Ex Parte HUTCHINS et al

Patent Trial and Appeal Board

Sep 25, 2018

14521505 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/521,505 10/23/2014 Maurice HUTCHINS
91959 7590 09/27/2018
GE GPO- Transportation- The Small Patent Law Group
225 S. Meramec, Suite 725
St. Louis, MO 63105
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.
276613-1 (552-0269US) 7948
EXAMINER
CHEN, ZHITONG
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
Docket@splglaw.com
gpo.mail@ge.com
john.kramerl@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAURICE HUTCHINS and
BRIAN WILLIAM SCHROECK
Appeal 2018-003547
Application 14/521,505 1
Technology Center 2600
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-15, 24, and 25, which are not all the claims pending in
the application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is General Electric
Company. App. Br. 5.
2 The Examiner has withdrawn the§ 103(a) rejections of claims 16-23.
Ans. 2.
Appeal 2018-003547
Application 14/521,505
STATEMENT OF THE CASE3
The Invention
Appellants' disclosed embodiments and claimed invention relate to
communications between vehicles in vehicle systems. Spec. I.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal ( emphases added to contested limitations):
1. A method comprising:
determining wireless message characteristics of wireless
messages communicated with first vehicles in one or more first
vehicle systems and locations along a route where the wireless
message characteristics were determined, the wireless message
characteristics and the locations determined during movement
of the one or more first vehicle systems along the route;
obtaining a size of the one or more first vehicle systems;
and
determining a signal propagation profile based on the
wireless message characteristics, the locations where the
wireless message characteristics were determined, and the size
of the one or more first vehicle systems, the signal propagation
profile representative of a relationship between the wireless
message characteristics, the size of the one or more first vehicle
systems, and the locations along the route.
3 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Oct. 2, 2017); ReplyBrief("ReplyBr.," filed Feb. 19, 2018); Examiner's
Answer ("Ans.," mailed Jan. 4, 2018); Final Office Action ("Final Act.,"
mailed Aug. 11, 2017); and the original Specification ("Spec.," filed
Oct. 23, 2014).
2
Appeal 2018-003547
Application 14/521,505
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Kumar et al. ("Kumar") US 2007 /0219682 Al Sept. 20, 2007
Smith Jr. et al. ("Smith '988") US 2010/0118988 Al May 13, 2010
Smith et al. ("Smith '856") US 2010/0204856 Al Aug. 12, 2010
Hanson et al. ("Hanson") US 2011/0009056 Al Jan. 13, 2011
Fanara US 2014/0231595 Al Aug. 21, 2014
Rejections on Appeal
Rl. Claims 1-5, 8, 9, and 11-15 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Smith '988, referred
to by the Examiner as "Smith2," and Smith '856, referred to by the Examiner
as "Smith." Final Act. 6.
R2. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Smith '988, Smith '856, and Fanara.
Final Act. 12.
R3. Claims 6, 7, 24, and 25 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Smith •988, Smith •856,
Kumar, and Hanson. Final Act. 13. 4
4 The Examiner has withdrawn Rejection R3 of claims 16-23 under 35
U.S.C. § 103(a). Ans. 2. Claims 6, 7, 24, and 25 remain rejected under
Rejection R3.
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Application 14/521,505
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 12-34) and our discretion
under 37 C.F.R. § 41.37(c)(l)(iv), we decide the appeal of obviousness
Rejection Rl of claims 1-3, 5, and 11-13 on the basis of representative
claim 1; we decide the appeal of obviousness Rejection Rl of dependent
claims 4 and 14 on the basis of representative claim 4; and we decide the
appeal of obviousness Rejection Rl of dependent claims 8, 9, and 15 on the
basis of representative claim 8.
Remaining claims 6, 7, 10, 24, and 25 in Rejections R2 and R3, not
argued separately or with specificity, stand or fall with the respective
independent claim from which they depend. 5
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellants with respect
to claims 4, 8, 9, 14, and 15 for the specific reasons discussed below.
5 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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Application 14/521,505
However, we disagree with Appellants' arguments with respect to
claims 1-3, 5-7, 10-13, 24, and 25 and, unless otherwise noted, we
incorporate by reference herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellants' arguments. We highlight and address specific
findings and arguments as follows.
1. § 103(a) Rejection Rl of Claims 1-3, 5, and 11-13
Issue 1
Appellants argue (App. Br. 19-23; Reply Br. 2-7) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Smith '856 and Smith '988 is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method that includes, inter alia, the steps of "obtaining a size
of the one or more first vehicle systems;" and "determining a signal
propagation profile based on the wireless message characteristics, the
locations where the wireless message characteristics were determined, and
the size of the one or more first vehicle systems," as recited in claim 1?
Analysis
Appellants contend, "[t]he Final Office Action recognizes that Smith
['856] does not describe obtaining a size of a vehicle system and relies on
Smith ['988] to overcome this shortcoming of Smith ['856]." App. Br. 20.
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Application 14/521,505
The Examiner modifies his findings in the Answer and finds Smith
'856's recorder 48 collects operating data and operating information,
including location, operating, and event information for the trains,
locomotives and railcars. Ans. 2-3. The Examiner specifically finds:
Smith clearly teaches that the recorder 48 is aware of
vehicle system sizes (numbers of locomotives and numbers of
railcars interposed between locomotives) and recorder 48
further records events, operating data and info e.g. loss of
signal, signal reduction, etc. (signal propagation profile
representation), at time of date and location along the route.
Appellant defines "the sizes of the vehicle systems as
lengths of the vehicle systems, the number of vehicles in the
vehicle systems, etc." (Spec. at [0016].) It is clear that addition
of the Smith locomotives and railcars yields a size of a vehicle
system or a consist configuration.
Ans. 4.
We give the contested claim limitation the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997).
Appellants' Specification describes "consist information" as
representing, for example, the size of the vehicles systems. Spec. ,-J 16. The
Specification provides several examples of the sizes of the vehicles systems,
including the lengths of the vehicles and the number of vehicles in the
vehicle systems. Id. 6
6 We note the "size" of the vehicle systems lacks an explicit definition in the
Specification, but instead merely lists exemplary information that may be
considered as "size" information. Moreover, "consist configuration
information," including size information, is described in Appellants'
Specification:
Additional information, such as consist configuration
information of the vehicle systems, also may be obtained. This
6
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Application 14/521,505
We agree with the Examiner's broad but reasonable interpretation of
the disputed limitation, because we find Smith '856's recorder 48, records
locomotive/railcar events and records train operating information, which is
information that may include any operational aspects of the distributed
power (DP) system and, more generally, the train including the locomotives
and the railcars. Therefore, we find Smith's recorder 48 features teaches or
at least suggests performing the disputed step or act of "obtaining a size of
the one or more first vehicle systems," as recited in method claim 1. Smith
'856 ,i,i 38-39.
We agree with the Examiner's BRI because Appellants have not
persuaded us the Examiner's interpretation of" obtaining a size of the one or
more first vehicle systems" is overly broad, unreasonable or inconsistent
with Appellants' Specification. In particular, we find recorder 48 is shown
as having a separate communication link with each car and each additional
locomotive. See Smith '856 Fig. 1, and ,i,i 19-23, 28, and 38-39. In this
regard, under the broadest reasonable interpretation, we find recorder 48
"knows" the size of the vehicle system because it establishes and maintains a
communication link with each car and locomotive in the vehicle system. Id.
Appellants also dispute the limitation of "determining a signal
propagation profile based on the ... size of the ... first vehicle systems," as
recited in claim 1. App. Br. 21. In particular, Appellants argue Smith '856's
information can represent the sizes of the vehicle systems ( e.g.,
lengths of the vehicle systems, the number of vehicles in the
vehicle systems, etc.), the relative positions of certain vehicles
in the vehicle systems ( e.g., how far propulsion-generating
vehicles are from each other in the vehicle systems), or other
information about how the vehicle systems are configured.
Spec. ,i 16.
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Application 14/521,505
recording of communication and location data does not imply determining a
signal propagation profile, as defined within claim 1. Id.
Appellants' Specification describes that a signal propagation profile
"can represent one or more relationships between the wireless message
characteristics, the consist configuration information, and the locations along
the route." Spec. 5. See also Spec. ,i 3 ("Some known consists use wireless
communication between the locomotives for coordinating the tractive and/or
braking efforts.").
We are not persuaded the Examiner erred because Smith '856 teaches
receiving recorded data and correlating communication characteristics with
locations along the route. Smith '856 ,i 25 et seq. We do not find the
Examiner's broad but reasonable claim interpretation to be inconsistent with
Appellants' Specification. Therefore, on this record, we find a
preponderance of the evidence supports the Examiner finding that Smith
'856 teaches or at least suggests "determining a signal propagation profile
based on the ... size of the ... first vehicle systems." Final Act. 6-7.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitations of claim 1, nor do
we find error in the Examiner's resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner's obviousness rejection of independent
claim 1, and grouped claims 2, 3, 5, and 11-13, which fall therewith. See
Claim Grouping, supra.
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Application 14/521,505
2. § 103(a) Rejection Rl of Claims 4 and 14
Issue 2
Regarding dependent claim 4, Appellants contend:
Reco[r ]ding the position of a remote vehicle in no way implies
that the relative position of the vehicle in the consist is known.
For example, Smith #1 may record that a first vehicle is at a
first location along the route, and that a second vehicle is at a
different, second location along the route, but Smith #1 does
not describe or suggest obtaining a relative position between the
location X and location Y. Therefore Smith #1 cannot
determine a relative position of the vehicle in the vehicle
system.
App. Br. 27-28.
In rejecting claim 4 under§ 103(a), the Examiner points to
recorder 48 and unit 54 in Smith '856, but does not clearly map the
limitation "obtaining relative positions of the vehicles in the one or more
vehicle systems" limitation. Claim 4 ( emphasis added).
Although we give the contested claim limitation the broadest
reasonable interpretation consistent with the Specification, in this instance,
we find Smith '856 teaches "absolute" location information that might be
determined from GPS information, for example, but find no teaching or
suggestion of determining relative location information for one or more cars
or locomotives. See generally, Smith '856 and Smith '988. Therefore, we
find the Examiner has not fully developed the record to show that the cited
Smith '856 teaches or at least suggests, "obtaining relative positions of the
vehicles in the one or more vehicle systems," as required by the contested
language of claim 4.
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Application 14/521,505
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner's reliance on the cited prior
art combination to teach or suggest the dispositive limitation of claim 4, such
that we find error in the Examiner's resulting legal conclusion of
obviousness. Accordingly, we are constrained on this record to reverse the
Examiner's obviousness rejection of dependent claim 4, or grouped claim 14,
which recites the disputed limitation in commensurate form. See Claim
Grouping, supra.
3. § 103(a) Rejection Rl of Claims 8, 9, and 15
Issue 3
Dependent claims 8, 9, and 15 all recite the disputed limitation "a
second vehicle system."
Appellants contend "none of the references cited in the Final Office
Action describe or suggest identifying vehicles to be included in a second
vehicle system." App. Br. 30.
In rejecting claims 8, 9, and 15 under§ 103(a), the Examiner does not
clearly map the disputed "second vehicle system" limitation. 7 Final Act. 10-
11; Ans. 5-6. Therefore, on this record, we find the Examiner has not fully
developed the record to show that the cited references teach or at least
suggest, the "second vehicle system," as required by the contested language
of claims 8, 9, and 15.
7 See 37 C.F.R. § l.104(c)(2) ("When a reference is complex or shows or
describes inventions other than that claimed by the applicant, the particular
part relied on must be designated as nearly as practicable. The pertinence of
each reference, if not apparent, must be clearly explained and each rejected
claim specified." ( emphasis added).
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Application 14/521,505
Therefore, based upon the findings above, on this record, we are
persuaded of at least one error in the Examiner's reliance on the cited prior
art combination to teach or suggest the dispositive limitation of claims 8, 9,
and 15, such that we find error in the Examiner's resulting legal conclusion
of obviousness. Accordingly, we are constrained on this record to reverse the
Examiner's obviousness rejection of dependent claim 8, and dependent
claims 9 and 15, which recite the disputed limitation in commensurate form.
4. Rejections R2 and R3 of Claims 6, 7, 10, 24, and 25
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R2 and R3 of claims 6, 7, 10, 24, and 25 under
§ 103 (see App. Br. 34), we sustain the Examiner's rejection of these claims.
Arguments not made are waived. 8
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 2-11) not in response to a shift in the Examiner's position
in the Answer, we note arguments raised in a Reply Brief that were not
raised in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause (see 37
C.F.R. § 41.4l(b)(2)), which Appellants have not shown.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections Rl
through R3 of claims 1-3, 5-7, 10-13, 24, and 25 under 35 U.S.C. § 103(a)
over the cited prior art combinations of record, and we sustain the rejections.
8 Appellants generally allege these dependent claims depend from allowable
independent claims 1, 11, and 16. App. Br. 34.
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Appeal 2018-003547
Application 14/521,505
The Examiner erred with respect to obviousness Rejection Rl of
claims 4, 8, 9, 14, and 15 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we do not sustain the rejection.
DECISION
We reverse the Examiner's decision rejecting claims 4, 8, 9, 14,
and 15.
We affirm the Examiner's decision rejecting claims 1-3, 5-7, 10-13,
24, and 25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l)(iv). See 37
C.F.R. § 41.50(±).
AFFIRMED-IN-PART
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