John Lindsay

Patent Trials and Appeals Board

Feb 25, 2020

14710553 - (D) (P.T.A.B. Feb. 25, 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.
14/710,553 05/12/2015 John Lindsay blinkerUS 9073
70023 7590 02/25/2020
JOHN B. LINDSAY
11700 Preston Rd Ste 660-167
Dallas, TX 75230
EXAMINER
LAMBERT, DAVID W
ART UNIT PAPER NUMBER
2636
MAIL DATE DELIVERY MODE
02/25/2020 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 JOHN LINDSAY

Appeal 2018-007291
Application 14/710,553
Technology Center 2600

Before JEAN R. HOMERE, JAMES B. ARPIN, and HUNG H. BUI,
Administrative Patent Judges.
HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–21.2 Claims App. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We refer to the Specification, filed May 12, 2015 (“Spec.”); the Final
Office Action, mailed Oct. 30, 2017 (“Final Act.”); the Appeal Brief, filed
Feb. 7, 2018 (“Appeal Br”); the Examiner’s Answer, mailed May 9, 2018
(“Ans.”); and the Reply Brief, filed July 9, 2018 (“Reply Br.”).
2 We use the word “Appellant” to refer to “[A]pplicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies John Lindsay as the real party-in-
interest. Appeal Br. 2.
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II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter relates to vehicle-
to-vehicle communication system (10) for relaying in a timely manner
electromagnetic signals including a longitudinal beam distance with GPS or
other relevant position data between a chain of vehicles (08) to minimize
driver reaction time within each vehicle (08). Spec. ¶¶ 2, 8, 17. Figures 1
and 3, reproduced below, are useful for understanding the claimed subject
matter:

Figure 1 illustrates vehicles (08) equipped with vehicle-to-vehicle
communications system (10). Spec. ¶ 17.

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Figure 3 illustrates communication system (10) deployed within each vehicle
(08) in a chain of vehicles. Id. ¶ 18.
As depicted in Figure 1 above, communication system (10) mounted
on each vehicle (08) includes receiver (40) relaying a signal use condition of
the vehicle to spatially locate emitter (20), which in turn transmits to a
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trailing vehicle via EMF source (24) a directional beam distal having less
than a preconfigured signal strength outside a configured width. Id. ¶ 18.
Claims 1, 9, 18, and 21 are independent. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A system for vehicle to vehicle communication, said
system comprising:
an emitter and receiver adapted for attachment to a
vehicle;
said emitter having an emf source configured to transmit
a directional beam distal to said vehicle, wherein said beam is
transmitted such that it has less than a pre-configured signal
strength outside a configured width, controlling said beam
width to transmit at said target pre-configured beam width; and
said receiver in communication with said emitter, said
emitter configured to transmit said beam to a second vehicle to
vehicle communication system in response to signal receipt
from a third vehicle to vehicle communication system at said
receiver of said vehicle, transmitting said beam distal to said
third vehicle to vehicle communication system, whereby said
vehicle to vehicle communication system relays signal between
vehicle to vehicle systems.
Appeal Br. 11 (Claims Appendix).
III. REFERENCES
The Examiner relies upon the following references.3
Name Number Filed Publ’d/Issued
Flaherty US 6,014,236 Feb. 4, 1997 Jan. 11, 2000
Nagai US 2003/0043436 A1 Dec. 12, 2001 Mar. 6, 2003
Wilsey US 2005/0129410 A1 Oct. 14, 2004 June 16, 2005
Chen US 2011/0010446 A1 July 10, 2009 Jan. 13, 2011
Yoshida US 2012/0299373 A1 May 14, 2012 Nov. 29, 2012

3 All reference citations are to the first named inventor only.
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IV. REJECTIONS
The Examiner rejects the claims on appeal as follows:
1. Claims 1–21 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 10–12.
2. Claims 1, 6, 9, 10, 15, 18, and 19 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Wilsey. Id. at 12–15.
3. Claims 5 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Wilsey and Yoshida.
Id. at 16–17.
4. Claims 2, 3, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combined teachings of Wilsey and
Flaherty. Id. at 18–19.
5. Claims 4 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Wilsey and Nagai.
Id. at 19–21.
6. Claims 7, 8, 16, 17, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combined teachings of Wilsey and
Chen. Id. at 21–24.
7. Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Wilsey, Nagai, and
Chen. Id. at 25–27.

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V. ANALYSIS
1. Indefiniteness and Anticipation Rejections
Although Appellant has acknowledged the Examiner’s indefiniteness
and anticipation rejections as set forth above, Appellant has not presented
any substantive arguments to rebut or challenge the correctness of the
Examiner’s prima facie cases of those rejections. Appeal Br. 7; see Ans. 2–
8. Therefore, Appellant has waived such arguments.4 Consequently, we
summarily affirm the Examiner’s indefiniteness rejection of claims 1–21.
We also summarily affirm the Examiner’s rejection of claims 1, 6, 9, 10, 15,
18, and 19 as anticipated by Wilsey.
2. Obviousness Rejections
a. Claims 4, 13, and 21
Appellant argues that the Examiner erred in finding that the
combination of Wilsey and Nagai teaches or suggests “wherein said emitter
transmits said beam with a signal strength such that it has less than a pre-
configured signal strength outside a pre-configured distance, controlling said
beam distance to transmit at said target pre-configured beam distance,” as

4 Appellant may not reserve arguments for some later time. Arguments not
made are considered waived. See 37 C.F.R. § 41.37(c)(1)(iv). See Hyatt v.
Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to
contest a ground of rejection to the Board, section 1.192(c)(7) [(now section
41.37(c)(1)(iv))] imposes no burden on the Board to consider the merits of
that ground of rejection. . . . [T]he Board may treat any argument with
respect to that ground of rejection as waived.”). See also In re Guess, 347
Fed.Appx. 558, 559 (Fed. Cir. 2009) (“Appellants failed to argue that any
limitations unique to [the claims] survive [the rejection]. Appellants have
therefore waived any such arguments on appeal.”) (citing In re Watts, 354
F.3d 1362, 1367 (Fed. Cir. 2004)).
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recited in dependent claim 4. Appeal Br. 7. In particular, Appellant argues
Wilsey and Nagai are non-analogous art, which are improperly combined to
teach the disputed limitations. Id. at 7–11. According to Appellant, Nagai is
not concerned with vehicular communication, and instead pertains to
stabilizing communications between two fixed devices (with limited
mobility), whereas the claimed subject matter pertains to dynamic spatial
positioning of travelling vehicles. Id. at 10. More particularly, Appellant
argues that Nagai’s disclosure of optical wireless communication devices at
fixed locations to measure the distance and adjust the laser light at
predetermined time intervals is inapplicable to the problem with which the
claimed subject matter is concerned. Id. at 11 (citing Nagai ¶¶ 6, 7, 60).
That is, Nagai’s purpose of ensuring a proper beam for various transmission
distances and helping to prevent damages to reception devices is not
reasonably pertinent to the claimed longitudinal beam distance control
indicating signal relevance through the chain of vehicles. Id.
Further, Appellant argues that the Examiner’s articulated motivation is
insufficient to support the proposed combination of Wilsey and Nagai. Id. at
12. In particular, Appellant argues that Nagai’s stated purpose of stabilizing
transmission between communication devices would be inapposite to the
vehicle-to-vehicle communication of the claimed subject matter because it
would reduce additional processing and unwarranted alerts of driving events
down the chain. Id. at 13.
We are not persuaded by Appellant’s argument that Nagai is non-
analogous art, and, therefore, cannot be properly used in the proffered
combination. “Whether a reference in the prior art is ‘analogous’ is a fact
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question.” In re Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit
Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9 (Fed. Cir. 1987)).
Two criteria have evolved for answering the analogous art
question: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor's endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
Id. at 658–59 (citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In
re Wood, 599 F.2d 1032, 1036 (CCPA 1979)).
We agree with the Examiner that Nagai is within the same field of
endeavor as Appellant’s claimed subject matter. Ans. 22. As correctly
noted by the Examiner, both Appellant’s claimed subject matter and Nagai
are in the field of optical wireless communication employing laser light. Id.
Nagai’s field of invention section states “[t]he present invention relates to an
optical wireless communication device and a laser light adjustment method.”
Nagai ¶ 3. Likewise, Appellant’s field of invention indicates that the
invention relates generally to “optical wireless communication,” albeit
particularly applied in vehicular communication. Spec. ¶ 8. Because
Nagai’s system is within the same field of endeavor as Appellant’s, it is
immaterial whether Nagai’s invention pertains to the particular problem with
which Appellant’s invention is involved. We, thus, are satisfied that Nagai
qualifies as analogous art.
Further, we are not persuaded by Appellant’s argument that the
Examiner’s proposed reason to combine Nagai with Wilsey is insufficient,
thereby rendering the proposed combination improper. The U.S. Supreme
Court has held “[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
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results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The
Court further instructs that:
Often, it will be necessary for a court to look to interrelated
teachings of multiple patents; . . . and the background
knowledge possessed by a person having ordinary skill in the
art, all in order to determine whether there was an apparent
reason to combine the known elements in the fashion claimed
by the patent at issue.
Id. at 418.
The Court also instructs that:
“[R]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”. . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
Id. (citation omitted).
In addition, the Court instructs, “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” Id. at 417.
This precedent controls, and the application of the cited legal
principles to the facts of this appeal provide us with the necessary guidance
in affirming this obviousness rejection. First, as noted by the Examiner,
Wilsey is relied upon to teach a vehicle-to-vehicle communication system
using optical communication devices attached to each of the vehicles
capable of receiving and transmitting a directional distal beam. Ans. 27
(citing Wilsey ¶¶ 23–30, Fig. 1). Nagai is relied upon to teach “an optical
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communication system wherein an emitter transmits a beam with a signal
strength such that it has less than a pre-configured signal strength outside a
preconfigured distance, said emitter controlling said beam distance to
transmit at said target pre-configured beam distance.” Id. (citing Nagai ¶¶ 6,
7, 58, 60, 70, 72). In particular, the Examiner finds that Nagai’s system
teaches adjusting signal strength based on the distance of a target receiver as
a way to optimize communication in an optical system. Id. at 27–28.
Accordingly, the Examiner concludes that, at the time of invention,
combining Nagai’s teaching with that of Wilsey’s disclosure would have
been obvious to the ordinarily skilled artisan because it would have helped
optimize the signal range of Wilsey’s system to ensure proper reception of
optical signals within the vehicular communication system. Id. at 28. We
agree with the Examiner that the proposed combination of the teachings of
Nagai and Wilsey is supported by a preponderance of the evidence, and the
ensuing conclusion of obviousness is consistent with controlling authorities.
We find the ordinarily skilled artisan, being a creative individual,
would have been able to fit the cited teachings of Nagai and Wilsey together
like pieces of a puzzle to predictably result in the vehicle-to-vehicle
communication system, as recited in the rejected claims. Further, although it
may be necessary for an Examiner to identify a reason for modifying the
familiar elements obtained from the prior art in establishing a prima facie
case of obviousness, so long as the Examiner provides an articulated
reasoning with some rational underpinning to substantiate the obviousness
rejection, such a conclusion is proper. In this case, the afore-cited rationale
provided by the Examiner is more than just a mere conclusory statement. In
our view, such a statement suffices as an articulated reason with a rational
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underpinning to support the proffered combination. As noted above, the
case law allows the Examiner to look to the state of the prior art, including
the knowledge of the ordinarily skilled artisan, to arrive at such a reason for
combining the known elements of the prior art. Consequently, the
Examiner’s reliance upon available knowledge to arrive at an articulated
reason with a rational underpinning to support the proffered combination is
proper in rejecting claim 4. Accordingly, we are not persuaded of reversible
error in the Examiner’s rejection of claim 4.
Regarding the rejections of claims 13 and 21, because Appellant has
either not presented separate patentability arguments or has reiterated
substantially the same arguments as those previously discussed for
patentability of claim 4 above; claims 13 and 21 fall with claim 4. See 37
C.F.R. § 41.37(c)(1)(iv) (2017).
b. Claims 5 and 14
Regarding claims 5 and 14, Appellant argues that the Examiner erred
in finding that the combination of Wilsey and Yoshida teaches or suggests
“said beam director altering the beam direction proportionally in response
to received vehicle direction information” (emphasis added), as recited in
dependent claim 5. Appeal Br. 14. In particular, Appellant argues that
Yoshida’s disclosure of orienting an antenna based on position information
to oppose the antenna of another vehicle does not teach the disputed
limitations. Id. at 15–16. This argument is not persuasive. As an initial
matter, Appellant does not challenge or dispute the Examiner’s
interpretation of “proportionally” to mean “by a corresponding degree.”
Ans. 33. Consequently, we agree with the Examiner that Yoshida’s
disclosure of adjusting the vertical/horizontal orientation of an antenna to
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achieve an angle corresponding to the direction of the other vehicle’s
antenna teaches the disputed limitation. Id. at 32–34 (citing Yoshida ¶¶ 52,
53, 69–72). Accordingly, we are not persuaded of reversible error in the
Examiner’s rejection of claims 5 and 14.
c. Claims 7, 8, 16, 17, 20, and 21
Regarding claims 7, 8, 16, 17, 20, and 21, Appellant argues that the
Examiner erred in finding that the combination of Wilsey and Chen teaches
or suggests “said emitter is configured to encode data in said beam, said data
selected from at least one of the following: total relay count and active relay
count,” as recited in dependent claim 7. Appeal Br. 17. In particular,
Appellant argues that Chen’s disclosure of introducing delays in vehicle-to-
vehicle transmissions as integral to prevent signal collision would render
Wilsey inoperable for its intended purpose. Id. at 19–21. According to
Appellant, Chen’s teaching of introducing delay in the vehicle-to-vehicle
communication system would increase the reaction time and would increase
the likelihood that the vehicles would not receive information in a timely
manner. Id. at 22. This argument is not persuasive.
The argument that the proposed combination of references would
render one of the references unsuitable for its intended purpose, or would
change its principle of operation, is a teaching away argument. In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (The court concluded that in
effect, “French teaches away from the board’s proposed modification”
because “if the French apparatus were turned upside down, it would be
rendered inoperable for its intended purpose”). “If references taken in
combination would produce a ‘seemingly inoperative device,’ . . . such
references teach away from the combination and thus cannot serve as
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predicates for a prima facie case of obviousness.” McGinley v. Franklin
Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001) (citation omitted); see
also In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1382 (Fed. Cir.
2007) (“a reference teaches away from a combination when using it in that
combination would produce an inoperative result,” but the obviousness
analysis must account for “modifications that one skilled in the art would
make to a device borrowed from the prior art”). Appellant’s Specification
indicates “[the] total relay count is the number of vehicles that have relayed
a signal ([i.e.,] a ‘hop count’).” Spec. ¶ 25. While acknowledging that
Chen’s introduction of delays in the vehicle-to-vehicle communication
system serves the purpose of preventing packet collision, Appellant contends
that such delay cuts against keeping the reaction time, such that the vehicles
would receive information timely. Appeal Br. 22. As noted by the
Examiner, Chen’s teaching of introducing delays in the vehicle-to-vehicle
communication system is not a criticism nor does it discredit the timely
exchange of messages between the vehicles. Ans. 35. Instead, it is intended
to prevent packet collision, which would otherwise congest the
communications system, and negatively impact the driver’s reaction time.
Id. Because Chen’s teaching of introducing delay serves to regulate packet
traffic in the vehicle-to-vehicle communication system, it does not teach
away from timely communication, and would not render Wilsey inoperable
for its intended purpose.
Next, Appellant argues that the proposed combination of Wilsey and
Chen is not supported by sufficient motivation. Appeal Br. 23. According
to Appellant, the proposed motivation does not employ relay count
functionality with vehicle-to-vehicle functionality. Id. at 24. This argument
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is not persuasive. As noted above, Chen’s teaching of a delayed release of
packets would help avoid packet collision, and congestion within the
Wilsey’s vehicle-to-vehicle communication system. Thus, on this record,
we find sufficient rationale to support the proposed combination of
references. Accordingly, we are not persuaded of reversible error in the
Examiner’s rejection of claims 7, 8, 16, 17, 20, and 21.
d. Claims 2, 3, 11, and 12
Appellant has not presented any substantive arguments to rebut or
challenge the correctness of the Examiner’s prima facie rejection of claims
2, 3, 11, and 12 as unpatentable over the combination of Wilsey and
Flaherty. Therefore, Appellant has waived such arguments. Consequently,
we summarily affirm the Examiner’s obviousness rejection of claims 2, 3,
11, and 12, as set forth above.
VI. CONCLUSION
We affirm pro forma the Examiner’s indefiniteness rejections of
claims 1–21 under 35 U.S.C. § 112, second paragraph. Likewise, we affirm
pro forma the Examiner’s anticipation rejection of claims 1, 6, 9, 10, 15, 18,
and 19 under 35 U.S.C. § 102(b). Additionally, we affirm the Examiner’s
obviousness rejections of claims 2–5, 7, 8, 11–14, 16, 17, 20, and 21 under
35 U.S.C. § 103(a).

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DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–21 112, second paragraph Indefiniteness 1–21
1, 6, 9, 10, 15, 18, 19 102(b) Wilsey 1, 6, 9, 10, 15, 18, 19
5, 14 103(a) Wilsey, Yoshida 5, 14
2, 3, 11, 12 103(a) Wilsey, Flaherty 2, 3, 11, 12
4, 13 103(a) Wilsey, Nagai 4, 13
7. 8. 16, 17, 20 103(a) Wilsey, Chen 7. 8. 16, 17, 20
21 103(a) Wilsey, Nagai, Chen 21
Overall Outcome 1–21

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.
§ 1.136(a)(1)(iv).

AFFIRMED