Ex Parte Cummings

Patent Trial and Appeal Board

Mar 28, 2017

12114195 (P.T.A.B. Mar. 28, 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.
12/114,195 05/02/2008 Ian Cummings IAN-11402/29 2599
131270 7590
BELZER PC
ATTN: John G. Posa
2905 Bull Street
Savannah, GA 31405
EXAMINER
PECHE, JORGE O
ART UNIT PAPER NUMBER
3664
MAIL DATE DELIVERY MODE
03/28/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IAN CUMMINGS
Appeal 2015-0002351
Application 12/114,1952
Technology Center 3600
Before MICHELLE R. OSINSKI, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—11. An oral hearing was held on March 23, 2017. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references Appellant’s Appeal Brief (“App. Br.,” filed
Apr. 14, 2014), Reply Brief (“Reply Br.,” filed Oct. 1, 2014), and
Amendment (“Amend.,” filed Sept. 9, 2013), and the Examiner’s Answer
(“Ans.,” mailed Aug. 1, 2014) and Final Office Action (“Final Act.,” mailed
Nov. 18,2013).
2 Appellant identifies Ian Cummings as the real party in interest. App.
Br. 1.
Appeal 2015-000235
Application 12/114,195
CLAIMED INVENTION
Appellant’s claimed invention “relates generally to navigation
systems, and in particular to the use of traffic data to optimize routing.”
Spec. 12.
Claims 1 and 10 are the independent claims on appeal. Claims 1
and 10, reproduced below, are illustrative:
1. A method of generating a route with a wireless client-
server navigator, comprising the steps of:
providing a database of geographical information
including road segments at a server;
receiving information on a continuous basis at the server
representing traffic flow rates or traffic incidents along the road
segments;
generating a route optimized to minimize travel time along
the road segments based upon the traffic flow rates or traffic
incidents; and
transmitting the route to a mobile client.
10. A method of notifying a user of a vehicle navigation
system that a maneuver should be performed, comprising the
steps of:
estimating the time of arrival to the location of the
maneuver based upon speed and distance to the location; and
notifying the user as a function of the estimate.
REJECTIONS
I. Claims 1—3, 5—8, 10, and 11 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Drury (US 2004/0104842 Al, pub. June 3, 2004) and
Vorona (US 7,440,842 Bl, iss. Oct. 21, 2008).
11. Claims 4 and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Drury, Vorona, and Sera (US 2008/0004791 Al, pub.
Jan. 3, 2008).
2
Appeal 2015-000235
Application 12/114,195
ANALYSIS
Rejection I
Independent Claim 1 and Dependent Claims 2 and 3
We are not persuaded by Appellant’s argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because
Vorona does not disclose or suggest “receiving information on a continuous
basis at the server representing traffic flow rates or traffic incidents along the
road segments,” as recited in claim 1. App. Br. 3—7; see also Reply Br. 1^4.
In particular, Appellant argues that the obviousness rejection is in error
because Vorona’s probe vehicles do not send traffic data to a server on a
continuous basis. See id.
We acknowledge that Vorona describes probe vehicles each receiving
a data check time call on a periodic basis. See Vorona, Fig. 8A, col. 11,
11. 29-46. When the data check time arrives, a client subroutine determines
an average speed which the vehicle has traveled since the last contact with
the traffic data server, and transmits the data to the server. See id. at col. 11,
11. 29-35; col. 12,11. 19-26. Notwithstanding this acknowledgement,
Appellant does not persuade us that the Examiner erred in finding Vorona
discloses the argued limitation under a broad, but reasonable, interpretation
of the claim language in view of Appellant’s Specification.
Appellant’s Specification, as originally filed, did not include the term
“continuous.” During prosecution, Appellant amended the claims to recite
that receiving occurs at the server “on a continuous basis,” relying on
paragraph 15 of the Specification as support for the amendment. Compare
Spec. 6, claim 1 with App. Br. 11, claim 1. Paragraph 15 of the
3
Appeal 2015-000235
Application 12/114,195
Specification describes that “the server preferably receives traffic flow rate
and/or incident information on a continual basis,” not continuous.
To show that amended claim 1 complies with the written description
requirement, Appellant preferred that the terms “continual” and
“continuous” are synomous, and quoted the following usage note from
Dictionary.com:
[although usage guides generally advise that continual
may be used only to mean “intermittent” and continuous only to
mean “uninterrupted,” the words are used interchangeably in all
kinds of speech and writing with no distinction in meaning: The
President’s life is under continual (or continuous[ ]) scrutiny.
Continuous (or continual) bursts of laughter punctuated her
testimony.
Amend. 2; see also id. (defining “continual” as “of regular or frequent
occurance”).
Based on the foregoing, we determine that the broadest, reasonable
interpretation of the claimed phrase “on a continuous basis,” which is
consistent with Appellant’s Specification, includes an arrangement in which
information is received at the server on a regular or frequent basis.
Inasmuch as the Examiner finds that Vorona discloses such an arrangement,
and we conclude that the Examiner’s finding is reasonable, we sustain the
rejection of claim 1 and dependent claims 2 and 3 under 35 U.S.C. § 103(a).3
Dependent Claim 5
Appellant argues that the Examiner erred in rejecting claim 5 under 35
U.S.C. § 103(a) because an “estimate of time of arrival,” as recited in claim
3 Appellant’s argument that claim 3 is entitled to the benefit of priority to
the provisional is immaterial to the pending rejection under 35 U.S.C.
§ 103(a), because Vorona and Drury remain prior art regardless.
4
Appeal 2015-000235
Application 12/114,195
5, is “not the same thing” as an “expected travel time.” App. Br. 7. We
agree that Appellant has established a difference between the prior art and
the claim language. However, Appellant has not established that this
difference is sufficient to render the claimed matter unobvious. See App. Br.
7 (“[o]ne can use each to compute[] the other”). The Examiner takes the
position that “Drury’s system uses traffic flow information to derive
expected travel time to a destination or points along the route,” and“[t]he
expected travel time can be used to estimate time of arrival.” Ans. 8.
Therefore, we sustain the rejection of claim 5 under 35 U.S.C.
§ 103(a).
Independent Claim 10, and Dependent Claims 7, 8, and 11
Appellant argues that the Examiner erred in rejecting claims 7, 8, 10,
and 11 because Drury describes timing a notification based on distance to
the maneuver, instead of an estimated time of arrival, as required by each of
claims 7, 8, 10, and 11. App. Br. 7. We find Appellant’s argument
unpersuasive. Instead, we agree with, and adopt the Examiner’s response at
page 9 of the Answer.
Therefore, we sustain the rejection of claims 7, 8, 10, and 11 under 35
U.S.C. § 103(a).
Rejection II
Dependent Claim 4
Claim 4 depends from claim 1 and further recites that traffic flow rate
or traffic incident data is transmitted to a client along with the route. We
agree with Appellant that Sera’s disclosure of providing traffic data from a
server to a client and calculating a route at the client does not disclose or
5
Appeal 2015-000235
Application 12/114,195
suggest transmitting traffic data along with a route, as required by claim 4.
See App. Br. 8.
Therefore, we do not sustain the rejection of claim 4 under 35 U.S.C.
§ 103(a).
Dependent Claim 9
Claim 9 depends from claim 1 and recites that the server recalculates a
time-optimized route based on previous and new traffic flow rate data and/or
traffic incident data, and sends the newly calculated route to the client if it
differs from the route previously sent. We agree with Appellant that Sera’s
disclosure of providing traffic data to a client and calculating a route at the
client does not disclose or suggest a server recalculating a route and sending
the newly calculated route to the client, as required by claim 9. See App. Br.
9-10.
Therefore, we do not sustain the rejection of claim 9 under 35 U.S.C.
§ 103(a).
DECISION
The Examiner’s rejection of claims 1—3, 5—8, 10, and 11 under
35 U.S.C. § 103(a) is affirmed.
The Examiner’s rejection of claims 4 and 9 under 35 U.S.C. § 103(a)
is reversed.
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-IN-PART
6