Thales Canada Inc.

Patent Trials and Appeals Board

Apr 29, 2020

14013462 - (D) (P.T.A.B. Apr. 29, 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.
14/013,462 08/29/2013 Ehsan Kimiagar 5011-015 7086
22429 7590 04/29/2020
HAUPTMAN HAM, LLP
2318 Mill Road
Suite 1400
Alexandria, VA 22314
EXAMINER
NEAL, ALLISON MICHELLE
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
04/29/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@ipfirm.com
pair_lhhb@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte EHSAN KIMIAGAR and FIRTH WHITWAM
____________

Appeal 2019-003116
Application 14/013,462
Technology Center 3600
____________

Before JOSEPH L. DIXON, MAHSHID D. SAADAT, and
KRISTEN L. DROESCH, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–3, 6–13, 16–19, and 21–24.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42. Appellant states the real party in interest is THALES
CANADA INC. Appeal Br. 2.
2 Claims 4, 5, 14, 15, and 20 have been canceled previously.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosure is directed to “command and control systems”
that “use historic or predictive data to identify the need for resources and
create apriori schedules based on expected patterns of need to determine
when to deliver the necessary resources to each location,” such as “public
transportation planning which creates fixed schedules for trains and/or buses
and depends on the public to continue to demand the service in line with
preplanned resources.” See Spec. ¶ 1.
Exemplary claim 1 under appeal reads as follows;
1. A context aware vehicle control system configured
to control operation of a driverless train having at least one car,
the context aware vehicle control system comprising:
a mobile device server having a mobile device server
application, and configured to be communicatively coupled
with a mobile device for exchanging data; and
a command and control system communicatively coupled
with the mobile device server for exchanging the data, the
command and control system comprising a processor and a
non-transitory computer-readable storage medium having
computer-readable instructions stored thereon that, when
implemented by the processor, cause the command and control
system to:
determine a transportation system capacity demand
based on data received from the mobile device; and
increase a capacity of the driverless train by
coupling at least one additional car to the driverless train
based on a real time status of the transportation system
capacity demand.
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Rejections on Appeal
Claims 1–3, 6–10, and 21–24 stand rejected under 35 U.S.C. § 112(a)
as failing to comply with the written description requirement. Non-Final
Act. 4–6.
Claims 1, 2, and 6–12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dixon (US 2011/0166936 Al; pub. July 7, 2011),
Rauch (US 2008/0195257 Al; pub. Aug. 14, 2008), and Chun (US
2011/0098908 Al; pub. Apr. 28, 2011). Non-Final Act. 7–17.
Claims 3, 13, and 16–19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dixon, Rauch, Chun, and Fournier (US
2014/0012454 Al; pub. Jan. 9, 2014). Non-Final Act. 17–26.
Claims 21, 22, and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dixon, Rauch, Chun, and Brandenberg (US
2004/0032393 Al; pub. Feb. 19, 2004). Non-Final Act. 26–34.
Claim 23 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dixon, Rauch, Chun, Brandenberg, and Fournier. Non-
Final Act. 34–35.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner errs. We disagree with Appellant’s arguments,
and we adopt as our own (1) the pertinent findings and reasons set forth by
the Examiner in the Action from which this appeal is taken (Non-Final
Act. 4–35) and (2) the corresponding reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 3–9).
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We concur with the applicable conclusions reached by the Examiner and
emphasize the following.
SECTION 112 REJECTION
Regarding independent claims 1 and 21, the Examiner finds that the
Specification does not disclose the recited control system to “increase a
capacity of the driverless train by coupling at least one additional car to the
driverless train” and therefore, the claims fail to comply with the written
description requirement. Non-Final Act. 5. The Examiner specifically finds
[A] review of the original disclosure indicates a complete
absence of any explicit, inherent, or implicit description of the
recited “control system comprising . . . a non-transitory
computer readable storage medium having computer-readable
instructions stored thereon that, when implemented by the
processor cause the command and control system to: increase a
capacity of the driverless train by coupling at least one
additional car to the driverless train . . . .”
Id. Referring to paragraph 9 of the Specification, the Examiner further finds
However, the system “reschedules current train behaviours
including ... changed number of cars in a given train”
(Specification, ¶0009). The command and control system
processor executes scheduling and rescheduling operations and
does not implement a physical increase in “capacity of the
driverless train by coupling at least one additional car to the
driverless train,” as indicated by the claim [Emphasis added].
Specifically, the command and control system processor
implements a rescheduling feature of the public transportation
system including coupling at least one additional car to the
driverless train.
Non-Final Act. 6.
Appellant argues that the Specification supports the recited limitation
because, contrary to the apparent position of the Examiner that changing a
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number of cars is not a physical increase in a capacity of the driverless train
by coupling at least one additional car to the driverless train, paragraphs 9,
19, 22, 24, and 25 of the Specification describe the disputed limitation.
Appeal Br. 8. Appellant points to the specific disclosure in those portions of
the Specification and argues that “[o]ne of ordinary skill would therefore
understand that coupling additional cars is supported by Appellants’
specification, and that coupling additional cars is a physical increase to the
capacity of the claimed driverless train.” Id., see also id. at 8–9 (discussing
paragraphs 22, 24, and 25).
We agree with Appellant that Appellant’s original disclosure conveys
with reasonable clarity to ordinarily skilled artisans that Appellant possessed
the claimed invention, including a command and control system
programmed to “increase a capacity of the driverless train by coupling at
least one additional car to the driverless train.” “[T]he description
requirement does not demand any particular form of disclosure, or that the
specification recite the claimed invention in haec verba.” Ariad Pharms.,
Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010) (en banc)
(internal citations omitted). Rather, “the test for sufficiency is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.” Ariad, 598 F.3d at 1351.
Here, as Appellant argues
One of ordinary skill would understand that for the system
management unit 116 to couple additional cars, and keep track
of such additional cars, or even to identify a need for coupling
additional cars then causing the coupling of additional cars to
occur, the management unit 116 would logically reschedule the
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public transportation system, including . . . number of cars in a
given train.
Reply Br. 7 (emphasis omitted). We therefore agree with Appellant that
these descriptions would reasonably convey to a person of ordinary skill in
the art that tracking these types of parameters and attributes associated with
the usage of a train contribute to planning a need for extra train capacity and
coupling additional cars to the train. See Reply Br. 5–8.
Thus, we are persuaded by Appellant’s argument that the
Specification provides written description support for the disputed limitation
and that the Examiner erred by rejecting the pending claims under pre-AIA
35 U.S.C. § 112(a).
SECTION 103 REJECTION
With respect to independent claims 1 and 11, the Examiner relies on
Dixon as disclosing all the recited elements, but not “determine a
transportation system capacity demand” and “increase a capacity of the
driverless train by coupling at least one additional car.” Non-Final Act. 7–9.
The Examiner further finds Rauch discloses “determine a transportation
system capacity demand based on data received from the mobile device” and
increase a capacity of the driverless train, and Chun discloses “coupling at
least one additional car to the driverless train” to adjust the length of the
train in light of passenger demand. Non-Final Act. 9–11 (citing Rauch Figs.
1–13, ¶¶ 31–33, 93–96, 172–189; Chun ¶¶ 199–202, 213–220, Table 3). As
for the rationale for combining the references, the Examiner states it would
have been obvious to one with ordinary skill in the art at the time of the
invention to combine Rauch and Chun with Dixon because “incorporating
Rauch’s optimization of a transit system in Dixon would have served
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Dixon’s pursuit of identifying ridership patterns and predicting time and
locations of a user (See Dixon, ¶0003–0005)” and “incorporating Chun’s
optimization of a transit system in Dixon would have served Dixon’s pursuit
of identifying ridership patterns (See Dixon, ¶0003–0005).” Non-Final Act.
10–11. The Examiner also reasons “the references are
analogous/compatible,” “each is directed toward features of a predicting
ridership information,” and “each element merely would have performed the
same function as it did separately, and one of ordinary skill in the art would
have recognized that the results of the combination were predictable.” Id.
Appellant argues the Examiner’s proposed combination “is
unreasonable, and is rooted in the impermissible application of hindsight
reasoning based on the roadmap set forth in Appellants’ specification.”
Appeal Br. 12. Appellant asserts nothing in the references would “suggest
that one of ordinary skill in the art at the time of Appellants’ invention may
have, in any way, predictably combined the applied references in the manner
the Examiner suggested, and such has not been adequately shown” because
paragraphs 32–33 of Rauch would convey to one of ordinary skill in the art
“the possibility of adding additional trains to a line to increase capacity of
the line.” Appeal Br. 13; see also Reply Br. 12–14. Similarly, Appellant
argues that paragraph 176 of Rauch describes “the vehicle usage planning
13.5 increases or reduces the number of vehicles per unit of time or the
number of parts of the vehicles (e.g. longer train)” which “merely reports the
increase or decrease in the number of parts of the vehicle to the system.” Id.
With respect to the teachings in paragraph 189 of Rauch, Appellant argues
“one of ordinary skill would recognize that Rauch merely describes the
possibility controlling line direction, frequency of vehicles, etc. to control
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the capacity of the line.” Appeal Br. 14. Appellant concludes that the
Examiner’s obviousness rejection is based on hindsight because, given the
teachings of Rauch discussed above and the cited portions of Chun, the
skilled artisan would not have predictably “modified the allegedly obvious
combination of Rauch and Dixon . . . based on the mere mention in Chun
about implementing ‘modem coupling technologies in the trains,’” which
results in “‘shortened train times, and indeed variations in train length over
the day/week/year according to optimization determinations made by system
20 in light of passenger demand.’” Id.
In response, the Examiner explains that Rauch teaches increasing the
capacity of the driverless train based on the real time status data and the
determined level of demand. Ans. 6 (citing Rauch ¶¶ 93–96, disclosing
passenger densities used to determine the required vehicle capacities). The
Examiner further finds Rauch discloses “the system utilizes count data in
driverless and/or automatic track-guided transport systems to ‘appropriate
transport capacity (i.e. . . . train length),’” which relates to using passenger
count data to increase the capacity of the driverless train, as recited in claim
1. Id. (citing Rauch ¶¶ 31–33). Similarly, the Examiner refers to the
teachings of Rauch in paragraphs 172–176 and 110–113 and explains the
disclosed automatic dispatching and control system provides the required
information for adjusting the capacity of the driverless train. Ans. 6–7. As
to how the train capacity is adjusted, the Examiner explains that Chun
teaches varying the train length (i.e., adding more cars to the train) based on
the passenger throughput. Ans. 7 (citing Chun ¶¶ 97, 215–219).
We are unpersuaded that the Examiner has used improper hindsight.
Reliance on multiple references in a rejection does not, without more, weigh
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against the obviousness of the claimed invention. In re Gorman, 933 F.2d
982 (Fed. Cir. 1991). In addition, any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning. However, so
long as it takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made, and does not
include knowledge gleaned only from the Appellants’ disclosure, such a
reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 1395
(CCPA 1971). Here, contrary to Appellant’s argument that the Examiner
has relied on “modifications that were not disclosed by the applied
references” (Reply Br. 18), the rejection is based on teachings from the
references disclosing information-based control of transit systems (see
Dixon Abstract, ¶ 38) where the detected passenger information determines
the additional capacity or train that is needed (see Rauch ¶¶ 31–33) and the
train length is adjusted by adding extra cars (see Chun ¶ 219), which are
both subsets of transit systems control. We also find that it is reasonable to
rely on other references for adjusting the particular factors identified in those
references as the capacity of the transit system “based on a real time status
of the transportation system capacity demand,” as set forth in the claims at
issue.
Each reference must be read, not in isolation, but for what it fairly
teaches in combination with the prior art as a whole. In re Mouttet, 686 F.3d
1322, 1333 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425 (CCPA
1981)) (“[T]he test for obviousness is what the combined teachings of the
references would have suggested to those having ordinary skill in the art.”).
We also note that the rationale to modify or combine the prior art does not
have to be expressly stated in the prior art. See In re Fine, 837 F.2d 1071
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(Fed. Cir. 1988). Instead, the combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007). Further, 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. See id. at 417. Moreover, we
are not persuaded the Examiner’s proffered combination for modifying the
transit system of Dixon to use the passenger tracking information of Rauch
to adjust the vehicle capacity by adding cars to the train, as suggested by
Chun would have been “uniquely challenging or difficult for one of ordinary
skill in the art.” Leapfrog Enters., Inc. v. Fisher–Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
In light of our discussion above, we conclude the Examiner did not err
in rejecting independent claims 1 and 11 over the combination of Dixon,
Rauch, and Chun. Accordingly, we sustain the 35 U.S.C. § 103(a) rejection
of independent claims 1 and 11, as well as the remaining claims, which are
not argued separately or with sufficient specificity. See Appeal Br. 15–18.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 6–10,
21–24
112(a) Written
Description
1–3, 6–10,
21–24
1, 2, 6–12 103(a) Dixon, Rauch,
Chun
1, 2, 6–12
3, 13, 16–
19
103(a) Dixon, Rauch,
Chun, Fournier
3, 13, 16–
19

21, 22, 24 103(a) Dixon, Rauch,
Chun, Brandenberg
21, 22, 24
23 103(a) Dixon, Rauch,
Chun,
Brandenberg,
Fournier
23
Overall
Outcome
1–3, 6–13,
16–19,
21–24

FINALITY AND 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.
§ 1.136(a)(1)(iv).

AFFIRMED