Ex Parte Mori et al

Patent Trial and Appeal Board

Jun 29, 2016

13405822 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/405,822 02/27/2012
95866 7590 07/01/2016
Fleit Gibbons Gutman Bongini & Bianco P,L,
551 NW 77th street
Suite 111
Boca Raton, FL 33487
FIRST NAMED INVENTOR
Robert Felice Mori
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.
44285-US-PAT 7687
EXAMINER
CHEN, JUNPENG
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
07/01/2016 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):
ptoboca@fggbb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT FELICE MORI and
PHILIP GABRIEL YURKONIS
Appeal2014--006261 1
Application 13/405,822
Technology Center 2600
Before KRISTEN L. DROESCH, MONICA S. ULLAGADDI, and
MATTHEW J. McNEILL, Administrative Patent Judges.
ULLAGADDI, Administrative Patent Judge.
DECISION ON APPEAL
Appeiiants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1--4, 6-12, and 14--17.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Claim 1, reproduced below with key disputed limitations emphasized,
is illustrative of the claimed subject matter:
1. An apparatus comprising:
a wireless transceiver;
1 Appellants identify the real party in interest as Research in Motion
Limited. App. Br. 3.
2 Claims 5 and 13 are cancelled.
Appeal2014--006261
Application 13/405,822
a control circuit operably coupled to the wireless
transceiver and configured to:
determine that a user of the apparatus is presently
driving a vehicle, at least in part, by detecting direct
acknowledgement of driving a vehicle by the user;
in response to an incoming call from a caller via the
wireless transceiver while the user is driving the vehicle,
automatically answering the incoming call to provide at
least two contact options to the caller.
REJECTION
Claims 1--4, 6-12, and 14--17 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Krum et al. (US 2010/0128863 Al; pub. May 27, 2010).
ANALYSIS
With regard to independent claim 1, the Examiner finds Krum
expressly discloses "determin[ing] that a user of the apparatus is presently
driving a vehicle; at least in part; by detecting direct ack_nowledgement of
driving a vehicle by the user" limitation. Final Act. 3--4 citing Krum i-f 3 7.
More particularly, the Examiner interprets "detecting direct
acknowledgment" to mean "sensing steering information based on the
driver's direct and exact involvement with steering" and finds this term
encompasses Krum's "steering sensor 30 for sensing the steering" because a
vehicle's steering is "directly controlled by the driver." Final Act. 2; see
also Ans. at 7-8.
Appellants argue that the Specification "characterizes the expression
'direct acknowledgement' in a way that precludes including steering
sensing" because the Specification "describes indirect sensing in a way that
would include steering sensing." App. Br. 9. Appellants conclude that the
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Appeal2014--006261
Application 13/405,822
Specification "necessarily precludes steering sensing from serving as a direct
approach" because "direct acknowledgement" is defined by implication
because the Specification clearly differentiates between methods of direct
detection and indirect detection. Id. citing Iredeto Access, Inc. v. Echostar
Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) ("Even when guidance
is not provided in explicit definitional format, the specification may define
claim terms by implication such that the meaning may be found in or
ascertained by a reading of the patent documents"). Appellants provide
three dictionary definitions for the term "acknowledge" and assert that the
Specification is consistent with the proffered definitions. 3 See App. Br. 9.
Appellants also argue the Examiner's findings are in error because one "does
not steer a vehicle in order to 'acknowledge' that they are driving a vehicle
nor can a steering sensor that senses steering be reasonably viewed as
passing along such an acknowledgement." App. Br. 9.
We are persuaded by Appellants' arguments. We agree that the
disputed limitation excludes the cited teachings of Krum because
Appellants' Specification sufficiently distinguishes between direct and
indirect methods of detection so as to implicitly define "direct
acknowledgement." See Iredeto Access, 383 F.3d at 1300. That is, "direct
acknowledgment" is implicitly defined in a manner that excludes the use of
vehicular sensors (e.g., steering sensors) as a method of detection. See e.g.,
Spec. i-fi-1 25-29. Based on the existence of an implicit definition for "direct
acknowledgment" as discussed above, and based on the plain and ordinary
meaning of "acknowledge," we agree that there is insufficient evidence to
show that Krum's teaching of steering a vehicle, by a user, means that the
3 See App. Br. 9 nn.4---6 for citations to dictionary definitions.
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Appeal2014--006261
Application 13/405,822
user necessarily acknowledges he or she is driving the vehicle. See App Br.
9.
For the foregoing reasons, we are persuaded that Krum does not
expressly, implicitly, or inherently disclose "direct acknowledgement of
driving a vehicle by the user," as recited in claim 1, the commensurate
limitations of independent claims 10 and 15, and the limitations of
dependent claims 2--4, 6-9, 11, 12-14, and 17, which are not separately
argued.
Therefore, we do not sustain the rejection of claims 1--4, 6-12, and
14--17 under 35 U.S.C. § 102(b) as anticipated by Krum.
DECISION
The Examiner's rejection of claims 1--4, 6-12, and 14--17 is reversed.
REVERSED
4