Ex Parte Berry et al

Patent Trial and Appeal Board

Sep 16, 2016

14039202 (P.T.A.B. Sep. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/039,202 09/27/2013
28395 7590 09/20/2016
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Joseph J. Berry
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.
83390999 1374
EXAMINER
PHAN, HAI
ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
09/20/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH J. BERRY, MARK J. SCALF,
DOUGLAS R. V ANDAGENS, FRANCIS LUK, and
TIMOTHY ROBERT NIXON
Appeal2015-001773
Application 14/039,202
Technology Center 2600
Before JOHN A. EV ANS, MONICA S. ULLAGADDI, and
MATTHEW J. McNEILL, Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of Claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2
1 The Appeal Brief identifies Ford Motor Company as the real party in
interest. App. Br. 1.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed Sept. 17, 2014, "App. Br."), the Reply Brief
(filed Nov. 7, 2014, "Reply Br."), the Examiner's Answer (mailed Oct. 22,
2014, "Ans."), the Final Office Action (mailed Aug. 14, 2014, "Final Act."),
and the Specification (filed Sept. 27, 2013, "Spec.") for their respective
details.
Appeal2015-001773
Application 14/039,202
STATEMENT OF THE CASE3
Related appeals
Appellants inform us of appeals in related applications U.S. Serial No.
11/769,346 and U.S. Serial No. 12/983,601. App. Br. 1.
The invention
The claims relate to a method and apparatus for notifying an
emergency responder of a vehicle emergency. See Abstract.
Claims 1, 14, and 1 7 are independent. The claims have not been
argued separately and therefore stand or fall together. 37 C.F.R.
§ 41.37(c)(l)(iv). An understanding of the invention can be derived from a
reading of exemplary Claim 1, which is reproduced below with some
paragraphing added:
1. An apparatus for use within a vehicle to notify an
emergency responder of a vehicle emergency, comprising:
an electrical interface configured to receive vehicle
information from a vehicle data bus in communication
with one or more vehicle modules;
a wireless transceiver capable of establishing a wireless
communication link with a mobile phone and further
capable of sending at least a portion of the vehicle
information to the mobile phone;
an accelerometer capable of determining acceleration or
deceleration of the vehicle; and a processor configured
to:
3 Because we write for the Real Party, familiarity with the background of
this case is assumed and presented herein only to the extent necessary to
provide context for the analysis that follows. See U.S. Ethernet Innovations,
LLCv. Acer, Inc., 646 Fed.Appx. 929, 930 n.1 (Fed. Cir. 2016).
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Application 14/039,202
detect a vehicle emergency occurring at or near the
vehicle based at least in part on the accelerometer;
output a wireless signal to the mobile phone to
instruct the mobile phone to:
1) dial an emergency responder and
establish communication with the
emergency responder upon detection of the
vehicle emergency;
2) disconnect with the emergency responder
upon completion of communication with the
emergency responder; and
3) communicate with a pre-defined
emergency contact other than the emergency
responder after disconnecting with the
emergency responder.
References and Rejections
The Examiner relies upon the prior art as evidence in support of the
rejections as follows:
Uchida, et al.
Kumar, et al.
Flick, et al.
Lappe, et al.
US 6,696,956 Bl
US 2006/0217105 Al
US 2009/0207007 Al
US 7,580,697 B2
The claims stand rejected as follows:
Feb.24,2004
Sept. 28, 2006
Aug.20,2009
Aug. 25, 2009
1. Claims 1-9 and 11-20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Lappe, Kumar, and Uchida. Final Act. 2---6.
2. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lappe, Kumar, Uchida, and Flick. Final Act. 6.
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Application 14/039,202
ANALYSIS
We have reviewed the rejections of Claims 1-20 in light of
Appellants' arguments that the Examiner erred. We have considered in this
decision only those arguments Appellants actually raised in the Briefs. Any
other arguments which Appellants could have made but chose not to make in
the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). We
are not persuaded that Appellants identify reversible error. Upon
consideration of the arguments presented in the Appeal Brief and Reply
Brief, we agree with the Examiner that all the pending claims are
unpatentable over the cited combination of references. We adopt as our own
the findings and reasons set forth in the rejections from which this appeal is
taken and in the Examiner's Answer. We provide the following explanation
to highlight and address specific arguments and findings primarily for
emphasis.
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 3---6.
CLAIMS 1-20: OBVIOUSNESS OVER LAPPE, KUMAR, FLICK, AND UCHIDA
Appellants argue these claims as a group in view of the limitations of
Claim 1. App. Br. 6.
A wireless signal to instruct a mobile phone.
Claim 1 recites, inter alia, "a processor configured to ... output a
wireless signal to the mobile phone to instruct the mobile phone." The
Examiner finds Lappe teaches an apparatus for notifying an emergency
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responder of a vehicle emergency including a wireless transceiver (e.g., a
"Bluetooth" device) to establish a wireless communications link with a
mobile phone. Final Act. 2. The Examiner finds that where an
accelerometer ("gyro") detects a vehicle crash, the Bluetooth device outputs
a wireless signal to a mobile phone instructing the phone to dial and
establish a communications link with an emergency responder. Id. at 3.
Whereas a processor is implicit in Lappe' s disclosure, the Examiner finds
Kumar discloses an analogous processor explicitly. Id.
Appellants admit Lappe' s emergency device transmits an emergency
event signal to a wireless phone. App. Br. 4. However, Appellants argue
"the telephone dials the emergency responder absent any instructions from
the emergency call device." Id. Appellants argue Lappe' s "notification of
an emergency event" is patentably distinct from a "notification for a mobile
phone to dial an emergency response." Reply Br. 1. Appellants concede
that upon receipt of a signal, both the claimed and reference wireless phones
dial and establish a communications link with emergency responders. We
are not persuaded of the alleged patentable distinction.
Claim 1 recites, inter alia, "wireless signal to the mobile phone to
instruct the mobile phone," i.e., a signal wherein embedded therein are
supplemental data, or "instructions from the emergency call device." App.
Br. 4. Signals with embedded supplementary data are "transitory
embodiments [that] are not directed to statutory subject matter." In re
Nuijten, 500 F.3d 1346, 1353 (Fed. Cir. 2007). Appellants' invention is
directed to non-statutory subject matter.
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As clarified in the Reply Brief, Appellants' contentions invoke the
printed-matter doctrine, i.e., "matter claimed for its communicative content."
In re DiStefano, 808 F.3d 845) 849 (Fed. Cir. 2015). Both the instant claims
and Lappe disclose that a vehicle emergency system sends a wireless
notification of a crash following which a wireless phone dials and
establishes a communications link with an emergency responder. See Claim
1; Final Act. 2-3. Appellants contend a patentable distinction inheres in the
claimed "communicative content."
DiStefano set forth a two-step analysis of the printed matter doctrine.
The first step finds "a limitation is printed matter only if it claims the content
of information." DiStefano, 808 F.3d at 848. Appellants effectively allege
Lappe' s wireless signal to the telephone is impressed with the message
"emergency event," whereas, the claimed signal is impressed with the
message "dial an emergency response." Thus, under Appellants'
construction, the accused limitation is directed to "printed matter."
Only where, as here, the limitation is determined to be printed matter
does the question arise as to whether the printed matter should be given
patentable weight. DiStefano, 808 F.3d at 850. "Printed matter is given
such weight if the claimed informational content has a functional or
structural relation to the substrate." Id. Appellants do not allege any
structural relationship between the claimed information and the substrate
wireless phone. Moreover, Appellants admit the same function occurs
notwithstanding the alleged difference in informational content. Thus,
Appellants admit both the claimed and referenced wireless phones dial an
emergency responder regardless of any alleged difference in the
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informational content. See App. Br. 4. Thus, Appellants effectively admit
that there is no functional relationship between the claimed informational
content and the substrate wireless phone. In the absence of either a
structural or functional relationship between the claimed printed matter and
the substrate wireless phone, we decline to afford patentable weight to the
claimed printed matter. See DiStefano, 808 F .3d at 850.
Motivation to combine Lappe and Kumar.
Appellants argue that no motivation to combine Lappe and Kumar
exists because the combination would change the principle of operation of
the references. App. Br. 5 (citing In re Ratti, 270 F.2d 810 (CCPA 1959)).
In particular, Appellants contend Kumar's manual emergency triggering
conflicts with Lappe's automatic emergency triggering. Id.
The Examiner relies on Kumar's disclosure of a processor that has
executable instructions to handle emergency signaling once a triggering
event has been noted. Ans. 7. The Examiner finds Lappe provides a
conceptual diagram that omits certain details of how the method is
performed. The Examiner finds although a processor is implied by Lappe' s
disclosure, that a processor is not explicitly recited. Final Act. 3. The
Examiner finds Kumar discloses an analogous emergency system that
explicitly recites a processor. Id.
We find w person of ordinary skill in the art would recognize that one
or more processors were implied in the disclosure of Lappe. We find
unavailing Appellants' further arguments as to where the emergency
condition handling occurs. See Reply Br. 3. Kumar is relied upon to clarify
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the necessary presence of a processor, not to teach a manner or locus of
event handling. Accordingly, we are not persuaded the Examiner errs.
DECISION
The rejections of Claims 1-20 under 35 U.S.C. § 103(a) are
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)(l )(iv).
AFFIRMED
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