Consumer Safety Technology, LLC

Patent Trials and Appeals Board

Mar 11, 2020

15223894 - (D) (P.T.A.B. Mar. 11, 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.
15/223,894 07/29/2016 Douglas Edward DeVries 365.0007USU1 3401
57557 7590 03/11/2020
PAULY, DEVRIES SMITH & DEFFNER, L.L.C.
SUITE 900
121 SOUTH 8TH STREET
MINNEAPOLIS, MN 55402-2841
EXAMINER
NGUYEN, TAN QUANG
ART UNIT PAPER NUMBER
3661
NOTIFICATION DATE DELIVERY MODE
03/11/2020 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@pdsdlaw.com
kds@pdsdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DOUGLAS EDWARD DEVRIES, KERRY L. KELLER, and
TIMOTHY J. MCGRATH
____________

Appeal 2019-004695
Application 15/223,894
Technology Center 3600
____________

Before JENNIFER D. BAHR, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1–24. 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 identifies Consumer Safety Technology, LLC
as the real party in interest. Br. 3.
Appeal 2019-004695
Application 15/223,894
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THE INVENTION
Appellant’s invention relates to “networked vehicle intoxication
immobilization.” Spec. ¶ 2. Claims 1 and 13 are the independent claims on
appeal. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A vehicle immobilization system comprising:
a detection element operable to detect a level of an
intoxicant in a user’s breath;
a control module operable to receive a signal from the
detection element indicating the level of intoxicant in the user’s
breath, and to selectively restrict operation of the vehicle based
on the level of intoxicant in the user’s breath exceeding a
threshold by selectively sending a signal via a connection
between the control module and the vehicle using data link
connector (DLC) of the vehicle, wherein the control module is
further operable to monitor vehicle data via the data link
connector (DLC) of the vehicle, wherein the control module is
operable to detect if the vehicle is moved without the user
providing a valid breath sample using information received via
the DLC, wherein the control module is operable to record a
violation if the vehicle is moved without the user providing a
valid breath sample.
THE REJECTION2
The Examiner relies upon the following as evidence in support of the
rejection:
NAME REFERENCE DATE
Freund US 6,748,792 B1 June 15, 2004
Ballard US 6,853,956 B2 Feb. 8, 2005

2 The Examiner’s provisional statutory double-patenting rejection is moot,
in view of the abandonment of US Patent App. 15/622,309 on June 13,
2019.
Appeal 2019-004695
Application 15/223,894
3
Claims 1–24 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Freund and Ballard.

OPINION
Regarding independent claim 1, the Examiner finds that Ballard
generally discloses the claim limitations, including selectively restricting
operation of the vehicle based on the level of intoxicant in the user’s breath
by selectively sending a signal via a connection between the control module
and the vehicle using data link connector (DLC), or on-board diagnostics
system (OBD), of the vehicle. Final Act. 3 (citing Ballard, Fig. 2); see also
Ans. 9 (citing Ballard 5:16–6:12). The Examiner relies on Freund for
teaching a control module operable to record a violation if a vehicle is
moved without a user providing a valid breath sample, as claimed. Final
Act. 3 (citing 5:46–6:3, 7:58–8:2). Specifically, the Examiner finds that
Freund suggests recording the exact location of a vehicle when a violation
occurs, so that law enforcement can be dispatched and the impaired driver
intercepted. Ans. 9 (citing Freund 5:43–52, 59–64). The Examiner also
finds that Freund teaches that a person is impaired when the driver’s blood
alcohol level exceeds a predetermined limit or the driver did not perform the
test. Id. (citing Freund 7:33–39). The Examiner reasons that it would have
been obvious to incorporate Freunds’ teaching into Ballard’s system to have
the violation information available for future reference. Final Act. 3.
Appellant argues that the passages in Freund relied on by the
Examiner do not “teach or suggest recording a violation if the vehicle is
moved without a valid breath sample.” Br. 11. Appellant submits that
Freund’s only use of the word “violation” is “in the context of tampering
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Application 15/223,894
4
with the device, if time for testing has expired, and not properly positioning
a testing unit.” Id. (citing Freund 4:26–30, 8:28–32, 63–66, 9:12–19, Fig.
3).
As relied on by the Examiner, Freund discloses that system 10 can
include various components (Freund 5:32–30, 46–47), such as “a global
positioning system (GPS) 33,” whereby “the exact location of the vehicle 28
when a violation occurred could be recorded,” and also “a radio function,”
which “could be effective in notifying the monitoring facility or law
enforcement of a failed impairment test” (id. 5:47–52, 56–59). Freund also
discloses that “if driver 16 is operating a vehicle 28 and is prompted . . . to
provide a sample and ignores the prompt, after a certain predetermined
amount of time . . . a violation procedure will be initiated,” wherein “the
violation procedure . . . could consist of sounding the horn 25 and/or
flashing the lights 27.” Freund 9:2–6, 12–14. Freund also discloses, in
other contexts, such as a failed blood alcohol level test, recording the event.
Id. 9:29–32 (“the failed impairment test is recorded and can be accessed for
the appropriate disciplinary action”).
We find that a preponderance of the evidence supports the Examiner’s
finding that Freund discloses a system that records a violation, and also
gives as an example of a violation ignoring a prompt to provide a blood
alcohol signal while driving, such that Freund suggests to one skilled in the
art that the control module is operable to record a violation if the vehicle is
moved without the user providing a valid breath sample. “A reference must
be considered for everything that it teaches, not simply the described
invention or a preferred embodiment.” In re Applied Materials, Inc., 692
F.3d 1289, 1298 (Fed. Cir. 2012).
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Application 15/223,894
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Appellant also argues that “[w]hile Ballard . . . mentions ‘control’
through the OBD-II port and mentions interrupting operation of a vehicle
components, there is no discussion or description of the capability to send or
sending a signal to restrict operation of the vehicle,” as claimed. Br. 15
(emphasis added). Appellant submits that “[t]he only concrete example of
how to restrict operation of the vehicle in Ballard is to interrupt the operation
of the fuel pump, an engine starter, or an ignition circuit,” and that
“[o]peration of these components could be interrupted in various ways
without the use of a signal.” Id. at 13–14 (citing Ballard at 5:16–55, 57–65,
Fig. 2). Appellant also submits that “Ballard primarily discloses the OBD
port as providing diagnostic information and machine operating data for the
machine, not as a way to receive a signal.” Id. at 15.
As relied on by the Examiner, Ballard discloses that
[c]omputing device 15 is also electrically connected to an on-
board diagnostic port 41 via electronic circuit 17 [(which
channels machine operating data to the sobriety interlock device
11)]. Port 41 is preferably a connection port on machine 193
[(i.e., an automobile)] for a second generation “on-board
diagnostics system or OBD-II, that provides diagnostic
information and machine operating data for machine 19.
Ballard 5:16–21; 6:11–13. Ballard specifically discloses that
[a] person of ordinary skill in the art will also recognize that
electronic circuit 17 could also be used to control the operation
of the machine 19 through on-board diagnostic port 41.
Electronic circuit 17 would permit the engine on the machine to
be stopped by interrupting operation of a fuel pump, an engine
starter, or an ignition circuit.

3 See, e.g., Ballard 3:33–36 (“[s]obriety interlock device 11 is installed on a
machine 19 to insure that the machine is not operated by inebriated
operators,” wherein “[t]ypically the machine 19 is an automobile”).
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Application 15/223,894
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Id. at 5:57–64.
Thus, a preponderance of evidence supports the Examiner’s finding
that Ballard discloses that a signal is sent from the sobriety interlock device
via electronic circuit 17 and OBD-II to interrupt operation of the engine
starter.
Appellant further argues that “Ballard fails to enable control through
the OBD-II port” because “two short sentence[s] do[es] not enable one of
ordinary skill in the art to control a vehicle through a connection to an OBD-
II port,” and that “[u]ndue experimentation would be required to actually
practice the teachings of Ballard to ‘control the operation of machine 19
through on-board diagnostic port 41,’” for example, “to ‘permit the engine
on the machine to be stopped by interrupting operation of a fuel pump, an
engine starter, or an ignition circuit.’” Br. 15–16. Appellant submits that
the Specification “provides several different examples of how to specifically
control operation of a vehicle.” Id. at 16 (citing Spec. ¶¶ 46, 47, 69, 70).
We are not persuaded by Appellant’s argument, which does not
provide sufficient evidence of undue experimentation, in view of Ballard’s
disclosure that controlling operation of a vehicle via an OBD-II port is
within the knowledge of a person of ordinary skill in the art. Attorney
argument cannot take the place of evidence in the record. Estee Lauder, Inc.
v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed.Cir. 1997). In particular, regarding
controlling operation of a vehicle via an OBD-II port, the Specification, as
relied on by Appellant supra, discloses that: (i) “the control module
prevents the vehicle from starting by disabling a vehicle system such as the
fuel pump, ignition, starter, etc. via the OBDII diagnostic connector” (Spec.
¶ 47 (emphasis added)); (ii) “the intoxication interlock system interrupts a
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vehicle bus such as the On-Board Diagnostic (OBDII) bus . . . by disrupting
the bus to prevent operation of the vehicle,” for example, “the intoxication
interlock system shorts the data bus through its connection to the vehicle’s
OBDII diagnostic connector, thereby preventing communication on the bus”
or “injects noise or other signals onto the bus that prevent normal operation
of the bus” (id. ¶ 69 (emphasis added)); and (iii) “[a] vehicle bus such as the
OBDII bus . . . is used to restrict operation of the vehicle in another example
by sending instructions from the intoxication interlock system to one or
more car components, such as the fuel pump, starter relay, or ignition” (id. ¶
70 (emphasis added)). However, Appellant has not demonstrated that
interrupting and/or disrupting the OBD-II bus by shorting, or injecting noise
or other signals into, the circuit is beyond the knowledge of a person of
ordinary skill in the art, as stated in Ballard.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1. Appellant chose not to present arguments for the patentability of
claims 2–24 apart from the arguments presented supra for claim 1, and
therefore, for essentially the same reasons as stated supra, we also sustain
that Examiner’s rejection of claims 2–14. Br. 10–16.

Appeal 2019-004695
Application 15/223,894
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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s) Affirmed Reversed
1–24 103 Ballard, Freund 1–24
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED