Ex Parte Handley

Patent Trial and Appeal Board

Nov 28, 2018

13563001 (P.T.A.B. Nov. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/563,001 07/31/2012
145893 7590 11/30/2018
FOX ROTHSCHILD LLP / CONDUENT
PRINCETON PIKE CORPORATE CENTER
997 LENOX DRIVE
BLDG. #3
LAWRENCEVILLE, NJ 08648
FIRST NAMED INVENTOR
John C. Handley
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.
20120359USNP/166552.3800 6472
EXAMINER
NGUYEN, NGA B
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
11/30/2018 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):
ipdocket@foxrothschild.com
Conduent.PatentDocketing@conduent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN C. HANDLEY
Appeal2017-009271
Application 13/563,001 1
Technology Center 3600
Before CARLA M. KRIVAK, HUNG H. BUI, and JON M. JURGOV AN,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1---6, 8-13, 15-18, and 20-22, which are
all the claims pending in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM. 2
1 According to Appellant, the real party in interest is Xerox Corporation.
App. Br. 3.
2 Our Decision refers to Appellant's Appeal Brief ("App. Br.") filed
December 19, 2016; the Reply Brief ("Reply Br.") filed June 21, 201 7;
Examiner's Answer ("Ans.") mailed April 21, 2017; Final Office Action
("Final Act.") mailed June 13, 2016; and original Specification ("Spec."),
filed July 31, 2012.
Appeal2017-009271
Application 13/563,001
STATEMENT OF THE CASE
Appellant's invention relates to a method and system "for identifying
factors that contribute to schedule deviation in a transportation system" by
"collecting operating information for a vehicle along a transportation route"
using "a computer aided dispatch/automated vehicle location (CAD/ A VL)
system," and "determining schedule deviation information" and "factors that
most contribute[] to schedule deviation," using the operating information.
Spec. ,r 21, Abstract.
Claims 1, 8, and 15 are independent. Claim 1 illustrates Appellant's
invention, as reproduced below:
1. A method of identifying factors that contribute to schedule
deviation in a transportation system, the method comprising:
by a computer aided dispatch/automated vehicle location
system, using a global positioning system to determine location
data of vehicles in a transportation system;
collecting, at a processing device from the computer aided
dispatch/automated vehicle location system, historic operating
information of a vehicles[ sic] in the transportation system
including time and the location data determined by the computer
aided dispatch/automated vehicle location system the[ sic] related
to previous operation of a vehicle along a transportation route;
determining, by the processing device, schedule deviation
information for the vehicle along the transportation route based
upon the historic operating information;
determining, by the processing device, effects of a driver
of the vehicle and a sequence number of the route for a period of
time associated with the historic operating information as factors
that contributed to the schedule deviation;
constructing, by the processing device, a plurality of
models, wherein each of the plurality of models includes at least
one combination of the factors that contribute to the schedule
deviation;
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ranking, by the processing device, each of the plurality of
models according to at least one information criterion;
assessing, by the processing device, an impact of the driver
and the sequence number on a highest ranked model to produce
a results set, wherein the results set comprises at least a highest
ranked model showing at least one combination of factors that
most contributes to schedule deviation;
suggesting, by the processing device, an action to be taken
to reduce the schedule deviation based on the results set, wherein
the action comprises providing the driver with additional driver
training, adjusting the driver's compensation, or driver
termination; and
presenting, by the processing device, the results set.
App. Br. 22-29 (Claims App.).
Evidence Considered
Levis et al. US 2006/0235739 Al Oct. 19, 2006
("Levis")
Zhong et al. US 2010/0088146 Al Apr. 8, 2010
("Zhong")
Yiicel et al. US 2013/0046526 Al Feb.21,2013
("Yiicel")
Examiner's Rejections
(1) Claims 1---6, 8-13, 15-18, and 20-22 stand rejected under
35 U.S.C. § 101 because the claimed invention is directed to non-statutory
subject matter. Final Act. 3-5.
(2) Claims 1---6, 8-13, 15-18, and 20-22 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over Zhong, Yiicel, and Levis.
Final Act. 6-18.
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ANALYSIS
35 U.S.C. § 1 OJ Rejection of
Claims 1-6, 8-13, 15-18, and 20-22
In Alice Corp. Proprietary v. CLS Bank International, 134 S. Ct. 2347
(2014), the Supreme Court reiterates an analytical two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 79 (2012), "for distinguishing patents that
claim laws of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts." Alice, 134 S. Ct. at
2355. The first step in the analysis is to "determine whether the claims at
issue are directed to one of those patent-ineligible concepts," such as an
abstract idea. Id. If the claims are directed to eligible subject matter, the
inquiry ends. Thales Visionix Inc. v. United States, 850 F.3d 1343, 1349
(Fed. Cir. 2017); Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed.
Cir. 2016). If the claims are directed to a patent-ineligible concept, the
second step in the analysis is to consider the elements of the claims
"individually and 'as an ordered combination"' to determine whether there
are additional elements that "'transform the nature of the claim' into a
patent-eligible application." Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S.
at 78). In other words, the second step is to "search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Id. (citing Mayo, 566 U.S. at 72).
In rejecting independent claims 1, 8, and 15, and dependent claims 2-
6, 9-13, 16-18, and 20-22 under 35 U.S.C. § 101, the Examiner finds these
claims are directed to "identifying factors that contribute to schedule
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deviation in transportation" by "collecting, determining, constructing,
ranking, assessing, suggesting, and presenting data"-an abstract idea
similar to data gathering and manipulation techniques previously identified
by the courts. Final Act. 3--4 (citing Cyberfone Sys., LLC v. CNN Interactive
Grp., Inc., 558 F. App'x 988 (Fed. Cir. 2014); SmartGene, Inc. v. Advanced
Biological Labs., SA, 852 F. Supp. 2d 42 (D.D.C. 2012), aff'd 555 F. App'x
950 (Fed. Cir. 2014)).
The Examiner also finds the claimed "computer aided
dispatch/automated vehicle location system, using a global positioning
system" is well-known, and the claims' "[g]eneric computers perform[]
generic computer functions" of "collecting, determining, constructing,
ranking, assessing, suggesting, and presenting information." Final Act. 4--5;
Ans. 20. As such, the Examiner determines the claims do not amount to
significantly more than the abstract idea. Final Act. 4--5.
Appellant argues the independent claims together. App. Br. 8, 10, 12-
13. We select claim 1 as representative at points in our discussions herein.
Independent claims 8 and 15, and dependent claims 2-6, 9-13, 16-18, and
20-22 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
Alice/Mayo-Step 1
Turning now to the first step of the Alice inquiry, Appellant contends
the claims are not directed to an abstract idea because the claims are similar
to the claims in Amdocs. App. Br. 8, 10 (citing Amdocs (Israel) Ltd. v.
Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016)). Particularly,
Appellant argues the claims provide "an improvement over the prior art,"
with "a technological solution (i.e., analyzing actual data regarding past
schedule deviations to identify the causes) to a technological problem
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( deviations from schedules) specific to a transportation system." App. Br.
10. Appellant also argues the claims are patent-eligible for reasons similar
to those in McRO and BASCOM-particularly because Appellant's claims
"allow computers to determine why particular vehicles in a transportation
system are deviating from their planned schedules," and "recite a specific,
discrete implementation" for assessing historic operating information and
determining schedule deviation causes. App. Br. 10-11 (citing McRO, Inc.
v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016);
BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016)).
We are not persuaded by Appellant's arguments. At the outset, we
note Appellant's reliance on BASCOM and Amdocs to determine whether the
claims are directed to an abstract idea under Alice step 1 is misplaced. In
both these cases the precise nature of BASCOM's claims and Amdocs 's
claims was unknown and was not straightforward. Thus, the Federal Circuit
opted to bypass Alice step 1 in favor of Alice step 2. Nevertheless, we find
Appellant's claims and Specification do not describe technological
improvements similar to McRO, Amdocs, or BASCOM. Ans. 21-22.
Particularly, the court determined that McRO's claim was not directed to an
abstract idea because it "uses the limited rules in a process specifically
designed to achieve an improved technological result" over "existing,
manual 3-D animation techniques." In contrast, Appellant's claim 1
processes historic operating information to identify driver contributions to
schedule slippage average, and suggest changes to driver's habits or
compensation. See McRO, 837 F.3d at 1299, 1316; Spec. ,r,r 1, 27, 35. We
are not persuaded that Appellant's claimed constructing and ranking models,
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and identifying factors that contribute most to schedule deviation, describe a
technological improvement as advocated by Appellant. See App. Br. 10-11.
Additionally, claim 1 's steps are broadly claimed and do not specify or
impose bounds on the "plurality of models ... includ[ing] at least one
combination of the factors that contribute to the schedule deviation," ranking
"according to at least one information criterion," or assessing "an impact of
the driver and the sequence number on a highest ranked model." See App.
Br. 22-23 (Claims App.).
In contrast to Appellant's claim 1, the claims inMcRO were drawn to
improvements in the operation of a computer performing a task, rather than
applying a computer system to perform known data storing and processing
steps. See McRO, 837 F.3d at 1314. Particularly, McRO's claims and
Specification employ "rules that define output morph weight set stream as a
function of phoneme sequence and time of said phoneme sequence" to
"achieve an improved technological result." See McRO, 837 F.3d at 1310,
1316. McRO's improved technological result allows "computers to produce
'accurate and realistic lip synchronization and facial expressions in animated
characters' that previously could only be produced by human animators."
See McRO, 837 F.3d at 1313. The claims in Amdocs concerned network
components "arrayed in a distributed architecture" that "collect[ ed] and
process[ed] data close to its source," and thereby "enable[d] load
distribution" and reduced network congestion. See Amdocs, 841 F.3d at
1291-92, 1300, 1303, 1306. As such, Amdocs' claims "entail[] an
unconventional solution ( enhancing data in a distributed fashion) to a
technological problem (massive record flows which previously required
massive databases)" and "improve the performance of the system itself." Id.
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at 1302. Finally, BASCOM's patent-eligible ordered combination of claim
limitations contains an "inventive concept [that] harnesses [a] technical
feature of network technology in a filtering system by associating individual
accounts with their own filtering scheme and elements while locating the
filtering system on an ISP [Internet Service Provider] server." Thus
"improv[ing] the performance of the computer system itself' with a
"technology-based solution ... to filter content on the Internet that
overcomes existing problems with other Internet filtering systems." See
BASCOM, 827 F.3d at 1350-52.
Here, Appellant has not provided evidence that the claims achieve an
improvement in computer functionality, data storage and access, or
communication networks. Ans. 21-22. For example, none of the steps
recited in claim 1 provide, and nowhere in Appellant's Specification can we
find, any description or explanation as to how the claimed "determining,"
"constructing" and "ranking" models, "assessing," and "suggesting" steps
are intended to provide: (1) a "solution ... necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks," as explained by the Federal Circuit in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014);
(2) "a specific improvement to the way computers operate," as explained in
Enfzsh, 822 F.3d at 1336; (3) an "unconventional technological solution ...
to a technological problem" that "improve[ s] the performance of the system
itself," as explained in Amdocs, 841 F.3d at 1302; or (4) "a technology-based
solution ... to filter content on the Internet that overcomes existing
problems with other Internet filtering systems" and "improve[ s] an existing
technological process" as explained in BASCOM, 827 F.3d at 1351.
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We are also unpersuaded by Appellant's argument that claim 1 is not
abstract because it is a "concrete or tangible application" that "collect[ s]
specific types of data ... using specific equipment ( a computer aided
dispatch/automated vehicle location system) to produce specific results (at
least one combination of factors that most contributes to schedule deviation
in a transportation system)." App. Br. 9. As the Supreme Court emphasized
in Bilski, "although the machine-or-transformation test is not the only test
for patentability, this by no means indicates that anything which produces a
'useful, concrete, and tangible result,' State Street Bank & Trust Co. v.
Signature Financial Group, Inc., 149 F.3d 1368, 1373 (CA Fed. 1998), is
patentable." Bilski v. Kappas, 561 U.S. 593, 658---660 (2010) (Breyer, J.,
concurring). Thus, "not every claim that recites concrete, tangible
components escapes the reach of the abstract-idea inquiry." In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016).
Additionally, Appellant's claimed CAD/AVL and processing device merely
collect information "for permitting a solution to be achieved more quickly,
i.e., through the utilization of a computer for performing calculations." Ans.
20; see Bancorp Services, L.L. C. v. Sun Life Assurance Co. of Canada
(US.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) ("the fact that the required
calculations could be performed more efficiently via a computer does not
materially alter the patent eligibility of the claimed subject matter."); and
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012)
("Simply adding a 'computer aided' limitation to a claim covering an
abstract concept, without more, is insufficient to render [a] claim patent
eligible.") ( citation omitted).
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Appellant next argues the Examiner's "assertion, without any case law
support, that the claims are directed to an abstract idea is deficient," because
"some evidentiary support is required for an abstract idea determination."
Reply Br. 3--4, 6 (citing Ex parte Renald Poisson, Appeal No. 2012-011084
(PTAB 2015) (where the Board held that absent supporting evidence in the
record, the Examiner's opinion is an inadequate finding of fact on which to
base the Alice analysis)).
Appellant's argument is not persuasive. First, we note the Examiner
did cite court decisions identifying data gathering and manipulation
techniques as abstract ideas. Final Act. 3--4 ( citing Cyberfone and
SmartGene). We agree with the Examiner that the claims are directed to
collecting, analyzing, and presenting information-an abstract idea similar
to data gathering and processing techniques previously identified by the
courts. Final Act. 3--4; Ans. 21; see also Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat 'l Ass 'n, 776 F.3d 1343, 1347-
48 (Fed. Cir. 2014) (finding "[t]he concept of data collection, recognition,
and storage is undisputedly well-known," and "humans have always
performed these functions"); Digitech Image Techs., LLC v. Elecs. for
Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (employing
mathematical algorithms to manipulate existing information); and Electric
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)
( collecting information and "analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, [are]
essentially mental processes within the abstract-idea category").
Second, patent eligibility under 35 U.S.C. § 101 is a question of law
that is reviewable de nova. See Dealertrack, 674 F.3d at 1333. We are
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aware of no controlling authority that requires the Office to provide factual
evidence under step one of the Alice framework to support a determination
that a claim is directed to an abstract idea. Instead, the Federal Circuit has
repeatedly noted that "the prima facie case is merely a procedural device that
enables an appropriate shift of the burden of production." Hyatt v. Dudas,
492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992)). The court has held that the USPTO carries its
procedural burden of establishing a prima facie case when its rejection
satisfies the requirements of 35 U.S.C. § 132 by notifying the applicant of
the reasons for rejection, "together with such information and references as
may be useful in judging of the propriety of continuing the prosecution of
[the] application." In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). Thus,
all that is required of the Office is that it set forth the statutory basis of the
rejection in a sufficiently articulate and informative manner as to meet the
notice requirement of 35 U.S.C. § 132. Id., see also Chester v. Miller, 906
F.2d 1574, 1578 (Fed. Cir. 1990) (Section 132 "is violated when [t]he
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection.").
Accordingly, we agree with the Examiner claims 1, 8, and 15 are
directed to an abstract idea.
Alice/Mayo-Step 2 (Inventive Concept)
Appellant also alleges the claims "require significantly more than the
abstract idea" in the form of "non-abstract limitations such as the ...
CAD/A VL[] system using a global positioning system (GPS), to determine
location data of vehicles in a transportation system." App. Br. 11-12.
Appellant argues the claims' "specific hardware (a CAD/AVL system) that
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uses a GPS system to track vehicles in a transportation system" is "integral
to the operation of the system." App. Br. 12-13.
Appellant's arguments are not persuasive. As the Examiner shows,
the claimed "processing device" and "[CAD/ A VL] system, using a global
positioning system to determine location data of vehicles in a transportation
system" are generic computing elements previously known in the industry
for collecting data ( e.g., vehicle location data) and processing such data.
Ans. 19-20; see also Spec. ,r,r 2, 17, 52-53. 3 Appellant has not
demonstrated their claimed "computer aided dispatch/automated vehicle
location system" (CAD/ A VL) is able to perform functions that are not
merely generic for a CAD/AVL system. See DDR Holdings, 773 F.3d at
1257-58. Appellant argues "[the] claims require using specific hardware"
including a "CAD/ A VL[] system (rather than a general purpose computing
device), along with a global positioning system." Reply Br. 5-6. Claim 1,
however, merely requires a CAD/ A VL using a GPS to determine and collect
operating information of vehicles-a function typically performed by
conventional CAD/ A VL systems. See Spec. ,r 2; Ans. 19-20. Claim 1 also
does not recite a specific improvement in the technical functioning of a
CAD/ A VL. Ans. 20. Claim 1 merely performs analysis of collected vehicle
information using a generically claimed processing device. Under similar
circumstances, our reviewing court has held patent claims ineligible. See
3 A computer aided dispatch/automated vehicle location (CAD/AVL) system
using GPS to determine location data of vehicles is conventional technology
known to one skilled in the art of transportation systems. See, e.g., Asad J.
Khattak and Mark Hickman, Automatic Vehicle Location and Computer-
Aided Dispatch Systems: Design and Application Considerations, Journal of
Public Transportation, 2(1 ): 1-26 (1998).
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Amdocs, 841 F.3d at 1301---02 (summarizing cases in which claims were
found to be ineligible subject matter); see also In re TL! Communications,
823 F .3d at 615 ("Such vague, functional descriptions of server components
are insufficient to transform the abstract idea into a patent-eligible
invention."). "[T]he use of generic computer elements like a microprocessor
or user interface" to perform conventional computer functions "do not alone
transform an otherwise abstract idea into patent-eligible subject matter."
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir.
2016) (citing DDR Holdings, 773 F.3d at 1256).
Further, with respect to Appellant's preemption argument (App. Br.
11 ), we note the McRO court explicitly "recognized that 'the absence of
complete preemption does not demonstrate patent eligibility."' See McRO,
837 F.3d at 1315 (quoting Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788
F.3d 1371, 1379 (Fed. Cir. 2015)). "Where a patent's claims are deemed
only to disclose patent ineligible subject matter" under the Alice/Mayo
framework, "preemption concerns are fully addressed and made moot."
Ariosa, 788 F.3d at 1379.
Accordingly, claims 1, 8, and 15, when considered "both individually
and 'as an ordered combination,"' amount to nothing more than an attempt
to patent the abstract idea embodied in the steps of the claims. See Alice,
134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 78).
Because we agree with the Examiner's analysis and find Appellant's
arguments insufficient to show error, we sustain the Examiner's§ 101
rejection of independent claims 1, 8, and 15, and dependent claims 2---6, 9--
13, 16-18, and 20-22, for which no separate arguments are provided.
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§ 103(a) Rejection of Claims 1, 8, and 15
With respect to independent claim 1, the Examiner finds Zhong's
route planning method optimizing driver selection based on drivers'
familiarity with a route identifies factors that contribute to a vehicle's
schedule deviation based on historic operating information of the vehicle,
including time and the location data related to the vehicle's previous
operation, the same as recited in claim 1. Final Act. 6-8 ( citing Zhong
,r,r 4 7, 49, 106, 167, 170, 180, 277, Fig. 2). The Examiner further finds
Zhong determines effects of a driver and route sequence number on schedule
deviation, constructs models including factors that contribute to schedule
deviation, assesses an impact of the driver and sequence number on a highest
ranked model, and suggests an action to be taken to reduce schedule
deviation, as claimed. Final Act. 8-11.
The Examiner also relies on: (1) Yiicel for teaching an action to be
taken comprises "providing the driver with additional driver training" or
"adjusting the driver's compensation"; and (2) Levis for teaching the
claimed "using a global positioning system to determine location data of
vehicles in a transportation system" by "a computer aided
dispatch/automated vehicle location system" (central dispatch system 208 in
Levis' Fig. 2, and dispatch manager system in Fig. 4), and collecting "time
and location data determined by the computer aided dispatch/ automated
vehicle location system," as claimed. Final Act. 12-14 (citing Yiicel ,r,r 15,
22, 81, 86, Fig. 11; Levis ,r,r 46, 154, Figs. 2, 4, and 8); Ans. 25.
Appellant disputes the Examiner's factual findings regarding Zhong,
Yiicel, and Levis. In particular, Appellant argues "[ n ]othing in Levis,
whether taken alone or in combination with Zhong and Yiicel, suggests
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collecting historical GPS location data for a vehicle and using that
information to determine schedule deviation information for the vehicle."
App. Br. 15. Rather, Levis merely collects "a set of GPS coordinates for
various stops on a route, not GPS data for vehicles as received from a GPS
system." App. Br. 15 (citing Levis, Fig. 8). Appellant also argues the
Examiner's combination of Zhong, Yiicel, and Levis is improper because the
"three disparate references ... have nothing to do with the problem of
schedule deviation." Reply Br. 7. Rather, "Zhong is directed to a system
that determines which driver should be assigned to a particular
transportation route ( with the goal of improving a driver's familiarity with
the route) .... [which] has nothing to do with schedule deviation"; and "the
goals of Yuvel [sic] [ optimizing fuel consumption, with a focus on engine
throttle and torque] are often at odds with Appellant's claims' goal of
minimizing schedule deviation." Id.
We do not find Appellant's arguments persuasive. Rather, we find the
Examiner has provided a comprehensive response to Appellant's arguments
supported by a preponderance of evidence. Ans. 23-28. Therefore, we
adopt the Examiner's findings and explanations provided therein. Id. For
additional emphasis, we note claim 1 's "historic operating information of a
vehicles [sic] in the transportation system" does not exclude "a set of GPS
coordinates for various stops" of the vehicle on a route, as Appellant
advocates. See App. Br. 15. Claim 1 recites "historic operating information
of a vehicle[] ... include[s] time and the location data determined by the
computer aided dispatch/automated vehicle location [CAD/ A VL] system"
using "a global positioning system," the "location data ... related to
previous operation of a vehicle along a transportation route." See App. Br.
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22 (Claim 1 ). That is, claim 1 requires the "historic operating information"
to include "time and the location data" that are (i) "related to previous
operation of a vehicle along a transportation route" and (ii) determined by
the CAD/ A VL system using a global positioning system. See App. Br. 22
(Claim 1 ). Levis' set of GPS coordinates designating the vehicle's stops on
a route are commensurate with Appellant's broadly claimed "location data
... related to previous operation of a vehicle along a transportation route."
Particularly, Levis' "GPS Coordinate location data [in Historical Dispatch
Plan Data 118] typically indicates a longitude and latitude coordinate for
each location" served by a delivery vehicle (i.e., to deliver or pick up a
package), and Levis' "Average Arrival Time data ... reflects a historical
moving average of the [vehicle's] arrival time for that location." See Levis
,r,r 83, 154--155, Fig. 8. Levis' GPS Coordinate location data (of stops) is
determined by a CAD/ A VL system ( central dispatch system 208 and
dispatch manager system 45) using a GPS device (in the driver's portable
computing device communicating with the CAD/ A VL ), as required by claim
I. See Levis ,r,r 46-47, 50, 100, 154. Additionally, Levis' CAD/AVL
system receives historical GPS location data for a vehicle's movement
between stops. See Levis ,r,r 47, 100, 134, Fig. 14.
Thus, Levis teaches collecting "historic operating information of a
vehicle[]" including "time and the location data determined by the computer
aided dispatch/automated vehicle location system" using "a global
positioning system," as claimed.
Levis also uses the collected vehicle's historical GPS location data to
determine schedule deviation information for the delivery vehicle (e.g.,
package delivery or pickup outside "a certain limit ( e.g., 10 minutes) of an
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average time for that location ... considered 'on-time"'), as recited in claim
I. See Levis ,r 155, see also ,r,r 90, 100-101, 130-133; Final Act. 13-14.
Thus, Levis teaches "determining ... schedule deviation information for the
vehicle along the transportation route based upon the historic operating
information," as recited in claim 1.
We are also not persuaded by Appellant's argument that "the
Examiner has pieced together three disparate references that have nothing to
do with the problem of schedule deviation." Reply Br. 7. As the Examiner
finds, Zhong, like Levis, is concerned with schedule deviation from "specific
pickup times or guaranteed delivery time" promised by a delivery service
provider, and is concerned with the causes of schedule deviation (such as
driver's unfamiliarity with a route). See Zhong ,r,r 3, 6, 79, 92, 120, 158,
323, Abstract; Final Act. 7-12. We also remain unpersuaded by Appellant's
argument that "the goal of claim 1 (reducing schedule deviation in a public
transportation system) and the goal of Yucel ( optimizing fuel efficiency) are
often incompatible." App. Br. 17. Instead, we agree with the Examiner that
Yiicel's "evaluating driver performance, providing the driver with additional
driver training, and adjusting the driver's compensation" would improve
Zhong' s route planning and assignment method by encouraging drivers to
improve their performance. Ans. 27-28. Additionally, Yiicel optimizes fuel
efficiency by analyzing "logged time series of dynamically changing
variables, such as those variables found in FIG. 1-10 .... show[ing] in detail
how both driver and vehicle may perform under given circumstances," the
circumstances including schedule constraints (such as "time for completing
the route.") See Yiicel ,r,r 6, 25, Abstract. Thus, Yiicel's quest for
optimizing fuel efficiency can identify factors that contribute to schedule
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deviation (e.g., driver's suboptimal use of the accelerator), as claim 1
requires. See Yiicel ,r,r 6-8, 12, 19, 25, 28, 115.
In light of the broad terms recited in claim 1 and the arguments
presented, Appellant has failed to clearly distinguish the claimed invention
over the prior art relied on by the Examiner. Thus, we are not persuaded the
Examiner erred and sustain the Examiner's § 103 rejection of independent
claim 1, and independent claims 8 and 15 argued for substantially the same
reasons. App. Br. 20.
§ 103 (a) Rejection of Claims 2, 9, and 16
Appellant contends "[ n Jo mention is made of the order of stops, nor
dies [sic] Zhang[sic] utilize a sequence number," and therefore "Zhong fails
to teach that a sequence number comprises an order of stops" as recited in
claim 2. App. Br. 18.
We do not agree. Rather, we agree with the Examiner that Zhong
takes into account an order of stops along a route (i.e., a sequence number)
when analyzing schedule deviation of a package delivery vehicle. See
Zhong ,r,r 47--48, 277, 309-310 ("The Intra-route Exchange procedure
attempts to re-order the stop sequence within a given route in order to
achieve better route cost. ... [T]he best route cost has the shortest total route
duration, within the maximum workday duration constraint"), Fig. 2; Ans.
28-29.
Accordingly, we sustain the Examiner's§ 103 rejection of claim 2, as
Appellant's arguments have not persuaded us of error in the Examiner's
rejection. We also sustain the Examiner's rejection of claims 9 and 16,
reciting similar features and argued together with claim 2. App. Br. 20.
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§ 103(a) Rejection of Claims 3, 10, and 17
Appellant contends Zhong only teaches use of a "Complex Hull
Algorithm," which is not a regression analysis as required by claim 3. App.
Br. 18. The Examiner, however, finds that Yiicel teaches regression
modeling is known in the transportation field. Ans. 29--30 ( citing Yiicel
,r,r 29, 114); see Yiicel ,r,r 29 ("Techniques familiar to practitioners of the
statistical arts can use such data to make various kinds of forecasts and
predictions. Such techniques include regression"), 114 ("Various statistical
methods can be used to make such predictions based on observations such as
those collected by the trip dynamics logger 1361 regarding state of vehicles
1300 and their components, route, and environment. ... Examples of such
prediction methods include regression").
Accordingly, we sustain the Examiner's § 103 rejection of claim 3, as
Appellant's arguments have not persuaded us of error in the Examiner's
rejection. We also sustain the Examiner's rejection of claims 10 and 17,
reciting similar features and argued together with claim 3. App. Br. 20.
§ 103(a) Rejection of Claims 4, 11, and 18
The Examiner finds "Zhong' s method uses Empirical data.
experience, and historical route data (Generalized Information Criterion) to
assist a route planner," and therefore Zhong teaches the "Generalized
Information Criterion" recited in claim 4. Ans. 30 (citing Zhong ,r 139);
Final Act. 15-16.
Appellant argues Zhong does not teach "[a]n 'Information Criterion,'
[which] is a selection criterion for sorting statistical models by their
effectiveness" and mentions none of a Bayesian Information Criterion,
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Akaike' s Information Criterion, Deviance Information Criterion, and
Generalized Information Criterion as recited in claim 4. App. Br. 18-19.
We are not persuaded by Appellant's arguments. The information criteria
recited in claim 4 are known in the art, as evidenced by Appellant's
Specification. See Spec. ,r 34. 4 Accordingly, we sustain the Examiner's
§ 103 rejection of claim 4, and claims 11 and 18 reciting similar limitations.
§ 103(a) Rejection of Claims 5 and 12
Appellant contends "Zhong does not endeavor to describe the
dependency between a driver and/or an order of stops (sequence number) on
deviations from a schedule," as required by claim 5. App. Br. 19.
We do not agree. Rather, we agree with the Examiner that Zhong
identifies the driver and the sequence number as factors contributing to
schedule deviation, as required by claim 5 and its base claim 1. Ans. 31
(citing Zhong ,r,r 47, 68); see also Zhong ,r,r 76 ("Driver familiarity is
optimal when a driver travels the same route every day"), 119-120
("Consistent routes have both tangible and intangible benefits. A driver
familiar with a route spends less time finding addresses and offices, and
less time researching maps and directions"), 277, 309.
4 Appellant's Specification provides "[i]t should be noted that other
information criteria for model ranking are known in the art and may be
employed in place ofBIC[, t]hese include, but are not limited to, Akaike's
Information Criterion (AIC) and Deviance Information Criterion (DIC)."
See Spec. ,r 34; see also
httns://www.tandfonline.com/doi/abs/10. 1198/jasa.2009.tm08013
( describing a generalized information criterion).
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Accordingly, we sustain the Examiner's§ 103 rejection of claim 5, as
Appellant's arguments have not persuaded us of error in the Examiner's
rejection. We also sustain the Examiner's rejection of claim 12, reciting
similar features and argued together with claim 5. App. Br. 20.
§ 103 (a) Rejection of Claims 6 and 13
The Examiner finds Zhong's paragraphs 74, 139, and 170 teach a
"results set, which comprises the suggested actions to be taken to reduce
schedule deviation, is determined based upon the historic operating
information and observed schedule adherence for the vehicle," as recited in
claim 6. Ans. 32 (citing Zhong ,r,r 74, 139, and 170); Final Act. 16.
Appellant argues Zhong merely discloses "how the distance between
stops decreases as more stops are added," which does not pertain to "the
claimed suggested actions to reduce schedule deviations .... [because
Zhong' s] [ a ]dding more stops will not serve to reduce deviations from a
schedule, but will merely serve to alter the schedule." App. Br. 19.
We are not persuaded by Appellant's arguments, and agree with the
Examiner that Zhong plans a route based on driver experience and historical
route data, to reduce schedule deviations. See Zhong ,r,r 49, 120, 139, 158,
170, 323. Zhong's route planning also includes suggested actions-such as
providing drivers with additional driver training, to increase drivers'
experience with the route's details, thus reducing schedule deviations. See
Zhong ,r,r 79, 120, 290, 323.
Accordingly, we sustain the Examiner's § 103 rejection of claim 6, as
Appellant's arguments have not persuaded us of error in the Examiner's
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rejection. We also sustain the Examiner's rejection of claim 13, reciting
similar features and argued together with claim 6. App. Br. 20.
§ 103(a) Rejection of Claims 20-22
Appellant contends Zhong merely determines "if a cell should be
assigned to a core area, and the various factors that can be used to make the
evaluation .... [which] has no relationship to suggested actions that a driver
can take to reduce schedule deviations" as recited in claim 20. App. Br. 19.
We do not agree. Rather, we agree with the Examiner that Zhong
discloses a suggested action instructing a driver to skip a planned stop, in
order to reduce schedule deviation as claimed. Final Act. 18 ( citing Zhong
,r,r 183, 195, 311 ). For example, paragraphs 310 and 311 in Zhong disclose
"remov[ing] a stop from one route" (which means a driver driving that route
would skip that stop) and "insert[ing] it [the stop] into another route, to
determine if the transfer reduces the total route cost," the "route cost"
indicating the "total route duration, within the maximum workday duration
constraint." See Zhong ,r,r 310-311.
Accordingly, we sustain the Examiner's§ 103 rejection of claim 20,
as Appellant's arguments have not persuaded us of error in the Examiner's
rejection. We also sustain the Examiner's rejection of claims 21 and 22,
reciting similar features and argued together with claim 20. App. Br. 20.
CONCLUSION
On the record before us, we conclude Appellant has not demonstrated
the Examiner erred in rejecting claims 1---6, 8-13, 15-18, and 20-22 under
35 U.S.C. § 101 and§ 103(a).
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DECISION
As such, we affirm the Examiner's final rejection of claims 1---6, 8-13,
15-18, and 20-22 under 35 U.S.C. § 101 and§ 103(a).
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
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