Ex Parte Moore et al

Patent Trials and Appeals Board

Oct 13, 2017

13632085 - (D) (P.T.A.B. Oct. 13, 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.
13/632,085 09/30/2012 Christopher D. Moore 337722-337804/P15390US3 5069
133036 7590 10/17/2017
DLA Piper LLP (US)
2000 University Avenue
East Palo Alto, CA 94303-2215
EXAMINER
PATEL, SHARDUL D
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
10/17/2017 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):
ApplePros Admin @ dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER D. MOORE, AROON PAHWA, and
YAOHUA HU (APPLE INC.)
Appeal 2017-003541
Application 13/632,085
Technology Center 3600
Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
BETH Z. SHAW, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3—7, 9-17, and 20-28, which are all the claims pending
in this application.1 Claims 2, 8, 18, and 19 are cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 We refer to the Final Office Action, mailed September 24, 2015 (“Final
Act.”); the Appeal Brief, filed on April 26, 2016 (“App. Br.”); the
Examiner’s Answer, mailed October 17, 2017 (“Ans.”); and the Reply Brief
filed on December 19, 2016 (“Reply Br.”).
Appeal 2017-003541
Application 13/632,085
STATEMENT OF THE CASE
Invention
The disclosed and claimed invention on appeal provides a mapping
application for traffic data. Spec., p. 3,11. 1—2.
Claim 1 is representative, and is reproduced below, with disputed
limitations italicized:
1. A non-transitory machine readable medium storing
a mapping program executable by at least one processing unit,
the program comprising sets of instructions for:
providing a display area for displaying a map having a plurality
of roads; and
drawing, on the map, representations of traffic congestion along
the roads, wherein the set of instructions for drawing comprises sets of
instructions for:
drawing dashed lines with a first appearance to represent
traffic for a road segment that has heavy congestion; and
drawing dashed lines with a second appearance to
represent traffic for a road segment that has moderate
congestion,
wherein the set of instructions for drawing traffic
congestion representation does not draw any representation of
traffic for a road segment that has less than moderate traffic
congestion.
Rejections
A. Claims 1 and 3 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata (US 2010/0070253 A1 published Mar. 18,
2010) and Rossano et al., (US 2012/0150436 A1 published June 14,
2012; hereinafter “Rossano”). Final Act. 2 6.
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B. Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Hirata, Rossano, and Barker et al., (US 2010/0185382 A1
published July 22, 2010; hereinafter “Barker”). Final Act. 6.
C. Claim 10 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Hirata, Rossano, and Swope, III, et al., (US 2010/0225644 Al;
published Sept. 9, 2010). Final Act. 7.
D. Claims 28 and 5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata, Rossano, and Nagda et al., (US 6,862,524
B1 issued Mar. 1, 2005; hereinafter “Nagda”). Final Act. 7—9.
E. Claims 4 and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata, Rossano, Nagda, and Barker. Final Act. 9—
11.
F. Claim 7 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Hirata, Rossano, Nagda, and Fuchs et al., (US 2004/0001114 Al;
published Jan. 1, 2004; hereinafter “Fuchs”). Final Act. 11—12.
G. Claim 11 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Hirata and Marsh (US 2007/0010941 Al; published Jan. 11,
2007). Final Act. 12-13.
H. Claims 14 and 24 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata, Marsh, and Barker. Final Act. 13—14.
I. Claims 12 and 26 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata, Marsh, and Kurihara et al., (US
2009/0037093 Al; published Feb. 5, 2009; hereinafter “Kurihara”).
Final Act. 14—16.
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Application 13/632,085
J. Claims 13, 25 and 27 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hirata, Marsh, Kurihara, and Nagda. Final Act.
16-17.
K. Claim 15 stands rejected under pre-AIA 35 U.S.C. § 102(b) as being
unpatentable over Cera et al., (US 2006/0253245 Al; published Nov.
9, 2006; hereinafter “Cera”). Final Act. 17—18.
L. Claims 16, 17, and 20 23 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Cera and of Barker. Final Act. 18—23.
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We find Appellants’ arguments unpersuasive, for the reasons
discussed infra. We adopt as our own: (1) the findings and legal
conclusions set forth by the Examiner in the Final Office Action from which
this appeal is taken (Final Act. 2—23), and (2) the findings, legal conclusions,
and explanations set forth in the Answer (4—10), in response to Appellants’
arguments. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Appellants argue the Examiner erred by finding Hirata and Rossano
teach or suggest a program that draws representations of traffic congestion
along roads where the program does not draw any representation of traffic
for a road segment that has less than moderate traffic congestion. App. Br.
10 11. We are not persuaded by Appellants’ argument because we find a
preponderance of the evidence supports the Examiner’s findings and
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conclusions. Ans. 4. First, Appellants do not dispute Rossano teaches a
method for displaying traffic conditions on a map. Id. (citing Rossano, Fig.
1,135.) Rossano explains that traffic flow rate in Figure 1 may be
indicated, for example, by dashed lines. Rossano 135 (emphasis added).
Rossano goes on to explain that the traffic flow conditions, which may be
indicated by the dashed lines that overlay the respective arteries, may
alternatively be shown as color-coded lines, and Rossano gives examples of
types of lines that may show varying levels of traffic conditions (e.g., heavy
or moderate traffic). Id.
We are not persuaded by Appellants’ argument that the negative
limitation of “not drawing” any representation of traffic2 provides
“significant and meaningful benefits.” App. Br. 11—12, Reply Br. 4. Rather,
to the extent Appellants argue any benefit from the negative limitation, this
is unsupported attorney argument, which lacks reference to the Specification
for support.
Moreover, as explained in KSR International Co. v. Teleflex Inc., 550
U.S. 398, 420 (2007), “a person of ordinary skill is also a person of ordinary
creativity, not an automaton.” Id. at 420-21. The Supreme Court has
2 To show possession of a claimed negative limitation, our reviewing court
guides that “[n]egative claim limitations are adequately supported when the
specification describes a reason to exclude the relevant limitation.”
Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012).
See also MPEP 2173.05(i) (“Any negative limitation or exclusionary proviso
must have basis in the original disclosure . . . The mere absence of a
positive recitation is not basis for an exclusion.”). Although Appellants may
have some support for this limitation in the Specification, we note that
Appellants have not pointed to a reason to exclude the negative limitation.
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Application 13/632,085
instructed that “a court must ask whether the improvement is more than the
predictable use of prior art elements according to their established functions”
(KSR, 550 U.S. at 417), and apply “an expansive and flexible approach” to
obviousness (id. at 415). Given the teaching of Rossano’s various methods
of line drawing to show various levels of traffic, the concept of omitting
lines for “less than moderate traffic” is an obvious predictable variation of
known elements. “The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSR, 550 U.S. at 416. “If a person of ordinary skill can
implement a predictable variation, § 103 likely bars its patentability.” Id. at
417.
For at least the aforementioned reasons, we sustain the rejection of
claim 1.
Claim 11
Appellants argue that Marsh fails to teach “selection of a selectable
graphical indicator that provides a banner” or “a banner having a selectable
control for providing additional information about road conditions,” as
recited in claim 11. App. Br. 12—15. As the Examiner finds, however,
Marsh teaches a message box to display predetermined information. Ans. 5
(citing Marsh, Figs. 8, 9,137). A user may press the compare route button
and Marsh generates a display having the original route and the primary
alternate route. Id. (citing Marsh 138). Moreover, as the Examiner
explains, Marsh also teaches various information can be presented in a
banner with a selectable control, which then provides additional information,
“such as a request for gas stations within 2 miles can be displayed initially as
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Application 13/632,085
a list of the gas stations with an indication in what direction each one is
located and how far away each one is[. Then] the user can then select the
desired gas station and the navigation unit will display route instructions.”
Id. (citing Marsh 132). Appellants do not persuasively rebut the findings of
what Marsh teaches, or even address the gas station example. Reply Br. 4—
7. For at least the aforementioned reasons, absent persuasive rebuttal, we
sustain the rejection of claim 11.
Dependent Claim 12
Appellants argue that Kurihara fails to teach a banner that provides a
second display for additional information about a road condition, as recited
in dependent claim 12. App. Br. 15—16. As the Examiner finds in the
Answer, and we agree, Marsh discloses a banner that provides a second
display for additional information about a road condition. Ans. 7 (citing
Marsh, Figs. 4, 5, 11, 12, | 5). Appellants generally argue, without further
explanation, that “displaying alternate rout[e]s is not equivalent to any of the
claimed limitations.” App. Br. 14. Yet, Appellants do not rebut any the
Examiner’s specific findings of Marsh’s teachings. Reply Br. 6—7. For at
least the aforementioned reasons, absent persuasive rebuttal, we sustain the
rejection of claim 12.
Dependent Claim 16
Appellants argue, in addition to arguments similar to those addressed
in claim 1 above, that Barker does not disclose a method that does
not draw a representation of traffic for any road segment that does not have
heavy or moderate traffic, as recited in dependent claim 16. App. Br. 6.
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However, we agree with the Examiner’s findings that Barker teaches that
major roads are divided into displayed segments, for example using a level
of grayscale shading, to indicate a corresponding level of road congestion
for that road segment. Ans. 8; Barker || 83-84. As discussed above with
respect to claim 1, given Barker’s teaching of various types of display
methods to show various levels of traffic, the concept of not drawing “a
representation of traffic for any road segment that does not have heavy or
moderate traffic” is an obvious predictable variation of known elements.
For at least the aforementioned reasons, absent persuasive rebuttal, we
sustain the rejection of claim 16.
Dependent Claim 21
Regarding dependent claim 21, Appellants argue Barker does not
teach providing a second display area upon selection of a graphical indicator
because Barker merely depicts a single display area. App. Br. 17—18. We
disagree. As the Examiner finds, Barker discloses user-selectable display
option controls that can include information about incidents that can be
overlaid on the display map. Ans. 8—9 (citing Barker | 84). In addition,
Barker explains that “a provided UI may include one or more types of user-
selectable controls to allow a user to manipulate in various ways what road
traffic condition information is displayed and/or how the information is
displayed.” Barker 119. Appellants do not persuasively rebut any the
Examiner’s specific findings that these teachings of Barker encompass
“upon selection of a graphical indicator, providing a second display area that
displays information about a road condition associated with the selected
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graphical indicator,” as recited in dependent claim 21. For at least the
aforementioned reasons, absent persuasive rebuttal, we sustain the rejection
of claim 21.
Dependent Claim 22
Appellants argue Barker does not teach or suggest “differently
drawing portions of traffic that are near a displayed route from portions of
traffic that are not near the displayed route.” App. Br. 18; Reply Br. 8—9.
We are not persuaded by this argument. As the Examiner finds, Barker
teaches providing only some of a selected route information to a client, such
as only information for a predicted optimal or top-ranked route, or providing
information for a specified number of routes, or all route options. Ans. 9
(citing Barker H 66, 67). The Examiner explains that Barker teaches this
updated route information may be provided to vehicle-based clients that may
be traveling on or near the affected routes. Id. Thus, Barker draws portions
of traffic near a displayed route differently from portions of traffic not near
the displayed route. In the absence of sufficient evidence or line of technical
reasoning to the contrary, the Examiner’s response is reasonable, and we
find no reversible error.
For at least the aforementioned reasons, we sustain the rejection of
dependent claim 22.
Dependent Claim 23
Regarding dependent claim 23, Appellants argue Barker does not
teach diminishing the appearance of portions of traffic that are near a
displayed route. App. Br. 19. The Examiner finds that at least Figure 3,
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Figures 7A-7V, and paragraphs 63 and 64 of Barker teach this limitation of
claim 23. In Figures 7A-7V of Barker, the user may pan or zoom (see
elements 708a-c, 709) to control the display of traffic data. Barker, Figs.
7A-7V. Additionally, the user may highlight various routes by selection an
option, such as option 704a shown in Figure 7A, which may highlight a
route including traffic information on part of the map. Id.', see also f 84.
Thus, Barker teaches panning, zooming, as well as highlighting some
portions of traffic and not others, each of which diminishes the appearance
of portions of traffic near the displayed route so as not to interfere with the
presentation of the displayed route. We agree with the Examiner that Barker
therefore teaches or suggests the claimed “diminishing the appearance of
portions of traffic congestion representations that are near the displayed
route so that the diminished portions do not interfere with the presentation of
the displayed route,” as recited in dependent claim 23.3
For at least the aforementioned reasons, we sustain the rejection of
dependent claim 23.
Because Appellants have not presented separate patentability
arguments or have reiterated substantially the same arguments as those
previously discussed for patentability of claim 1 above, the remaining
pending claims fall for the same reasons as discussed above regarding claim
1. To the extent Appellants have not advanced separate, substantive
3 “[T]he question under 35 [U.S.C.] § 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.” Merck & Co. v. Biocraft
Laboratories, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989), cert, denied, 493
U.S. 975 (1989); see also MPEP § 2123. (Emphasis added).
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arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s rejections of claims 1, 3—7, 9-17, and
20-28, under pre-AIA 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)(l)(iv). See 37
C.F.R. §41.50(f).
AFFIRMED
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