Ex Parte Hovey et al

Patent Trial and Appeal Board

Sep 26, 2017

11255372 (P.T.A.B. Sep. 26, 2017)

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.
11/255,372 10/21/2005 Matthew N. Hovey GP-307165 5337
73811 7590 09/28/2017
Leydig, Voit & Mayer, Ltd.
Two Prudential Plaza, Suite 4900
180 North Stetson Avenue
Chicago, IL 60601-6731
EXAMINER
TIV, BACKHEAN
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
09/28/2017 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):
Chgpatent @ ley dig. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW N. HOVEY and MARK A. D’ERRICO
Appeal 2015-005165
Application 11/255,3721
Technology Center 2400
Before MICHAEL L. HOELTER, NATHAN A. ENGELS, and
BRENT M. DOUGAL, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 4, 5, 10, 13, 14, 19, 20, and 23—32. Claims 2, 3, 6—9, 11, 12, 15—
18, 21, and 22 are canceled. No other claims are pending. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify General Motors Corporation as the real party in
interest. Appeal Br. 1.
Appeal 2015-005165
Application 11/255,372
ILLUSTRATIVE CLAIM
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for providing network services to a telematics
unit of a mobile vehicle, comprising:
establishing a first communication session between the
telematics unit and a remote station, wherein the first
communication session is a Session Initiation Protocol (SIP)
session and wherein the first communication session is initiated
by the remote station;
during the first communication session:
receiving, by the telematics unit, a command
presence notification from the remote station indicating
that a pending command is to be delivered to the
telematics unit by the remote station;
sending, by the telematics unit, in response to
receiving the command presence notification, an
acknowledgement message to the remote station;
initiating, by the telematics unit, a second communication
session between the telematics unit and the remote station,
wherein the second communication session utilizes Simple
Object Access Protocol (SOAP) and wherein the second
communication session is initiated automatically by the
telematics unit in response to the first communication session
after the first communication session is terminated; and
during the second communication session:
requesting, by the telematics unit, the pending
command from the remote station;
receiving, by the telematics unit, the pending
command from the remote station;
sending, by the telematics unit, a command
acknowledgement message to the remote station;
executing, by the telematics unit, the pending
command; and
sending, by the telematics unit, a result notification
to the remote station.
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Application 11/255,372
THE REJECTIONS
Claims 1, 4, 5, 10, 13, 14, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable in view of Chen (US 2006/0018479 A1; Jan.
26, 2006), Grabelsky et al.(US 2004/0003046 Al; Jan. 1, 2004), and Larson
et al. (US 6,370,455 Bl; Apr. 9, 2002).
Claims 23—32 stand rejected under 35 U.S.C. 103(a) as being
unpatentable in view of Chen, Grabelsky, Larson, and Ross et al. (US
2004/0044454 Al; Mar. 4, 2004).
ANALYSIS
In the rejection of claim 1, the Examiner finds that Chen teaches a
method for providing network services to a telematics unit of a mobile
vehicle. Among other things, the Examiner finds that Chen teaches
establishing a first communication session that includes the step of
receiving, by the telematics unit, “a command presence notification” from
the remote station indicating that a pending command is to be delivered to
the telematics unit. Final Act. 2. Further, the Examiner finds that Chen
teaches initiating, by the telematics unit, a second communication session
between the telematics unit and the remote station command. Final Act. 2—
3.
Appellants argue “Chen . . . merely describes a vehicle security
system receiving a command (Chen [0022]) and executing the received
command (Chen [0023]-[0032]).” Appeal Br. 7. According to Appellants,
the Examiner’s rejection interprets the claimed “command presence
notification” to be the command itself, which is “received in the first
communication session before the request for the command is made by the
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telematics unit in the subsequent second communication session.” Appeal
Br. 7 (emphasis omitted). Appellants also argue, “Chen does not describe
first signaling the existence of a pending command for a telematics unit to
request, receive, and execute.” Appeal Br. 8. Further, Appellants argue the
Examiner’s combination of SIP and SOAP protocols with Chen’s teachings
amounts to impermissible hindsight. Appeal Br. 8—9; Reply Br. 6—7.
We disagree with Appellants. As cited by the Examiner (see Final
Act. 2—3 (citing Chen || 22—32); Ans. 3—5 (citing Chen Fig. 2, || 21—28)),
Chen discloses two separate communication sessions, (i) a first
communication signaling that a remote host has new system data that a
vehicle’s security system may need and (ii) a subsequent, two-way
communication for transmission of data packets that contain new or updated
system data. More specifically, Chen teaches that the first communication is
a “system update command signal” sent from a remote host to a vehicle.
Chen Fig. 2, || 22, 30 (“Firstly, the remote server 30 sends a system update
command signal to the security system 10.”). “After the wireless
communication module 12 of the vehicle security system 10 receives the
system update command signal, the system update command signal is
inputted to a processor of the security host 11.... Then the processor
determines whether to respond to the server or not.” Chen 130; accord
Chen 123 (explaining that upon receipt of the update command signal, the
security system in the vehicle “starts to confirm whether to prepare for a
system update procedure or not”).
If the vehicle’s security system confirms that it should receive an
update, the vehicle’s security system calls the remote host to establish a
“mutual” or “two-way” connection between the vehicle and remote host (the
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second connection). Chen Fig. 2, H 23—24, 30. Using the two-way
connection, the remote host sends, and the vehicle’s security system
receives, a plurality of packets that collectively contain new or updated
“system data.” Chen Fig. 2, H 23—24. Upon successful receipt of the
system data, the vehicle’s security system performs an update procedure and
sends a “completion-receiving signal” to the remote host. Chen Fig. 2,
1126,32.
Contrary to Appellants’ arguments that Chen does not describe two
distinct communications sessions, we agree with the Examiner that Chen
teaches using two distinct communications sessions. As noted above, the
first step of Chen’s method involves a remote server sending a system
update command signal to a vehicle. See Chen Fig. 2, H 22, 30. Chen
states that subsequent to receipt and processing of the update command
signal, the vehicle’s systems “call the remote host... so as to set up a
mutual connection” (Chen 123) and “a two-way connection ... is built and
starts to execute a transmission procedure of system data” (Chen 124). The
fact that Chen states that the two-way connection begins with a call from the
vehicle’s system and is “set-up” or “built” after transmission and processing
of the update command signal indicates that the second, two-way connection
is distinct from the first communication session. See Ans. 4—5.
Moreover, Chen states that the second communication involves
transmission of system data in a plurality of packets, which stands in
contrast to the first communication that Chen describes only as transmission
of the update command signal. See, e.g., Chen H 22—26, 30-32. Although
Chen does not identify specific communications protocols for the first and
second communications, we agree with the Examiner that a person of
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ordinary skill would have recognized known and available protocols.
Further, given the contrast between Chen’s descriptions of the first
communication and the second communication, we agree with the Examiner
that a person of ordinary skill would have recognized Chen to teach or at
least reasonably suggest use of different protocols—a first protocol for the
relatively simple first communication and a different protocol for the second
communication that includes transmission of packets, error detection, and
other complexities. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (explaining that an obviousness analysis can take account of the
inferences and creative steps of a person of ordinary skill in the art).
Based on the evidence of record, we further disagree with Appellants’
arguments that the Examiner’s rejection relies on improper hindsight for the
combination of Chen with the SIP and SOAP protocols. Appeal Br. 8—9;
Reply Br. 6—7. Appellants state, Chen “utilizes cellular communications and
conventional calling protocols to communicate between a remote host and a
vehicle system,” and Appellants are correct that Chen does not disclose the
SIP or SOAP protocols. Appeal Br. 6 (citing Chen Fig. 2,123). We agree
with the Examiner, though, that a person of ordinary skill would have
understood SIP (Session Initiation Protocol) to be a well-known protocol
used for transmitting relatively simple signals such as Chen’s update
command signal from a remote host to a client such as a vehicle. See Ans. 5
(citing Grabelsky Fig. 10, 33, 56, 75); see also Spec, 20 (describing
SIP as allowing a call center to send a relatively simple message to a vehicle
on a mobile wireless network; stating “SIP is a text based peer-to-peer
protocol that facilitates the formation, modification, and execution of
communication sessions between two or more participants”), 22 (“The SIP
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specification is provided by the Internet Engineering Task Force (IETF) in
RFC 3261, and is known to those skilled in the art.”). Similarly, we agree
with the Examiner that a person of ordinary skill would have understood
SOAP (Simple Object Access Protocol) to be a well-known protocol for
allowing a remote host to exchange information with a client, such as the
exchange between the remote host and a vehicle as described in Chen’s
second communication. See Ans. 5—6 (citing Farson col. 7,11. 5—34); see
also Spec. 123 (describing the SOAP specification; stating “[t]he SOAP
specification is provided by the W3C (World Wide Web Consortium) and is
known and available to those skilled in the art”). Nothing in Appellants’
Specification describes any unexpected results or unique challenges in using
the known SIP and SOAP protocols for the claimed communications. To the
contrary, the evidence of record supports the Examiner’s findings and
conclusions that a person of ordinary skill would have recognized SIP and
SOAP as known protocols for the communications described in Chen, and
we disagree with Appellants that the Examiner’s combination of such well-
known protocols required impermissible hindsight.
We are also unpersuaded of error by Appellants’ arguments that the
Examiner’s citations to descriptions of SIP and SOAP from Wikipedia
amount to new grounds of rejection. Reply Br. 6—7. Allegations that an
examiner’s answer contains undesignated new grounds of rejection must be
resolved by filing a petition to reopen prosecution under 37 C.F.R. § 1.181,
the absence of which constitutes waiver of such arguments. 37 C.F.R.
§41.40 (“Failure of appellant to timely file such a petition will constitute a
waiver of any arguments that a rejection must be designated as a new ground
of rejection.”); accord MPEP § 1207.03. Appellants did not file a petition
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and therefore waived any argument that the Examiner’s Answer includes
new grounds of rejection. Further, the Examiner cites the Wikipedia entries
of SIP and SOAP as evidencing the general knowledge or background
information of a person of ordinary skill, not as additional prior art. See
Ans. 6. As Appellants acknowledge, SIP and SOAP were well known at the
time of Appellants’ invention. Spec. 20, 22.
Appellants also argue the Examiner misinterprets the claim terms
“command presence notification,” “pending command,” and “command.”
Appeal Br. 7—8; Reply Br. 4—6. Appellants’ Specification states that the
“command presence notification” may be a generic alert signaling the
presence of one or more commands (Spec. 118; see Ans. 3^4 (citing Spec.
18, 26)), and reading claim 1 in light of Appellants’ Specification, we
agree with the Examiner that Chen’s system update command signal teaches
or suggests the claimed command presence notification (see Ans. 4).
Notably, Appellants cite no evidence to support an interpretation of
command presence notification that would exclude Chen’s update command
signal.
Similarly, Appellants’ Specification describes “pending commands”
and “commands” broadly (see Spec. H 18; 26), stating for example, that
“[cjommands may . . . cause the telematics unit 104 to . . . receive, transfer
and/or operate on new vehicle subsystem parameters. Commands may, in
other examples, contain objects to be executed by the telematics unit 204,
such as . . . software updates” (Spec. 126). Addressing these portions of the
Specification, Appellants argue “the claimed ‘pending command’ may
include content in addition to the command itself, such as information to be
downloaded or objects to be executed.” Reply Br. 5. But whether the
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Specification’s examples of “vehicle subsystem parameters,” “software
updates,” and the like are themselves “pending commands” or merely
information or objects contained in a pending command that can be
downloaded and executed, Appellants do not advance any interpretation of
the claimed “pending command” that would distinguish the teachings of
Chen. To the contrary, reading claim 1 in light of Appellants’ Specification,
we agree with the Examiner that Chen’s teachings regarding data
transmissions during the second communication session and subsequent
processing teach or suggest requesting, receiving, and executing the pending
command as claimed. Accord Ex parte Hovey, Appeal 2011-004911, slip
op. 5 (PTAB October 21, 2005) (“While Chen does not use the word
‘notification, it appears that Chen’s update command signal provides
notification to the vehicle security system 10 of a pending command, the
pending command being the new system data that the remote server 30
divides into packets and then sends to the vehicle security system 10 during
the second connection.” (citing Chen 130)).
Accordingly, having considered the Examiner’s rejection in light of
each of Appellants’ arguments and the evidence of record, we disagree with
Appellants and agree with the Examiner’s findings, conclusions, and
reasoning, which we adopt as our own to the extend consistent with this
analysis. We affirm the Examiner’s rejection of claim 1, as well as the
rejections of claims 4, 5, 10, 13, 14, 19, 20, and 23—32 which Appellants do
not argue individually beyond the arguments advanced for claim 1.
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DECISION
For the above reasons, we affirm the Examiner’s rejections of claims
1, 4, 5, 10, 13, 14, 19, 20, and 23-32
No time period for taking any subsequent action in connection with
this appeal maybe extended. 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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