Ex Parte Colvin et al

Patent Trial and Appeal Board

Sep 25, 2018

13219467 (P.T.A.B. Sep. 25, 2018)

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
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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