Ex Parte Auxer et al

Patent Trial and Appeal Board

Apr 24, 2013

11888035 (P.T.A.B. Apr. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________

Ex parte GREGORY A. AUXER, JAMES F. CARROLL
and BRIAN J. SMYTH
______________

Appeal 2011-001022
Application 11/888,035
Technology Center 3600
_______________

Before CHARLES F. WARREN, JEFFREY T. SMITH and
BRADFORD E. KILE, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the final rejection of claims 1-5,
7 and 9-20. We have jurisdiction. 35 U.S.C. §§ 6 and 134(a) (2002);
37 C.F.R. § 41.31(a) (2009).
We affirm the decision of the Primary Examiner.
Claim 1 illustrates Appellants’ invention of a computer-implemented
method of determining a rating that represents a status along a specified
driving route, and is representative of the claims on appeal:
1. A computer-implemented method of determining a rating that
represents a status along a specified driving route comprising:
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calculating a free flow travel time for the specified route;
calculating an estimated travel time for the specified route, said
estimated travel time considers traffic conditions along the specified route;
determining a delay assessment by comparing the estimated total
travel time to the free flow travel time; and
providing a rating in a traffic report, wherein the rating is based on the
delay assessment and represents a level of traffic on the specified route.
App. Br. 19 (Claim App’x).
Appellants request review of the grounds of rejection under 35 U.S.C.
§ 103(a) advanced on appeal by the Examiner: claims 1-5, 7 and 9-20 over
Myr (US 2003/0014180 A1) and Sheha (US 7,082,365 B2), and claims
14 and 19 over Myr and Sheha. App. Br. 4; Ans. 3, 5.1
Appellants argue independent claims 1, 11, 17 and 20 as a group,
claims 2, 12 and 18 as a group and claims 7, 14 and 16 separately. App. Br.
7, 12-17. Thus, we decide this appeal based on claims 1, 2, 7, 14 and 16.
OPINION
I.
We cannot agree with Appellants that the Examiner erred in
determining that the combination of Myr and Sheha would have led one of
ordinary skill in the art to a method determine a rating for a status or level of
traffic along a specified route by calculating free flow travel time and
estimated travel time along a specified route, determining a delay assessment
based on comparing the two and providing a rating in a report in a computer-
implemented manner, thus arriving at a method encompassed by claim 1.
Ans. 3-10; App. Br. 5-12; Reply Br. 3-5.
We initially interpret representative claim 1 by giving the terms

1 We have numbered the pages of the Answer.
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thereof the broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art.
See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir.
2010); In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007); In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re
Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319,
321-22 (Fed. Cir. 1989).
We determine that claim 1 specifies a method of determining any
manner of rating that represents any status or level of traffic “along a
specified driving route,” regardless of the route or length of the route, the
method comprising at least the steps of “calculating,” in any manner, any
“free flow travel time for the specified route” at any time; “calculating,” in
any manner, any “estimated travel time for the specified route” at any time,
which considers any manner of traffic conditions determined in any manner
at any point(s) “along the specified route;” “determining,” in any manner,
any “delay assessment” for the route by “comparing,” in any manner, “the
estimated total travel time” to “the free flow travel time;” and “providing,”
in any manner, any manner of “a rating,” “based on the delay assessment,”
of the “status” or “level of traffic” along the specified route in any manner of
“a traffic report, wherein the method is “computer-implemented” in any
manner and to any extent. Claim 1 (emphasis supplied).
We initially note that while the term “the estimated total travel time”
appears in claim 1 as originally filed, we do not find antecedent basis for the
term in appealed claim 1. For purposes of addressing the merits of the
ground of rejection of claim 1, we will consider claim 1 as if the term “an
estimated travel time” was used in place of the term “the estimated total
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travel time” because we can do so without speculation in view of the
methods specified in dependent claims 9 and 10 and in independent claim
17, all originally filed and on appeal, recognizing that our conditional
interpretation does not limit claim 1 and claims dependent thereon. Cf. In re
Steele, 305 F.2d 859, 862-63 (CCPA 1962); Ex parte Saceman, 27 USPQ2d
1472, 1474 (BPAI 1993).
We fail to find in the language of claim 1 or in the disclosure of the
Specification any basis to read the illustrative preferred embodiments as
limitations into claim 1. Spec. 3:17-21 (“The present invention is described
in the context of two services, . . . both of which are commercially available
. . . . However, the scope of the present invention includes other
embodiments that may differ from the specific implementations provided by
the [two commercially available] reports.”); see also Spec. 3:24-25. See,
e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)(en banc);
In re Van Geuns, 988 F.2d 1181, 1184-85 (Fed. Cir. 1993); Zletz, 893 F.2d
at 321-22 (citing In re Prater, 415 F.2d 1393, 1404-05, (1969) (“before the
application is granted, there is no reason to read into the claim the
limitations of the specification.).”).
On this record, we determine that the open-ended transitional term
“comprising” opens claim 1 to encompass methods that include any manner
of additional steps. See, e.g., dependent claim 7; Spec. 3:17-21. See, e.g., In
re Crish, 393 F.3d 1253, 1257 (Fed. Cir. 2004); Vehicular Technologies
Corp. v. Titan Wheel Int’l, Inc., 212 F.3d 1377, 1383 (Fed. Cir. 2000); In re
Baxter, 656 F.2d 679, 686-87 (CCPA 1981). We point out that as claimed,
any of the steps of the method of claim 1 can be conducted by mechanical as
well as computer means as long as the method is “computer-implemented”
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in some manner. For example, the method of calculating the “estimated
travel time” in dependent claim 7 involves simple mathematical steps with
respect to the well known mathematical equation distance = speed x time
and the axiom the whole is equal to the sum of its parts, which can be
accomplished by computer-implementation in any or all respects for a more
timely determination. The “traffic conditions” “considered” in the second
specified step can be determined in any manner. Spec., e.g., 4:13-16, Fig. 1.
We further determine the “rating . . . represent[ing] a level of traffic”
can be any rating that can communicate the “level of traffic” in any manner
of “traffic report.” We, like the Examiner, determine from the claims and
Specification that, contrary to Appellants’ contentions, the claimed “rating”
can include “subjective terms such as ‘GOOD,’ ‘Fair,’ and ‘BAD.’” Ans. 4;
App. Br. 9. We find that the language of dependent claim 9, an original
claim, specifies conditions in which the “rating indicates poor travel
conditions” (emphasis supplied), and dependent claim 10, an original claim,
specifies conditions in which the “rating indicates good travel conditions”
(emphasis supplied). Indeed, in these claims, the result of the specified
calculations is communicated by the subjective, common sense ratings
“POOR” and “GOOD.” We further find that in similar manner,
Specification Figure 3f of record discloses that a “number” can be displayed
for the user in a “report” for a specified route as an indicator along the
subjective continuum “CLEAR SLOW JAMMED” with no other meaning
associated with the “number,” and the “report” further displays ”Delay” time
and “Total” time for the route. See Ans. 4; App. Br. 7, 9. Thus, the “rating”
is displayed as degrees of “CLEAR,” ‘SLOW” and “JAMMED” traffic flow,
and in “delay” and “total” drive time. We also determine that the term “a
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traffic report” can include “commercial broadcasts,” such as general public
broadcast reports and pay-for-service reports, as well as other written and
electronic reports regardless of purpose and scope of dissemination. Spec.
1:13-15, 3:17-19, Fig. 3f.
We find that Myr would have disclosed to one of ordinary skill in the
art a computer-implemented method of optimizing traffic flow for a specific
route by adjusting traffic light timing based on analyzing traffic related
information by calculating theoretical travel, or free flow travel, time for the
specified driving route, including intersections; calculating an actual travel,
or estimated travel, time for the route reflecting traffic load or congestion;
and determining a time of delay assessment to adjust phase timing of traffic
lights in real time, as the Examiner points out. Myr, e.g., abstract, ¶¶ 0035,
0041-0045, 0054, 0071-0072, 0092, 0095, 0136-0138, claims 2-4. Ans. 3, 6,
9; App. Br. 5-6, 10. In this respect, we further find that Myr’s method is
computer implemented, uses traffic characteristics and parameters, actual
travel times for a specified route, and current vehicle loads for the route to
generate real-time data that can be “readily transmitted to other client
application programs, such as guided navigation systems, traffic related and
congestion studies, emergency services 911, etc.” Myr abstract,
¶¶ 0136-0138, claims 2-4.
We further find that, as the Examiner points out, Sheha would have
suggested to one of ordinary skill in the art a method of rating a point of
interest by giving it a numerical score. Sheha, e.g., abstract, col.2 ll.1-43,
col.2 l.57 to col.3 l.14. Ans. 4; App. Br. 6. Sheha would have further
disclosed that the rating of the point of interest is used with a navigation
device along with real-time traffic information to determine the best route to
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the selected point of interest. Sheha, e.g., col.2 ll.1-11, col.2 l.57 to
col.3 l.14, col.5 ll.32-45, col.14 ll.25-28, col.14 l.65 to col.15 l.40,
col.30 l.50 to col.21 l.12. App. Br. 6.
We cannot agree with Appellants that the Examiner erred in
determining that one of ordinary skill in the art would have linked a traffic
delay as determined by Myr’s method to a commonly understood, common
sense subjective rating such as “‘GOOD,’ ‘FAIR,’ ‘BAD,’” or a “delay
rating” reported as driving time, which would satisfy the limitations of claim
1. Ans. 4, 9-10; App. Br. 8-9. Indeed, we agreed with the Examiner that the
term “rating” in claim 1 can include such “common sense” subjective ratings
used with traffic delays as we interpreted this claim based on Appellants’
claims and Specification. See above p. 5. In this respect, and contrary to
Appellants’ contention that Myr would not have described “a rating in a
traffic report,” we determined that the term “traffic report” in claim 1
includes any report on traffic, and found that Myr generates real-time traffic
data that is a report of the level of traffic that can include such traffic
conditions as traffic delays and average speeds along a specified route. Myr
would have reasonably suggested such real-time traffic data can be used by
third parties to report traffic conditions along a specified route to others, thus
providing solutions to traffic navigation for users with navigation systems,
for example. App. Br. 7-12. See above p. 6. Indeed, Sheha would have
described the use of real-time traffic information in a navigation system.
Thus, on this record, we are of the view that one of ordinary skill in
the art routinely following the teachings and suggestions of Myr and Sheha
would have reasonably arrived at a computer-assisted method of determining
a rating that represents a level of traffic on a specified route, and providing
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that rating in a commonly used, common sense way that represents the level
of traffic in a traffic report, which falls within claim 1. Indeed, we are of the
opinion that, as the Examiner contends, adding a commonly used, common
sense subjective rating to describe the real-time traffic conditions established
by Myr’s method in a traffic report is within the ordinary skill in the art.
See, e.g., KSR Int’l Co., v. Teleflex, Inc., 550 U.S. 398, 417-18 (2007)
(“[A]nalysis [of whether the subject matter of a claim would have been
obvious under § 103] 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.”); Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
1329 (Fed. Cir. 2009) (“hold[ing] that while an analysis of obviousness
always depends on evidence that supports the required Graham factual
findings, it also may include recourse to logic, judgment, and common sense
available to the person of ordinary skill that do not necessarily require
explication in any reference or expert opinion.”); In re Bozek, 416 F.2d
1385, 1390 (CCPA 1969) (an examiner may rely upon "common knowledge
and common sense of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference").
II.
We now turn to claim 2 which limits claim 1 by specifying that free
flow travel time is calculated by dividing at least a length of the specified
route by the speed limit of that length, wherein the length can be any part or
all of the entire route. We find that one of ordinary skill in the art would
have been armed with the knowledge of such elementary mathematical
equations as distance divided by speed equals time which are readily
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applicable to vehicular travel on a road and indeed, Appellants acknowledge
that it is “known to calculate an estimated travel time by dividing a length of
a route by vehicle speed.” App. Br. 14. We find that one of ordinary skill in
the art would have considered Myr’s method in light of such knowledge and
thus, contrary to Appellants’ contentions, we agree with the Examiner that
Myr’s disclosure of theoretical travel time would have inherently suggested
that elementary equation to one of ordinary skill in the art. Ans. 5; App. Br.
12-13.
We determine claim 7 further limits the claim 1 limitation “calculating
an estimated travel time for the specified route, said estimated travel time
considers traffic conditions along the specified route,” by identifying the
“areas of congestion” and “areas without congestion” along the specified
route; determining the length of each congested and non-congested area;
determining the average speed for each congested and non-congested area;
calculating the travel time for each congested and non-congested area by
dividing the length of each area by the average speed of the area; and
summing the estimated travel time for each area to determine the estimated
travel time for the specified route. We find that one of ordinary skill in the
art would have been further armed with the knowledge of the elementary
axiom that the whole is equal to the sum of its parts which is readily
applicable to vehicular travel on a road. We find that Myr would have
disclosed to one of ordinary skill in the art that calculation of actual or
estimated travel time along a specific route involves considering areas which
can be congested along with areas that are not congested. Myr, e.g.,
¶¶ 0115-0117, 0123, claims 3-4. See Ans. 6. We determine that one of
ordinary skill in the art would have considered Myr’s method that accounts
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for areas of different levels of congestion along a specified in light of the
computational knowledge in the art. Thus, contrary to Appellants’
contentions, we conclude that one of ordinary skill in the art following the
teachings of Myr would have reasonably arrived at the claimed invention
encompassed by claim 7. Ans. 7-8; App. Br. 14-15.
Claim 14, to which both grounds of rejection have been applied, is
dependent on claim 11. We interpret claim 11 in similar manner to claim 1,
except that the step of “calculating a delay along the specified route” can be
accomplished in any manner. We determine that claim 14 further limits this
limitation by specifying “a congestion delay” calculated by the steps of
identifying a congested portion of the route, its length and calculating a
congested travel time by dividing the length by the average speed for the
congested portion. We found above that one of ordinary skill in the art
would have been armed with the elementary mathematical equation
specified in the third step of claim 14, and, as the Examiner points out, Myr
would have disclosed identifying and addressing areas of congestion to
determine the travel delay caused thereby. Ans. 6. On this record, for the
reasons we expressed with respect to claim 7, which addresses areas of
congestion, and contrary to Appellants’ contentions, we agree with the
Examiner that one of ordinary skill in the art following the teachings of Myr
would have reasonably arrived at the claimed invention encompassed by
claim 14. Ans. 5-6; App. Br. 15-16.
Claim 16, dependent on claim 11, like claim 9 dependent on claim 1,
further limits claim 11 by specifying that “if the delay as compared to the
free flow travel time is greater than a predetermined value, the rating
indicates poor travel conditions.” We determine here, as we did above, that
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the result of the specified calculations is communicated by the common
sense subjective rating “POOR.” We further determine here, as we did
above, that one of ordinary skill in the art would have reasonably applied
such a subjective, common sense rating to a traffic delay as determined by
Myr’s method. Thus, we again agree with the Examiner that one of ordinary
skill in the art following the teachings of Myr would have reasonably arrived
at the claimed invention encompassed by claim 16. Ans. 6; App. Br. 16-17.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Myr and Sheha with Appellants’ countervailing
evidence of and argument for nonobviousness and conclude, by a
preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 1-5, 7 and 9-20 would have been
obvious as a matter of law under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is affirmed.
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

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