Ex Parte Hot

Patent Trial and Appeal Board

Jun 8, 2018

12902781 (P.T.A.B. Jun. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/902,781 10/12/2010
14333 7590 06/12/2018
Meagher Emanuel Laks Goldberg & Liao, LLP
ONE PALMER SQUARE
SUITE 325
Princeton, NJ 08542
FIRST NAMED INVENTOR
Alber Hot
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.
HOT/003 2692
EXAMINER
BRANDENBURG, WILLIAM A
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
06/12/2018 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):
molech@meagheremanuel.com
14333-docket@meagheremanuel.eom
tmeagher@meagheremanuel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALBER HOT
Appeal2017-001296
Application 12/902,781
Technology Center 3600
Before BRADLEY W. BAUMEISTER, AMBER L. HAGY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 2, 4--11, 14, 15, and 18-34, which are all of the
pending claims. 1 We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Claims 3, 12, 13, 16, and 17 have been canceled. (Br. 27-29 (Claims
App'x); Final Act. 2.)
Appeal2017-001296
Application 12/902,781
STATEMENT OF THE CASE
Introduction
According to Appellant, "[ t ]he invention relates to the field of
electronic advertising systems and, more particularly, electronic advertising
systems targeting viewers at controlled traffic intersections." (Spec. 1 :5-7.)
Exemplary Claim
Claims 1, 15, and 33 are independent. Claim 1, reproduced below
with the disputed limitations italicized, is exemplary of the claimed subject
matter:
1. A method for providing information to vehicle occupants
at controlled intersections, comprising:
receiving, by a central control unit from a first intersection
controller of intersection controllers located at corresponding
intersections of a network of intersections comprising traffic
lights, a signal indicating that at least one sensor has detected a
vehicle being stopped moving at a first intersection in front of a
first traffic light out of a plurality of traffic lights in said first
intersection, and that a further sensor has detected whether said
first traffic light is in a stop state;
providing, in response to said signal with said first traffic
light being in the stop state, by the central control unit to the first
intersection controller, a first command signal for presenting a
first imagery upon a corresponding display out of a plurality of
displays in said first intersection, said first imagery being clearly
visible to one or more occupants of said vehicle;
receiving, by the central control unit from a second
intersection controller of a network of intersection controllers, a
further signal indicating that the at least one further sensor has
detected said vehicle being stopped moving at a second
intersection in front of a second traffic light out of a plurality of
further traffic lights in said second intersection, and that another
further sensor has detected whether said second traffic light is in
the stop state; and
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providing, in response to said further signal with said
second traffic light being in the stop state by the central control
unit to the second intersection controller, a second command
signal for presenting a second imagery upon a corresponding
further display out of a plurality of further displays in said second
intersection, said second imagery being clearly visible to one or
more occupants of said vehicle, wherein said first imagery and
said second imagery comprise sequential portions of a coherent
sequence of content.
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Haase
Ebert
Lo
Atsmon et al. ("Atsmon")
US 2005/0231385 Al
US 2006/0143082 Al
US 2006/0202861 Al
US 2010/0063880 Al
Rejections2
Oct. 20, 2005
June 29, 2006
Sept. 14, 2006
Mar. 11, 2010
Claims 1, 2, 4--11, and 18-34 stand rejected under 35 U.S.C. § l 12(b)
as being indefinite. (Final Act. 2-3.)
Claims 1, 2, 4--11, 14, 15, 18-24, and 31-33 stand rejected under 35
U.S.C § 103(a) as being unpatentable over Haase and Ebert. (Final Act. 4--
26.)
Claims 25-30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haase, Ebert, and Lo. (Final Act. 27-31.)
Claim 34 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haase, Ebert, and Atsmon. (Final Act. 3 6-41.)
2 All rejections are under the provisions of Title 35 of the United States
Code in effect prior to the effective date of the Leahy-Smith America
Invents Act of 2011.
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Application 12/902,781
Issues
( 1) Whether the Examiner erred in rejecting claims 1, 2, 4--11, and
18-34 under 35 U.S.C. § 112(b) for being indefinite in reciting first and
second imagery "being clearly visible to one or more occupants" of a
vehicle.
(2) Whether the Examiner erred in finding Haase discloses a
"central control unit," as recited in independent claim 1 and commensurately
recited in independent claims 15 and 33.
(3) Whether the Examiner erred in finding the combination of
Haase and Ebert teaches or suggests "a signal indicating that at least one
sensor has detected a vehicle being stopped moving at a first intersection in
front of a first traffic light out of a plurality of traffic lights in said first
intersection," as recited in independent claim 1 and commensurately recited
in independent claims 15 and 3 3 .
( 4) Whether the Examiner erred in finding the combination of
Haase and Ebert teaches or suggests "wherein said first imagery and said
second imagery comprises sequential portions of a coherent sequence of
content," as recited in independent claim 1 and commensurately recited in
independent claims 15 and 3 3 .
ANALYSIS
A. § 112 Rejection
The Examiner rejects all pending claims as indefinite under 35 U.S.C.
§ 112, second paragraph. (Final Act. 2-3.) In particular, the Examiner finds
the term "clearly visible"-as in the claims' recitation of the first and second
imagery "being clearly visible to one or more occupants of said vehicle"-is
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Application 12/902,781
a relative term of degree. (Id. (emphasis added).) When a word of degree is
used, we must determine whether the specification provides some standard
for measuring that degree. See Seattle Box Co., Inc. v. Indus. Crating &
Packing, Inc., 731F.2d818, 826 (Fed. Cir. 1984).
Although terms of degree are not inherently indefinite, our
supervising court recognizes that claims having terms of degree will fail for
indefiniteness unless they "provide objective boundaries for those of skill in
the art" when read in light of the specification and the prosecution history.
Liberty Ammunition, Inc. v. United States, 835 F.3d 1388, 1396 (Fed. Cir.
2016) (quoting Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370-71
(Fed. Cir. 2014)).
Here, as the Examiner finds, and we agree, neither the claims
themselves nor the Specification provides any standard for measuring the
recited degree, i.e., whether displayed imagery is "clearly" visible, as
opposed to being merely visible. (Final Act. 3.) Appellant responds by
argumg:
"Clearly visible" is not a subjective term; it is defined by its plain
meaning and its use within the context of the invention. There is
no "requisite degree" of visibility that needs to be obtained.
Either the display device is clearly visible or it is not. If a vehicle
occupant cannot read the display device or be distracted by the
display device (e.g., too far away, view obstructed and the like)
then the display device is not clearly visible to the occupant.
(Br. 9-10 (emphasis added).)
As the Examiner notes, however, Appellant's explanation only begs
the question of how "clearly" visible is measured in terms of, for example,
degree of obstruction:
Does this mean the imagery is in direct line of sight to the vehicle
even if the vehicle occupants may not be able to make out every
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single feature of the imagery, or perhaps all the features of the
imagery can be seen and captured in its entirety? Neither the
claim language nor the specification is clear as it relates to these
questions. In addition, the plausible scenario at an intersection
with a plurality of vehicles and occupants thereof, imagery that
may be "clear" to one vehicle may not be "clear" to another (e.g.
the vehicle at the front of the line compared to the vehicle ten
lengths deep).
(Ans. 4.)
Appellant's explanation, if anything, further underscores the relativity
of the term, as Appellant asserts that whether something is not "clearly
visible" depends on whether it is, e.g., "too far away" from the occupant to
be read by the occupant. (Br. 10.) In this regard, the determination of what
is considered "clearly visible" is subjective, and dependent on a person's
subjective visual acuity-that is, what may be "clearly visible" at a
particular distance to one person may not be "clearly visible" to another
person of lesser visual acuity. Cf Datamize, LLC v. Plumtree Software, Inc.,
417 F.3d 1342, 1350 (Fed. Cir. 2005) ("The scope of claim language cannot
depend solely on the unrestrained, subjective opinion of a particular
individual purportedly practicing the invention.") (citations omitted).
Thus, even if we were to adopt Appellant's explanation as a
construction (i.e., that "clearly visible" means that it is not too far away or
too obstructed to be read by an occupant of a vehicle at the intersection), we
could not agree with Appellant that such a meaning would make it
reasonably clear to the potential infringer what metes and bounds the claims
encompass. Simply put, one of ordinary skill in the art would not reasonably
understand the requisite degree of visibility needed for the imagery
displayed to be "clearly visible," as recited, as opposed to merely "visible."
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We, therefore, agree with the Examiner that independent claims 1, 15,
and 33 (and claims dependent thereon) fail to provide "objective boundaries
for those of skill in the art," Liberty Ammunition, supra, and are, therefore,
indefinite.
We recognize that "[i]f no reasonably definite meaning can be
ascribed to certain terms in the claim, the subject matter does not become
obvious [or anticipated]-the claim becomes indefinite." In re Wilson, 424
F.2d 1382, 1385 (CCPA 1970). Similarly, Steele counsels that a prior-art
rejection cannot be sustained if the hypothetical person of ordinary skill in
the art would have to make speculative assumptions concerning the meaning
of claim language, see In re Steele, 305 F.2d 859, 862 (CCPA 1962).
However, this is not a case where it is impossible to determine whether at
least some scenarios fall within the scope of the claims. The present
situation is, instead, one in which only the boundary of the sought claim
protection is not reasonably clear. Accordingly, we address the obviousness
rejections with respect to these claims in the interests of compact
prosecution.
B. § 103 (a) Rejections3
The Examiner finds Haase teaches the limitations of claim 1, except
for "a signal indicating that at least one sensor has detected a vehicle being
stopped moving" at the first and second intersections, and also the limitation
3 Appellant collectively argues the rejection of all claims with regard to the
Examiner's obviousness rejections of claim 1 under 35 U.S.C. § 103(a).
(Br. 19, 22.) Separate patentability is not argued for independent claims 15
and 33, or for any of the dependent claims (even though claims 25-30 and
34 are rejected over a combination with additional references). Based on
Appellant's arguments, we decide the appeal of claims 1, 2, 4--11, and 18-34
based on claim 1 alone. See 37 C.F.R. § 41.37(c)(l)(iv).
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"wherein said first imagery and said second imagery comprise sequential
portions of a coherent sequence of content," for which the Examiner relies
on Haase in combination with Ebert. (Final Act. 7-11.) Appellant raises
several alleged deficiencies in the Examiner's findings, which we address in
tum below.
1. "sensor has detected a vehicle being stopped moving ... "
Central to many of Appellant's arguments on appeal is the assertion
that neither Haase nor Ebert teaches "sensing or otherwise determining
whether or not a vehicle is actually stopped at a traffic light." (Br. 12
(underlining omitted); see also id. at 15, 17, 20.) We are not persuaded by
Appellant's arguments, which are inconsistent with the disclosures of these
references.
Both Haase and Ebert disclose displaying certain messages only when
the traffic light is red, with Haase explicitly stating this is "to avoid
distracting motorists while their vehicles are in motion." (Haase i-f 48; see
also Ebert i-f 75.) Haase further states that, during the red phase of the light,
"it is presumed that motorists have stopped their vehicles." (Id., i-f 61.)
Thus, Haase explicitly recognizes the desirability of displaying certain
content only when vehicles are stopped at a red light. Ebert's system takes
the further step of employing a "presence detector," such as a heat sensor
that may sense the heat of a vehicle engine, or, alternatively, a "camera ...
and image recognition software," wherein such a presence detector "is able
to detect that the vehicle ... is currently waiting in front of the traffic light
.... " (Ebert i-f 75.) Thus, Ebert explicitly discloses a presence detector to
confirm that a vehicle is stopped and waiting at the red light.
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Based on these disclosures, the Examiner finds, and we agree: "Haase
discloses 'it may be desirable to only display advertising and other more
distracting information to motorists during red lights when the motorists
have presumably brought their vehicles to a stop."' (Ans. 5 (emphasis in
original).) The Examiner further notes "Haase was not explicit about using
two separate 'sensors' to detect both the phase of the light AND the vehicle
being stopped," and finds "Haase clearly disclosed the former" and "[t]he
latter was addressed by Ebert." (Id. at 6 (citing Ebert i-fi-174--75).) As the
Examiner further finds, and we agree, the ordinarily skilled artisan would be
motivated to combine the teachings of Haase and Ebert to trigger display of
imagery, such as advertisements, when both ( 1) the light is red and (2) cars
are detected to be stopped at the light. (Id.; Final Act. 10-11.)
Appellant's contentions, which are premised on an incomplete
characterization of the cited references, do not rebut the Examiner's findings
and are not persuasive of error.
2. "central control unit"
Appellant also argues the Examiner's findings are in error because
Haase fails to disclose "a central control unit from a first intersection
controller of intersection controllers located at corresponding intersections,"
because "the traffic display system 100 of Haase is operative to display
advertising at a single traffic light." (Br. 13.)
We disagree. As the Examiner finds, and we agree, "Haase is not
limited to operating at a single traffic light," but discloses deploying
"multiple sign displays at 'one or more intersections."' (Ans. 8 (citing
Haase i178).) The Examiner further finds, and we agree, Haase discloses a
"remote programming service" that is responsible for "'coordinat[ing] all of
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the advertising by generating programming that controls the content to be
displayed, the size and location of the content on the display, and the timing
of the display of the content."' (Id. (citing Haase i-fi-1 7 8-81 and 3 6).) The
Examiner further finds, and we agree, Haase' s "remote programming
service" falls within the claimed "central control unit," because it "clearly
controls 'the particular intersections where the content is to be displayed[.']"
(Id. (citing Haase i181); see also id. at 10-14.)
Appellant's arguments, which are inconsistent with the teachings of
Haase, are not persuasive of error.
3. "wherein said first imagery and second imagery comprise
sequential portions of a coherent sequence of content"
Appellant also argues "Haase and Ebert do not contemplate a
coordinated presentation of sequential first and second portions of a coherent
sequence of content at, respectively, first and second traffic lights to a
vehicle determined to be stopped at, in sequence, the first and second traffic
lights .... " (Br. 17.)
We disagree. The Examiner finds, and we agree, Haase discloses
"one [or] more sign displays are located at one or more intersections and the
display of content is coordinated according to timing, location, frequency,
amount of content to display, etc .... [and] visual content is coordinated for
display where one content is displayed at one red light phase and different
content at a subsequent red light phase .... " (Final Act. 9 (citing Haase
i-fi-178-81).) The Examiner further finds, and we agree:
Ebert teaches that an advertisement presentation node controls
two or more electronic displays in specific distances from each
other along the same street or route as per [0034]. Ebert goes on
to teach that a multi-sequential advertisement (that includes
individual parts of advertising that comprise the entire sequential
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advertisement) is designed for presentation by the advertisement
presentation nodes controlling the two or more electronic
displays that are placed in specific distances from each other
along the same street or route as per [0037]. ...
. . . The latter half of [0073] explicitly states that "the
advertisement may contain a set of rules that would activate the
presentation of a specific edition on a specific display only if a
specific audience class were detected near that display. This
would help ensuring that the specific audience class traveling
along the route is presented the editions of the advertisement in
a desired sequence." Thus, contrary to Appellant's assertions,
Ebert does in fact teach the coordinated presentation of
sequential content at different points along the street or route (i.e.
traffic lights) to the specific occupants of the vehicle.
(Ans. 16-17; see also Final Act. 9--10.)
The Examiner further finds the ordinarily skilled artisan would have
been motivated to combine the teachings of Haase with Ebert because
"Haase already teaches displaying different content at different red light
phases," and "sequential content [as taught by Ebert] could potentially result
in higher levels of brand/message awareness, thus resulting in more effective
content delivery." (Final Act. 11.)
Appellant's arguments, which are inconsistent with the teachings of
the cited references and do not persuasively rebut the Examiner's findings,
do not demonstrate error.
4. Additional Arguments
Appellant raises several additional arguments generally against the
Examiner's obviousness rejection, none of which we find persuasive of
error. (Br. 20-22.) Appellant first argues the cited references actually
"teach away from the notion of detecting that a vehicle has stopped moving
in front of the light and using that information," asserting:
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The references are directed to maximizing advertising display
time by displaying advertisement when a traffic light is red,
irrespective of whether or not a vehicle is stopped in front of the
traffic light. Neither of the references are directed to inhibiting
advertisement in response to a moving vehicle in front of the red
light.
(Id. at 20.)
We disagree. A reference may be said to "teach away" when "a
person of ordinary skill, upon reading the reference, would be discouraged
from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant." In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Appellant points to no disclosure
in either reference that discourages triggering display of an advertisement
based on whether a vehicle is stopped at the light. Indeed, Appellant's
contention characterizes the references as neutral in that regard, stating the
references "are not at all concerned about" whether any vehicles are stopped.
(Br. 20.) Moreover, as noted above, Appellant's characterization of the cited
references is incorrect.
Appellant also asserts the Examiner's rejection "compensates for gaps
and ambiguities in the teachings of the prior art by resorting to hindsight."
(Br. 21.) We disagree that the Examiner has engaged in improper hindsight
reconstruction or has erred in combining the teachings of the cited
references. The Examiner has provided an articulated reason for combining
Haase and Ebert that includes a rational underpinning. (See Ans. 6; Final
Act. 10-11.) We further note that Appellant bases the contention of "gaps
and ambiguities" on the same premise that we have rejected above-namely,
that Haase and Ebert allegedly lack disclosure of detecting a vehicle being
stopped moving at an intersection. (See Br. 21 "Haase's and Ebert's concern
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is not about whether or not a vehicle is actually stopped at a traffic light ...
. ").)
Also based on similar reasoning, Appellant further argues the
"obvious to try" rationale advanced by the Examiner is "irrelevant" because
"the cited references are not at all concerned with the problem or benefits of
detecting stopped vehicles at a light." (Br. 22.) As noted above, this
contention is factually inaccurate, and is, therefore, not persuasive of error.
For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1, and we,
therefore, sustain that rejection, along with the rejections of claims 2, 4--11,
and 18-34, which are not separately argued.
DECISION
The Examiner's 35 U.S.C. § 112(b) rejection of claims 1, 2, 4--11, and
18-34 is affirmed.
The Examiner's 35 U.S.C. § 103(a) rejections of claims 1, 2, 4--11,
and 18-34 are 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)(l )(iv).
AFFIRMED
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