Dimitar Petrov. Filev et al.

Patent Trials and Appeals Board

Sep 9, 2019

14249931 - (D) (P.T.A.B. Sep. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/249,931 04/10/2014
28395 7590 10/11/2019
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Dimitar Petrov FILEV
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
83385213 2314
EXAMINER
NOLAN, PETER D
ART UNIT PAPER NUMBER
3661
NOTIFICATION DATE DELIVERY MODE
10/11/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIMITAR PETROV FILEV, JEFFREY ALLEN GREENBERG,
RYAN ABRAHAM MCGEE, JOHANNES GEIR KRISTINSSON,
and FLING TSENG
Appeal2019-001073
Application 14/249 ,931
Technology Center 3600
Before STEFAN STAICOVICI, BENJAMIN D. M. WOOD, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1, 3-5, 7-11, 13-17, 19, 21, and 22. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Ford Global Technologies, LLC (hereinafter "Appellant"), is the Applicant
and real party in interest. Appeal Br. 1.
Appeal2019-001073
Application 14/249,931
THE INVENTION
Appellant's invention is a user interface for a vehicle. Spec. ,r 4.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A vehicle interface system comprising:
an interface configured to present icons representing
selectable vehicle features; and
a controller programmed to generate a non-binary score
for each of the features that varies based on a distance between
the vehicle location and a predicted end location, and
display certain of the icons and hide other of the icons
based on the generated scores.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Obradovich
Grossman
Small
Lovitt
US 6,275,231 Bl
US 2009/0146846 Al
US 2011/0082620 Al
US 2013/0152001 Al
Aug. 14, 2001
June 11, 2009
Apr. 7, 2011
June 13, 2013
The following rejections are before us for review:
1. Claims 1, 3, 5, and 8 are rejected under 35 U.S.C. § 103 as being
unpatentable over Small.
2. Claim 21 is rejected under 35 U.S.C. § 103 as being unpatentable
over Small and Lovitt.
3. Claims 1, 3-5, and 8-11 are rejected under 35 U.S.C. § 103 as
being unpatentable over Grossman.
4. Claims 7 and 14 are rejected under 35 U.S.C. § 103 as being
unpatentable over Grossman and Obradovich.
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5. Claims 13, 15, 16, 19, 21, and 22 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Grossman and Lovitt. 2
6. Claim 17 is rejected under 35 U.S.C. § 103 as being unpatentable
over Grossman, Lovitt, and Small.
Claim 1
OPINION
Unpatentability of Claims 1, 3, 5, and 8
over Small
The Examiner finds that Small discloses the invention substantially as
claimed except for basing the display of icons on non-binary scores. Final
Action 4--5. The Examiner finds that Small displays certain icons based on
the distance between the vehicle location and a predicted end location,
which is a "non-binary" value. Id. at 6. The Examiner concludes that it
would have been obvious to a person of ordinary skill in the art at the time
of the invention to use distance as a non-binary feature score with distances
greater than a threshold distance indicating that the icons are hidden and
distances less than the threshold indicating that the icons are displayed. Id.
Appellant argues that the Examiner confuses a non-binary value in
Small with the claimed non-binary score. Appeal Br. 4.
The examiner is confusing the value of Small with the claimed
"non-binary score." Having a yes/no determination cannot
possibly teach a "non-binary score" that "varies based on a
distance," as required by the claims. Small either displays a
soft button or does not, based on whether the distance is within
a certain range of the home location.
2 The Examiner's omission of claim 13 from the heading of the rejection is
considered a typographical error. See Final Act. 19, 28.
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Id. In response, the Examiner observes that Appellant failed to address the
Examiner's finding and conclusion that it would have been obvious to a
skilled artisan to modify Small to use a non-binary score as the difference
between what is disclosed in Small and what is claimed by Appellant is "de
minimis." Ans. 4. In reply, Appellant reiterates that the claims need not
distinguish between non-claimed and opposite terms for the claimed term to
be given adequate weight. Reply Br. 2.
Appellant's arguments are not persuasive as they fail to adequately
address, much less rebut, the Examiner's position that, in essence, the
difference between Small and the claimed invention is de minimis and
readily overcome with no more than ordinary skill. The obviousness
analysis contemplates that there will be differences between the prior art and
the claimed invention and yet the claimed invention may be unpatentable.
See U.S.C. § 103. A determination of obviousness does not require the
claimed invention to be expressly suggested by any one or all of the
references. See e.g., In re Keller, 642 F.2d 413,425 (CCPA 1981).
Furthermore, what a reference teaches a person of ordinary skill is not
limited to what a reference specifically "talks about" or what is specifically
"mentioned" or "written" in the reference. Syntex (US.A.) LLC v. Apotex,
Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). Thus, a "reference must be
considered not only for what it expressly teaches, but also for what it fairly
suggests." In re Baird, 16 F.3d 380, 383 (Fed. Cir. 1994) (quoting In re
Burckel, 592 F.2d 1175, 1179 (CCPA 1979)).
In light of the foregoing, "we do not ignore the modifications that one
skilled in the art would make to a device borrowed from the prior art." In re
Icon Health & Fitness, Inc., 496 F.3d 1374, 1382 (Fed. Cir. 2007). Thus,
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"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." KSRint'l Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
Moreover, "[ t ]he diversity of inventive pursuits and of modem technology
counsels against confining the obviousness analysis by ... overemphasizing
the importance of published articles and the explicit content of issued
patents." Id. at 419. Therefore, a claim can be obvious even where all of the
claimed features are not found in specific prior art references, where there is
a suggestion or motivation to modify the teachings of the prior art to the
claimed invention. Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1307
(Fed. Cir. 2006).
Small is directed to an adaptive user interface for a vehicle. Small,
Abstract. Small acknowledges what any person would intuitively
understand in operating complex machinery, namely, that the multiplication
of items to be monitored and controlled in a vehicle user interface can lead
to unsafe driving habits due to increased driver distraction. Id. ,r 4. 3 Small
addresses this problem by simplifying user/interface interaction by altering
various aspects of the interface as ambient and vehicle conditions change.
Id. ,r,r 6, 44. For example, if a precipitation sensor detects rainy driving
conditions, a set of touch-sensitive soft buttons are displayed corresponding
to windshield wiper controls. Id. f 7. In another example, if vehicle sensors
detect certain speeds, acceleration, or lateral forces, information graphics are
displayed that correspond to essential vehicle operating controls. Id. In
3 Lovitt refers to this phenomenon as "cognitive load." Lovitt, Abstract,
,r,r 26, 27, 45.
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another example, as a GPS sensor detects that a driver is approaching his or
her home, a set of touch-sensitive soft buttons may be displayed
corresponding to external systems controls for a garage door opener, home
lighting, or a home security system. Id.
System controller 103 determines this proximity using data
from GPS system 1703 along with preset 'home' coordinates ...
When system controller 103 determines that the vehicle is close
to, and within range of, the home location, the interface changes
as shown in FIG. 19, this interface including three soft buttons
1901-1903 within zone 301 labeled, respectively, "Garage 1",
"Garage 2" and "Home Lights".
Id. ,r 82. Figure 17 of Small depicts an exemplary system where system
controller 103 receives sensory input from a precipitation sensor, a vehicle
mode sensor, GPS, vehicle speed sensor, vehicle cornering sensor, external
temperature sensors, and passenger sensors. Id. Fig. 17. Information from
one or more sensors is integrated with data stored in memory 109. Id.
,r,r 34, 3 8, 79.
A person of ordinary skill in the art would understand that Small's
system receives input from a plurality of sources, performs one or more
algorithms on the incoming ( and memory stored) data and then determines
whether to hide or display information and corresponding controls based on
the application of such algorithm( s) to such data. We agree with the
Examiner's finding that Small's determination of proximity is based on the
distance between the vehicle location and predicted end location, which
distance is a non-binary value. Final Action 6. Given that Small's controller
performs algorithms based on non-binary values, we agree with the
Examiner that generating a non-binary "score" based on a non-binary
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"value" ( distance between vehicle current location and end location) is a de
minimis difference.
There is nothing in either Appellant's Specification or evidentiary
presentation in this appeal that indicates that using an algorithm to calculate
a non-binary "score" from a non-binary "value" involves more than ordinary
skill or produces unexpected results. See generally Spec. The term "non-
binary score" does not appear anywhere in the Specification and was added
to the pending claims only by amendment. Id. ,r,r 35-37. The Specification
is replete with references to a "feature score," which term is prominently
featured in Appellant's original claims. Id. We have reviewed Appellant's
Specification. Throughout the Specification, the term "feature score" is
described in a manner that presumes familiarity on the part of a person of
ordinary skill in the art of knowledge and skill necessary to program a
controller to calculate a feature score using vehicle sensor inputs that
produce non-binary values such as GPS. See, e.g., Spec. ,r 37.
In our opinion and consistent with the findings and conclusion of the
Examiner, converting non-binary data or values to a non-binary "score" and
then using such "score" to determine display of icons is no more than a
predictable variation of Small. When a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it such that if a person of ordinary skill can implement a predictable
variation, Section 103 likely bars its patentability. KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007).
In the instant case, Appellant presents neither evidence nor persuasive
technical reasoning that rebuts the Examiner's position that Appellant's
invention amounts to no more than a de minimis variation on Small. Thus,
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we are not apprised of error and we sustain the Examiner's unpatentability
rejection of claim 1 over Small.
Claim 3
Claim 3 depends from claim 1 and adds the limitation: "wherein the
score increases as the distance decreases." Claims App. Appellant argues
that Small fails to teach an increasing score with decreasing distance as
claimed. Appeal Br. 4. In response, the Examiner finds that, in Small's
system, the score decreases as the distance decreases. Ans. 7. According to
the Examiner, using a simple inverse of the distance in Small would result in
an increasing score. Id.
The Examiner's position on simply using an inverse is persuasive and
is unrebutted by Appellant. See generally Reply Br. We are not apprised of
error and sustain the rejection of claim 3 over Small.
Claims 5 and 8
These claims depend from, and fall with, claim 1. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv) (failure to separately argue claims).
Unpatentability of Claim 21
over Small and Lovitt
Claim 21 depends from claim 1. Claims App. It is not separately
argued. Appeal Br. 4. We sustain the Examiner's rejection of claim 21 over
Small and Lovitt. 37 C.F.R. § 4I.37(c)(l)(iv)
Claim 1
Unpatentability of Claims 1, 3-5, and 8-11
over Grossman
The Examiner finds that Grossman discloses the invention
substantially as claimed except for the "non-binary" score limitation. Final
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Action 10-11. The Examiner finds that Grossman uses non-binary data
(vehicle proximity to a destination) to determine whether to display icons in
a vehicle user-interface systems. Id. at 12. The Examiner concludes that it
would have been obvious to a person of ordinary skill in the art at the time
the invention was made to use geographic coordinates of the vehicle as a
feature score. Id. According to the Examiner, a person of ordinary skill in
the art would have done this as it merely involves a direction comparison of
the vehicle coordinates to an area, which already occurs in Grossman. Id.
In traversing the rejection, Appellant raises another "non-binary
score" argument that is substantially similar to what we previously
considered and found unpersuasive with respect to the grounds of rejection
over Small. Appeal Br. 4--5.
Grossman is directed to a system for controlling various vehicle
functions including a vehicle alarm. Grossman, Abstract. The system
receives location information from GPS and, among other things, displays
an energy refilling menu when the system determines that the vehicle has
entered a fuel station. Id. ,r 85. The fuel station menu can be used to
activate functions such unlocking a vehicle's gas cap. Id.
As with the Small reference, it would have required the exercise of
mere ordinary skill to take the GPS data in Grossman that is used to
determine proximity to a fuel station and perform calculations on such data
using an algorithm to generate a "non-binary score" in connection with
making a determination to activate and display the energy refilling menu or
various other vehicle functions, including the alarm functions, described
therein. Our discussion with respect to predictable variations of the prior art
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set forth above in connection with the Small grounds of rejection applies
with equal force to the Grossman grounds of rejection.
We are not apprised of error and sustain the unpatentability rejection
of claim 1 over Grossman.
Claim 4
Claim 4 depends from claim 1 and adds the limitation: "wherein the
score for each of the features is also generated based on a vehicle speed,
wherein the score increases as the vehicle speed decreases." Claims App.
The Examiner finds, and Appellant does not dispute, that Grossman factors
speed into the determination whether to display certain items such as open
doors or seatbelts. Final Action 13 ( citing Grossman ,r 106).
Appellant argues that Grossman is silent as to increasing a feature
score based on speed. Appeal Br. 6. This argument is unpersuasive for the
same reasons previously discussed above in connection with the rejections
of claim 1 over Small and Grossman with respect to the obviousness of
converting non-binary data or value to a non-binary score for use in a user
interface system.
We sustain the Examiner's unpatentability rejection of claim 4 over
Grossman.
Claim 9
Appellant's brief addresses independent claim 9 in a single paragraph
under a separate heading. Appeal Br. 5. Such paragraph recites a limitation
from claim 9 and then asserts that Grossman fails to teach or suggest a non-
binary feature score in accordance with the recited limitation. Id. The single
paragraph in Appellant's brief fails to rise to the level of a separate argument
for the patentability of claim 9. 37 C.F.R. § 4I.37(c)(l)(iv) ("A statement
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which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim."); see also In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires more than recitation
of the claim elements and a naked assertion that the elements are not found
in the prior art).
We sustain the Examiner's rejection of claim 9 over Grossman.
Claim 10
As with claim 9, Appellant's treatment of claim 10 in the Appeal
Brief fails to rise to the level of a separate argument for patentability. 35
U.S.C. § 4I.37(c)(l)(iv); Lovin, 652 F.3d at 1357.
Claims 3, 5, 8, and 11
These claims are not separately argued and, therefore, fall with
claims 1 and 9, from which they depend. See 37 C.F.R. § 4I.37(c)(l)(iv)
(failure to separately argue claims).
Unpatentability of Claims 7, 13-17, 19, 21, and 22
over Combinations based on Grossman
Appellant does not argue for the separate patentability of these claims
apart from their dependency from a base claim for which we have already
sustained the Examiner's rejection. Claims App. 6-7. We sustain the
Examiner's unpatentability rejections of claims 7, 13-17, 19, 21, and 22
over combinations based on Grossman.
DECISION
The decision of the Examiner to reject claims 1, 3-5, 7-11, 13-17, 19,
21, and 22 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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