Ex Parte Barker et alDownload PDFPatent Trial and Appeal BoardSep 30, 201612356669 (P.T.A.B. Sep. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/356,669 0112112009 63652 7590 10/04/2016 DISNEY ENTERPRISES, INC. c/o Marsh Fischmann & Breyfogle LLP 8055 East Tufts A venue Suite 450 Denver, CO 80237 FIRST NAMED INVENTOR MELANIE R. BARKER 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. 08-DIS-230-PR-US-UTL 9295 EXAMINER CHOY, PANG ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 10/04/2016 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): PTOMail@mfblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MELANIE R. BARKER, KURT KAUFMANN, JOSE MOLA, G. NEIL SIMMONS, PETERS. BUCZKOWSKI, DOUGLAS C. LORD, LARRY B. ROOS, FRANK J. TORTORICI JR., and KATHLEEN A. KILMER Appeal2014-005884 Application 12/356,669 Technology Center 3600 Before HUBERT C. LORIN, BIBHU R. MOHANTY, and BRADLEY B. BAY AT, Administrative Patent Judges. BAY AT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final rejection of claims 1---6, 8, 12, 14--15, and 18-27. We have jurisdiction under 35 U.S.C. § 6(b ). STATEMENT OF THE DECISION We AFFIRM-IN-PART and enter a NEW GROUND OF REJECTION. 1 Appellants identify the real party in interest as "Disney Enterprises, Inc." (Br. 1 ). Appeal2014-005884 Application 12/356,669 CLAIMED fNVENTION The claimed invention relates to "methods and systems for predicting the number of riders or ridership for public or private transportation such as buses or other vehicles" (Spec. para. 1 ). Claims 1, 8, and 15 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal (Br. 14, Claims App.). 1. A method for forecasting demand for transportation services, compnsmg: running a count-to-demand translation module with a processor on a computer system; at the computer system, receiving a set of count data for at least one vehicle operating to transport passengers along a route with multiple stops, wherein the route extends between a first origin and a first destination, wherein at each of the stops between the first origin and first destination the passengers elect to remain on the at least one vehicle or to disembark, and wherein the count data comprises a count of passengers getting on each vehicle at each of the stops and a count of passengers getting off each vehicle at each of the stops; operating the translation module to determine a demand for pairs of the stops on the route based on the on counts and the off counts for the at least one vehicle; providing the demand to a forecasting module; and operating the forecasting module to generate a forecast of future demand for the route based on the determined demand. REJECTIONS 1. Claim 1 stands rejected under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which Appellants regard as the invention. 2 Appeal2014-005884 Application 12/356,669 2. Claims 1-6, 8, 12, 14--15, and 18-27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Li2 and Rossetti. 3 ANALYSIS Indefiniteness Appellants have not contested the rejection under 35 U.S.C. § 112, second paragraph. Thus, we summarily sustain the rejection. Obviousness Independent claim 1 requires, inter alia, the processing system "operating the translation module to determine a demand for pairs of the stops on the route" (Br. 14, Claims App.). The Examiner finds this limitation disclosed in Li in the Abstract and at page 115, paragraphs 1--4, and page 116, section 2 (Final Act. 6). According to the Examiner, "Li teaches forecasting the number of passengers along the route (OD) based on the measured counts" (Ans. 8). Appellants dispute this finding (Br. 8-11 ). According to Appellants, "the OD pattern is the same according to Li regardless of the demand or ridership" (Br. 10). We are persuaded by Appellants' arguments. With respect to the above limitation, the Specification describes that a "route may be divided into a number of origin-destination pairs (e.g., a stop 2 Li et al., A generalized and efficient algorithm for estimating transit route ODs from passenger counts, Transportation Research Part B 41 (2007) 14- 125 www.sciencedirect.com. 3 Rossetti et al., Field Testing and Evaluation of the Transit Integrated Monitoring System, Final Report Transit IDEA Project 19. 3 Appeal2014-005884 Application 12/356,669 where passengers embark is paired with a stop where passengers debark)" and "the demand is associated with each OD pair" (Spec. para. 7). A rejection based on § 103 must clearly rest on a factual basis. The Examiner has the initial duty of supplying the factual basis for the rejection and may not resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis. We have reviewed the cited portions of Li, and we see no disclosure of correlating demand to pairs of stops, i.e., OD pairs. Li discloses estimating "the origin-destination (OD) pattern of a transit route's ridership" without "direct sampling of passenger ODs" (Li, 114) based on "boarding and alighting counts" using an "OD matrix" (Li, 115). Although Li discloses that a "vehicle trip's average load is determined from what we call its 'characteristic plot', an example of which is shown in Fig. 1," we see no indication that the vehicle load is correlated to OD pairs. Regarding Figure 1, Li discloses that it "displays the cumulative boarding count vs location along the route (as measured from some 'origin')" and that the "vertical separation between the curves corresponding to any point along the route is the number of on board passengers (the load) there" (Li, 118). In other words, Li discloses correlating demand to stops along the route, but not to origin-destination pairs. Thus, we fail to see and the Examiner does not adequately explain how the number of passengers on board at a particular stop is equivalent to demand for a pair of stops, as required by claim 1. Accordingly, we do not sustain the rejection of independent claim 1 as obvious over Li and Rossetti. Independent claims 8 and 15 recite similar limitations and the Examiner's rejection of claims 8 and 15 as obvious over 4 Appeal2014-005884 Application 12/356,669 Li and Rossetti relies on the same findings as in claim 1. Thus, for the same reasons, we do not sustain the rejection of independent claims 8 and 15. For the same reasons, we do not sustain the rejection of claims 2-6, 12, 14, and 18-27 dependent thereon. Cf In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) ("dependent claims are nonobvious if the independent claims from which they depend are nonobvious"). NEW GROUND OF REJECTION Claims 1-6, 8, 12, 14--15, and 18-27 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. 2347 (2014)), identifies a two-step framework for determining whether claimed subject matter is judicially-excepted from patent eligibility under § 101. According to Alice step one, "[ w ]e must first determine whether the claims at issue are directed to a patent-ineligible concept," such as an abstract idea. Alice, 134 S. Ct. at 2355. Taking the independent claims 1, 8, and 15 as representative of the claims on appeal, the claimed subject matter is directed to forecasting demand for transportation services. Forecasting demand for transportation services is a well-known fundamental economic practice. As such, it is directed to an abstract idea. Step two of the Alice framework is "a search for an 'inventive concept'-i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself."' Id. 5 Appeal2014-005884 Application 12/356,669 In that regard, we see nothing in the subject matter claimed that transforms the abstract idea of forecasting demand for transportation services. Claim 1 describes receiving "count data for at least one vehicle operating to transport passengers along a route with multiple stops" for passengers at each of the stops, translating the count data to "demand for pairs of the stops," and generating "a forecast of future demand for the route based on the determined demand." Claim 8 recites "a plurality of buses," "an automatic passenger counter," and "a vehicle location mechanism positioned on each of the buses," "a ridership prediction system," and "a forecasting module." Claim 15 recites storing route data in a generic "memory" and operating a generic "computing device" that translates count data to demand for the vehicle, generating demand profiles, and predicting future ridership based on "historical information on actual use of the vehicle." Each of these limitations characterize known variables for efficiently managing transportation services. The abstract idea of forecasting demand for transportation services is not meaningfully transformed by applying it to buses or generic vehicles and taking into account known variables in efficiently managing a transportation system using generic computer components. Accordingly, the recited claim limitations, both individually and as an ordered combination, fail to transform the nature of the claim into a patent-eligible application. 6 Appeal2014-005884 Application 12/356,669 DECISION The Examiner's rejection under 35 U.S.C. § 112, second paragraph, is sustained. The Examiner's rejection under 35 U.S.C. § 103(a) is reversed. Claims 1-6, 8, 12, 14--15, and 18-27 are newly rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. NEW GROUND This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the exammer .... (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record .... Should Appellants elect to prosecute further before the Examiner pursuant to 3 7 C.F .R. § 41. 50(b )( 1 ), in order to preserve the right to seek review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection, the effective date of the affirmance is deferred until conclusion of the 7 Appeal2014-005884 Application 12/356,669 prosecution before the Examiner unless, as a mere incident to the limited prosecution, the affirmed rejection is overcome. If Appellants elect prosecution before the Examiner and this does not result in allowance of the application, abandonment or a second appeal, this case should be returned to the Patent Trial and Appeal Board for final action on the affirmed rejection, including any timely request for rehearing thereof. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b) 8 Copy with citationCopy as parenthetical citation