Ex Parte Duddles et al

Patent Trial and Appeal Board

Jun 21, 2013

11348713 (P.T.A.B. Jun. 21, 2013)

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.
11/348,713 02/07/2006 Douglas L. Duddles GP-307525-OST-ALS 5572
7590 06/24/2013
James D. Stevens
Reising, Ethington, Barnes, Kisselle, P.C.
P.O. Box 4390
Troy, MI 48099-4390
EXAMINER
NOLAN, PETER D
ART UNIT PAPER NUMBER
3661
MAIL DATE DELIVERY MODE
06/24/2013 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 DOUGLAS L. DUDDLES, SCOTT A.
MC CULLOUGH, JAMES M. KORTGE,
JOHN J. FLOOD and HUAN T. NGUYEN
____________________

Appeal 2011-005720
Application 11/348,713
Technology Center 3600
____________________

Before: JOHN C. KERINS, JILL D. HILL and BEVERLY M. BUNTING,
Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005720
Application 11/348,713
2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a method for remote reprogramming of
vehicle flash memory. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method of reprogramming firmware in a first electronic
control unit (ECU) located onboard a vehicle using new
programming supplied to the vehicle, the method comprising
the steps of:
(a) monitoring a satellite broadcast channel for a satellite
transmission using a second ECU located onboard the vehicle
and receiving the new programming via the satellite
transmission at the vehicle using the second ECU;
(b) determining whether vehicle conditions are
acceptable for reprogramming of the first ECU;
(c) if the vehicle conditions are acceptable, then sending
the new programming to the first ECU and storing the new
programming in firmware contained in the first ECU while
holding certain vehicle conditions in their existing state; and
(d) reporting a successful receipt of the new
programming to a central facility by an onboard telematics unit
over a cellular network.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ozeki
Tachibana
US 6,138,059
US 6,957,136 B2
Oct. 24, 2000
Oct. 18, 2005
Jabbarnezhad US 2003/0022668 A1 Jan. 30, 2003
Appeal 2011-005720
Application 11/348,713
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Chernoff
McWalter
Gryc
US 2003/0037982 A1
US 2003/0182032 A1
US 2004/0014463 A1
Feb. 27, 2003
Sep. 25, 2003
Jan. 22, 2004

REJECTIONS
Appellants seek our review of the following rejections:
Claims 1 and 17 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tachibana, Chernoff, Jabbarnezhad, Ozeki and
Appellants' admitted prior art. Ans. 4.
Claims 2-7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tachibana, Chernoff, Jabbarnezhad, Ozeki, Appellants'
admitted prior art and McWalter. Ans. 7-8.
Claims 8-9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tachibana, Chernoff, Jabbarnezhad, Ozeki, Appellants'
admitted prior art and Gryc. Ans. 12.
Claims 10, 11 and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tachibana, Chernoff, Ozeki and Appellants' admitted
prior art. Ans. 13.
Claim 12 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tachibana, Chernoff, Ozeki, Appellants' admitted prior art and Gryc.
Ans. 16.
Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gryc and Ozeki. Ans. 17.
Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Gryc, Ozeki and McWalter. Ans. 19.

Appeal 2011-005720
Application 11/348,713
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ANALYSIS
Obviousness Rejections
Claims 1 and 17: Tachibana, Chernoff, Jabbarnezhad, Ozeki and
Appellants' admitted prior art
Claim 1 is independent and claim 17 depends therefrom. Appellants
argue claims 1 and 17 together. App. Br. 7-11. We select claim 1 as
representative and claim 17 will stand or fall therewith. See 37 C.F.R. §
41.37(c)(1)(vii) (2011). Claim 1 defines a method of reprogramming
firmware in an ECU onboard a vehicle using programming received by the
vehicle by monitoring a satellite broadcast channel for a satellite
transmission, reprogramming a first ECU if conditions are right and
reporting successful receipt of the new programming to a central facility via
an onboard telematics unit over a cellular network.
The Examiner found that Tachibana teaches a method of
reprogramming firmware in a first electronic control unit (ECU) located
onboard a vehicle using new programming supplied to the vehicle by (a)
receiving new programming via a wireless transmission to a second onboard
ECU, (b) determining if conditions are acceptable for reprogramming the
first ECU, (c) if acceptable, sending the new programming to the first ECU
and rewriting firmware and (d) reporting successful reprogramming. Ans. 4-
5; citing Tachibana, Abstr., col. 3, ll. 47-57, col. 4, ll. 16-30, col. 5, ll. 5-14,
figs. 1, 3. Acknowledging that Tachibana does not teach the step of using a
telematics module to monitor a satellite broadcast channel for a satellite
transmission and receiving the new programming via the satellite
transmission, the Examiner relied on the teachings of Chernoff for this
disclosure. Id. at 5; citing Chernoff, paras. [0104]-[0106]. The Examiner
further relied on Jabbarnezhad to teach the steps of distributing
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programming via satellite to geographically disparate entities and successful
receipt of the new programming is reported to a central facility over a
terrestrial wide area network. Id. at 5; citing Jabbarnezhad, paras. [0019]-
[0021]. The Examiner relied on Ozeki to teach the step of holding certain
vehicle conditions in an existing state while the program is being stored in
the ECU. Id. at 5-6; citing Ozeki, Abstr., col. 8, ll. 20-39, col. 9, ll. 18-33,
col. 10, ll. 23-35, fig. 7.
The Examiner reasoned that it would have been obvious to combine
the wirelessly received programming of Tachibana with the monitoring of
the satellite broadcast channel for a satellite transmission of Chernoff, “to
achieve the predictable result of wirelessly receiving the programming.” Id.
at 6. Alternatively, the Examiner reasoned that it would have been obvious
to combine Chernoff with Tachibana because “using a satellite receiver on
the receiving end allows transmission of data to from a central location to
geographically remote receivers.” Id. citing Jabbarnezhad, para. [0007].
Further, the Examiner reasoned that it would have been obvious to report the
successful receipt of the satellite transmitted programming via a terrestrial
WAN, i.e., cellular system, as taught in Jabbarnezhad, to eliminates the costs
associated with conventional two-way satellite communications systems. Id.
The Examiner additionally reasoned it would have been obvious to apply the
teaching of Ozeki to hold the vehicle conditions in Tachibana in an existing
state while the program is being stored in the ECU, since preventing power
cutoff to the ECU during reprogramming prevents interruption of
reprogramming. Id. at 7; citing Ozeki, col. 10, ll. 55-59. Acknowledging
that Ozeki teaches that the ignition switch is in the “on” position, the
Examiner applied the Appellants’ admitted prior art and concluded it would
have been obvious to further modify Tachibana so that the ignition switch is
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set to the RUN (i.e., on) position to perform the reprogramming. Id. citing
Spec., paras. [0003]-[0007].
Appellants do not contest the Examiner’s findings with regards to
Tachibana, Jabbarnezhad, Ozeki and Appellants' admitted prior art, and only
challenge the Examiner’s finding that Chernoff teaches the step of
monitoring a satellite broadcast channel for a satellite transmission
broadcast. App. Br. 6-7; Reply Br. 1-2. According to Appellants,
Chernoff’s statement concerning transmission of programming via a
wireless transmission, i.e. “cellular transmission or by satellite transmission,
the Internet, a telephone line, a tangible storage medium such as a CD or a
diskette, etc.[,]” would most reasonably be understood by those skilled in the
art “as referring to transmission via satellite telephony versus, for example,
cellular telephony.” Id. at 6; citing Chernoff, para. [0122]. The Examiner
countered that “the transmitter in a wireless communication system
‘broadcasts’ data to any receivers configured to receive data from the
transmitter that are within range of it” and that to receive data, the receiver
would be configured to monitor the channel that the data is broadcast on,
even if configured to engage in two-way communication with the satellite.
Ans. 20-21. In the Reply Brief, Appellants assert that the Examiner has not
provided evidence demonstrating that “satellite broadcast” or “satellite
broadcast channel” as described in the Specification also refer to
communications via satellite telephony. Reply Br. 2.
Appellants’ argument that Chernoff teaches satellite telephony and
does not teach the step of monitoring a satellite broadcast channel for a
satellite transmission broadcast does not apprise us of error in the
Examiner’s findings or interpretation of Chernoff. Appellants have not
directed us to any sufficient evidence in Chernoff that the reference to
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satellite transmission is limited to satellite telephony, nor have Appellants
offered direct evidence, other than general allegations, that one of skill in the
art would interpret the teachings of Chernoff as argued by Appellants. We
note that Figure 29 of Chernoff teaches different ways that software can be
transmitted to the vehicle, i.e., via satellite, via telephone, via internet, via
cellular telephone transmission, or physical embodiment, and does not
suggest that satellite and cellular transmissions would be grouped together in
the manner suggested by Appellants, as both being directed to
communication by telephony. Thus, the Examiner had a reasonable basis for
finding that Chernoff discloses the step of monitoring a satellite broadcast
channel for a satellite transmission. As such, we sustain the rejection of
claims 1 and 17.

Claims 2-7: Tachibana, Chernoff, Jabbarnezhad, Ozeki, Appellants'
admitted prior art and McWalter
Appellants contend that the disclosure of McWalter does not remedy
any of the deficiencies of Chernoff, and rely on the arguments provided with
respect to claim 1. App. Br. 7. For the reasons discussed supra with respect
to claim 1, we do not agree that Chernoff is deficient as argued by
Appellants, and we likewise sustain the rejection of claims 2-7.

Claims 8-9: Tachibana, Chernoff, Jabbarnezhad, Ozeki, Appellants'
admitted prior art and Gryc
Appellants contend that the disclosure of Gryc does not remedy any of
the deficiencies of Chernoff, and rely on the arguments provided with
respect to claim 1. App. Br. 7. For the reasons discussed supra with respect
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to claim 1, we do not agree that Chernoff is deficient as argued by
Appellants, and we likewise sustain the rejection of claims 8-9.

Claims 10, 11 and 13: Tachibana, Chernoff, Ozeki, Appellants'
admitted prior art
Claim 10 is independent and claims 11 and 13 depend therefrom.
Appellants argue claims 10, 11and 13 together. App. Br. 7-8. We select
claim 10 as representative and claims 11 and 13 will stand or fall therewith.
Claim 10 defines the receipt of new programming via a satellite transmission
from the wireless communications network to the vehicle’s telematics unit.
The Examiner repeated the findings of Tachibana, acknowledging that
Tachibana does not explicitly teach that the wireless unit which receives a
satellite transmission is a telematics unit. Ans. 13-14; citing Tachibana,
Abstr., col. 3, ll. 47-57, col. 4, ll. 7-30, col. 5, ll. 7-9, figs. 1-3. The
Examiner relied on Chernoff to teach a method for reprogramming an ECU
by “receiving the new programming via a satellite transmission from a
communications network to a vehicle’s telematics unit.” Id. at 14; citing
Chernoff, paras. [0104]-[0106]. Additionally, the Examiner relied on Ozeki
to teach a method of reprogramming firmware in an ECU that includes
initiating a vehicle state hold by maintaining a vehicle condition in its
current state and inhibiting changes to the controllable condition until the
reprogramming process is complete and terminating the vehicle state hold
after the reprogramming is completed. Id. at 14; citing Ozeki, Abstr., col. 8,
ll. 20-39, col. 9, ll. 18-33, fig. 7.
Appellants argue that Chernoff does not teach the limitation that the
satellite transmission is from a wireless communications network to a
vehicle’s telematics unit. App. Br. 7-8. Appellants contend that the satellite
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transmission in Chernoff is to a separate “‘input device ... operably
connected to [the] telematics system.’” Id. at 8.
We note that Appellants do not challenge the Examiner’s findings
with respect to Tachibana, Ozeki and Appellants’ own admitted art.
Appellants’ argument regarding the separate input device of Chernoff does
not persuade us of error in the Examiner’s findings or interpretation that
Chernoff teaches the receipt of new programming by a vehicle’s telematics
unit. Chernoff describes that an input device, in one form, may be a
“wireless input device” and teaches that “[a]n input device may be operably
connected to a telematics system such that programming and software may
be received by satellite transmission.” Ans. 23; citing Chernoff, para.
[0106]. Appellants’ Specification likewise suggests that the telematics unit
22 may receive broadcasting via an antenna 24 connected to the telematics
unit 22. Spec., paras. [0024], [0033]. Thus, we are not apprised of
Examiner error and we sustain the rejection of claims 10-11 and 13.

Claim 12: Tachibana, Chernoff, Ozeki, Appellants' admitted prior art
and Gryc
Appellants contend that the disclosure of Gryc does not remedy any of
the deficiencies of Chernoff, and rely on the arguments provided with
respect to claim 10. App. Br. 8. For the reasons discussed supra with
respect to claim 10, we do not agree that Chernoff is deficient as argued by
Appellants, and we likewise sustain the rejection of claim 12.

Claims 14 and 15: Gryc and Ozeki
Claim 14 is independent and claim 15 depends therefrom. Appellants
argue claims 14 and 15 together. App. Br. 8-9. We select claim 14 as
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representative and claim 15 will stand or fall therewith. Claim 14 defines
the step of reprogramming flash memory by first determining whether the
vehicle is customer owned and, if so, instructing the vehicle operator to
place the vehicle in a desired configuration.
The Examiner found that Gryc teaches a method of reprogramming
flash memory and includes the step of determining whether the vehicle is
customer owned. Ans. 17; citing Gryc, paras. [0032]-[0034], Abstr. The
Examiner further relied on Ozeki to teach the step of placing the vehicle in a
vehicle hold state and removing the vehicle from the vehicle hold state to
change the vehicle configuration. Id. at 17-18; citing Ozeki col. 9, l. 44 –
col. 10, l. 16.
Appellants argue that the combination of Gryc or Ozeki do not teach
or suggest the step of “determining whether the vehicle is customer-owned,
and if so instructing the vehicle operator to place the vehicle in a desired
configuration.” App. Br. 8-9. Appellants contend that “providing a CD to a
user in possession of a vehicle is not the same as determining if the vehicle
is customer owned.” Id. The Examiner countered that it would be necessary
to determine that the customer owns the vehicle in order to deliver the cd to
the customer and that claim 14 makes this same distinction because it
involves a determination as to whether the vehicle is customer owned, and
“if so, the ‘vehicle operator’ (and not necessarily the owner) is instructed to
place the vehicle in a desired configuration.” Ans. 24.
We adopt the Examiner’s response to Appellants’ arguments as
sufficiently articulating reasons why Appellants’ arguments do not
persuasively apprise us of error in the Examiner’s finding. See Ans. 24. As
such, we sustain the rejection of claims 14 and 15.

Appeal 2011-005720
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Claim 16: Gryc and Ozeki and McWalter
Appellants contend that the disclosure of McWalter does not remedy
any of the deficiencies of Gryc, and rely on the arguments provided with
respect to claim 14. App. Br. 10. For the reasons discussed supra with
respect to claim 14, we do not agree that Chernoff is deficient as argued by
Appellants, and we likewise sustain the rejection of claim 16.

DECISION
The rejections of claims 1-17 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED

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