2021004609 (P.T.A.B. Nov. 26, 2021)

Denis Tyaglin

Patent Trials and Appeals BoardNov 26, 2021

2021004609 (P.T.A.B. Nov. 26, 2021)

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. 16/310,672 12/17/2018 Denis Valentinovich Tyaglin 6655/0101PUS1 9620 60601 7590 11/26/2021 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 Fairfax, VA 22033 EXAMINER CHU, KATHERINE J ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 11/26/2021 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): MAILROOM@MG-IP.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DENIS VALENTINOVICH TYAGLIN ____________ Appeal 2021-004609 Application 16/310,672 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, JAMES P. CALVE, and CYNTHIA L. MURPHY, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3–16, 18, and 19. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Denis Valentinovich Tyaglin. (Appeal Br. 2). Appeal 2021-004609 Application 16/310,672 2 CLAIMED SUBJECT MATTER The Appellant’s claimed invention relates to transportation and logistics systems of large cities (Spec. 1, ll. 2–4). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. An urban transportation and logistics system, the system comprising: a first level roads for road freight transport and rail freight transport, the first level being located at a ground level; a second level equipped with pipelines, the pipelines comprise water supply, electricity supply, heat supply, gas supply, waste transfer, and a sewer system, the second level is disposed above the first level and above the ground level; a third level equipped for passenger transport, the third level being disposed above the second level, wherein the third level includes railway tracks and motor roads for the passenger transport; and a fourth level designed for pedestrians, the fourth level being disposed above the third level and the second level and in the open sky, the fourth level including a base, a soil placed on the base, live plants and trees grown from the soil to form a natural park landscape, residential buildings, non-residential buildings, pedestrian walking paths, human-powered transport paths, children's grounds, and sport grounds, and wherein the third level and the fourth level are detached; wherein a traffic of the pedestrians, a traffic of the passenger transport, and a traffic of the road freight transport and rail freight transport are separated from each other; and wherein the first level, the second level, the third level, and the fourth level are connected with each other by vertical staircase-elevator modules, wherein each of the vertical staircase elevator modules includes at least one of an elevator and a staircase, the elevator being configured to connect at least two of the first level, the second level, the third level, and the fourth level and the staircase being configured to connect at Appeal 2021-004609 Application 16/310,672 3 least two of the first level, the second level, the third level, and the fourth level. THE REJECTIONS The following rejections are before us for review: 1. Claims 1, 3–16, 18, and 19 are rejected under 35 U.S.C. § 112(b)2 as being indefinite. 2. Claims 1, 3–16, 18, and 19 are rejected under 35 U.S.C. § 103 as unpatentable over Harriss (US 1,784,728, issued Dec. 9, 1930), Gustafson (US 7,866,910 B2, issued Jan. 11, 2011), Northeast Ohio Regional Sewer District (The Onion jokes about elevated sewers in Cleveland, learns there actually are elevated sewers in Cleveland, https://neorsd.medium.com/lol- um-onion-clevelands-elevated-sewers-are-actually-a-thing-2f8dff5c6423, dated Feb. 27, 2018) and The Plaza at Tysons Corner Center (A Civic Heart, https://www.rios.com/projects/tysons-corner, last viewed July 26, 2021). FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence3. 2 The Answer at page 4 indicates that the after final amendment has not been entered. Accordingly, this rejection is considered still pending. Claims 3–5, 7–16, 18, and 19 are dependent claims that depend from the rejected independent claims, and their omission is considered a typographical error. 3 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2021-004609 Application 16/310,672 4 ANALYSIS Rejection under 35 U.S.C. § 112(b) Claims 1, 6, and 10 are rejected under 35 U.S.C. § 112(b) as indefinite (Final Act. 2). The omission of the dependent claims which depend from independent claims 1 and 10 in this rejection is considered a typographical error (see footnote 2). As no arguments have been filed in regards to this rejection, this rejection is summarily affirmed. Rejection under 35 U.S.C. § 103 The Appellant has argued that the rejection of claim 1 is improper (App. Br. 9–15, Reply Br. 2–4). In contrast, the Examiner has determined that the rejection is proper (Final Act. 3–10, Ans. 4–7). We agree with the Appellant. Claim 1 contains specific limitations drawn to: “first level roads for freight transport. . . at a ground level”; a “second level equipped with pipelines . . . [for] water supply, electric supply, . . . above the first level”; a “third level equipped for passenger transport . . . above the second level, . . . includ[ing] railway tracks and motor roads for the passenger transport”; “a fourth level designed for pedestrians, . . . above the third level . . . in the open sky, . . . including a base . . . soil . . . live plants . . . buildings . . . wherein the third and fourth level are detached”; and “wherein the first level, the second level, the third level, and the fourth level are connected with each other by vertical staircase-elevator modules.” The rejection of record applies a combination of the five references, Bergeron, Harris, Gustafson, Northeast Ohio Regional Sewer District, and The Plaza at Tysons Corner Center, and the taking of Official Notice that Appeal 2021-004609 Application 16/310,672 5 elevators are conventional in the combination of record made under 35 U.S.C. § 103. In the rationale, the rejection states that it would be “obvious to substitute the elevated railway track to be on the third level instead of the second level based on design choice” (Final Act. 3). The rejection also states the “specificity of the second level of the resulting combination is an obvious modification based on design choice, since it has been held that rearrangement of parts involves only routine skill in the art” (Final Act. 2, 3). The rejection makes a similar rationale that it would have been obvious to relocate the motor roads for passenger transport to be on the third level based on a matter of design choice as is it merely a rearrangement of parts involving only routine skill in (Final Act. 6). Here, even taken the citations of Harris, Gustafson, Northeast Ohio Regional Sewer District, and The Plaza at Tysons Corner Center, to each disclose the individual claim limitations for which they have been cited, we do determine that the cited combination of references to meet the specific claimed limitations of claim 1 would not have been obvious. In KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007) the Supreme Court at 418 noted that in an obviousness analysis 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”. Here, the rejection requires modifying Bergeron to include six-levels in view of Harris, to have a railway track on the third level in view of Harris as a matter of design choice, to have the rail freight transport on the first level in view of Gustafson, to use water lines above ground in view of Northeast Ohio Regional Sewer District at a specific road level, to use a fourth level with Appeal 2021-004609 Application 16/310,672 6 landscaping for pedestrians in view of The Plaza at Tysons Corner, and to use conventional elevator systems, as well as asserting that many of the modifications of the different levels would have been a matter of obvious design choice as a rearrangement of parts (Final Act. 3–7). Here, the cited combination of Harris, Gustafson, Northeast Ohio Regional Sewer District, and The Plaza at Tysons Corner Center, and the taking of Official Notice for the elevators as being conventional with the cited rationale further including “rearrangement of parts” in this instance lacks articulated reasoning with rational underpinnings to support a conclusion of obviousness without impermissible hindsight. Accordingly, the rejection of claim 1 and its dependent claims is not sustained. Claim 10 is drawn to similar subject matter, and the rejection of this claim and its dependent claims is not sustained for the same reasons given above. CONCLUSIONS OF LAW We conclude that Appellant has not shown that the Examiner erred in rejecting claims 1, 3-16, 18 and 19 under 35 U.S.C. § 112(b) as being indefinite. We conclude that Appellant has shown that the Examiner erred in rejecting claims 1, 3–16, 18, and 19 under 35 U.S.C. § 103 as unpatentable over Harris, Gustafson, Northeast Ohio Regional Sewer District, and The Plaza at Tysons Corner Center. Appeal 2021-004609 Application 16/310,672 7 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–16, 18, 19 112(b) Indefiniteness 1, 3–16, 18, 19 1, 3–16, 18, 19 103 Harriss, Gustafson, Northeast Ohio Regional Sewer District, The Plaza at Tysons Corner Center 1, 3–16, 18, 19 Overall Outcome 1, 3–16, 18, 19 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. § 1.136(a)(1)(iv). AFFIRMED