Ex Parte Colvin et alDownload PDFPatent Trial and Appeal BoardSep 25, 201813219467 (P.T.A.B. Sep. 25, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/219,467 08/26/2011 Greg Colvin 500 7590 09/27/2018 SEED INTELLECTUAL PROPERTY LAW GROUP LLP 701 FIFTH A VE SUITE 5400 SEATTLE, WA 98104 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. ZONA0057/990060.402C3 9916 EXAMINER FISHER, PAUL R ART UNIT PAPER NUMBER 3689 NOTIFICATION DATE DELIVERY MODE 09/27/2018 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREG COL VIN, CHARLES MICHAEL MCQUADE, and BRETT BRINTON Appeal2017-005325 Application 13/219,467 Technology Center 3600 Before MAHSHID D. SAADAT, MARC S. HOFF, and JASON M. REPKO, Administrative Patent Judges. REPKO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-27 and 29-37. App. Br. 2. 2 Claim 28 was canceled. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify the real party in interest as Zonar Systems, Inc. App. Br. 1. 2 Throughout this opinion, we refer to the Final Rejection ("Final Act.") mailed December 9, 2015; the Appeal Brief ("App. Br.") filed August 9, 2016; the Examiner's Answer ("Ans.") mailed December 14, 2016; and the Reply Brief ("Reply Br.") filed February 14, 2017. Appeal2017-005325 Application 13/219,467 THE INVENTION Appellants' invention is a system for remotely diagnosing vehicle faults. Abstract. The system detects an anomalous condition and uses a data link to send data about the anomalous condition to a remote location while the vehicle is on the road. Spec. ,r 43. To improve cost and bandwidth efficiency, one embodiment limits the data-link use based on the vehicle's location. Id. ,r 18. Claim 1 is reproduced below: 1. A system for diagnosing vehicle faults, comprising: (a) a vehicle comprising: (i) a plurality of components for generating operational data during operation of the vehicle; (ii) a data buffer in which the operational data is temporarily stored; (iii) a data link for wirelessly conveying data from the vehicle to a computing device at a remote location during operation of the vehicle on a road; and (iv) at least one vehicle processor configured to implement determined vehicle functions, the determined vehicle functions including: (1) detecting an anomalous condition; (2) responding within seconds or minutes of detecting the anomalous condition, by using the data link to convey data defining the anomalous condition and buffered operational data generated at a time proximate to the detection of the anomalous condition to the computing device at the remote location, the data defining the anomalous condition at times being conveyed over the data link to the computing device at the remote location while the vehicle is operating on the road; and (3) improving cost and bandwidth efficiency by limiting use of the data link to convey the data defining the anomalous condition and buffered 2 Appeal2017-005325 Application 13/219,467 operational data to when the vehicle is determined to not be in a vicinity of a vehicle repair or service facility and to when detection of the anomalous condition has occurred fewer than a defined number of times within a defined time period; and (b) the computing device at the remote location, the computing device configured to use the data defining the anomalous condition and the buffered operational data generated at the time proximate to the detection of the anomalous condition to diagnose a cause of the anomalous condition while the vehicle is operating. THE EVIDENCE The Examiner relies on the following as evidence: Smith et al. us 5,671,141 Sept. 23, 1997 Buck et al. us 5,719,771 Feb. 17, 1998 Fera et al. US 6,338,152 Bl Jan. 8, 2002 Mifune et al. US 2002/0059046 Al May 16, 2002 Lowrey et al. US 2002/0133273 Al Sept. 19, 2002 Borugian US 2003/0097218 Al May 22, 2003 Fiechter et al. US 6,609,051 B2 Aug. 19, 2003 Oka et al. US 6,679,110 B2 Jan. 20, 2004 Rechsteiner et al. US 2004/0139047 Al July 15, 2004 Lockwood et al. US 2004/0153356 Al Aug. 5,2004 Reeser et al. US 2005/0288830 Al Dec. 29, 2005 Alewine et al. US 2006/0129309 Al June 15, 2006 Engel US 2007/0100519 Al May 3, 2007 Louch et al. US 2008/0167758 Al July 10, 2008 Dahlgren et al. US 7,421,334 B2 Sept. 2, 2008 Coy et al. US 2010/0036595 Al Feb. 11, 2010 Picard US 8,131,417 B2 Mar. 6, 2012 THE REJECTIONS Claims 1-27 and 29-37 stand rejected under 35 U.S.C. § 101 as directed to patent-ineligible subject matter. Final Act. 2-5. 3 Appeal2017-005325 Application 13/219,467 Claims 1, 3-11, 13-17, 25, 26, 34, and 37 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowry, Dahlgren, and Coy. Final Act. 5--42. Claims 2 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowry, Dahlgren, Coy, and Smith. Final Act. 42- 45. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowry, Dahlgren, Coy, and Engel. Final Act. 45--47. Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Lowry, Engle, Dahlgren, and Coy. Final Act. 47-54. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Lowry, Engle, Dahlgren, Coy, and Picard. Final Act. 55-56. Claim 21 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Lowry, Engle, Dahlgren, Coy, Mifune, and Lockwood. Final Act. 56- 58. Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Lowry, Engle, Dahlgren, Coy, and Borugian. Final Act. 58-60. Claims 23 and 24 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowry, Dahlgren, Coy, and Buck. Final Act. 60- 63. Claim 27 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Fiechter, Rechsteiner, Dahlgren, and Coy. Final Act. 63----67. Claim 29 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Smith, Oka, Dahlgren, and Coy. Final Act. 73-83. Claim 30 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Picard, Lowrey, Dahlgren, and Coy. Final Act. 83-93. 4 Appeal2017-005325 Application 13/219,467 Claim 31 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Picard, Lowrey, Dahlgren, Coy, and Mifune. Final Act. 94--95. Claim 32 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowrey, Dahlgren, Coy, Smith, and Oka. Final Act. 95-96. Claim 33 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowrey, Dahlgren, Coy, and Fera. Final Act. 98-99. Claim 35 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowrey, Dahlgren, Coy, and Reeser. Final Act. 99-101. Claim 36 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Louch, Lowrey, Dahlgren, Coy, and Alewine. Final Act. 10-103. THE REJECTION UNDER 35 U.S.C. § 101 The Supreme Court's two-step framework guides the subject-matter eligibility analysis under 35 U.S.C. § 101. See Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2355 (2014). According to step one, "[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept," such as an abstract idea. Id. If the claims are "directed to an abstract idea," step two asks us to consider the limitations "both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Id. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78-79 (2012)). The Supreme Court has described step two of the analysis "as a search for an 'inventive concept."' Alice, 134 S. Ct. at 2355. The Examiner rejects claims 1-27 and 29-37 under 35 U.S.C. § 101 because the claims are directed to a fundamental economic practice and an 5 Appeal2017-005325 Application 13/219,467 idea of itself, and lack an inventive concept sufficient to transform these concepts into patent-eligible subject matter. Final Act. 3. Under step one of the analysis, the Examiner finds that the claimed concept is similar to the one in SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x. 950 (Fed. Cir. 2014) (non-precedential). Final Act. 3. Under step two of the analysis, the Examiner finds that the "vehicle, data buffer, data link, processor, computing device, medium and components," taken together, "do not offer 'significantly more' than the abstract idea itself because" the claims do not improve a technology. Id. at 4. The Examiner further finds that the recited data gathering is well-understood, routine, and conventional. Ans. 14. Appellants argue that the claims solve a technical problem--i.e., the system improves cost and bandwidth efficiency in real-time vehicle monitoring. App. Br. 24--25; Reply Br. 2. Appellants argue that the claims are like those in BASCOM Global Internet Services., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). App. Br. 18-25. Appellants further contend that the Examiner has not provided evidence to support the finding that the claimed structures are simply general-purpose devices. Reply Br. 5. We agree with Appellants. Appellants' independent claims recite a particular configuration of onboard components and a particular method of data processing to improve cost and bandwidth efficiency in real-time vehicle monitoring. For example, Appellants' claim 1 3 recites a vehicle with onboard components that generate operational data. Specifically, the recited vehicle has a data buffer, 3 Independent claims 11, 19, 26, 27, 29, and 30 recite similar features. 6 Appeal2017-005325 Application 13/219,467 data link, and processor to send data. The processor detects anomalous conditions then uses the data link in a particular way to improve cost and bandwidth efficiency. The system also includes a computer that determines a cause of an anomalous condition while the vehicle is operating. As a whole, claim 1 is directed to how these components operate together to solve a technical problem relating to bandwidth. In this way, the claims are like those in BASCOM because Appellants are "claiming a technology-based solution." BASCOM, 827 F.3d at 1351; accord App. Br. 18-25. That is, the claims do more than "call on a 'computing device,' with basic functionality for comparing stored and input data and rules, to do" what people routinely do. SmartGene, 555 F. App'x at 954, cited in Final Act. 3. Instead, the claimed method is a technical solution to a bandwidth problem in remote vehicle-diagnostic systems. Additionally, the Examiner cites Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Ans. 16. But, as the Federal Circuit explained, "[t]he claims in Content Extraction preempted all use of the claimed abstract idea on well-known generic scanning devices and data processing technology." BASCOM, 827 F.3d at 1352. Although the Examiner finds that the data gathering and the recited combination of components are well-understood, routine, and conventional, the Examiner has not adequately supported this position. Final Act. 4; Ans. 14. Rather, the Examiner merely concludes this is so. Final Act. 4; Ans. 14. For this additional reason, the Examiner has erred in rejecting the claims. See Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) ("Whether something is well-understood, routine, and 7 Appeal2017-005325 Application 13/219,467 conventional to a skilled artisan at the time of the patent is a factual determination."). On this record, we are persuaded that the Examiner erred in concluding that claims 1-27 and 29-37 are directed to an abstract idea. THE OBVIOUSNESS REJECTION OVER LOUCH, LOWREY, DAHLGREN, AND COY The Examiner's Findings The Examiner rejects claim 1 as being obvious over Louch, Lowrey, Dahlgren, and Coy. Final Act. 5-13. In this proposed combination, the Examiner finds that both Lowrey and Louch remotely diagnose vehicles, but these references do not teach the recited step of improving cost and bandwidth efficiency. Id. at 9-11. Regarding the improving step, the Examiner finds that Dahlgren teaches limiting bandwidth use by location, and it would have been obvious to apply this teaching to Louch and Lowrey by sending critical information when the vehicle is far from a service station. Id. Appellants ' Contentions Appellants argue that Dahlgren does not make decisions using a proximity to a vehicle repair or service facility. App. Br. 28. Appellants further argue that the vehicle-repair or service facility means a facility "where vehicle repair services are provided." Id. ( citing Spec. ,r,r 18, 62 ). In Appellants' view, Dahlgren's transmission station is some or all of a "central facility," not a vehicle repair or service facility. Id. Appellants further contend that Dahlgren teaches transmitting data when the vehicle is near the transmission station, which is the opposite of the claimed feature. Id. Appellants argue that Dahlgren forms a connection 8 Appeal2017-005325 Application 13/219,467 when a vehicle is parked near a transmission station so more data can be passed using short-range, non-cellular communications. Id. at 28-29 ( citing Dahlgren 16: 17-39, 16:55-17: 10). According to Appellants, Dahlgren sends data when a vehicle is near a particular location, but the claim recites the opposite. Id. at 29-30 (citing Dahlgren 16: 17-39, 16:32-36); Reply Br. 8-11. Analysis Claim 1 recites, in part, "improving cost and bandwidth efficiency by limiting use of the data link ... to when the vehicle is determined to not be in a vicinity of a vehicle repair or service facility" ( emphasis added). For example, the Specification discloses that the system detects the vehicle's location. Spec. ,r 18, cited in App. Br. 28. If the detected location corresponds to a repair facility or service center, the system turns off the diagnostic-data transmission. Id. Specifically, in the service center, the vehicle will be coupled to a diagnostic device. Id. In this situation, the remote-diagnostic function and the corresponding data transmissions are unneeded. Id.; see also id. ,r 62 ( describing a similar example), cited in App. Br. 28. Consistent with these examples (id. ,r,r 18, 62), we interpret the phrase "limiting use of the data link ... to when" to mean that the recited data transmission only occurs when the recited conditions are met. These conditions include when "the vehicle is determined to not be in a vicinity of a vehicle repair or service facility." Like the above-discussed example, Dahlgren transmits data only when particular conditions are met. Dahlgren 10:29-53, 14: 16-29, 16: 17-39, cited in Final Act. 10. Specifically, Dahlgren does not continuously transmit 9 Appeal2017-005325 Application 13/219,467 data. Id. at 16:32-37. Instead, Dahlgren uses an "event-based mechanism" for transmission to reduce the bandwidth demand on the communication channel. Id. In one embodiment, the vehicle transmits data when it is near a particular location-i.e., a transmission station. Id. Although Appellants argue that Dahlgren's transmission stations are not repair or service facilities (App. Br. 28), the Examiner finds that Lowrey and Louch both teach sending data wirelessly to vehicle repair or service facilities. Final Act. 5-8, 10. Specifically, the Examiner finds that Lowrey monitors a vehicle while it is on the road. Id. at 8 ( citing Lowrey ,r,r 5, 22, 26, 39, 48). As the Examiner notes (id. at 9), this real-time monitoring allows Lowrey's technicians to order parts and schedule resources before the customer brings the vehicle to the service facility (i.e., the dealership). Lowrey ,r 26. Similarly, Louch also teaches wireless transmission of vehicle data to diagnostic equipment in "vehicle repair and service centers." Louch ,r 31, cited in Final Act. 6; see also Ans. 22 ( citing Louch ,r,r 43--44, 50). The Examiner concludes that it would have been obvious to use Dahlgren to transmit "critical information" when the vehicle is not in the vicinity of Louch's or Lowrey's service facility. Final Act. 10. The Examiner reasons that doing so would improve bandwidth efficiency by sending important information when the vehicle is far from the service facility. Id. at 10-11; Ans. 22. As the Examiner points out, Lowrey even teaches that remote transmission also allows technicians to order parts ahead of the vehicle's arrival at the facility. Final Act. 9. So, Appellants' argument that Dahlgren's transmission station is not the recited facility (App. Br. 28) is unpersuasive because it does not address this proposed 10 Appeal2017-005325 Application 13/219,467 combination of Louch, Lowrey, and Dahlgren. Accord Ans. 22 ( citing In re Keller, 642 F.2d 413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)). We are also unpersuaded that Dahlgren teaches the opposite of what is claimed. App. Br. 29--30; Reply Br. 8-11. That is, Appellants argue that (1) Dahlgren transmits when a vehicle is near a transmission station and (2) Dahlgren's station is not the recited facility. App. Br. 28. Assuming, without deciding, that these two arguments are correct, then Dahlgren does not necessarily teach the opposite of the claim-i.e., transmitting only when near the recited service facility. Rather, by Appellants' reasoning, Dahlgren teaches transmitting data when the vehicle is near at least one facility that is not a vehicle repair or service facility. See id. Nevertheless, we agree with the Examiner that Appellants are "arguing the references separately." Ans. 21. Specifically, Appellants' argument that Dahlgren teaches the opposite (App. Br. 29--30; Reply Br. 8- 11) does not address the Examiner's reliance on Lowrey and Louch for wirelessly sending data to the service facility, and on Dahlgren for limiting the transmission based on the vehicle's location. See Final Act. 5-8; Ans. 21-22. In this way, the Examiner's proposed enhancement uses prior- art features predictably according to their established functions-an obvious improvement. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,417 (2007). Here, Appellants have not provided a persuasive rebuttal to the Examiner's obviousness conclusion. On this record, we sustain the Examiner's rejection of claim 1. We also sustain the Examiner's rejection of claims 3-10, 25, 34, and 37, which depend from claim 1 and are not argued separately. See App. Br. 33. 11 Appeal2017-005325 Application 13/219,467 Claims 11 and 26 Independent claims 11 and 26 recite limitations in step ( e) and element (a)(ii)(3), respectively, that are similar to claim 1 's improving step. Accord App. Br. 31. The Examiner rejects claims 11 and 26 with the same combination of references. See Final Act. 19--28, 32--40. Appellants contend that "arguments made in the present Brief with respect to claim 1 and with regard to [the improving step discussed above] may be suitably applied to" claims 11 and 26, among others. App. Br. 32. Accordingly, we sustain the Examiner's rejection of claims 11 and 26 for the same reasons discussed above with respect to claim 1. We also sustain the Examiner's rejection of claims 13-17, which depend from claim 11 and are not argued separately. See id. at 33. THE REMAINING OBVIOUSNESS REJECTIONS Independent claims 19, 27, 29, and 30 recite limitations that are similar to claim 1 's improving step. Accord App. Br. 31-32. The Examiner rejects claim 27 using the same teachings from Dahlgren as used in claim 1 's rejection in combination with Louch and Lowrey. See Final Act. 63-73. The Examiner rejects claim 19 using the same teachings from Dahlgren as in claim 1 's rejection but with Lowrey alone. Id. at 47-54. The Examiner rejects claims 27 and 29 using the same teachings from Dahlgren as used in claim 1 's rejection but with Louch alone. Id. at 63-73. Appellants contend that "arguments made in the present Brief with respect to claim 1 and with regard to [the limiting-use limitation discussed above] may be suitably applied to" claims 19, 27, 29, and 30, among others. App. Br. 32. Although claims 19, 27, and 29 are rejected using one of 12 Appeal2017-005325 Application 13/219,467 Lowrey or Louch, but not both as in claim 1 's rejection, the Examiner relies on Louch and Lowrey, individually and cumulatively, to teach the "vehicle repair or service facility" in the rejection of claim 1. See Final Act. 6, 8; see also Final Act. 10 ("Dahlgren teaches that when collecting data from a vehicle as done in both Louch and Lowrey .... ") ( emphasis added). In the rejection of claims 1, 19, 27, 29, and 30, the Examiner also provides the same reason to combine that is applicable to both references. Compare id. at 10-11 (rejecting claim 1), with id. at 50-52 (rejecting claim 19), id. at 69--71 (rejecting claim 27), id. at 79--80 (rejecting claim 29), id. at 90- 91 (rejecting claim 30). Accordingly, we sustain the Examiner's rejection of claims 19, 27, 29, and 30 for the same reasons discussed above with respect to claim 1. We also sustain the Examiner's rejection of claims 2, 12, 18, 20-24, 31-33, 35, and 36, which depend from one of claims 1, 11, 19, and 30 and are not argued separately. See App. Br. 33. DECISION We sustain the Examiner's rejection of claims 1-27 and 29--37 under 35 U.S.C. § 103. We, however, do not sustain the Examiner's rejection of those claims under § 101. Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. § 4I.50(a)(l). 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(±). AFFIRMED 13 Copy with citationCopy as parenthetical citation