Ex Parte Cioffi et al

Patent Trial and Appeal Board

Nov 3, 2017

14533519 (P.T.A.B. Nov. 3, 2017)

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.
14/533,519 11/05/2014 Joseph CIOFFI 0410-002-2 7216
113648 7590 11/07/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
LANG, MICHAEL DEAN
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
11/07/2017 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@ppblaw.com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH CIOFFI and PHILIP AGEE
Appeal 2017-002497
Application 14/533,5191
Technology Center 3600
Before ERIC S. FRAHM, MICHAEL J. STRAUSS, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—23, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is INTOUCH
GRAPHICS, INC. App. Br.2.
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Application 14/533,519
INVENTION
Appellants’ invention relates to providing wayfinding orientation and
wayfinding data to blind travelers. Abstract. Claim 1 is illustrative and
reads as follows:
1. A blind traveler navigational data system having a server, the
server comprising:
a processor for receiving information identifying first and
second landmarks from a set of predefined landmarks within a
predefined geographic region;
a database for accessing and retrieving, blind-ready
wayfmding instructions for guiding a blind or visually impaired
traveler from the first identified landmark to the second
identified landmark; and
at least one communications interface for outputting the
retrieved blind-ready wayfmding instructions to a blind or
visually impaired user wherein the blind-ready wayfmding
instructions include acoustic information specific to an
environment associated with the first and second landmarks.
REJECTIONS
Claims 1, 19, and 21 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly
claim the subject matter which the applicant regards as the invention. Final
Act. 3.
Claims 1, 2, 4—6, 8, 11, 12, 19, and 21 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Stankieiwcz et al. (US 2006/0293839 Al;
published Dec. 28, 2006) (“Stankieiwcz”). Final Act. 4—5.
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Claims 3, 14, 20, and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Stankieiwcz and Zetune (US
2010/0049431 Al; published Feb. 25, 2010). Final Act. 5—7.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Stankieiwcz and Shahrestani (US 2009/0240428 Al;
published Sept. 24, 2009). Final Act. 7.
Claims 9, 10, and 13 stand rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Stankieiwcz. Final Act. 8.
Claims 15—17 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Stankieiwcz, Zetune, and Treyz et al. (US 6,711,474
Bl; issued Mar. 23, 2004) (“Treyz”). Final Act. 8—10.
Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Stankieiwcz, Zetune, and Bamow (US
2009/0191514 Al; published July 30, 2009). Final Act. 10-11.
Claim 23 stands rejected under 35 U.S.C. 103(a) as unpatentable over
the combination of Stankieiwcz and Prehofer (US 2010/0125409 Al;
published May 20, 2010). Final Act. 11—12.
ANALYSIS
Indefiniteness Rejection of Claims 1, 19, and 21
The Examiner rejected independent claims 1,19, and 21 under
35 U.S.C. § 112, second, paragraph, as indefinite because the Examiner
found it unclear “if the ‘acoustic information’ is meant to further define the
wayfmding instructions or if it is meant to further define the environment
associated with the landmarks.” Final Act. 3. The Examiner interpreted the
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limitation “acoustic information” to define the wayfmding instructions, “i.e.
audio instructions.” Id.
Appellants contend the Examiner erred because, under the broadest,
reasonable interpretation consistent with the Specification, “information” is
not equivalent to “instructions,” and an artisan of ordinary skill would have
interpreted “information” more broadly than “instructions.” App. Br. 6.
Appellants further argue the Specification describes that “information can be
provided to a user to give one a mental representation of the environment.”
Id. (citing Spec. 3—4).
We agree with Appellants that the Examiner erred in rejecting the
claims as indefinite. We do not agree with the Examiner that it is unclear
whether the recited “acoustic information” further defines the wayfmding
instructions or the environment associated with the landmarks. See Final
Act. 3. From the plain language of the claim, it is clear that the blind-ready
wayfmding instructions include acoustic information that is specific to an
environment associated with the first and second landmarks.
For these reasons, we are persuaded that the Examiner erred in finding
that claim 1 is indefinite. Accordingly, we do not sustain the Examiner’s
35 U.S.C. § 112, second paragraph, rejection of independent claim 1 or, for
the same reasons, that of claims 19 and 21.2
Although we disagree that claim 1 is indefinite, we find no error in the
Examiner’s broad, reasonable interpretation of “acoustic information” to
mean “audio instructions.” See Final Act. 3. We do not agree with
2 In the event of further prosecution, the Examiner should consider whether
Appellants’ Specification as originally filed provides written description
support under 35 U.S.C. § 112, first paragraph, for the limitation “acoustic
information,” recited in claim 1.
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Appellants that an artisan of ordinary skill would have understood
“information” to be broader than “instructions.” See App. Br. 6. To the
contrary, claim 1 recites “wayfinding instructions” that include “acoustic
information.” Therefore, “wayfinding instructions” are at least as broad as
“acoustic information.” Moreover, although the term “acoustic information”
does not appear in the Specification (Ans. 2), directions or instructions in
audio form are described several times. See, e.g., Spec. 5, 6, 12. Thus,
Appellants have not persuaded us that the Examiner’s interpretation of
“acoustic information” is overly broad, unreasonable, or inconsistent with
the Specification, and we adopt the Examiner’s interpretation as our own.
Anticipation Rejection of Claims 1, 2, 4—6, 8, 11, 12, 19, and 21
The Examiner found Stankieiwcz discloses all the limitations of
representative claim 1. Final Act. 4.
Appellants contend the Examiner erred because Stankieiwcz does not
disclose the limitation “wherein the blind-ready wayfmding instructions
include acoustic information specific to an environment associated with the
first and second landmarks,” as recited in claim 1. App. Br. 7. Appellants
argue, in Stankieiwcz, “the directional cues only provide audio directions,
and they do not provide ‘acoustic information specific to an environment.’”
Id. at 7—8. However, that argument is based on Appellants’ erroneous
position that “acoustic information” cannot be interpreted to mean “audio
instructions” {id. at 7), which is not persuasive for the reasons discussed
above. Moreover, Appellants do not explain persuasively why the
directional cues taught in paragraph 36 of Stankieiwcz are not “specific to an
environment associated with the first and second landmarks,” as claim 1
requires. See Final Act. 4 (citing Stankieiwcz 136); App. Br. 7—8.
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Appellants’ argument that “environment” is synonymous with
“surroundings” is insufficient, without more, to persuade us of Examiner
error.
In the Reply Brief, Appellants raise the new argument that
[sjince Stankieiwcz’s method and system is to be used for normal
vision people, as well as others, it is unlikely that “acoustic
information specific to an environment,” such as a description of
what the user is looking at, . . . would be required and would
probably be an annoyance to the user as well.
Reply Br. 4. Appellants, however, have waived this argument because it
was presented for the first time in the Reply Brief, without a showing of
good cause. See 37 C.F.R. § 41.41(b)(2) (2012); accord Ex parte Borden,
93 USPQ2d 1473, 1473—74 (BPAI 2010) (informative opinion) (“[T]he
reply brief [is not] an opportunity to make arguments that could have been
made in the principal brief on appeal to rebut the Examiner's rejections, but
were not.”).
For the reasons discussed, we are not persuaded the Examiner erred in
finding Stankieiwcz discloses the disputed limitations of claim 1.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 102(b) rejection of
independent claim 1. We also sustain the Examiner’s 35 U.S.C. § 102(b)
rejection of independent claims 19 and 21, which Appellants argue are
patentable for similar reasons. App. Br. 7—8. We also sustain the
Examiner’s 35 U.S.C. § 102(b) rejection of dependent claims 2, 4—6, 8, 11,
and 12, for which Appellants make no separate, substantive arguments. Id.
at 8.
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Anticipation Rejection of Claims 9, 10, and 13
The Examiner found that Stankieiwcz discloses all of the limitations
of dependent claims 9, 10, and 13. Appellants argue the Examiner erred
because Stankieiwcz “does not disclose all of the features of [Appellants’]
independent claim 1 and therefore, cannot also disclose all of the features of
dependent claims 10 and 13.” App. Br. 8.
Because, for the reasons discussed supra, we sustain the Examiner’s
35 U.S.C. § 102(b) rejection of independent claim 1, from which claims 10
and 13 depend, we are not persuaded by Appellants’ argument as to claims
10 and 13. Accordingly, we sustain the Examiner’s 35 U.S.C. § 102(b)
rejection of dependent claims 10 and 13. We also sustain the Examiner’s
35 U.S.C. § 102(b) rejection of dependent claim 9, not argued separately, for
similar reasons as claims 10 and 13.
Obviousness Rejection of Claims 9, 10, and 13
In the alternative to the anticipation rejection of claims 9, 10, and 13,
discussed above, the Examiner found Stankieiwcz teaches or suggests the
limitations of claims 9, 10, and 13, rendering the claims obvious. Final Act.
8.
Appellants contend the Examiner improperly relied on Official Notice
that “tactile maps” (claim 10) and “water fountains” (claim 13) are “old and
well-known.” App. Br. 9.
We are not persuaded the Examiner’s reliance on Official Notice is
improper. The Examiner took Official Notice that “wheelchair ramps and
tactile maps are old and well-known art for providing handicap access to
buildings.” Final Act. 8. The Examiner also took Official Notice that “it is
old and well-known that water fountains are provided in buildings in close
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proximity to bathrooms and dining facilities.” Id. Appellants, however,
have not explained why the noticed facts are not considered common
knowledge or well-known in the art. See MPEP § 2144.03(C) (“To
adequately traverse such a finding, an applicant must specifically point out
the supposed errors in the examiner’s action, which would include stating
why the noticed fact is not considered to be common knowledge or well-
known in the art. See 37 CFR 1.111.”) (emphasis added). An adequate
traversal of the Examiner’s taking of Official Notice must contain sufficient
information or argument to create on its face a reasonable doubt regarding
the circumstances justifying the Examiner’s notice of what is well known to
one of ordinary skill in the art. In re Boon, 439 F.2d 724, 728 (CCPA 1971).
Appellants have merely contended that “the Final Office Action liberally
applied Official Notice to claims for various conclusory reasons that are not
supported by the record.” See App. Br. 9.
For these reasons, we are not persuaded the Examiner erred in finding
Stankieiwcz teaches or suggests the disputed limitations of claims 10 and 13.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of
claims 10 and 13. We also sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claim 9, not argued separately, for similar reasons as claims 10
and 13.
Obviousness Rejection of Claim 23
In rejecting claim 23 for obviousness, the Examiner found
Stankieiwcz teaches or suggests all of the limitations, except “wherein the
acoustic information provides a mental representation of said environment to
the blind or visually impaired traveler, where specific features of the
environment associated with the first and second landmarks are described to
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the blind or visually impaired traveler,” for which the Examiner relied on
Prehofer. See Final Act 11—12.
Appellants contend the Examiner erred because, “[i]n Prehofer, a user
can receive a ‘voice clip describing the actual landmark,’” but “there is
nothing in Prehofer, that suggests the voice clip provides ‘a mental
representation of said environment... where specific features of the
environment... are described to the blind or visually impaired traveler,’” as
claim 23 requires. App. Br. 10—11 (citing Prehofer | 57).
Appellants’ argument is not persuasive because it is conclusory,
merely reciting the claim limitation, the teachings of Prehofer, and stating
that the two are not the same. Id. As held by the Federal Circuit, Rule 41.37
“require[s] more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art.” In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011). Moreover, Appellants have not persuasively rebutted the
Examiner’s finding that
a voice description of the landmark associated with the
environment would indeed provide the user with a mental
representation wherein specific features of the landmark are
described and further the [Appellants fail] to provide any other
disclosure of acoustic information other than an audio
description to provide a user mental representation of a landmark
or the environment surrounding it.
Ans. 3. In the Reply Brief, Appellants argue that “identifying a statue does
not necessarily give one a mental picture of that statue if there are no other
details provided.” Reply Br. 6 (citing Prehofer Figs. 8A—8C). Appellants’
arguments based on Figures 8A—8C of Prehofer, and Appellants’ conclusory
statement that “it seems that in Prehofer it is the actual description of the
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actual landmark that is provided (meaning an identification of the
landmark),” have not persuaded us that Prehofer’s descriptions of
landmarks, which may include digital photographs, descriptive text, and
voice clips (see Prehofer | 57), are limited to identifying the landmarks.
For these reasons, we are not persuaded the Examiner erred in
rejecting dependent claim 23. Accordingly, we affirm the Examiner’s
35 U.S.C. § 103(a) rejection of claim 23.
Obviousness Rejections of Claim 3, 7, 14—18, 20, and 22
Appellants make no separate substantive arguments for the
patentability of claims 3, 7, 14—18, 20, and 22. See App. Br. 11.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejections of
claims 3, 7, 14—18, 20, and 22 for similar reasons provided supra as to
claims 1,19, and 21 from which these claims respectively depend.
DECISION
The decision of the Examiner to reject claims 1,19, and 21 under
35 U.S.C. § 112, second paragraph, is reversed.
The decision of the Examiner to reject claims 1, 2, 4—6, 8—13, 19, and
21 under 35 U.S.C. § 102(b) is affirmed.
The decision of the Examiner to reject claims 3, 7, 9, 10, 13—18, 20,
22, and 23 under 35 U.S.C. § 103(a) is affirmed.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision rejecting claims 1—23 is
affirmed. See 37 C.F.R. § 41.50(a)(1).
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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). See
37 C.F.R. §41.50(f).
AFFIRMED
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