Ex Parte Moore et al

Patent Trial and Appeal Board

Oct 31, 2018

14025240 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/025,240 09/12/2013
96411 7590 11/01/2018
Dinsmore & Shohl LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
FIRST NAMED INVENTOR
Douglas A. Moore
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.
22562-864 I 2013-108 6862
EXAMINER
LEE,GENEW
ART UNIT PAPER NUMBER
2692
MAIL DATE DELIVERY MODE
11/01/2018 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 DOUGLAS A. MOORE, JOSEPH M. A. DWGASH, and
EMRAH A. SISBOT
Appeal2016-008758
Application 14/025,240 1
Technology Center 2600
Before JEREMY J. CURCURI, KARA L. SZPONDOWSKI, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McNEILL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 2, 4-15, and 21-25, which are all the claims pending
in this application. Oral arguments were heard on October 16, 2018. A
transcript of that hearing will be added to the record in due course. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is the Applicant, Toyota
Motor Engineering & Manufacturing North America, Inc. App. Br. 2.
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Application 14/025,240
STATEMENT OF THE CASE
Introduction
Appellants' application relates to providing navigation assistance to a
user through tactile or audible feedback indicating a virtual wall. Spec. ,r 1.
Claim 1 illustrates the appealed subject matter and reads as follows:
1. A method for providing navigation assistance to a user, the
method comprising:
defining a first virtual wall and a second virtual wall along
at least a portion of a path for navigation through an environment,
wherein the path includes a centerline and the first virtual wall
and the second virtual wall are offset from the centerline,
wherein the first virtual wall is defined to the left of the user and
the second virtual wall is defined to the right of the user;
determining a location of the user;
providing tactile feedback to the left side of the user,
automatically by a processor, with a first tactile feedback device
when the location of the user is within a first threshold distance
of the first virtual wall to indicate that the user is within the first
threshold distance of the first virtual wall to the left of the user;
and
providing tactile feedback to the right side of the user with
a second tactile feedback device when the location of the user is
within a second threshold distance of the second virtual wall to
indicate that the user is within the second threshold distance of
the second virtual wall to the right of the user.
The Examiner's Rejections
Claims 1, 2, 4, 5, 7-9, 11, 12, and 15 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Rogers (US 2004/0056762 Al; Mar. 25, 2004)
and Osaka et al. (US 2006/0097857 Al; May 11, 2006). Final Act. 3-8.
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Application 14/025,240
Claims 6 and 13 stands rejected under 35 U.S.C. § 103 as
unpatentable over Rogers, Osaka, and Avalini (US 2011/0043496 Al; Feb.
24, 2011 ). Final Act. 8-10.
Claims 10, 21, and 23 stands rejected under 35 U.S.C. § 103 as
unpatentable over Rogers, Osaka, and Albertson et al. (US 2008/0170118
Al; July 17, 2008). Final Act. 8-9, 15-18.
Claims 14, 21, 22, 24, and 25 stands rejected under 35 U.S.C. § 103 as
unpatentable over Rogers, Osaka, and Mortimer et al. (US 2009/0062092
Al; Mar. 5, 2009). Final Act. 10-14.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
contentions that the Examiner has erred. We disagree with Appellants'
contentions. Except as noted below, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the Final Action from which this
appeal is taken; and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellants' Appeal Brief. We concur
with the Examiner's conclusions. We highlight the following additional
points.
Independent claim 1
Appellants argue the Examiner erred in rejecting claim 1 as
unpatentable over Rogers and Osaka. See App. Br. 12-13; Reply Br. 2-5.
In particular, Appellants argue Rogers does not teach or suggest "providing
tactile feedback to the left side of the user ... " or "providing tactile
feedback to the right side of the user ... " as recited in claim 1. See App.
Br. 12. Appellants argue Rogers instead teaches providing an audible or
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Application 14/025,240
tactile alert to a user operating a vehicle when the vehicle has deviated from
a predetermined path. Id.
Appellants also argue Osaka does not teach or suggest the two
"providing" limitations. See App. Br. 12-13. Appellants argue Osaka
instead teaches a vibrating seat that indicates obstacles approaching from
left, right, fore, and aft of a vehicle. Id. Appellants argue Osaka is silent
regarding the relative location of a user around first and second virtual walls.
Id.
Appellants also argue an ordinarily skilled artisan would not be
motivated by Roger's teaching of directional audio feedback to modify
Rogers with the teachings of Osaka and the Examiner's conclusion of
obviousness is based on impermissible hindsight because only Appellants'
Specification, not either of the cited references, describes the benefits of
providing directional tactile feedback. See Reply Br. 4.
Appellants have not persuaded us of Examiner error. The Examiner
finds Rogers teaches providing tactile feedback to a user when the user's
location is within a threshold distance of a virtual wall on the user's left.
Ans. 3 (citing Rogers ,r,r 17, 18, 23, 43, Fig. 3). The Examiner finds Rogers
similarly teaches providing tactile feedback when a user is within a threshold
distance of a virtual wall on the user's right. Id. The Examiner finds Osaka
teaches providing directional tactile feedback-i.e., tactile feedback on a
user's left side when approaching an obstacle on the user's left and tactile
feedback on a user's right side when approaching an obstacle on a user's
right. Ans. 3 (citing Osaka Figs. 2, 3). The Examiner finds Roger's
teaching of directional audio feedback would have motivated an ordinarily
skilled artisan to replace the directional audio feedback with directional
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Application 14/025,240
tactile feedback. Ans. 4-6. In particular, Osaka's teaching of tactile
feedback is readily applicable to Rogers because Rogers teaches audio
feedback. Substituting tactile feedback for the audio feedback would have
been a predictable variation of the prior art teachings. See Rogers ,r,r 17, 18,
23, 43, Fig. 3; Osaka Figs. 2, 3.
We agree with the Examiner's findings and conclusion of
obviousness. Appellants' arguments about the "providing" limitations are
unpersuasive because they focus on the individual teachings of Rogers and
Osaka and do not consider the combined teachings of the references. One
cannot show nonobviousness by attacking references individually when the
rejection is based on a combination of references. In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413,
425 (CCP A 1981 ). The Examiner explained that the combination of Rogers
and Osaka, not either reference alone, teaches or suggests the "providing"
limitations. Ans. 3-7.
As to the motivation to combine, Rogers and Osaka both teach
providing tactile feedback to a user when approaching either a virtual wall
(Rogers) or an obstacle (Osaka). See Rogers Abstract; Osaka Abstract.
Rogers and Osaka also both teach providing directional feedback. In
particular, Rogers teaches directional audio feedback and Osaka teaches
directional tactile feedback. See Rogers ,r 13; Osaka ,r,r 81-82. Appellants
have not persuaded us the Examiner erred in finding an ordinarily skilled
artisan would have been motivated to combine the directional tactile
feedback of Osaka with the directional audio and undirected tactile feedback
of Rogers.
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Application 14/025,240
Also, Appellants' argument that neither reference teaches the benefits
of directional tactile feedback and the combination is the result of
impermissible hindsight is also unpersuasive of error. "Any judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning, but so long as it takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's disclosure,
such a reconstruction is proper." In re McLaughlin, 433 F.2d 1392, 1395
(CCPA 1971). We do not agree with Appellants that the Examiner's
rejection is based on impermissible hindsight, as it does not include
knowledge gleaned only from Appellants' disclosure, but rather takes into
account the teachings of Rogers and Osaka, i.e., knowledge which was
within the level of ordinary skill at the time the claimed invention was made.
See Ans. 4---6. Moreover, there is no requirement that an "express, written
motivation to combine must appear in prior art references before a finding of
obviousness." See Ruiz v. A.B. Chance Co., 357 F.3d 1270, 1276 (Fed. Cir.
2004).
For these reasons, we are not persuaded the Examiner erred in
rejecting claim 1 as unpatentable over Rogers and Osaka. We, therefore,
sustain the rejection of independent claim 1. We also sustain the rejection of
independent claim 8, for which Appellants provide no separate argument.
See App. Br. 12-13. We also sustain the rejection of dependent claims 2, 4,
5, 7, 9, 11, 12, and 15, for which Appellants provide no separate argument.
See id. Claims 6, 10, 13, and 14, which depend from independent claims 1
and 8, stand rejected under 35 U.S.C. § 103(a) as unpatentable over Rogers,
Osaka, and an additional reference among the group of A valini, Albertson,
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and Mortimer. See Final Act. 8-11. Appellants do not provide separate
argument for these rejections. See App. Br. 12-13. We, therefore, sustain
the rejections of claims 6, 10, 13, and 14 for the same reasons as claims 1
and 8.
Independent claim 21
Independent claim 21 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Rogers, Osaka, and Mortimer. See Final Act. 11-14.
Independent claim 21 also stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Rogers, Osaka, and Albertson. See Final Act. 14-17.
Appellants argue the Examiner erred in these rejections for the same reasons
as presented for the rejection of claim 1 over Rogers and Osaka. See App.
Br. 14-18. Thus, we sustain the rejections of claim 21 for the same reasons
as claim 1.
DECISION
We affirm the decision of the Examiner rejecting claims 1, 2, 4-15,
and 21-25.
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(±).
AFFIRMED
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