Ex Parte EidsonDownload PDFBoard of Patent Appeals and InterferencesMar 24, 201010842113 (B.P.A.I. Mar. 24, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte JOHN C. EIDSON ____________________ Appeal 2009-001814 Application 10/842,1131 Technology Center 2100 ____________________ Decided: March 25, 2010 ____________________ Before JEAN R. HOMERE, JAY P. LUCAS, and JOHN A. JEFFERY, Administrative Patent Judges. LUCAS, Administrative Patent Judge. DECISION ON APPEAL 1 Application filed May 10, 2004. The real party in interest is Agilent Technologies, Inc. Appeal 2009-001814 Application 10/842,113 STATEMENT OF THE CASE Appellant appeals from a final rejection of claims 1 through 20 under authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellant’s invention relates to a distributed application that provides traffic flow information to a user (Spec. 3, ll. 3-7; Spec. 16, ll. 3-4). In the words of Appellant: The automobiles … include on-board mobile agents that are capable of obtaining traffic flow measurements from the remote nodes . . . and depositing traffic flow measurements with the remote nodes . . . . For example, the automobiles … may include on-board devices that communicate with the remote nodes . . . in order to provide traffic flow information to the drivers of the automobiles . . . . (Spec. 16, l. 29 to 17, l. 4). Claim 1 is exemplary, and is reproduced below: 1. A distributed application, comprising: a plurality of remote nodes that collectively gather and process a set of information pertaining to the distributed application; a set of mobile agents that are embodied in a corresponding set of devices which physically move among the remote nodes, and that carry the 2 Appeal 2009-001814 Application 10/842,113 information among the remote nodes as the devices physically move among the remote nodes. The prior art relied upon by the Examiner in rejecting the claims on appeal is: James US 5,420,794 May 30, 1995 REJECTION The Examiner rejects the claims as follows: R1: Claims 1 through 20 stand rejected under 35 U.S.C. § 102(b) as being anticipated by James. Appellant contends that the claimed subject matter is not anticipated by James because James does not teach Appellant’s claim limitation “a set of mobile agents … that carry the information among the remote nodes” (App. Br. 7, middle). The Examiner contends that each of the claims is properly rejected (Ans. 11, top). The claims are grouped as per Appellant’s Briefs. Only those arguments actually made by Appellant have been considered in this opinion. Arguments that Appellant could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). ISSUE The pivotal issue before us is whether Appellant has shown that the Examiner erred in rejecting the claims under 35 U.S.C. § 102(b). The issue 3 Appeal 2009-001814 Application 10/842,113 specifically turns on whether James teaches “a set of mobile agents … that carry the information among the remote nodes,” as claimed. FINDINGS OF FACT The record supports the following findings of fact (FF) by a preponderance of the evidence. Disclosure 1. Appellant has invented an application, method, and system for providing traffic flow information to a user in a moving vehicle (Spec. 3, ll. 3-7; Spec. 16, ll. 3-4). So-called “remote agents” carry information between remote nodes that are positioned along the roadside. (See claim 1.) The remote agents also gather information from the remote nodes (id.). James 2. The James reference discloses an automated highway system for providing traffic flow conditions to a user in a moving vehicle. (See Abstract.) The car carries information between highway facilities that are positioned along the roadside. (See col. 2, ll. 29-31.) The car also integrates information from the highway facilities. (See col. 6, ll. 25-32.) James further discloses calculating a vehicle location and energizing the car’s actuator’s ability “to steer, accelerate, and brake,” as necessary (col. 2, ll. 22-24). 4 Appeal 2009-001814 Application 10/842,113 PRINCIPLES OF LAW Appellant has the burden on appeal to the Board to demonstrate error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006). “Anticipation of a patent claim requires a finding that the claim at issue ‘reads on’ a prior art reference.” Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed. Cir. 1999) (“In other words, if granting patent protection on the disputed claim would allow the patentee to exclude the public from practicing the prior art, then that claim is anticipated, regardless of whether it also covers subject matter not in the prior art.”) (internal citations omitted). Our reviewing court states in In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) that “claims must be interpreted as broadly as their terms reasonably allow.” ANALYSIS From our review of the administrative record, we find that the Examiner presents his conclusions of unpatentability on pages 3 to 7 of the Examiner’s Answer. In opposition, Appellant presents several arguments. 5 Appeal 2009-001814 Application 10/842,113 Arguments with respect to the rejection of claims 1 to 20 under 35 U.S.C. § 102(b) [R1] Claim 1 reads, in relevant part, “a set of mobile agents … that carry the information among the remote nodes.” Appellant argues that James’ vehicles themselves are nothing but “dumb cars,” not the claimed mobile agents that carry information from one remote node to another remote node (App. Br. 7, middle). In reply, the Examiner finds that James’ cars (cited as Appellant’s claimed “mobile agents”) do indeed carry information between highway facilities (cited as Appellant’s claimed “remote nodes”) (Ans. 4, top to middle). We agree with the Examiner for the following reasons. Appellant has invented an application, method, and system for providing traffic flow information to a user in a moving vehicle (FF#1). So-called “remote agents” carry information between remote nodes that are positioned along the roadside (id.). The remote agents also gather information from the remote nodes (id.). In comparison, the James reference discloses an automated highway system for providing traffic flow conditions to a user in a moving vehicle (FF#2). The car carries information between highway facilities that are positioned along the roadside (id.). The car also integrates information from the highway facilities (id.). The James patent teaches information travels with the cars. (See FF#3.) We find this teaching for carrying information between highway facilities sufficient to meet the claim limitation “a set of mobile agents … that carry the information among the remote nodes.” Accordingly, we find no error in this regard. 6 Appeal 2009-001814 Application 10/842,113 Next, Appellant argues that the claim limitations “remote nodes that collectively gather and process a set of information” and “a set of mobile agents … that carry the information among the remote nodes” cannot be met because the same information that is collected and gathered in James is not also carried among the remote nodes. The Examiner points out that the same information that is collected by the vehicle on-board transponder is also used to control the car’s direction and speed (Ans. 8, bottom). In this case, we agree with the Examiner’s reasoning. The patent discloses: “The highway control facility interrogates the vehicle transponder for identification, destination, and other pertinent travel parameters or user services to route the vehicle, schedule maintenance, provide user services.” (Col. 2, ll. 17-22.) That is, James’ highway control facilities (the claimed “remote nodes”) gather and process a set of information (the claimed “information”), and the cars (the claimed “remote agents”) carry the information set, which includes the car’s identification, destination, and other pertinent parameters, among the highway facilities (“remote nodes,” as claimed). Thus, James’ on-board vehicle information system operates no differently from Appellant’s claimed invention. Therefore, we find unpersuasive Appellant’s argument that the same claimed “information” is not carried “among remote nodes,” as claimed. Accordingly, we find no error in the Examiner’s analysis of claim 1. Dependent claim 5 recites, wherein, in relevant part, “the information includes a set of computational data generated by the mobile agents.” 7 Appeal 2009-001814 Application 10/842,113 Regarding claim 5, Appellant argues that James does not mention any “computations.” (App. Br. 9, top). That is, in the James reference, no information is computed aboard James’s cars (id.). We find that James teaches calculating a vehicle location and energizing the car’s actuator’s ability “to steer, accelerate, and brake,” as necessary (FF#2). This finding (see FF#2) suffices to meet Appellant’s claimed “computational data generated by the mobile agents,” as recited in claim 5. We thus find unconvincing the argument that James fails to teach “computations,” as argued by Appellant (App. Br. 9, top). Accordingly, we find no error. Dependent claim 6 recites, wherein, in relevant part, “the information includes a set of computational data generated by the mobile agents.” Regarding claim 6, Appellant argues that although James discloses calculating data, the calculation is for vehicle navigation, and not for information carried by vehicles from one highway control facility to another (App. Br. 9, middle). We find unconvincing Appellant’s argument that James’s vehicle navigation data is not the same as the “information” of claim 6, since Appellant places no restriction or limitation on what is meant, included, or represented by “data” that is “computational,” as claimed. Reading the claims broadly but reasonably, see In re Zletz, cited above, the claim limitation “computational data” reads on James’ teaching for a roadside processor 70 that calculates navigation adjustments and sends that data to the car. (See col. 8, ll. 53-57). Accordingly, we find no error in the Examiner’s analysis of claim 6. 8 Appeal 2009-001814 Application 10/842,113 Next, Appellant contends that the James reference “[teaches] that vehicle position data is communicated directly from one highway control facility to the next, not carried by the vehicles from one highway control facility to the next.” (App. Br. 9, bottom). We already addressed this argument with respect to claim 1. (See supra.) Accordingly, we find no error regarding the analysis of claim 6. Appellant separately argues independent claims 11 and 19 (App. Br. 10, middle to bottom). However, we find that claim 11 and claim 19 have substantially similar subject matter as claim 1. For the same reasons expressed above with respect to claim 1 (see supra), we find that James’ teachings meet the limitations of claims 11 and 19. Accordingly, we find no error. Appellant argues that claims 12 to 18 are patentable because of their dependency from independent claim 11 (App. Br. 10, top to middle). However, mere allegations of patentability based on dependency, such as those presented by Appellant in the Briefs (id.), are not considered a persuasive form of argumentation. (See 37 C.F.R. § 1.111(b).) Accordingly, we find no error in the Examiner’s analysis of claims 12 to 18. CONCLUSION OF LAW Based on the findings of facts and analysis above, we conclude that the Examiner did not err in rejecting claims 1 through 20. DECISION We affirm the Examiner’s rejection [R1] of claims 1 through 20. 9 Appeal 2009-001814 Application 10/842,113 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). AFFIRMED peb AGILENT TECHNOLOGIES INC. INTELLECTUAL PROPERTY ADMINISTRATION,LEGAL DEPT. MS BLDG. E P.O. BOX 7599 LOVELAND, CO 80537 10 Copy with citationCopy as parenthetical citation