processor, a GNSS
radio, and a non-GNSS sensor.” Ans. 13. In particular, the Examiner
reasons, “[t]he embodiments of FIGs. 5 and 7 differ from the embodiment of
FIG. 3 only in the inclusion of adding differential correction, locally (FIG.
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Application 13/026,050
5), or globally (FIG. 7), and merely correspond to using correction values
via the steps 815/820,” while “the operation of the remaining elements [of
Fig. 8] do not change.” Based on the foregoing, we agree with the Examiner
that “Appellant’s argument is not convincing.” Id. at 13—14.
Appellant next contends that “Raman fails to disclose ‘formatting the
collected non-GNSS sensor data into a data format that is compliant with a
format of the collected GNSS measurement data,’” as recited by the
independent claims, because “neither step 810 nor step 830 is directed to
formatting data from Raman’s inertial sensor(s),” as “they are directed to
deriving new data.” Appeal Br. 15; Reply Br. 5—6. Appellant reasons
“[s]ince deriving new data (i.e., the estimates of steps 810 and 830) is not
the same as formatting data (as recited in the independent claims),” that
“Raman fails to disclose the ‘formatting’ feature of the independent claims.”
Appeal Br. 15.
In response, the Examiner explains that “the processing of the
measurement data [by Raman], either GNSS or inertial, into a position and
velocity is deemed to equate to the formatting of the inertial sensor data to
the same form as the GNSS data.” Ans. 14. The Examiner reasons that
while arguing “that this is not the same as formatting the data, Appellant
fails to show how or why the Office’s statement of such differs from the
Appellant’s interpretation,” pointing out that “[according to the Appellant’s
own specification, ‘ [t] he GNSS enabled device 112 may convert the WiFi
measurements to position data, velocity data and/or time data in accordance
with the GNSS measurement data format/'1' Id. We agree with the
Examiner that “the teachings in Raman . . . which convert measurements
from data collected from an inertial sensor (step 805) into position and
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velocity estimates (step 810) are equivalent to the Appellant’s own
teachings.” Id.
Appellant continues by contending the Ҥ 102 rejections are deficient
on their face because they do not point to a specific teaching in Raman that
discloses ‘estimating expected non-GNSS sensor data based on the hybrid
navigation information,’” asserting that “Raman’s mere disclosure of a
Kalman filter. . . does not explicitly disclose that the Kalman filter performs
the claimed ‘estimating,’” and concludes that “Raman's mere disclosure of a
Kalman filter does not teach this specific feature.” Appeal Br. 16; Reply Br.
6-8.
While also asserting that “the Final Office Action [improperly]
introduced a second ‘reference’ in the form of two illegible, cut-and-paste
slides downloaded from the Internet that allegedly teaches the ‘conventional
operations’ of a Kalman filter,” Appellant argues “nowhere do these slides
teach that Kalman filters necessarily estimate ‘expected non-GNSS sensor
data based on the hybrid navigation information’” (id. at 16—17).
Appellant also contends “the Examiner has not established that [the] slides
are prior art.” Id. at 17.
In response, the Examiner first explains “the rejection sets forth the
use of mixer 320 and a Kalman filter 340.” Ans. 15 (citing Raman || 27,
28). The Examiner reasons that since
the instant specification is silent as to the manner in which the
expected non-GNSS sensor data is estimated based on the hybrid
navigation information, such must be read in its broadest
reasonable interpretation and as best understood by the . . .
Examiner, the Kalman filter of Raman meets the scope of the
claimed subject matter since, as a predictive navigation filter, it
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Application 13/026,050
acts to recursively predict, i.e. estimate expected, state
information based on a hybrid navigation solution.[4]
Id.
Following a thorough and extensive description of the function of a
Kalman filter (Answer 15—17), the Examiner concludes “the Kalman filter of
Raman is deemed to teach the claimed step of ‘estimating expected non-
GNSS sensor data based on the hybrid navigation information, ’ in its
broadest reasonable interpretation since the conventional Kalman filter
algorithm recursively predicts and estimates . . . each time a new
measurement is provided.” Id. at 17. We agree.
Regarding Appellant’s allegation that the slides are not prior art, we
agree with the Examiner that “Appellant has provided no evidence to dispute
the fact that. . . [sjince the tutorial has been presented at several conferences
in 2008 and 2009,... the information provided therein was made public
prior to the Appellant’s subject matter.” Id. at 17—18.
Appellant continues by contending the calibrating step recited by the
independent claims “is performed in response to a determination that
expected data does not match collected data,” while the Examiner “relies on
Raman’s Kalman filter and mere speculation and conjecture,” as “the
rejection baldly asserts that calibration ‘occurs only in response to an error
4 We agree with the Examiner that “[ejxtrinsic evidence may be used to
explain but not expand the meaning of terms and phrases used in the
reference relied upon as anticipatory of the claimed subject matter” (id. at
15) (citation omitted).
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Application 13/026,050
between the sensor data and the estimated data.’” Appeal Br. 18 (citations
omitted).
However, we agree with the Examiner that “the Kalman filter of
Raman meets the scope of the claimed subject matter since, as a predictive
navigation filter, it acts to recursively predict, i.e. [,] estimate expected . . .
information based on a hybrid navigation solution and subsequently use new
measurements (collected non-GNSS sensor data) with the predicted
information to update the next iteration,” so that “the ‘calibration’ is
responsive to the expected non-GNSS sensor data (Kalman filter prediction)
and the collected non-GNSS sensor data (measurements).” Ans. 18—19.
In addition to quoting the limitations recited by dependent claims 3, 9,
13, and 22, Appellant also contends “the rejection does not address the
[specific] features of. . . [these] claims.” Appeal Br. 18—19. However, we
agree that the Examiner
is not required to make on-record claim construction of every
term in every claim rejected in an application, and to explain
every possible difference between [the] prior art and claimed
invention, in order to make out prima facie rejection of claims
under 35 U.S.C. § 132, since prima facie case is merely
procedural device that enables appropriate shift of burden of
production, and examiner meets initial burden of production
under Section 132 by setting forth statutory basis for rejection,
and reference or references relied on, in sufficiently articulate
and informative manner that applicant is properly notified and
able to respond.
Ans. 19-20.
Thus, based upon our review of the Examiner’s stated rationale, as set
forth supra, we are not persuaded the Examiner failed to produce sufficient
evidence and findings (supported by citation to the reference) to support a
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Application 13/026,050
prima facie case of anticipation based on the teachings of Raman. See, e.g.,
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
In view of the foregoing, we sustain the Examiner’s rejection of
claims 1—3, 9, 11—13, 19, 21, and 22 as anticipated by Raman.
Third Ground of Rejection: Obviousness of Claims 4—8 and 14—18
over Raman and Liccardo
The Examiner acknowledges that Raman does not “specify the steps
of determining measurement accuracy and the subsequent use of such
determination in the use/non-use of particular sensor data.” Non—Final Act.
10. However, after extensively describing the teachings of Liccardo, the
Examiner explains it would have been obvious “to modify Raman ... by the
teachings of Liccardo wherein sensor data that was determined to be
inaccurate/unreliable would not be used in the navigation solution so as [to]
compute a solution more accurately and more robustly,” thus, demonstrating
“[t]he dependent claims ... [to be] obvious to the skilled artisan in a hybrid
navigation system using conventional GNSS andnon-GNSS sensors.” Id. at
12. The Examiner also reasons that the dependent claims “are deemed
conventional to a hybrid navigation system particularly one using a Kalman
filter,” and Appellant “has failed to show how the claimed subject matter
differentiates over the prior art.” Final Act. 8.
In addition to reciting the limitations of claims 4—6 and 14—16,
verbatim, Appellant contends that “[t]he outstanding § 103 rejections
provide a page-long description of Liccardo’s alleged teachings without
addressing the specific features recited in the claims, or explaining how and
why a person of ordinary skill in the art would apply certain teachings of
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Liccardo to Raman to achieve the claimed features.” Appeal Br. 20; Reply
Br. 8-9.
However, we agree with the Examiner that “the rejection is
adequately set forth ... [as it] provides selection of sensor signals,
determines availability/reliability (quality) of sensor inputs and measures
accuracy/health of sensors.” Ans. 20-21.
In view of the foregoing, we sustain the Examiner’s rejection of
claims 4—8 and 14—18 as obvious over Raman and Liccardo.
DECISION
We REVERSE the Examiner’s rejection of claims 1—9, 11—19, 21,
and 22 under 35U.S.C. § 112, first paragraph, as failing to comply with the
written description requirement.
We AFFIRM the Examiner’s rejections of claims 1—3, 9, 11—13, 19,
21, and 22 as anticipated by Raman and of claims 4—8 and 14—18 as obvious
over Raman and Liccardo.
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
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