09969039 (B.P.A.I. Jun. 9, 2009)

Ex Parte Wahlbin et al

Board of Patent Appeals and InterferencesJun 9, 2009

09969039 (B.P.A.I. Jun. 9, 2009)

1 2 3 4 UNITED STATES PATENT AND TRADEMARK OFFICE 5 ____________________ 6 7 BEFORE THE BOARD OF PATENT APPEALS 8 AND INTERFERENCES 9 ____________________ 10 11 Ex parte STEVEN WAHLBIN and TIM JOHNSTON 12 ____________________ 13 14 Appeal 2009-000531 15 Application 09/969,039 16 Technology Center 3600 17 ____________________ 18 19 Decided:1 June 10, 2009 20 ____________________ 21 22 Before MURRIEL E. CRAWFORD, HUBERT C. LORIN and 23 JOSEPH A. FISCHETTI, Administrative Patent Judges. 24 25 CRAWFORD, Administrative Patent Judge. 26 27 DECISION ON APPEAL 28 29 30 31 32 33 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2009-000531 Application 09/969,039 2 STATEMENT OF THE CASE 1 Appellants appeal under 35 U.S.C. § 134 (2002) from a Final 2 Rejection of claims 814-820 and 845-846. We have jurisdiction under 3 35 U.S.C. § 6(b) (2002). 4 Appellants claim systems and methods for estimating liability in a 5 motor vehicle accident through analysis of characteristics of motor vehicle 6 accidents (Spec., p. 1, ll. 10-13). 7 Claim 814, reproduced below, is further illustrative of the claimed 8 subject matter: 9 814. A method, comprising: 10 providing a computer system configured to 11 access a memory, wherein the memory comprises 12 sets of characteristics regarding one or more past 13 or theoretical accidents, and wherein at least one 14 characteristic in the sets of characteristics is an 15 impact point for a vehicle involved in a past or 16 theoretical accident, and wherein at least one 17 estimate of liability is associated with each of the 18 sets of characteristics; 19 displaying the impact points as a graphical 20 image in a graphical user interface; 21 selecting a graphical image of an impact 22 point corresponding to an impact point for a 23 vehicle involved in a real accident; 24 comparing the selected impact point with 25 impact points associated with the sets of 26 characteristics regarding past or theoretical 27 accident to determine a nearest matching set of 28 characteristics; and 29 determining an estimate of liability for the 30 real accident based on the liability associated with 31 the nearest matching set of characteristics. 32 33 Appeal 2009-000531 Application 09/969,039 3 The prior art relied upon by the Examiner in rejecting the claims on 1 appeal is: 2 Bomar et al. US 6,381,561 Apr. 30, 2002 3 Jernberg US 6,336,096 Jan. 1, 2002 4 Baker, J. “Don’t throw adjusters to the lions” Best’s Review, 5 Property/casualty insurance edition, Oldwick: Apr. 1992, Vol. 95, Issue 12, 6 pages 66-69, URL: 7 http://proquest.umi.com/pqdweb?did=5337154&sid=1&Fmt=3&clientID=18 9649&RQT=309&VName=PQD (hereinafter “Baker”). 9 The Examiner rejected claims 814-820 and 845-846 under 35 U.S.C. 10 § 103(a) as being unpatentable over Bomar in view of Jernberg and Baker. 11 We AFFIRM-IN-PART. 12 13 ISSUES 14 Did the Appellants show the Examiner erred in finding that Bomar 15 discloses or suggests providing one or more witness statements to a 16 computer system “determining an estimate of liability for the real accident 17 based on the liability associated with the nearest matching set of 18 characteristics,” as recited in independent claim 814? 19 Did the Appellants show the Examiner erred in finding that Jernberg 20 discloses “wherein the memory comprises sets of characteristics regarding 21 one or more past or theoretical accidents, and wherein at least one 22 characteristic in the sets of characteristics is an impact point for a vehicle 23 involved in a past or theoretical accident, and wherein at least one estimate 24 of liability is associated with each of the sets of characteristics,” as recited in 25 Appeal 2009-000531 Application 09/969,039 4 independent claim 814, because Jernberg is only directed to historical data 1 for particular environmental events and not vehicle accidents? 2 Did the Appellants show the Examiner erred in finding that Baker 3 discloses “determining an estimate of liability for the real accident based on 4 the liability associated with the nearest matching set of characteristics,” as 5 recited in independent claim 814, because claims adjusters in Baker utilize 6 their own experience in determining an estimate of liability? 7 Did the Appellants show the Examiner erred in finding that Bomar 8 discloses wherein the graphical image of the impact point comprises a 9 graphical representation of a vehicle, wherein the vehicle is divided into two 10 or more sections, and wherein the sections correspond to impact points as 11 recited in dependent claim 816? 12 Did the Appellants show the Examiner erred in finding that Bomar 13 discloses impact points selected from the group consisting of right front 14 corner, right front fender, right middle, right rear quarter-panel, right rear 15 corner, rear middle, left rear corner, left rear quarter-panel, left middle, left 16 front fender, left front corner, and front middle as recited in dependent claim 17 815? 18 Did the Appellants show the Examiner erred in finding that Bomar 19 discloses that the real accident comprises a vehicle accident as recited in 20 dependent claim 817? 21 Did the Appellants show the Examiner erred in finding that Bomar 22 discloses that the real accident comprises a two vehicle accident as recited in 23 dependent claim 818? 24 Appeal 2009-000531 Application 09/969,039 5 Did the Appellants show the Examiner erred in rejecting independent 1 claims 819 and 820 for the same reasons the Examiner erred in rejection 2 independent claim 814? 3 Did the Appellants show the Examiner erred in finding that Jernberg 4 discloses that the estimate of liability is expressed as a percentage as recited 5 in dependent claim 845? 6 Did the Appellants show the Examiner erred in finding that Jernberg 7 discloses that the estimate of liability is expressed as a range of percentage 8 liability as recited in dependent claim 846? 9 10 FINDINGS OF FACT 11 Specification 12 Appellants claim systems and methods for estimating liability in a 13 motor vehicle accident through analysis of characteristics of motor vehicle 14 accidents (p. 1, ll. 10-13). 15 16 Bomar 17 Bomar teaches in one embodiment, a computer program product, 18 encoded in computer readable media, includes program instructions, which, 19 when executed by a processor, are operable to receive input information 20 regarding damaged vehicle components for at least one vehicle, categorize 21 damage zones with respect to the location of the bumper of a vehicle, 22 categorize a vehicle component with respect to its location on the vehicle, 23 and estimate the change in the vehicle's velocity as a result of a collision 24 based on the damaged vehicle components information. The information 25 regarding damaged vehicle components includes particular damaged vehicle 26 Appeal 2009-000531 Application 09/969,039 6 components, locations of damaged vehicle components, depth information 1 corresponding to the damaged vehicle components, and an overall vehicle 2 damage rating (col. 1, ll. 37-51). 3 In a further embodiment, a computer system executing the computer 4 program product is operable to compare the overall vehicle damage rating to 5 a crash test vehicle damage rating, and to estimate whether to use crash test 6 data to determine the change in the vehicle's velocity, based on the 7 comparison and the location of damaged components. The executing 8 computer program product further compares characteristics of a damaged 9 vehicle to characteristics of vehicles for which crash test data is available, 10 and determines whether crash test data for a particular vehicle is applicable 11 to the damaged vehicle. The executing computer program product then 12 determines a coefficient of restitution to use in estimating the change in the 13 vehicle's velocity (col. 1, ll. 52-64). 14 The ΔV data acquisition module 214 generates a graphical user 15 interface 500 having a grid pattern 504 superimposed above the bumper of a 16 representative subject vehicle. The grid pattern includes eight (8) zones 17 divided into columns, labeled A-H, respectively. The user selects, using an 18 I/O device 112 such as a mouse, grid areas which directly correspond to 19 observed crush damage in the subject vehicle 502. Although eight crush 20 zones are described, it will be apparent to persons of ordinary skill in the art 21 that more or less crush zones may be included to increase or decrease, 22 respectively, the resolution of crush damage (Figs. 4-7; col. 14, ll. 46-54; 23 col. 14, l. 66 to col. 15, l. 3; col. 15, ll. 7-11, 25-29). 24 Subject vehicles involved in actual collisions frequently do not align 25 perfectly. That is, either the bumper heights of the vehicles may not align 26 Appeal 2009-000531 Application 09/969,039 7 (override/underride) or the subject vehicles may not align along the subject 1 vehicle widths (offset) or both conditions may exist. In addition, the subject 2 vehicles may collide at an angle or the point of impact may be a protruding 3 attachment on one of the subject vehicles (col. 20, ll. 45-42). 4 5 Jernberg 6 Jernberg teaches that there is a need for a system and method of 7 concurrently evaluating liability among multiple PRPs and their insurers 8 which can facilitate a qualitative determination of likelihood of outcome to 9 all parties (col. 2, ll. 25-28). 10 While the system and method for evaluating liability may be used by 11 anyone, it is anticipated that only independent third parties will use the 12 system and method (col. 3, ll. 13-15). 13 The Jernberg system and method can be modified to include historical 14 data pertaining to similar sites (col. 4, ll. 27-28). 15 16 Baker 17 Baker discloses that a new adjuster needs to know how to determine 18 an insured's degree of negligence. How are insureds and claimants afforded 19 percentages of negligence? How can someone read an accident description 20 and the statements of the involved parties and immediately decide who is 21 liable? It is fairly easy. There are three factors that play major roles in 22 detecting liability. They are: right of way, point of impact and traffic 23 controls (p. 2, ¶ 11). 24 Determining the point on which the vehicle is impacted helps a lot in 25 deciding liability. Simply having the right of way doesn't mean someone 26 Appeal 2009-000531 Application 09/969,039 8 isn't negligent in an accident. Yes, the person who didn't have the right of 1 way will be more negligent, but not necessarily totally negligent. It also 2 depends on where the impacts occurred to each vehicle. The industry 3 generally says that each portion of an auto, side/front, side/middle, side/rear, 4 counts for 10% negligence. This is the type of information many trainees 5 don't receive in their preliminary formal training class (p. 3, ¶ 2). 6 7 PRINCIPLES OF LAW 8 Claim Construction 9 While the specification can be examined for proper context of a claim 10 term, limitations from the specification will not be imported into the claims. 11 CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir. 12 2005). 13 14 Obviousness 15 One cannot show non-obviousness by attacking references 16 individually where the rejections are based on combinations of references. 17 In re Keller, 642 F.2d 413, 426 (CCPA 1981). 18 Appeal 2009-000531 Application 09/969,039 9 Once a prima facie case of obviousness is established, the burden 1 shifts to Appellant to rebut it. Id. 2 3 Markush Groups 4 A Markush group reciting several members, which group is regarded 5 as a proper one, is defeated by finding one of those members in the prior art. 6 Ex parte Rutherford, 63 USPQ 102 (Bd. Pat. App. 1943). 7 8 ANALYSIS 9 Bomar and Determining Liability Estimate 10 We are not persuaded of error on the part of the Examiner by 11 Appellants’ argument that Bomar does not disclose or suggest providing one 12 or more witness statements to a computer system and “determining an 13 estimate of liability for the real accident based on the liability associated 14 with the nearest matching set of characteristics,” as recited in independent 15 claim 814 (Appeal Br. 7-8; Reply Br. 4-5). As an initial matter, we note that 16 the step of “providing one or more witness statements” is not set forth in 17 independent claim 814, and thus will not be given any weight. See 18 CollegeNet, Inc., 418 F.3d at 1231. 19 The Examiner has cited the combination of Bomar, Jernberg and 20 Baker as disclosing the step of determining the estimate of liability 21 (Examiner’s Ans. 10-12). Specifically, the Examiner has cited Bomar for a 22 comparison of actual vehicle damage data to crash test damage data, 23 Jernberg for the use of historical data to apportion liability, and Baker for the 24 use of point of impact data to determine liability. In this section of the 25 Appeal Brief, the Appellants present arguments how Bomar, as an individual 26 Appeal 2009-000531 Application 09/969,039 10 reference, does not suggest the step of determining an estimate of liability. 1 However, the Appellants have failed to set forth how Bomar, in combination 2 with Jernberg and Baker, does not suggest the step of determining the 3 estimate of liability. See In re Keller, 642 F.2d at 426. Indeed, the alleged 4 deficiency of Bomar, that Bomar does not disclose or suggest determining 5 liability, is cited by the Examiner as being disclosed in Baker. Accordingly, 6 in the absence of arguments of how Bomar does not actually disclose 7 comparing damage data, or how Baker does not disclose using point of 8 impact data to determine liability, we will sustain this rejection. 9 10 Jernberg and Historical Data 11 We are not persuaded of error on the part of the Examiner by 12 Appellants’ argument that Jernberg does not disclose “wherein the memory 13 comprises sets of characteristics regarding one or more past or theoretical 14 accidents, and wherein at least one characteristic in the sets of characteristics 15 is an impact point for a vehicle involved in a past or theoretical accident, and 16 wherein at least one estimate of liability is associated with each of the sets of 17 characteristics,” as recited in independent claim 814, because Jernberg is 18 only directed to historical data for particular environmental events and not 19 vehicle accidents (Appeal Br. 8-10; Reply Br. 4-11). Jernberg is cited for 20 the proposition that historical data may be used to determine liability. While 21 Jernberg is used in an environmental context, Jernberg also discloses that its 22 teachings may be used in other technology areas to apportion liability (col. 23 2, ll. 25-28; col. 3, ll. 13-15). As these teachings of Jernberg have been 24 combined with Bomar and Baker, which are set in a vehicular accidents 25 Appeal 2009-000531 Application 09/969,039 11 context, the combination of references suggests that historical data may be 1 used to apportion liability in vehicular accidents. 2 3 Baker and Determining Liability Estimate 4 We are not persuaded of error on the part of the Examiner by 5 Appellants’ argument that Baker does not discloses “determining an estimate 6 of liability for the real accident based on the liability associated with the 7 nearest matching set of characteristics,” as recited in independent claim 814, 8 because claims adjusters in Baker utilize their own experience in 9 determining an estimate of liability (Appeal Br. 10-13; Reply Br. 5-8). As 10 an initial matter, we note that the claims do not preclude claims adjusters 11 from using their own experience to determine the estimate of liability. See 12 CollegeNet, Inc., 418 F.3d at 1231. 13 Moreover, the Examiner has cited the combination of Bomar, 14 Jernberg and Baker as disclosing the step of determining the estimate of 15 liability (Examiner’s Ans. 13-15). On pages 10-13 of the Appeal Brief and 16 pages 5-8 of the Reply Brief, the Appellants present arguments how Baker, 17 as an individual reference, does not suggest the step of determining an 18 estimate of liability. However, the Appellants have failed to set forth how 19 Baker, in combination with Bomar and Jernberg, does not suggest the step of 20 determining the estimate of liability. See In re Keller, 642 F.2d at 426. 21 Indeed, the alleged deficiency of Baker, that Baker does not disclose or 22 suggest matching of the characteristics of one accident with another 23 accident, is cited by the Examiner as being disclosed in Bomar. 24 Accordingly, in the absence of arguments of how Baker does not actually 25 Appeal 2009-000531 Application 09/969,039 12 disclose using point of impact data to determine liability, or how Bomar 1 does not disclose comparing damage data, we will sustain this rejection. 2 3 Impact Points 4 We are not persuaded of error on the part of the Examiner by 5 Appellants’ argument that Bomar does not disclose impact points selected 6 from the group consisting of right front corner, right front fender, right 7 middle, right rear quarter-panel, right rear corner, rear middle, left rear 8 corner, left rear quarter-panel, left middle, left front fender, left front corner, 9 and front middle as recited in dependent claim 815 (Appeal Br. 13). Bomar 10 discloses crush zones A-H on a bumper of a vehicle (Figs. 4-7; col. 14, ll. 11 46-54; col. 14, l. 66 to col. 15, l. 3; col. 15, ll. 7-11, 25-29). Assuming the 12 bumper is on the front/rear of the vehicle, crush zones A-H correspond to the 13 right front/rear corner, front/rear middle and left front/rear corner of the 14 group set forth in dependent claim 815. See Ex parte Rutherford, 63 USPQ 15 at 102. 16 17 Vehicle Sections 18 We are not persuaded of error on the part of the Examiner by 19 Appellants’ argument that Bomar does not disclose that the graphical image 20 of the impact point comprises a graphical representation of a vehicle, 21 wherein the vehicle is divided into two or more sections, where the sections 22 correspond to impact points as recited in dependent claim 816 (Appeal Br. 23 13). As set forth above, crush zones A-H in Bomar correspond to the recited 24 graphical impact point sections. 25 26 Appeal 2009-000531 Application 09/969,039 13 Vehicle Accident 1 We are not persuaded of error on the part of the Examiner by 2 Appellants’ argument that Bomar does not disclose that the real accident 3 comprises a vehicle accident as recited in dependent claim 817 (Appeal Br. 4 13). At least the portions of the Bomar reference cited herein are directed to 5 vehicle accidents. 6 7 Two Vehicle Accidents 8 We are not persuaded of error on the part of the Examiner by 9 Appellants’ argument Bomar does not disclose that the real accident 10 comprises a two vehicle accident as recited in dependent claim 818 (Appeal 11 Br. 13-14). Bomar discloses a two-vehicle collision where the bumpers do 12 not align (col. 20, ll. 45-42). 13 14 Claims 819 and 920 15 We are not persuaded of error on the part of the Examiner by 16 Appellant’s argument that independent claims 819 and 820 are allowable for 17 the same reasons independent claim 814 is allowable (Appeal Br. 14). The 18 rejection of independent claim 814 is sustained. Accordingly, the rejection 19 independent claims 819 and 820 are also sustained. 20 21 Percentage 22 We are not persuaded of error on the part of the Examiner by 23 Appellants’ argument that Jernberg does not disclose that the estimate of 24 liability is expressed as a percentage as recited in dependent claim 845 25 (Appeal Br.15). Jernberg discloses apportioning liability among multiple 26 Appeal 2009-000531 Application 09/969,039 14 parties. In our view, Jernberg would necessarily use percentages to do the 1 apportioning of liability. 2 3 Range of Percentage 4 We are persuaded of error on the part of the Examiner by Appellants’ 5 argument that Jernberg does not disclose that the estimate of liability is 6 expressed as a range of percentage liability as recited in dependent claim 7 846 (Appeal Br. 15). The Examiner asserts that Jernberg’s disclosure of 8 “normalized values” corresponds to a range of percentages (Examiner’s Ans. 9 8-9). However, normalized values, by themselves, do not disclose a range of 10 percentages. 11 12 CONCLUSION 13 The Appellant has failed to show that the Examiner erred in rejecting 14 claims 814-820 and 845. 15 The Appellant has shown that the Examiner erred in rejecting claim 16 846. 17 DECISION 18 The decision of the Examiner to reject claims 814-820 and 845 is 19 affirmed. 20 The decision of the Examiner to reject claim 846 is reversed. 21 AFFIRMED-IN-PART 22 23 JRG 24 25 Appeal 2009-000531 Application 09/969,039 15 ERIC B. MEYERTONS 1 CONLEY, ROSE & TAYON, P.C. 2 P.O. BOX 398 3 AUSTIN, TX 78767-0398 4