Ex Parte Wahlbin et al

Board of Patent Appeals and Interferences

Jun 28, 2012

09969545 - (D) (B.P.A.I. Jun. 28, 2012)

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.
09/969,545 10/02/2001 Steven Wahlbin 5053-46903 7185
7590 06/28/2012
ERIC B. MEYERTONS
CONLEY, ROSE & TAYON, P.C.
P.O. BOX 398
AUSTIN, TX 78767-0398
EXAMINER
PASS, NATALIE
ART UNIT PAPER NUMBER
3686
MAIL DATE DELIVERY MODE
06/28/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVEN WAHLBIN and TIM JOHNSTON
____________

Appeal 2010-006511
Application 09/969,545
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge CRAWFORD

Opinion Dissenting filed by Administrative Patent Judge FISCHETTI

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

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Application 09/969,545

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STATEMENT OF CASE
Appellants seek our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 482, 484-507, 510, 513, 516, 520-533,
and 845-854. Claims 1-481, 483, 508, 509, 511, 512, 514, 515, 517-519,
and 534-844 are canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

BACKGROUND
Appellants’ invention is directed to computer-implemented systems
and methods for estimating liability in a motor vehicle accident through
analysis of characteristics of motor vehicle accidents. (Specification 1:10-
13).
Claim 482 is illustrative:
482. A method of estimating liability for a vehicle accident,
comprising:
estimating a base liability of a party in a vehicle accident
with a computer system, wherein the base liability is a
proportion of the liability of the insured party independent of
one or more factors, wherein the factors comprise the actions of
the drivers and the conditions of the drivers;
estimating an effect of one or more of the factors on the
liability of the party with the computer system; and
determining an estimate of liability of the party by
combining the estimated base liability with the estimated effect
of the one or more factors on the liability of the party.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hall
Jernberg
Bomar
US 6,223,125 B1
US 6,336,096 B1
US 6,381,561 B1
Apr. 24, 2001
Jan. 1, 2002
Apr. 30, 2002

Thomas L. Traynor, "The effects of varying safety conditions on the external
costs of driving," Eastern Economic Journal, Winter 1994, at 45-60.

Appellants appeal the following rejections:
1. Claims 482, 484-489, 492-495, 498-500, 507, 524, 525, 528-533,
845-852, and 854 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jernberg, , Hall, and Thomas L. Traynor.
2. Claims 490, 491, 496-497, 501-506, 510, 513, 516, 520-523, 526-
527, and 853 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Jernberg, Hall, Traynor, and Bomar.

FACTUAL FINDINGS
The Specification discusses “base liability” as follows:
In step 303, a base liability may be estimated from a table or
database of characteristics that contain sets of characteristics
that correspond to past or theoretical accidents. As used herein,
the term "base liability" generally refers to the portion of the
liability that is independent of factors specific to condition of
vehicles in the accident, condition of drivers in the accident,
actions of drivers in the accident, and environmental conditions
common to vehicles in the accident. A computer system may
have access to a memory that contains sets of characteristics
such as roadway configuration, accident type, traffic control,
right of way, and impact points of the vehicles involved in the
vehicle accidents that correspond to past or theoretical
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accidents. Each of the sets of characteristics for past or
theoretical accidents may be associated with an estimate of base
liability.”
(Spec 20:13-21). The Specification also sets forth an example of base
liability, stating, “[f]or an undetermined right of way the base liability of
each vehicle may be set at 50%.” (Spec 25:27-28).
Jernberg discloses a system for accessing liability in environmental
accidents, as follows:
According to the system and method, data is gathered,
relationships among the data are calculated, the allocation of
liability among a PRP and its multiple insurers is evaluated and
a state adjustment factor is applied to the data. Deviations from
a consistent independently determined expected outcome is
calculated ("normal value"), and a qualitative decision
pertaining to the likelihood of outcome is proposed to the
parties.
(col. 3 ll. 5-12)
Jernberg discloses a “state adjustment factor” as follows:
A state adjustment factor is a valuation by a person or entity of
state law (taking into account statutory law and case law),
concerning an insurance company's anticipated liability, relative
to its insured (PRP) in pollution remediation suits. A state
adjustment factor is a reduction that is applied to the insurer's
gross liability to the insured (PRP) and represents the insurer's
anticipated contribution considering that state's laws. For
example, a state adjustment factor of 0 means the insurer could
be expected to pay no portion of the anticipated liability. A
state adjustment factor of 30% means the insurer anticipated
payment would be 30% of the total liability, or the PRP's
liability is expected to be reduced by 30%.
(col. 5 ll. 45-57).
Hall discloses documentation that will help assess liability of a party
in a vehicle accident (col. 5 ll. 15-17), and discloses factors of driving too
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fast for conditions, weather, an existing collision, road construction, traffic
congestion, and approaching an intersection, blind curve, school or hill.
(col. 2 l. 66 to col. 3 l. 9).
Additional findings may appear in the analysis.

ANALYSIS
We are persuaded of error by the Examiner by Appellants’ arguments
that none of the references or combination of references teaches the recited
“estimating a base liability of a party in a vehicle accident with a computer
system, wherein the base liability is a proportion of the liability of the
insured party independent of one or more factors, wherein the factors
comprise the actions of the drivers and the conditions of the drivers.” App.
Br. 7-9, Rep. Br. 3. The claimed concept of “base liability” is a singular
concept specific to liability for vehicle accidents: a proportion of liability of
an insured party in a vehicle accident without consideration of one or more
of the actions, or conditions, of the drivers.
First, we do not find the base liability estimation limitation disclosed
in any of the references. Jernberg discloses evaluating liability and then
applying an adjustment factor to the liability in regard to environmental
accidents. Col. 5 ll. 45-52. There is no disclosure in Jernberg of evaluating
liability in an automobile accident and then applying a factor. Likewise,
Hall does not teach an initial or base liability calculation before the factors
are considered in the portions cited by the Examiner (col. 5 ll. 15-17, col. 2 l.
66 to col. 3 l. 9). Hall discloses calculating the liability considering all of
the factors. Finally, we find that Traynor also does not teach any initial
estimation of liability at the cited portions (pages 45, 48, 49).
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As such, it is our view the cited art does not disclose “estimating a
base liability of a party in a vehicle accident.” The Examiner never explains
in his analysis where the base liability of a party in a vehicle accident is
taught in the combined prior art and in our view can’t be gleaned from
Jernberg because the initial liability taught by Jernberg relates to
environmental accidents. Therefore, a person of ordinary skill in the art is
not taught anything about a base liability for an automobile accident from
the cited prior art. Although the Specification may not include an explicit
definition for the term base liability in the context of an automobile accident,
it is our view that when the claim is read in light of the Specification, the
phrase “base liability for an automobile accident” must be given weight and
this is not taught by the combination of references.
In addition, even if we assume that the base liability for auto accidents
is taught by the prior art, the prior art does not disclose how the factors that
are disclosed in Hall and Traynor may be used to adjust the base liability.
Jernberg multiplies the state adjustment factor by the total liability. But it is
not clear from the prior art how a skilled artisan would go about “combining
the estimated base liability with the estimated effect of one or more factors
on the liability of the party” as recited in the claim, such as by multiplying or
adding.
Therefore, we do not sustain the rejection of claim 482, and claims
484-507, 510, 513, 516, 520-531, and 845-854 that depend from claim 482.
We also do not sustain the rejection of independent claims 532 and 533
(Ans. 11), which contain substantially identical claim limitations as to “base
liability” as claim 482 and which were rejected under similar rationale as
claim 482.
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DECISION
We reverse the rejection of claims 482, 484-507, 510, 513, 516, 520-
533, and 845-854 under 35 U.S.C. § 103(a).

REVERSED

Klh
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FISCHETTI, dissenting:

I respectfully dissent from the majority’s Decision because according
to the claim, the required factors are those attributable to the personal
negligence of the party, in this case, driver actions, whereas the base liability
is based on those factors over which the insured has no control, e.g., the
environment. But, Traynor discloses such a relationship between actions by
a driver and external conditions to arrive at a gross liability at page 57,
stating:
a positive relationship between the safety level of the driving
environment and a driver's ability to ultimately influence the
relative portion of accident costs that remain external to his or
her unsafe behavior . . . These conclusions are implied by
estimates indicating that drivers respond to improved driving
conditions in ways which ultimately reduce the part of accident
costs accruing to themselves.
While I agree with the majority that the Examiner did not enunciate
how this relationship in Traynor, taken with the liability rating
proportionality of Jernberg, could be combined; I nevertheless find that a
person of ordinary skill in the art would have known to use a proportional
liability standard, such as is commonly known in the insurance industry, to
apportion liability.