James Jacob. Free

Patent Trials and Appeals Board

Feb 18, 2020

12657256 - (D) (P.T.A.B. Feb. 18, 2020)

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.
12/657,256 01/15/2010 James Jacob Free 6740
87353 7590 02/18/2020
James Jacob Free
23913 Eastgate Ave.
Elkhart, IN 46516
EXAMINER
LAU, HOI CHING
ART UNIT PAPER NUMBER
2689
MAIL DATE DELIVERY MODE
02/18/2020 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 JAMES JACOB FREE
____________________

Appeal 2018-004282
Application 12/657,256
Technology Center 2600
____________________

Before LARRY J. HUME, JUSTIN BUSCH, and
JAMES W. DEJMEK, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 44–86. Appellant has canceled claims 1–43. See Appeal Br. 3. We
have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b).
We affirm.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2015). Appellant identifies
himself, James J. Free, as the real party in interest. Appeal Br. 2.
Appeal 2018-004282
Application 12/657,256

2
STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to
“sensor based adaptivity in traffic flow management.” Spec. 2.
Claim 44 is illustrative of the subject matter on appeal and is
reproduced below:
44. A sensory based adaptive traffic management system
comprising of:
[a] traffic signal governing an intersection substantially
comprising a signal indicator wherein said indicator substantially
runs through red-green-yellow (RGY) type phases, wherein said
phases add up to a defined service cycle P(i), or period of the
intersection, and wherein said service cycle period P(i) repeats
itself,
wherein summated equation for said red-green-yellow
type phases substantially comprises of R+G+Y=P(i) , where
R=red phase; G=green phase; Y=yellow phase;
P(i) = cycle period of signal,
a sensory based adaptive traffic management system
further comprising infrastructure and geometry associated with
said traffic management system comprising of any of the
following:
1. a road leading up to said signal, including traffic
and wherein said traffic is further subdivided into
individual vehicles, wherein said traffic management
system manages said traffic for one or more lanes in one
or more directions of said road,
2. a platoon or pattern of said vehicles that is
shrinking in length, wherein said PLATOON is a reference
to a group of said individual vehicles, and wherein said
PATTERN is a reference to a group of said vehicles
subject to said traffic managing
Appeal 2018-004282
Application 12/657,256

3
3. approach, wherein said approach substantially
refers to road leading up to said traffic management,
4. run up, wherein said run up substantially refers to
area where interactions of said traffic managing start to
take place,
5. trap, wherein said trap substantially refers to area
where said traffic managing is received, substantially
being bound by a node or threshold at one end, and by said
signal and/or intersection at the other end,
6. node, wherein said node substantially refers to a
boundary where said traffic managing starts,
7. threshold, wherein said threshold substantially
refers to a RANGE further comprising a BEGINNING and
END of said range as opposed to said boundary, wherein:
A. under a strict interpretation of said
threshold, distinct boundaries are adhered to,
B. under a loose interpretation of said
threshold, traffic begins to be managed in a zone or
range, wherein traffic can be managed at different
beginning points into said threshold, trap, or run up,
or physical area wherein said traffic is managed,
6. any combination of these: 1 through 5,
a sensory based adaptive traffic management system
further comprising a traffic managing apparatus associated with
phase scheduling wherein if vehicles follow recommended said
scheduling, said vehicles would be able to go through said signal
while said signal would be in said green phase, or wherein said
vehicles would drive through said signal, and/or said intersection
while said signal, intersection were open, and without said
vehicles having to stop, further comprising an apparatus wherein
ADAPTIVE in said sensory based adaptive is further defined as
adaptation referring to changes- happening to any of the
following:
1. P(i),
2. phases,
Appeal 2018-004282
Application 12/657,256

4
3. sub-phases,
4. segments,
5. fragments of these,
6. combinations of these,
wherein said changes represent contraction and/or
expansion of any of the following:
1. headway, of said vehicle(s)
2. time elapsed between said vehicle to vehicle in
said platoon, pattern
3. physical length or distance between said vehicle
to vehicle
4. conducting tradeoff expansion and/or contraction
involving phases in cross-directions, or substantially
perpendicular-opposite-directions, wherein said tradeoff
is compensating in nature and substantially while in one
direction, phase would be open (green), while in the other
direction , phase would be closed (red),
5. combinations of these, 1. through 4. ;
a sensory based adaptive traffic management system
further comprising a traffic managing sequencer operatively
connected to said traffic signal wherein said sequencer sends out
output sequences to said vehicles;
a sensory based adaptive traffic management system
further comprising apparatus of readout, and/or speed
assignment,
wherein said READOUT is a perceivable output
intended for said individual vehicle indicating to said
vehicle how fast said vehicle should go in order that said
individual vehicle drive, travel through said traffic signal
while said traffic signal is in said green phase,
and wherein SPEED ASSIGNMENT is a
perceivable speed-output intended for said vehicle
wherein said vehicle is told what speed, to go in order that
Appeal 2018-004282
Application 12/657,256

5
said individual vehicles drive, travel through said traffic
signal while said traffic signal is in said green phase;
a sensory based adaptive traffic management system
further comprising apparatus wherein consolidation and
compression are involved wherein said consolidation is
substantially defined as having been traffic managed, and
wherein said compression is substantially defined as the action
of being traffic managed wherein said vehicles in said pattern,
platoon are substantially aggregately getting closer together
during said traffic managing,
wherein full lengths of traffic patterns are
substantially consolidated and/or compressed from a
length of substantially P(i) * V, where P(i) is service cycle
period of said signal at said intersection and V is
substantially the posted speed limit of said approach or
said or run up or said road leading up to said traffic signal
into a length substantially corresponding to net green, T(ng),
wherein said net green T(ng) is a sub phase of said green
phase G,
wherein said T(ng) length is the substantial length of
said pattern of said traffic or said platoon that substantially
drives through said traffic signal without stopping, and
whereby said pattern drives through said traffic signal
during a net green phase, wherein said net green phase,
comprising of being said sub-phase of said green phase is
also within time period of said green phase, which is also
within time period of said red-green-yellow cycle of said
traffic signal
further comprising a sensory based counter which counts
on a per-time basis said vehicles in said traffic,
and further comprising a processing, synthesizing
apparatus that ascertains status of said traffic incoming to the
following group that includes:
A. said trap,
B. said approach,
C. said intersection,
Appeal 2018-004282
Application 12/657,256

6
D. said signal,
wherein said counter and said processing, synthesizing
apparatus are also operatively connected to said traffic managing
sequencer and said traffic signal,
and wherein said counter, and said processing
synthesizing apparatus ascertains information of status of said
incoming vehicles and said traffic as follows:
1. count, numbers of vehicles,
2. following distances or distances between
vehicles,
3. distance-headways form one vehicle to the next,
4. following times,
5. times between vehicles’ passing a static reference
point from one vehicle to the next,
6. time-headways form one vehicle to the next,
7. traffic or vehicle count per unit time,
8. traffic density,
9. density variation per incoming said pattern,
10. density variation per incoming said platoon,
11. density variation per incoming consolidating,
compressing traffic managed “fast lane on warning”,
(FLOW) pattern,
12. areas where said density would be high, wherein
said density is driving-by vehicle count per time, or
driving by vehicle numbers per time,
13. areas where said density would be low, wherein
said density is driving-by vehicle count per time, or
driving -by vehicle numbers per time,
14. static, or waiting-at-intersection traffic count,
15. static or waiting count per time,
16. combinations of any or all of these,
Appeal 2018-004282
Application 12/657,256

7
a sensory based adaptive traffic management system
further comprising a condition wherein said traffic managed
applies to any of the following:
A. GENERALLY to consolidating, compressing
said fast lane on warning, pattern from an initially random
platoon, wherein said platoon starts out as substantially the
physical length of the mathematical product of Pi*V and
develops under said traffic management as said pattern
into substantially a length corresponding to Tng , wherein
V is substantially the said posted speed limit of the road
approaching said traffic signal, Tng is the net green sub
phase, or part of said red green-yellow type cycle wherein
said traffic is intended to pass without having to stop,
B. SPECIFICALLY to adaptive functions which
optimize headways and/or following distances, and/or
distribution within said net green sub phase,
C. Combinations of these, A. and B.,
and wherein when, and/or where said compression,
consolidation takes place, modifications to said pattern take
place in order to do any or all of the following:
A. to increase and/or optimize safety,
B. to optimize following distances within said
compression, consolidation,
C. to increase and optimize mobility,
D. to further optimize green time per moving traffic.

The Examiner’s Rejections
1. Claims 44–86 stand rejected under pre-AIA 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventor regards as the
invention. Final Act. 3–11.
Appeal 2018-004282
Application 12/657,256

8
2. Claim 44 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Chandra et al. (US 8,050,854 B1; Nov. 1, 2011
(filed Sept. 24, 2008)) (“Chandra”). Final Act. 15–18.

ANALYSIS2
As an initial matter, we reiterate the Examiner’s recommendation that
Appellant “secure the services of a registered patent attorney or agent to
prosecute the application.” See Final Act. 19. Alternatively, we commend
to Appellant’s attention the United States Patent and Trademark Office’s Pro
Se Assistance Program. See https://www.uspto.gov/patents-getting-
started/using-legal-services/pro-se-assistance-program.

Rejection under pre-AIA 35 U.S.C. § 112, second paragraph
The patent statute requires that claims “particularly point[] out and
distinctly claim[] the subject matter which the applicant regards as his
invention.” 35 U.S.C. § 112, second paragraph. During prosecution, “‘[a]
claim is indefinite when it contains words or phrases whose meaning is
unclear.’” Ex parte McAward, Appeal 2015-006416, 2017 WL 3669566, at
*5 (PTAB Aug. 25, 2017) (precedential) (quoting Packard, 751 F.3d at
1310, 1314); see In re Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014)

2 Throughout this Decision, we have considered the Specification, filed
June 21, 2013 (“Spec.”); the Appeal Brief, filed May 2, 2017 (“Appeal
Br.”); the Supplemental Appeal Brief, filed August 28, 2017 (“Supp. Appeal
Br.”); the Reply Brief, filed January 29, 2018 (“Reply Br.”); the Examiner’s
Answer, mailed November 27, 2017 (“Ans.”); and the Final Office Action,
mailed October 7, 2015 (“Final Act.”), from which this Appeal is taken.
Appeal 2018-004282
Application 12/657,256

9
(“claims are required to be cast in clear—as opposed to ambiguous, vague,
indefinite—terms”) (per curiam).
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986). If a claim is
amenable to two or more plausible claim constructions, the USPTO is
justified in requiring an applicant to more precisely define the metes and
bounds of the invention by holding the claim unpatentable under 35 U.S.C.
§ 112, second paragraph, as indefinite. Ex parte Miyazaki, 89 USPQ2d
1207, 1211–12 (BPAI 2008) (precedential).
With respect to independent claim 44, the Examiner identifies
nineteen terms or phrases that are unclear and indefinite. See Final Act. 3–
11. We address the Examiner’s conclusions and, where possible, offer
suggestions for clarification.

a. P(i)
The Examiner concludes the term P(i) is indefinite because the claim
(i.e., claim 44) defines P(i) as a service cycle, or period of the intersection,
but also defines “P(i) = cycle period of signal.” Final Act. 3.
Appellant explains that the claim recitation of P(i) is substantially
represented by the equation R+G+Y=P(i). Appeal Br. 10. Appellant further
explains the use of the term “substantially” is used because some signal
patterns may also include a green arrow, red arrow, or blinking yellow
arrow. Appeal Br. 10. Appellant asserts the “claims define Pi as the period
the cycle where cycle is defined both in terms of the ‘period of the
Appeal 2018-004282
Application 12/657,256

10
intersection, Pi’ which is the ‘sum of R+G+Y.’” Appeal Br. 10. Further,
Appellant states “P(i) is a random sample before traffic managing.” Appeal
Br. 10.
In response, the Examiner explains the ambiguity arises with respect
to the use of the term “signal” in defining P(i). Ans. 4 (referring to the “cycle
period of the signal”). Rather than equating “signal” to the “traffic signal”
claim term, the Examiner associates the “cycle period of signal” language as
a “cycle period of a waveform cycle of a light signal that is different from
the traffic signal.” Ans. 4–5.
Appellant replies that the signal is not intended to represent a period
of a waveform cycle of a light, as interpreted by the Examiner. Reply Br. 2–
4. Relatedly, Appellant argues that one of ordinary skill in the art would
understand a signal, as recited in the claims, refers to “a piece of physical
hardware” such as a traffic signal comprising a red lamp, yellow lamp, and
green lamp. Appeal Br. 11.
We agree with the Examiner that, as presently claimed (and argued by
Appellant), P(i) is indefinite. In particular, P(i) could mean at least: (i) a
defined service cycle represented by the summation of the red, green and
yellow phases of a signal indicator; (ii) a period of the intersection; (iii) a
cycle period of signal; or (iv) a random sample before traffic managing. It
appears that the intended interpretation of P(i) is the first of the listed
possibilities.
Although Appellant believes “that appellant is not allowed to change
modifying adjectives this late in the game” (see Reply Br. 3), clarifying
amendments to the claim language that are fully supported by the
Specification as filed are allowed. In the event of further prosecution,
Appeal 2018-004282
Application 12/657,256

11
Appellant may wish to consider amending claim language as suggested by
the Examiner to use clear, consistent language throughout.3

b. traffic signal / signal
The Examiner interprets the claimed “traffic signal” as “a
data/information signal that is applied to control and govern the traffic at the
intersection, but not [a] physical apparatus.” Final Act. 3. In addition, the
Examiner determines the claim term “said signal,” such as in the claimed
subject matter of “a road leading up to said signal” is unclear “because a
road cannot be leading up to a ‘data signal.’” Final Act. 3.
As identified in the previous section, Appellant regards a signal as a
piece of physical hardware, and not a data/information signal as interpreted
by the Examiner. Appeal Br. 11–12.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the Specification, reading claim language in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We
are mindful, however, that limitations are not to be read into the claims from
the Specification. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
We interpret Appellant’s argument that a signal is a piece of physical
hardware refers to the claimed “traffic signal.” This is consistent with the
Specification. See, e.g., Fig. 1; Spec. 40 (identifying a traffic signal in the

3 As an example of inconsistent use of this term, we note that Appellant
sometimes uses “P(i),” and at other times within either independent claim 44
or the dependent claims (such as in the recited equations), will recite “Pi.”
For clarity, Appellant is encouraged to use the same term.
Appeal 2018-004282
Application 12/657,256

12
Figure, represented as a physical object). Accordingly, in light of the
Specification, we agree with Appellant that a traffic signal is a physical
piece of hardware further comprising a signal indicator.
However, as a source of confusion throughout the claim, Appellant
recites “signal” (e.g., “cycle period of signal”), “said signal” (e.g., “a road
leading up to said signal”), and “said traffic signal” (e.g., “a traffic managing
sequencer operatively connected to said traffic signal”). At times, more than
one instance is recited within a single clause (e.g., “P(i) [a] is service cycle
period of said signal at said intersection and V is substantially the posted
speed limit of said approach or said or [sic] run up or said road leading up to
said traffic signal”). See claim 44 (emphases added).
In the event of further prosecution, Appellant may wish to consider
amending the claim language to identify “a traffic signal governing an
intersection” initially, and subsequently refer to “said traffic signal” or “the
traffic signal.”

c. a / said sensory based adaptive traffic management system
The Examiner notes that references to “a sensory based adaptive
traffic management system” throughout the body of claim 44 should be
amended to “said sensory based adaptive traffic management system.” Final
Act. 3. We agree.
The preamble of independent claim 44 recites “A sensory based
adaptive traffic management system comprising . . . .” Within the claim,
Appellant recites “a sensory based adaptive traffic management system
further comprising . . . .” Appellant repeats this recitation at least 5 more
times within claim 44.
Appeal 2018-004282
Application 12/657,256

13
As an additional matter, we note the subsequent clauses of “a sensory
based adaptive traffic management system further comprising . . .” are
unnecessary. However, in the event of further prosecution, if Appellant
wishes to maintain this clause throughout the claim, Appellant should
consider amending the claim language to “said sensory based adaptive
traffic management system further comprising . . .,” as suggested by the
Examiner.
The reason for using a definite article (i.e., “said” or “the”) rather than
an indefinite article (i.e., “a” or “an”) for subsequent recitations of an
element is that an indefinite article suggests a new element is being
identified and leads to double inclusion of the element. See Manual of
Patent Examining Procedure (“MPEP”) § 2173.05(o) (9th ed., Rev. 08.2017,
Jan. 2018); see also Landis on Mechanics of Patent Claim Drafting § 23 (4th
ed., 2000).

d. traffic management
The Examiner explains the claimed clause “road leading up to said
traffic management” is unclear and indefinite because traffic management is
an act, rather than a physical structure or apparatus. Final Act. 4. In
addition, the Examiner determines the claims do not recite or define the
physical location of a traffic management system. Final Act. 4. We agree.
The identified limitation further defines an approach, as it relates to
“infrastructure and geometry associated with said traffic management
system.” Claim 44. Specifically, the infrastructure and geometry may
include an “approach, wherein said approach substantially refers to road
leading up to said traffic management.” Claim 44.
Appeal 2018-004282
Application 12/657,256

14
To the extent Appellant intends to reference the claimed “approach”
to the traffic management system, the claim should be amended to recite
“said sensory based adaptive traffic management system.” However, we
also agree with the Examiner that the claim does not clearly recite the
location of the sensory based adaptive traffic management system. Instead,
it appears that Appellant may consider the claimed approach the road
leading up to the intersection governed by traffic signal operating as part of
the sensory based adaptive traffic management system.

e. interactions of traffic managing
Also related to the infrastructure and geometry associated with the
sensory based adaptive traffic management system, claim 44 identifies a run
up, “wherein said run up substantially refers to [an] area where interactions
of said traffic managing start to take place.” The Examiner concludes it is
unclear what “interactions” are part of traffic managing and what is meant
by “traffic managing.” Final Act. 4. Moreover, the Examiner explains that
the claims merely recite a traffic signal with a traffic indicator, but there is
“NO linking structure or function/operation that is associated with the act of
traffic management.” Final Act. 4; see also Ans. 8–11.
Because of the overall organization (or lack thereof) of the claim, we
appreciate the Examiner’s confusion relating to interactions of said traffic
managing.
We interpret the “traffic managing” operations (i.e., interactions) to be
performed by the claimed traffic managing apparatus, which controls phase
scheduling of the signal indicator based on determined contraction or
expansion of: (i) the headway of the vehicles; (ii) the time between vehicles
Appeal 2018-004282
Application 12/657,256

15
detected within a pattern or platoon; (iii) the distance between vehicles;
and/or (iv) other tradeoff considerations.
Appellant should consider amending the claim to recite the traffic
managing operations, as we understand them, prior to reciting the
infrastructure and geometry associated with the sensory based adaptive
traffic management system. This would, at least, address the lack of
antecedent basis with respect to “said traffic managing” and clarify what is
meant by the “interactions” of traffic managing.

f. strict / loose interpretation of threshold
According to the claim language, (i) a “run up” refers to the area
“where interactions of said traffic managing start to take place;” (ii) a “trap”
refers to an area where “traffic managing is received” and is bound by a
“node” or “threshold” on one end, and the signal and/or intersection on the
other end; (iii) a “node” is a “boundary” where traffic managing starts; and
(iv) a “threshold” refers to a range (i.e., having a beginning and end) as
opposed to a boundary (i.e., node). Claim 44. In addition, claim 44 recites
the threshold may be interpreted strictly (i.e., distinct boundaries are adhered
to) or loosely (i.e., traffic is managed beginning at different points in the
threshold).
The Examiner finds that both the strict interpretation of a threshold
and a loose interpretation of a threshold are unclear, indefinite, and not
supported by the Specification.4 Final Act. 4.

4 A rejection under pre-AIA 35 U.S.C. § 112, first paragraph, for lack of
written description is not pending. Although the Board is authorized to
reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See MPEP § 1213.02.
Appeal 2018-004282
Application 12/657,256

16
As an initial matter, it is unclear what is meant by a “run up.” In
particular, it is unclear how a run up differs from a trap. Further, if a run up
is intended to indicate a point where traffic management begins, it is unclear
how this differs from a node.
Regarding the strict / loose interpretations of a threshold, we agree
with the Examiner that the Specification does not describe a strict or loose
interpretation of a threshold, but rather describes a “looser interpretation of a
node.” Spec. 44–45 (emphasis added). Figure 1 is illustrative and is
reproduced below:

Figure 1 illustrates an embodiment of the claimed system. See Spec. 33, 40.
As described in the Specification, trap (3) “starts at distinct threshold node 4
(but which also could be a range or zone 4-b in lieu of a threshold).”
Spec. 40 (emphases added). Thus, it appears that Appellant uses the terms
Appeal 2018-004282
Application 12/657,256

17
node, threshold, range, and boundary (see claim 44) somewhat
interchangeably.
In the event of further prosecution, Appellant should consider
amending the claim language to remove the “threshold” and refer to the
strict and loose interpretations of a node.

g. listing of elements associated with infrastructure and geometry
of sensory based adaptive traffic management system
Claim 44 recites the infrastructure and geometry associated with the
sensory based adaptive traffic management system may comprise any of
seven listed elements (e.g., a road, platoon or pattern, approach, run up, trap,
node, and threshold). The Examiner notes, as do we, the next enumerated
statement is “6. Any combination of these: 1 through 5.” Final Act. 5.
At a minimum, we agree that the claim should be amended (corrected)
to identify the recited element as number “8.” in the list. Moreover,
Appellant should consider whether the allowable combination of elements is
limited to items 1 through 5, or 1 through 7, as suggested by the Examiner,
or any combination of elements 1 through 5 along with one of either 6 or 7.
See Final Act. 5.

h. vehicles driving, or going through said signal; open intersection
Claim 44 recites “if vehicles follow recommended said scheduling,
said vehicles would be able to go through said signal while said signal would
be in said green phase, or wherein said vehicles would drive through said
signal, and/or said intersection while said signal, intersection were open, and
without said vehicles having to stop.”
Appeal 2018-004282
Application 12/657,256

18
The Examiner determines it is unclear how a vehicle could go
through, or drive through, a signal, wherein the signal is interpreted as a data
signal. Final Act. 5. In addition, the Examiner determines it is unclear how
a “signal, intersection” are open. Final Act. 5 (emphasis omitted).
As discussed above, we interpret the signal to be the traffic signal—a
physical structure. The traffic signal governs traffic passing through the
intersection. To the extent we understand the disputed limitation, vehicles
are able to pass through the intersection without having to stop if vehicles
follow the “recommended said scheduling” because as the vehicles approach
the intersection, the signal indicator of the traffic signal would be in the
green phase. Thus, we agree with the Examiner that Appellant should
amend the claim to recite the vehicles pass through an intersection, rather
than through said signal.
However, we also find the disputed limitation confusing and indefinite
in that it is unclear to what the “phase scheduling” and “said scheduling” are
referring. For example, the limitation indicates that vehicles are able to pass
through the intersection when the traffic signal is in a green phase. It is not
clear if the “phase scheduling” refers to the different (i.e., red, green, yellow)
phases of the traffic signal. In addition, it is not clear if “said scheduling”
that the vehicle follow refers to the scheduling of the traffic signal phases, or
to instructions provided via a readout or speed assignment (as later recited in
claim 44).
Regarding “while said signal, intersection were open,” it is not clear
how this differs from the preceding clause in which the traffic signal is in the
green phase. If each clause means the same thing, redundant clauses should
be removed. See Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d
Appeal 2018-004282
Application 12/657,256

19
1324, 1333 n.3 (Fed. Cir. 2006) (“[T]he use of two terms in a claim requires
that they connote different meanings . . . .”); CAE Screenplates Inc. v.
Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the
absence of evidence to the contrary, we must presume that the use of these
different terms in the claims connotes different meanings.”).

i. adaptive in said sensory based adaptive
Claim 44 recites, in part, “a sensory based adaptive traffic
management system further comprising a traffic managing apparatus
associated with phase scheduling . . . further comprising an apparatus
wherein ADAPTIVE in said sensory based adaptive is further defined as
adaptation referring to changes- happening to any of the following.” The
claim identifies the following as (i) P(i); (ii) phases; (iii) sub-phases;
(iv) segments; (v) “fragments of these;” and (vi) “combinations of these.”
The Examiner notes (see Final Act. 5–6) that it is unclear as to what
the clause “ADAPTIVE in said sensory based adaptive is further defined as
adaptation” is referring. We agree.
As an initial matter, it is not clear whether the sensory based adaptive
traffic management system comprises a traffic managing apparatus and that
the traffic managing apparatus further comprises another apparatus. It is
also not clear as to whether “sensory based adaptive” is referring to the
sensory based adaptive traffic management system. If so, Appellant should
amend the claim language to make this clearer.
We also agree with the Examiner that it is not clear what is meant by a
sub-phase or segment. The Specification describes phases of the signal
indicator of a traffic signal, such as a red phase, green phase, and yellow
Appeal 2018-004282
Application 12/657,256

20
phase (see, e.g., Spec. 41, 43), but does not describe sub-phases or segments.
We note that Appellant identifies (see Appeal Br. 16) a later recitation in the
claim that “net green T(ng) is a sub phase of said green phase G.” Although a
sub-phase may be part of a phase under a broad but reasonable interpretation
of the term (see In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004)), it is unclear how a sub-phase differs from a fragment or
segment.

j. contraction and/or expansion; tradeoff is compensating in
nature
The Examiner concludes the clause “change represent contraction
and/or expansion” is indefinite because it is not clear what kind of operation
is associated with contraction and expansion. Final Act. 6. Further, the
Examiner finds that any such operation is not supported by the Specification.
Final Act. 6. In addition, the Examiner concludes that contraction and/or
expansion of tradeoffs is unclear and indefinite. Final Act. 6.
With respect to the first part of the Examiner’s conclusion, when read
in context of the preceding clauses of the claim, we understand contraction
or expansion of (i) headway (i.e., following distance) of a vehicle; (ii) time
elapsed between vehicles in a platoon or pattern; and (iii) distance between
vehicles to be a condition (i.e., change) used by the sensory based adaptive
traffic management system to adjust, at least, P(i) or the individual phases
(red, green, yellow) of the signal indicator. See section e, above.
We agree with the Examiner that “conducting tradeoff expansion
and/or contraction involving phases . . . wherein said tradeoff is
compensating in nature . . .” is, at best, unclear. Rather than a condition that
may be measured by contraction or expansion, “conducting tradeoff”
Appeal 2018-004282
Application 12/657,256

21
appears to be a separate act, although it not clear what part of the sensory
based adaptive traffic management system is performing this act.
Additionally, we agree with the Examiner that, as claimed, it is not
clear what is meant by “tradeoff expansion and/or contraction involving
phases in cross-directions” or that the “tradeoff is compensating in nature.”
Claim 44. As we understand it, an intersection may be defined by roads that
meet or intersect in cross-directions (or substantially perpendicular
directions). At such an intersection, a traffic signal (comprising a signal
indicator) may operate in conjunction with any other traffic signals
governing the same intersection such that when a signal indicator of a traffic
signal is in a green phase, the signal indicator of a traffic signal positioned to
control traffic travelling in a cross-direction is in the red phase.

k. readout / speed adjustment
Claim 44 recites, in part, “[the] sensory based adaptive traffic
management system further comprising apparatus of readout, and/or speed
assignment.” Both the readout and the speed assignment are perceivable
outputs intended for a vehicle to indicate how fast the vehicle should go (i.e.,
the speed the vehicle should go) such that the vehicle is able to travel
through the traffic signal (i.e., the intersection) while the traffic signal (i.e.,
the signal indicator) is in the green phase.
The Examiner concludes the claim terms readout and speed
assignment appear to claim the same concept, but with slightly different
wording. Final Act. 6–7.
Appellant asserts the assignment relates to “what speed,” whereas
readout is “how fast.” Appeal Br. 17. In addition, Appellant argues “[o]ne
Appeal 2018-004282
Application 12/657,256

22
is numeric; one is graphic,” but fails to identify which term corresponds to
the numeric representation, and which term corresponds to a graphic
representation. Appeal Br. 17. In addition, Appellant refers to a different
application (application no. 12/589,793) for support distinguishing these two
terms. Appeal Br. 17. We note, as does the Examiner (see Ans. 4–5), that
this different application has not been incorporated by reference into the
pending application. See also 37 C.F.R. § 1.57.
We agree with the Examiner that the terms appear to relate to the
same concept—namely, providing an indication to drivers of individual
vehicles what speed they should maintain in order to arrive at, and pass
through, the intersection during the green phase of the signal indicator.
Contrary to Appellant’s arguments there is no support for one being numeric
and the other being graphical. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (explaining that limitations are not to be read into the claims from
the Specification).

l. having been traffic managed
According to claim 44, the sensory based adaptive traffic management
system comprises “an apparatus wherein consolidation and compression are
involved wherein said consolidation is substantially defined as having been
traffic managed.”
As an initial matter, we leave it to the Examiner to determine whether
the recited “apparatus” invokes pre-AIA 35 U.S.C. § 112, sixth paragraph,
as a means for consolidating and compressing the vehicles in a platoon or
pattern.
Appeal 2018-004282
Application 12/657,256

23
The Examiner concludes it is unclear and indefinite as to “what is
having been traffic managed.” Final Act. 7. In addition, the Examiner
similarly explains it is unclear as to what operations or functions are
associated with traffic management. Final Act. 7; see also Final Act. 4
(regarding the claimed interactions of traffic managing).
Earlier in the claim, Appellant recites that the adaptive aspect of the
sensory based adaptive traffic management system refers to adaptation to
changes (representing contraction and/or expansion of the positioning of
vehicles within a platoon or pattern) of, for example P(i). However, rather
than a traffic management action affecting the traffic signal (see section e,
above), the consolidation and compression activities appear to be acting on
the pattern or platoon of vehicles (perhaps via the readout or speed
assignment indications).
We agree with the Examiner that it is unclear what “having been
traffic managed” means in this context. As discussed, from our
understanding, it appears to have a different meaning than the interactions of
traffic managing.

m. said or run up; length as a function of P(i)*V
In the clause of claim 44 that describes compressing lengths of traffic
patterns from a length of substantially P(i)*V into a length corresponding to
T(ng), it appears the claim language includes a typographical error (“V is
substantially the posted speed limit of said approach or said or run up or said
road leading up to said traffic signal”). See Final Act. 7–8. Before the term
“run up,” Appellant should amend the claim language to delete the word
“or.”
Appeal 2018-004282
Application 12/657,256

24
In addition to the typographical error, the Examiner questions the
measurement unit of the claimed “length” that corresponds to P(i)*V,
because “V is the speed limit.” Final Act. 7–8.
Assuming P(i) is a defined service cycle represented by the summation
of the red, green and yellow phases of a signal indicator (see section a,
above), then P(i) has units of time. V, as a speed limit would have units of
length/time (e.g., miles per hour). Accordingly, the product of P(i)*V would
have units of length.

n. length of pattern or platoon drives through said traffic signal
In describing the length corresponding to T(ng), claim 44 recites “T(ng)
is the substantial length of said pattern of said traffic or said platoon that
substantially drives through said traffic signal without stopping.”
In addition to correctly observing the phrasing within the clause to be
confusing, the Examiner questions how “length” could drive through a data
signal. Final Act. 8.
Here, as we understand it, T(ng) corresponds to a length of vehicles
(either a platoon of vehicles or a pattern of vehicles), and it is the platoon (or
pattern) of vehicles that drive through the intersection governed by the
traffic signal. See §§ b, h (discussing the claimed traffic signal and vehicles
passing through an intersection).
However, we also note that the claim recites “said net green T(ng) is a
sub phase of said green phase G.” Thus, rather than having unit of length,
such as P(i)*V (discussed above), T(ng) would have units of time.
Accordingly, we conclude that T(ng) is indefinite.

Appeal 2018-004282
Application 12/657,256

25
o. said signal / said traffic signal
The Examiner again interprets a “traffic signal” as “a data/information
signal that is applied to control and govern the traffic at the intersection, but
not [a] physical apparatus.” Final Act. 8.
Consistent with our discussion in section b., we understand the
claimed traffic signal to be a physical apparatus comprising a signal
indicator.

p. distance-headways from one vehicle to the next / time-headways
from one vehicle to the next
The Examiner notes, and we agree, Appellant should amend the claim
language to correct the typographical error of “distance-headways form one
vehicle to the next” to “distance-headways from one vehicle to the next.”
Final Act. 8. Similar correction is required to amend “time-headways form
one vehicle to the next” to “time-headways from one vehicle to the next.”

q. following time; count per unit time; fast lane on warning
Claim 44 also recites the sensory based adaptive traffic management
system comprises a counter that “counts on a per-time basis said vehicles in
traffic” and a processing, synthesizing apparatus that “ascertains status of
said traffic” incoming to, for example, the intersection governed by the
traffic signal. In addition, the counter and processing, synthesizing
apparatus ascertain “information of status” of the incoming vehicles
including, among other things, following times, traffic or vehicle count per
unit time, and density variation per incoming consolidating, compressing
traffic managed fast lane on warning (FLOW) pattern. Claim 44.
Appeal 2018-004282
Application 12/657,256

26
We agree with the Examiner that “following times” should specify a
point of reference (e.g., the following time of a vehicle with respect to the
vehicle immediately preceding it), similar to the claimed “following
distances” or “time-headways.” Although a vehicle count per unit time
would appear to relate to the number of vehicles counted over a
predetermined (unit) of time, it is unclear as to what is meant by a traffic
count per unit time, or how this differs from a vehicle count per unit time.
Additionally, we agree with the Examiner that “density variation per
incoming consolidating, compressing traffic managed fast lane on warning
(FLOW) pattern” is unclear, ambiguous, and indefinite.

r. traffic managed condition
The Examiner concludes that the clause of a “sensory based adaptive
traffic management system further comprising a condition wherein said
traffic managed applies to any of the following” is unclear and indefinite
because there is no description of how the claimed condition occurs or
structure linking the condition to the rest of the elements of the claim. Final
Act. 9 (emphases omitted).
We agree with the Examiner that the claim language appears to
require an unspecified condition to occur before the actions associated with
the sensory based adaptive traffic management system begin (i.e., a
condition precedent). Alternatively, the clause may be read to be a condition
defined by when traffic management activities are applied to an initially
random platoon of vehicles.
In the event of further prosecution, we agree with the Examiner that
clarification is required. In addition, we leave it to Appellant to consider
Appeal 2018-004282
Application 12/657,256

27
whether the clause is necessary in light of what is already recited in the
claim.

s. distribution; essential structural cooperative relationship of
elements
Claim 44 concludes by reciting:
a sensory based adaptive traffic management system
further comprising a condition wherein said traffic managed
applies to any of the following:
A. GENERALLY to consolidating, compressing
said fast lane on warning, pattern from an initially random
platoon, wherein said platoon starts out as substantially the
physical length of the mathematical product of Pi*V and
develops under said traffic management as said pattern
into substantially a length corresponding to Tng , wherein
V is substantially the said posted speed limit of the road
approaching said traffic signal, Tng is the net green sub
phase, or part of said red green-yellow type cycle wherein
said traffic is intended to pass without having to stop,
B. SPECIFICALLY to adaptive functions which
optimize headways and/or following distances, and/or
distribution within said net green sub phase,
C. Combinations of these, A. and B.,
and wherein when, and/or where said compression,
consolidation takes place, modifications to said pattern take
place in order to do any or all of the following:
A. to increase and/or optimize safety,
B. to optimize following distances within said
compression, consolidation,
C. to increase and optimize mobility,
D. to further optimize green time per moving traffic.
In addition to noting an errant comma between “warning” and
“pattern” (see Final Act. 10) and again raising concerns related to a length
Appeal 2018-004282
Application 12/657,256

28
corresponding to P(i)*V and the types of “adaptive functions” (addressed
above, see §§ i, m, n), the Examiner concludes it is unclear and indefinite as
to what the claimed “distribution” refers. Final Act. 10. Moreover, the
Examiner determines the claim fails to recite “essential structural
cooperative relationships” between the recited elements (e.g., “the
infrastructure and geometry, the apparatus for change; traffic managing
sequencer; apparatus of readout and Speed assignment, [and] sensory based
counter”). Final Act. 10–11. In particular, the Examiner explains it is not
clear how the elements work together with the compression and
consolidation to achieve the alleged benefits identified at the end of the
claim. Final Act. 11.
We agree with the Examiner that the claim should be amended to
clarify the distribution refers to the distribution of vehicles whose
information (e.g., status, speed, location) is being processed by the sensory
based adaptive traffic management system such that the vehicles may
proceed through an upcoming intersection governed by a traffic signal
without having to stop.
In the event of further prosecution, we leave it to Appellant to
determine whether the statements of intended use are necessary. See
Catalina Mktg. Int’l Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed.
Cir. 2002) (explaining that the patentability of an apparatus claim “depends
on the claimed structure, not on the use or purpose of that structure”).
Regarding the Examiner’s determination that the claim merely recites
various components without specifying how the elements are connected or
interact within the sensory based adaptive traffic management system, we
agree. Claim 44 recites the sensory based adaptive traffic management
Appeal 2018-004282
Application 12/657,256

29
system comprises, at least, (i) a traffic signal; (ii) infrastructure and
geometry; (iii) a traffic managing apparatus; (iv) an apparatus; (v) a traffic
managing sequencer; (vi) an apparatus of readout, and/or speed assignment;
(vii) an apparatus wherein consolidation and compression are involved;
(viii) a sensory based counter; and (ix) a processing, synthesizing apparatus.
The claim does recite that the traffic managing sequencer is operatively
coupled to the traffic signal and that the sensory based counter and
processing, synthesizing apparatus are operatively connected to the traffic
managing sequencer and traffic signal. However, the claim does not recite
how the other elements interact within the sensory based adaptive traffic
management system. Thus, the claim is indefinite. See In re Collier, 397
F.2d 1003, 1005 (CCPA 1968) (explaining that a claim that fails to
positively recite structural relationships of two or more essential elements of
the invention may fail to point out and distinctly claim the invention).
For the reasons discussed above, we agree with the Examiner that
independent claim 44 is indefinite under pre-AIA 35 U.S.C. § 112, second
paragraph. In addition, we sustain the Examiner’s rejection under pre-AIA
35 U.S.C. § 112, second paragraph, of claims 45–86, which depend directly
or indirectly therefrom. In the event of further prosecution, Appellant
should consider the suggestions provided by the Examiner and those
contained within our Analysis to amend the claim language. Appellant
should also review the dependent claims for similar issues to those discussed
above, and make the necessary amendments to the dependent claims.

Appeal 2018-004282
Application 12/657,256

30
Rejection under pre-AIA 35 U.S.C. § 103(a)
It is ordinarily improper to reject a claim over prior art when the
meaning of a claim cannot be determined. As the predecessor to our
reviewing court explained, “[a]ll words in a claim must be considered in
judging the patentability of that claim against the prior art. If no reasonably
definite meaning can be ascribed to certain terms in the claim, the subject
matter does not become obvious--the claim becomes indefinite.” In re
Wilson, 424 F.2d 1382, 1385 (CCPA 1970); see also, In re Steele, 305 F.2d
859, 862–63 (CCPA 1962) (“As we have previously indicated, our analysis
of the claims leaves us in a quandary as to what in fact is covered by them.
We think the examiner and the board were wrong in relying on what at best
are speculative assumptions as to the meaning of the claims and basing a
rejection under 35 U.S.C. § 103 thereon.”).
Because of the numerous issues under pre-AIA 35 U.S.C. § 112,
second paragraph, we decline to reach a decision on the Examiner’s
rejection under pre-AIA 35 U.S.C. § 103(a).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 44–86 under pre-
AIA 35 U.S.C. § 112, second paragraph.
We decline to reach on the Examiner’s decision rejecting claim 44
under pre-AIA 35 U.S.C. § 103(a).

Appeal 2018-004282
Application 12/657,256

31
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
44–86 112, second
paragraph
Indefiniteness 44–86
44 103(a)5 Chandra
Overall
Outcome
44–86

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).

AFFIRMED

5 As discussed above, we decline to reach a decision on the Examiner’s
rejection of claim 44 under pre-AIA 35 U.S.C. § 103(a) in light of the
numerous issues rendering the claim indefinite under pre-AIA 35 U.S.C.
§ 112, second paragraph. See In re Steele, 305 F.2d at 862–63.