Ex Parte Ginsberg et alDownload PDFPatent Trial and Appeal BoardMay 9, 201813542938 (P.T.A.B. May. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/542,938 07/06/2012 758 7590 05/11/2018 FENWICK & WEST LLP SILICON VALLEY CENTER 801 CALIFORNIA STREET MOUNTAIN VIEW, CA 94041 FIRST NAMED INVENTOR Matthew L. Ginsberg 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. 30550-21164 8177 EXAMINER YACOB, SISAY ART UNIT PAPER NUMBER 2685 NOTIFICATION DATE DELIVERY MODE 05/11/2018 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): PTOC@Fenwick.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHEW L. GINSBERG, PAMELA D. KINION, and STEWART L. MONES Appeal2017-002865 Application 13/542,938 Technology Center 2600 Before JOSEPH L. DIXON, JOHN P. PINKERTON, and NORMAN H. BEAMER, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL 1 1 Appellants identify Green Driver, Inc. as the real party in interest. App. Br. 3. Appeal2017-002865 Application 13/542,938 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-15, 21-35, and 47---61. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. The claims are directed to a driver safety enhancement using intelligent traffic signals and GPS. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A safety system, comprising: a vehicle route subsystem configured to receive, via the Internet from a device within the vehicle, position data associated with the vehicle, and determine, based on the position data, a predicted time of arrival of a vehicle at a traffic control; a database geographically separated from both the vehicle and the traffic control and configured to store traffic control data; a traffic control interaction subsystem in operative communication with the database and the vehicle route subsystem, the traffic control interaction subsystem configured to predict a state of the traffic control at the time of arrival responsive to the traffic control data; and a user device interaction subsystem configured to generate a prediction that the vehicle is about to violate the traffic control based on a current dynamic of the vehicle, a current distance from the vehicle to the traffic control, and the predicted state of the traffic control at the time of arrival, the user device interaction subsystem further configured to provide a warning, via the Internet, at a device proximate the traffic control that the vehicle is about to violate the traffic control. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Sasaki et al. us 5,940,010 Aug. 17, 1999 2 Appeal2017-002865 Application 13/542,938 Poltorak Terui Baney Tamir et al. Chen et al. US 2003/0128135 Al US 2004/0189489 Al US 2005/0187701 Al US 2007 /0027583 Al US 2007 /0222638 Al REJECTIONS The Examiner made the following rejections: July 10, 2003 Sept. 30, 2004 Aug. 25, 2005 Feb. 1, 2007 Sept. 27, 2007 The rejection of claims 49 and 52 under 35 U.S.C. § l 12(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite has been withdrawn in response to applicant's amendments. (Final Act. 2). Claims 1-8 and 21-28 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-16 of co-pending Application No. 13/352,013. (Final Act. 3). 2 Claims 1-3, 5, 6, 8, 10, 11, 21-23, 25, 26, 28, 30, 31, 47, 48, 50, 51, 53-55, and 57---61 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Poltorak in view of Sasaki and further in view of Terui. Claims 4 and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Poltorak in view of Sasaki and further in view of Terui further in view of Tamir. Claims 7, 27, 49, and 52 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Poltorak in view of Sasaki and further in view of T erui and further in view of Chen. 2 We note that Application No. 13/352,013 was abandoned on May 15, 2014. Therefore, there is only a single pending application and no double patenting in fact. As a result, the rejection is moot. 3 Appeal2017-002865 Application 13/542,938 Claims 9, 12-15, 29, 32-35, and 56 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Poltorak in view of Sasaki and further in view of Terui and further in view of Baney. ANALYSIS At the outset, we note that Appellants have not filed a Reply Brief to respond to the Examiner's clarifications and new citations of the rejections made in the Examiner's Answer. (See Ans. 3). Independent claims 1, 21, 5 3, and 5 9 With respect to independent claims 1, 21, 53, and 59, Appellants rely on the same arguments for patentability and do not set forth separate arguments for patentability. (App. Br. 12). As a result, we select independent claim 1 as the representative claim for the group and will address Appellants' arguments thereto. With respect to representative independent claim 1, Appellants contend: Specifically, use of the Internet for communications is advantageous in that it allows existing, ubiquitous, devices such as smartphones to be used both to provide vehicle position information and to provide warnings. A constraint imposed by use of the Internet, however, is that the system endures natural latency inherent in Internet communications as a result. Thus, approaches taught or suggested by the cited references may not be usable in an Internet-based system or method as set forth in the claims of this application. None of the cited references teach or suggest to use the combination of position data, prediction, and Internet communications as set forth in the claims of this application. 4 Appeal2017-002865 Application 13/542,938 (App. Br. 8). Appellants further contend that the Poltorak, Sasaki, and Terui references do not disclose the claimed "providing a warning, via the Internet . .. that the vehicle is about to violate the traffic control." (App. Br. 8-11). The Examiner further clarifies the grounds of the rejection and identifies that the Poltorak reference teaches and fairly suggests the use of the Internet, and the Sasaki reference teaches the prediction and communication of the prediction to provide a warning, and the Terui reference teaches a prediction as a vehicle is approaching a traffic control. (Ans. 4--7). We agree with the Examiner that the Examiner has shown all of the claimed elements are taught or suggested by the three prior art references, and the Examiner has provided a motivation for the combination. (Final Act. 8-13). Moreover, we find Appellants' general argument that the prior art does not disclose providing a warning via the Internet does not show error in the Examiner's factual findings or conclusion of obviousness because the prior art clearly teaches and suggests the use of the Internet as a mode of communication in various embodiments. Additionally, Appellants have not identified any other claim language with which to distinguish or differentiate the claimed invention from the combination of teachings of the prior art references. Furthermore, we find Appellants' general arguments as to the inherent latency of the Internet does not teach or suggest away from the use of the Internet. (App. Br. 8). Nor does the language of claim 1 identify any facets of the claimed system or method which would preclude the use of the Internet, as Appellants generally contend. As a result, Appellants' 5 Appeal2017-002865 Application 13/542,938 arguments do not show error in the Examiner's factual findings or conclusion of obviousness of claim 1. Dependent claims Appellants provide a brief discussion of the additional prior art references and contend that the Tamir, Chen, and Baney references do not teach or suggest "provide a warning, via the Internet, at a device proximate the traffic control that the vehicle is about to violate the traffic control." (App. Br. 11-12). Appellants further contend "Claims 2-15, 22-35, 47-52, 54--58, 60, and 61 all depend from one of claims 1, 21, 53, and 59. Accordingly, the arguments made above with reference to claim 1 are equally applicable to these claims." (App. Br. 12). We disagree with Appellants because we do not find any error in the Examiner's factual findings or conclusion of obviousness of claim 1, and therefore, we similarly find no error in the Examiner's obviousness rejection of the dependent claims. Dependent claims 14 and 34 Appellants present separate arguments for dependent claims 14 and 34. (App. Br. 12-13). Specifically, Appellants contend that dependent claim 14 recites "providing the warning is responsive to a driver-specific parameter that is based on historical data describing the driver's driving behavior." Appellants contend that the portions of the Baney reference identified by the Examiner disclose the "traffic communication system 300 transmits and receives information about a traffic network" (emphasis 6 Appeal2017-002865 Application 13/542,938 omitted), but does not disclose any "historical data describing the driver's driving behavior." (App. Br. 13). The Examiner merely presents the same discussion of the Baney reference as set forth in the statement of the rejection in the Final Office Action. (Ans. 9). From our review of the portions of the Baney reference identified by the Examiner, we find no disclosure or suggestion of using historical data to provide the warning. As a result, Appellants have shown error in the Examiner's underlying factual findings and conclusion of obviousness of dependent claims 14 and 34, and we cannot sustain the obviousness rejection. 3 CONCLUSIONS We find the obviousness-type double patenting rejection of claims 1- 8 and 21-28 is moot due to the abandonment of application 13/352,013. The Examiner did not err in rejecting claims 1-15, 21-35, and 47---61 for obviousness under 35 U.S.C. § 103. The Examiner erred in rejecting claims 14 and 34 for obviousness under 35 U.S.C. § 103. 3 Although we find no support for the Examiner's rejection in the Baney reference, we leave it to the Examiner to further consider the other prior art of record in any further prosecution on the merits. We note that the Tamir reference in paragraphs 34, 212, and 373 discloses the use of the history of the road, driving history of the vehicle, and identity and driving history of the driver. 7 Appeal2017-002865 Application 13/542,938 DECISION For the above reasons, we reverse the Examiner's obviousness-type double patenting rejection due to the abandonment of the related application; we affirm the Examiner's obviousness rejections of claims 1-13, 15, 21-33, 35, and 47---61under35 U.S.C. § 103; and, we reverse the Examiner's obviousness rejection of claims 14 and 34 under 35 U.S.C. § 103. 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 8 Copy with citationCopy as parenthetical citation