Craig SchulzDownload PDFPatent Trials and Appeals BoardJul 30, 201913622994 - (R) (P.T.A.B. Jul. 30, 2019) Copy Citation 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. 13/622,994 09/19/2012 Craig Schulz 1351.1000 3628 35236 7590 07/30/2019 The Culbertson Group, P.C. 2210 Western Trails Blvd., Unit 104 Austin, TX 78745 EXAMINER WEISENFELD, ARYAN E ART UNIT PAPER NUMBER 3689 NOTIFICATION DATE DELIVERY MODE 07/30/2019 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): docket@tcg-ipl.com rculbertson2@gmail.com rculbertson@tcg-ipl.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CRAIG SCHULZ ____________ Appeal 2018-003122 Application 13/622,994 Technology Center 3600 ____________ Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and JOHN P. PINKERTON, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant’s request is Denied. However, as noted below, a limited second request for rehearing will be permitted. This is a decision on Appellant’s Request for Rehearing.1 Appellant’s Request for Rehearing is filed under 37 C.F.R. § 41.50(a)(1) requesting that we reconsider our Decision of May 2, 2019, wherein, inter alia, we affirmed the Examiner’s rejection of claims 1–4, 6, 8–11, 13, 15–17, and 20–23 under 35 U.S.C. § 103(a). We have reconsidered our Decision in light of Appellant’s comments in the request, and although we agree to further 1 “The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). Appeal 2018-003122 Application 13/622,994 2 provide clarity to Appellant regarding the rejection of claim 1, we have found no error in the result reached. We, therefore, decline to change the result of the Decision. Appellant’s Contentions 1. Appellant contends that, as to claim 1, the Board erred because: Appellant’s claim 1 requires at element (c), under control of the system of one or more data processing devices included in the evaluation system, causing a grid to be displayed at the user device along with a representation of the identified damaged section, the grid defining a number of grid segments with each grid segment located over a respective portion of the representation of the identified damaged section, the grid and representation of the identified damaged section being displayed together with a number of predefined damage severity indicators . . . Element (d) of claim 1 then requires, receiving a respective damage severity level input from the user device for each of the grid segments encompassing damage which is to be considered in an overall repair cost estimate for the identified damaged section . . . Thus, in order for the combination of Holden and Xu to meet these limitations from claim 1 the combination must include not only the grid and product representation as set out in element (c), but must also receive a respective damage severity level input from the user device for each of the grid segments encompassing damage which is to be considered as set out in element (d). That is, the damage severity level inputs must be received per grid segment encompassing damage. . . . [S]imply adding the user-input data system disclosed in Xu to the grid-based image comparison system of Holden, would not Appeal 2018-003122 Application 13/622,994 3 result in a system in which damage severity level inputs are received from a user device per grid segment. Therefore, a further modification of the combination of Holden and Xu is required to meet the limitations of claim 1. That further modification is that the user inputs described in Xu would be made on a grid segment-by-grid segment basis. . . . The notion of a grid over a product representation is foreign to Xu and thus nothing in Xu could provide a reason for user inputs on a per grid segment basis. As for Holden, the grid segments are used in connection with image comparisons (Holden ¶¶0056-0064) and thus the notion of user input data per grid segment is necessarily also foreign to Holden. Because neither Holden nor Xu provide any apparent reason for the further modification of the combination to receive user input data as in Xu on a per grid segment basis, the reason must come from elsewhere in the record. However, there is nothing in the record to provide this apparent reason to further modify the proposed combination of Holden and Xu to reach the process set out in claim 1. . . . Element (d) of claim 1 specifically requires “receiving a respective damage severity level input from the user device for each of the grid segments encompassing damage which is to be considered in an overall repair cost estimate for the identified damaged section.” In contrast, Holden discloses the use of a grid system in connection with image comparisons (Holden ¶¶0056-0064). Reh’g Req. 3–5, Appellant’s emphasis omitted, panel’s emphasis added. 2. Appellant also contends that, as to claim 4, the Board erred because: [S]imply finding that Holden displays front and side views does not meet the . . . limitation in claim 4 that the product sectional Appeal 2018-003122 Application 13/622,994 4 representation includes a representation of the entire vehicle divided into a number of different sections. . . . Xu simply discloses providing multiple diagrams of different parts of a vehicle for use in allowing a user to input damage information relevant to the selected diagram. Thus, neither Holden nor Xu discloses or suggests a product sectional representation as claimed, that is, “including a representation of the entire product identified by the product identifying information divided into a number of different sections of the product where each of the sections is separately selectable.” In order for the proposed combination of Holden and Xu to meet the limitations of claim 4, the combination must be further modified to provide a sectional representation of the entire product divided into separately selectable sections. Reh’g Req. 7–8, Appellant’s emphasis omitted, panel’s emphasis added. 3. Appellant also contends that, as to claim 22, the Board erred because: On the face of it, paragraph 30 of Xu does not disclose or suggest displaying an inquiry for additional information in response to a user-selected damage severity indicator (defined in claim 1). Likewise, nothing in paragraph 115 of Xu suggests displaying such an inquiry in response to a user-selected damage severity indicator as claimed. Therefore, further modification of the proposed combination of Holden and Xu is required in order to meet the limitation of claim 22. Reh’g Req. 8, Appellant’s emphasis omitted, panel’s emphasis added. 4. Appellant also contends that, as to claim 1, the Board erred because: As noted above, Appellant’s claim 1 requires causing a number of predefined damage 10 severity indicators to be displayed with the grid and product representation (element (c) of claim Appeal 2018-003122 Application 13/622,994 5 1). Element (d) of claim 1 further requires receiving a respective damage severity level input from the user device where each such input includes “a user-selected damage severity indicator selected from the number of predefined damage severity indicators displayed at the user device” (element (d) of claim 1). (Emphasis added). Thus claim 1 does not merely require displaying “predefined damage severity indicators.” Rather, claim 1 specifically requires that each damage severity level input is selected from those “predefined damage severity indicators” displayed in accordance with element (c) of claim 1. . . . The Decision treats Appellant’s limitations regarding the “predefined damage severity indicators” as non-functional descriptive material that does not patentably distinguish the claim from the prior art. Decision at p. 19, lines 22-26. However, this finding overlooks the further claim limitations regarding how the “predefined damage severity indicators” are used in the process, namely, for making the damage severity level inputs as required at element (d) of claim 1 (for example). This oversight of the functional relationship between the “predefined damage severity indicators” and the damage severity level inputs leads to an incorrect conclusion on obviousness since the Examiner admits on the record that Holden and Xu do not teach or suggest the limitations regarding the display of the “predefined damage severity indicators” (See Final Action 10-11) and therefore also cannot teach or suggest the claimed use of such indicators. . . . Appellant submits that the “predefined damage severity indicators” do not represent non-functional descriptive material for two reasons. First, the “predefined damage severity indicators” are not claimed for what they communicate and thus do not meet the threshold requirement for material to be considered non-functional descriptive material. . . . Second, even assuming arguendo that the Appeal 2018-003122 Application 13/622,994 6 “predefined damage severity indicators” represent merely descriptive material, these indicators are clearly functionally related to the claimed process (as to claim 1, and apparatus and program product as to claims 9 and 15, respectively) because these indicators are used to make the damage severity level inputs. Reh’g Req. 9–11, Appellant’s emphasis omitted, panel’s emphasis added. ANALYSIS Claim 1 As to Appellant’s above contention 1, we are not persuaded of error. Appellant’s argument is that the combination of Holden and Xu does not teach or suggest “receiving a respective damage severity level input from the user device for each of the grid segments encompassing damage,” as recited in claim 1 (i.e., receiving damage severity level input on a grid segment-by- grid segment basis, as characterized by Appellant) because neither reference individually teaches the aforementioned limitation and that the combination of Xu and Holden would not result in a system in which damage severity level inputs are received from a user device for each of the grid segments encompassing damage. However, this argument is in error. As the Examiner found, Holden explicitly teaches an image processing system that compares grid segments of an image of a damaged vehicle to grid segments of an image of an undamaged vehicle. See Ans. 15. More specifically, Holden teaches comparing change in length, height, width, area, and volume between front end grid segment of image of damaged vehicle and front end grid segment of image of undamaged vehicle, and determining quantity, extent, and severity of damage to damaged vehicle depicted in the image. See id. (citing Holden ¶¶ 56, 63); see also Holden ¶ 62. Thus, as the Appeal 2018-003122 Application 13/622,994 7 Examiner found, Holden teaches “[identifying a damage severity level] for each of the grid segments encompassing damage.” See Final Act. 6–7; see also Ans. 13, 15–16. As also found by the Examiner, Xu teaches “receiving [a] damage severity level input from [a] user device,” as recited in claim 1. See Final Act. 9–10; see also Ans. 16–17. Thus, the combination of Holden and Xu teaches or suggests “receiving a respective damage severity level input from the user device for each of the grid segments encompassing damage,” as recited in claim 1. See Final Act. 10; see also Ans. 15. As to Appellant’s above contention 4, Appellant’s argument is that the claimed “predefined damage severity indicators” do not represent non- functional descriptive material because the claimed “predefined damage severity indicators” are functionally related to the claimed “damage severity level inputs,” and, thus, the claimed “predefined damage severity indicators” patentably distinguish the claims from the cited prior art. However, this argument is merely a reiteration of an argument previously raised in Appellant’s Appeal Brief (see App. Br. 18–19), and does not “state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). Thus, Appellant’s argument is not permitted under 37 C.F.R. § 41.52(a). Further, even assuming Appellant’s argument is a proper argument, it is not persuasive of error for the reasons provided in the Decision. See Decision 19 (citing Final Act. 10–11; Ans. 18). Claim 4 As to Appellant’s above contention 2, Appellant’s argument is that neither Holden nor Xu teaches or suggests “a representation of the entire Appeal 2018-003122 Application 13/622,994 8 product . . . divided into a number of different sections of the product,” as recited in claim 4, because the vehicle representations disclosed in Holden and Xu do not include representations of the entire vehicle. However, this argument is a new argument, as Appellant’s arguments in Appellant’s Appeal Brief focused on whether Holden and Xu teach or suggest “where each of the section is separately selectable through the user device,” rather than whether Holden and Xu teach or suggest “a representation of the entire product.” Under 37 C.F.R. § 41.52(a), “[a]rguments not raised [in Appellant’s Appeal Brief] are not permitted in the request for rehearing” unless the new argument: (a) is based upon a recent relevant decision; (b) responds to a new ground of rejection; or (c) argues that the Board’s decision contains an undesignated new ground of rejection.” 37 C.F.R. § 41.52(a)(1). As none of the aforementioned scenarios applies here, Appellant’s argument is not permitted under 37 C.F.R. § 41.52(a). Further, even assuming Appellant’s argument is permitted, it is not persuasive of error because the displayed representations of a vehicle respectively disclosed in Holden and Xu teach or suggest the claimed “representation of the entire product.” More specifically, the claim does not define “representation of the entire product,” nor does it distinguish the aforementioned claim element from either the displayed side and front views of a vehicle disclosed in Holden or the displayed exterior and interior diagrams of a vehicle disclosed in Xu, as both displays are representations of an entire vehicle. Appeal 2018-003122 Application 13/622,994 9 Claim 22 As to Appellant’s above contention 3, Appellant’s argument is that Xu fails to teach or suggest “display an inquiry for additional information in response to [a] user-selected damage severity indicator,” as recited in claim 22 because paragraphs 30 and 115 of Xu do not describe displaying an inquiry in response to a user-selected damage severity indicate. However, this argument is merely a reiteration of an argument previously raised in Appellant’s Appeal Brief (see App. Br. 22), and does not “state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). Thus, Appellant’s argument is not permitted under 37 C.F.R. § 41.52(a). Further, even assuming Appellant’s argument is permitted, it is not persuasive of error for the reasons provided in the Decision. See Decision 25 (citing Final Act. 16–17; Ans. 20). DECISION In view of the foregoing discussion, we grant Appellant’s Request for Rehearing to the extent we provide additional clarity regarding the rejection of claim 1 under 35 U.S.C. § 103(a), but we otherwise deny Appellant’s request. Because this Decision on Request for Rehearing modifies the original decision so as to provide additional clarity regarding the rejection of claim 1 under 35 U.S.C. § 103(a), pursuant to 37 C.F.R. § 41.52(a)(1), a second request for rehearing limited to a discussion of the rejection of claim 1 under 35 U.S.C. § 103(a) is permitted. Appeal 2018-003122 Application 13/622,994 10 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)(v). REQUEST FOR REHEARING DENIED Copy with citationCopy as parenthetical citation