Ex Parte Cooper et al

Patent Trial and Appeal Board

May 11, 2018

14193987 (P.T.A.B. May. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/193,987 02/28/2014 Jared Klineman Cooper
91959 7590 05/15/2018
GE GPO- Transportation- The Small Patent Law Group
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3rd Floor
Norwalk, CT 06851
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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ATTORNEY DOCKET NO. CONFIRMATION NO.
262087A-l (552-0173US2) 1447
EXAMINER
MANCHO, RONNIE M
ART UNIT PAPER NUMBER
3664
NOTIFICATION DATE DELIVERY MODE
05/15/2018 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):
gpo.mail@ge.com
marie.gerrie@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JARED KLINEMAN COOPER, ROBERT JAMES FOY,
DAVID MICHAEL PELTZ, EUGENE SMITH,
STEVEN ANDREW KELLNER, BRIAN WILLIAM SCHROECK,
KEITH GILBERTSON, JOSEPH FORREST NOFFSINGER, and
WOLFGANG DAUM 1
Appeal2017-007354
Application 14/193,987
Technology Center 3600
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-8, 10-13, and 15-25. 2 We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 General Electric Company ("Appellant") is the Applicant as provided in
37 C.F .R. § 1.46 and is identified as the rea1 party in interest. Appeal Br. 6.
2 Claims 9 and 14 are cancelled. Appeal Br. 44--45 (Claims App.).
Appeal2017-007354
Application 14/193,987
THE CLAIMED SUBJECT MATTER
Claims 1, 16, 19, and 21 are independent. Claim 1 is reproduced
below and is illustrative of the subject matter on appeal.
1. A communication system comprising:
a first wireless communication device configured to be
disposed onboard a vehicle system having two or more
propulsion-generating vehicles that are mechanically
interconnected with each other in order to travel along a route
together; and
a controller configured to be disposed onboard the vehicle
system and operatively connected with the first wireless
communication device in order to control operations of the first
wireless communication device, the controller configured to
direct the first wireless communication device to switch between
operating in an off-board communication mode and operating in
an onboard communication mode,
wherein, when the first wireless communication device is
operating in the off-board communication mode, the first
wireless communication device is configured to receive and
communicate remote data signals that are received from a
location that is disposed off-board of the vehicle system and,
when the first wireless communication device is operating in the
onboard communication mode, the first wireless communication
device is configured to communicate local data signals between
the propulsion-generating vehicles of the vehicle system.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Peltz
Smith
Brand
US 2005/0143874 Al
US 7,664,459 B2
US 2011/0284700 Al
2
June 30, 2005
Feb. 16,2010
Nov. 24, 2011
Appeal2017-007354
Application 14/193,987
REJECTIONS 3
I. Claims 1-8, 10-13, and 15-25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Peltz and Brand. Final Act. 5-21.
II. Claims 1-8, 10-13, and 15-25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Peltz and Smith. Id. at 21--41.
OPINION
Rejection I
In rejecting independent claim 1, the Examiner finds that Peltz teaches
a communication system including, inter alia, "a first wireless
communication device (see communication schemes, fig. 4)," and a
controller configured to direct the first wireless communication
device to operate in an off-board communication mode ( extra-
consist communication, off-board communication; sec 0019,
lines 9-22, 0032, 0084, 0090, 0102; fig. 4) and operating in an
onboard communication mode (intra-consists communication,
on-board communication; sec 0019, lines 19-22; sec 0102, 0103,
0103, 0110; fig. 4).
Non-Final Act. 6 ( citing Peltz). The Examiner further finds that "Peltz
necessarily teaches switching communication between off-board and [ o ]n-
board communications as needed ... for the purpose of maintain[ing] signal
integrity on the train." Id. at 7 (citing Peltz ,r 101, Fig. 4).
Appellant argues that "Peltz does not teach any wireless
communication device that switches between off-board and onboard
modes." Appeal Br. 14. In particular, Appellant asserts that "Peltz switches
3 The Examiner withdrew a rejection of claim 20 under 35 U.S.C. § 112,
second paragraph, as indefinite. See Ans. 45 (explaining that "[t]he 112
second rejection is vacated").
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Application 14/193,987
between operating in different communication schemes, but there is no
disclosure of any single wireless device that can switch between off-board
communication and on board communication." Id. at 14--15 ( emphasis
added). According to Appellant, "[t]he description of Peltz focuses on an
entire communication system switching schemes, and not any individual
device." Id. at 17 (emphasis added). Appellant asserts that Peltz does not
necessarily teach a wireless communication device that switches between
operating in off-board and onboard communication modes because "the
system in Peltz can switch between intra-consist and extra-consist
communication by changing which of different communication devices are
used for the different types of communication." Id.
In the Answer, the Examiner does not dispute Appellant's
characterization of Peltz, but, instead, responds that Appellant's arguments
are not commensurate with the scope of the claims, which "do not call for a
'SINGLE WIRELESS DEVICE that can switch between off-board and
onboard communication modes."' Ans. 2. In other words, the Examiner
takes the position that the "first wireless communication device," as recited
in claim 1, does not require a single/individual wireless device with at least
one common component that facilitates operation in both the off-board and
onboard communication modes, but, rather, may encompass multiple
wireless devices, each device having its own distinct set of components that
operates in only one of the off-board and onboard communication modes.
Although we appreciate the Examiner's observation that claim 1 does not
recite a "single" device (id.), we agree with Appellant that the Examiner's
construction of the limitation "a first wireless communication device" is
unreasonably broad (see, e.g., Reply Br. 2-3).
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Application 14/193,987
The Examiner's position is based on the Specification describing "that
the wireless device 120[,] as disclosed by [A]ppellant's fig. 1 [,] is made up
of multiple wireless devices 122, 124, 126 used at different instances for
communicating off-board and on-board the train." Id. at 3. Contrary to the
Examiner's position, Appellant's Figure 1 illustrates only that
"C[ommunication] D[evices] 120" (note that "D[evices]" is plural, not
singular) are made up of devices 122, 124, 126, 128. The Examiner's
position is also based on the Specification describing that there are "a
plurality of wireless communication transceivers 706" that "make up a
plurality [ ofJ wireless devices." Ans. 3 ( citing Spec. ,r 128). Again, this
does not provide any information regarding what constitutes the claimed
"wireless communication device" (singular) in accordance with the
Specification, let alone that a "wireless communication device" (singular)
that switches between operating in off-board and onboard communication
modes reasonably extends to multiple devices, each of those devices having
distinct components facilitating operation in a single mode.
The Specification describes a communication system in which
[t]wo or more of the propulsion-generating vehicles include
wireless communication devices onboard the propulsion-
generating vehicles. A first wireless communication device
communicates remote data signals with a location disposed off-
board the vehicle system. The remote data signals may be
warning signals, such as signals communicated in a positive train
control (PTC) system. As such, the first wireless communication
device also is referred to as a remote wireless communication
device. A second wireless communication device disposed
onboard the propulsion-generating vehicles may be configured
to communicate local data signals between the propulsion-
generating vehicles, and is also referred to as a local wireless
communication device. The local data signals may be signals
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Application 14/193,987
used to control tractive efforts or braking efforts of the
propulsion-generating vehicles, such as distributed power (DP)
signals.
Spec. ,r 88. According to the Specification, "[t]he remote wireless
communication device can be controlled to switch from an off-board
communication mode, where the remote wireless communication device
communicates remote data signals, to an onboard communication mode,
where the remote wireless communication device communicates local data
signals." Id. ,r 89. In other words, the remote wireless communication
device (i.e., first wireless communication device) is configured to
communicate both remote data signals (i.e., off-board communication) and
local data signals (i.e., on-board communication). Id. ,r 96. Thus, in view of
the Specification, we understand "first wireless communication device," as
recited in claim 1, to call for a single/individual device4 with at least one
common component that performs both on-board communication and off-
board communication functions.
Based on a proper claim construction, Appellant persuasively asserts
that "Peltz does not describe such a device, but instead describes an entire
communication system formed of many devices and that switches modes"
and that "[n]o device in Peltz is able to switch between these modes." Reply
Br. 3; see also id. ( asserting that the cited references "appear to describe
systems having some devices that communicate onboard and other devices
that communicat[e] off-board the vehicles," but "no reference identified by
4 We note that an ordinary and customary meaning for the term "device" is
"a piece of equipment or a mechanism designed to serve a special purpose or
perform a special function." Merriam-Webster's Collegiate Dictionary
(11th ed. 2003). Appellant's use of the term "device" (particularly, as
singular) is consistent with this ordinary and customary meaning of the term.
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Application 14/193,987
the Examiner describes or suggests a wireless device that does both (i.e.,
switch[ es] between onboard and off-board communication modes)"
( emphasis added)). Peltz teaches a communication system with "processor
16 [that] is responsive to a plurality of input signals in order to select a
preferred communication scheme to provide a satisfactory level of
communication quality between the transceivers that make up
communication system 50." Peltz ,r 18. Peltz teaches "exemplary actions
that may be selected by processor 16 in connection with the communication
schemes available to the transceivers that make up communication system
50, such as ... selection of specific communication devices from multiple
communication devices that may be distributed throughout the train." Id.
( emphasis added). According to Peltz, "communication schemes may
comprise many forms of communication, such as remote communication
from an external control device, intra-consist communication, extra-consist
communication, wireless or wired communication, off-board and on-board
communication." Id. ,r 19. In other words, Peltz appears to teach a
communication system that includes on-board wireless communication
devices and off-board wireless communication devices, but the Examiner
does not point to, nor do we discern, any disclosure in Peltz that the system
includes an individual wireless communication device that is configured to
perform both on-board communication and off-board communication
functions, as called for in claim 1. 5
5 The Exarniner's rejection does not address whether one of ordinary skill in
the art might be led to combine the on-board and off-board wireless devices
of Peltz into an individual wireless communication device with at least one
common component that perfonns both on-board and off-board wireless
communication functions. \Ve note that the Patent Trial and Appeal Board
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Application 14/193,987
The Examiner finds that if Peltz does not necessarilv teach switching
,I '-'
communication between off-board and onboard communications, "Brand ...
teach[es] ... a controller configured to direct a first wireless communication
device to switch between operating in an off-board comrnunication mode
and operating in an onboard communication mode." Non-Final Act 7
(citing Brand iril 24, 39). The Examiner concludes that it would have been
obvious '"to modify Peltz as taught by Brand for the purpose of accounting
for electrical breaks and neu[t]ral sectionl:S] that can inhibit communications
on the train system." Id. at 8.
AppeHant argues that "Brand describes an entire comrnunication
,1,ystem fonned of many devices that switches modes," but "[n]o device in
Brand is able to switch between these modes." Reply Br. 3. \Ve agree with
Appellant in that the paragraphs identified by the Examiner merely disclose
a "communication ,\ystern ... switch[ing] from communicating the data over
the power supply conductor or running rail to communicating the data over
another, on board communication pathway ... [or J an off-board auxiliary
communication pathway." Brand ,T 24 (emphasis added); ,i- 39 (describing
same). In other words, similar to Peltz, Brand also appears to teach a
communication system that includes multiple communication devices
capable of multiple communication modes, but the Examiner does not point
to, nor do we discern, any disclosure in Brand that the system includes a
is a review body, rather than a place of initial examination, and
we therefore decline to make a determination of what one of ordinary skill in
the art may deem obvious; rather, we leave it to the Examiner to determine
the appropriateness of any further course of action based on such a
conclusion should there be further prosecution of this application.
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Application 14/193,987
device that switches between multiple communication fi.mctions, as called
for in claim 1.
For the foregoing reasons, Rejection I of claim 1 is predicated on an
improper construction of the claim limitation "first wireless communication
device." Consequently, we are persuaded that the Examiner erred in
concluding that the combination of Peltz and Brand renders obvious the
subject matter of claim 1. The Examiner's erroneous claim construction
pervades Rejection I of independent claims 16, 19, and 21, 6 which include
similar limitations. Non-Final Act. 8-21. Accordingly, we do not sustain
the rejection of independent claims 1, 16, 19, and 21, and claims 2-8, 10-13,
15, 17, 18, 20, and 22-25 depending therefrom, under 35 U.S.C. § 103(a)
as unpatentable over Peltz and Brand.
Re} ection II
The Examiner's rejection of claims 1-8, 10-13, and 15-25 as
unpatentable over Peltz and Smith states that Peltz "is not explicit as to the
switching between on-board and off-board modes." Non-Final Act. 22
( emphasis omitted). The Examiner finds that Smith teaches that
"[t ]ransmitted wireless/radio command signals from the lead unit 14
(column 7, line 12) [are sent] to off-board repeater [26] when there is a
degradation of onboard signal transmission" and "the communication mode
6 We note that claim 21 recites "a radio ... operative in a first mode of
operation and a second mode of operation." Appeal Br. 47 (Claims App.).
For similar reasons described herein, the Examiner does not point to, nor do
we discern any disclosure in Peltz or Brand that their respective systems
include the same individual device (i.e., a radio) that is configured to be
operative in both a first mode of operation to communicate signals between
a rail vehicle and a location off-board the rail vehicle and in a second mode
of operation to communicate signals from a rail vehicle to other rail vehicles.
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will be switched or reverted back to onboard communication mode" when
the "signal obstruction[,] such as tunnels[,] is cleared." Id. The Examiner
concludes that it would have been obvious "to have modified ... Peltz's
wireless communication system to switch between onboard and off-board
communication mode[ s] to maintain reliability when one of the
communication modes experiences signal degradation." Id. at 23.
Appellant argues that, "[ w ]hile Smith does teach the lead locomotive
or remote locomotives communicate wirelessly with the off-board repeater,
there is no disclosure that the communication system of Smith includes any
single wireless device switching between off-board communication and
onboard communication." Appeal Br. 20. We agree with Appellant that
Smith's transceiver "transmits the same message whether the remote
vehicles and/or the message repeater receives the communicated signal." Id.
at 21. That is, Smith's off-board repeater 26 merely receives and repeats
messages from lead unit 14 (to be received by remote units 12A-12C) or
receives and repeats messages from the remote units (to be received by lead
unit 14) (Smith 7:31-35, 11:50-55), with all messages originating locally.
Appellant argues that Smith's transceiver "does not switch modes in order to
change whether messages are communicated to remote locomotives or to
message repeaters." Appeal Br. 21. We agree that the Examiner does not
point to any disclosure in Smith that its system includes a device that
switches between an off-board mode in which the device receives and
communicates remote data signals and an onboard rnode in which the device
communicates local data signals, as caHed for in claims 1, 16, and 19; or a
radio that is configured to be operative in both a first mode of operation to
communicate signals between a rail vehicle and a location off-board the rail
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Application 14/193,987
vehicle and in a second mode of operation to communicate signals from a
rail vehicle to other rail vehicles, as called for in claim 21. Moreover, the
Examiner does not adequately articulate how or why Peltz would be
modified so as to have an individual wireless device that switches between
onboard and off-board communication modes, especially considering that
Peltz already teaches an entire communication system formed of many
devices for maintaining reliability. See Peltz ,r 102 ("It is contemplated that
multiple communication devices may be appropriately selected or changed
to ensure accurate and reliable data communications under certain
environmental and/or operational conditions.").
Accordingly, we do not sustain the Examiner's rejection of
independent claims 1, 16, 19, and 21, and claims 2-8, 10-13, 15, 17, 18, 20,
and 22-25 depending therefrom, under 35 U.S.C. § 103(a) as unpatentable
over Peltz and Smith.
DECISION
The Examiner's decision to reject claims 1-8, 10-13, and 15-25
under 35 U.S.C. § 103(a) as unpatentable over Peltz and Brand is reversed.
The Examiner's decision to reject claims 1-8, 10-13, and 15-25
under 35 U.S.C. § 103(a) as unpatentable over Peltz and Smith is reversed.
REVERSED
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