Ex Parte Kumar et al

Patent Trial and Appeal Board

Sep 12, 2016

11385354 (P.T.A.B. Sep. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111385,354 0312012006 Ajith Kuttannair Kumar
91959 7590 09/14/2016
GE GPO- Transportation- The Small Patent Law Group
3135 Easton Turnpike
Fairfield, CT 06828
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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ATTORNEY DOCKET NO. CONFIRMATION NO.
204173-1 (552-54US27) 2664
EXAMINER
KING, RODNEY P
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
09/14/2016 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AJITH KUTTANNAIR KUMAR,
GLENN ROBERT SHAFFER,
PAUL KENNETH HOUPT,
BERNARDO ADRIAN MOVSICHOFF,
DAVID SO KEUNG CHAN, and
SUKRU ALPER EKER
Appeal2014-009677
Application 11/385,354
Technology Center 3600
Before JAMES P. CALVE, BRANDON J. WARNER, and
JAMES J. MAYBERRY, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 42, 44, 45, 47-50, 59---63, 66, 68, 70, 79, 81-84, 118-120, 123, and
125-138. Appeal Br. 8. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2014-009677
Application 11/385,354
CLAIMED SUBJECT MATTER
Claims 42 and 118 are independent. Claim 42 is reproduced below.
42. A method for operating a first train having one or
more locomotive consists with each locomotive consist
comprising one or more locomotives, the method comprising:
receiving route data and train data, wherein the route data
includes data relating to one or more characteristics of a track
on which the first train is to travel along a route and data
relating to at least one speed limit along the route, and wherein
the train data relates to one or more characteristics of the train;
creating a trip plan onboard the first train at any time
during travel of the train along the route, wherein the trip plan
is created at a first point along the route based on the received
data and covers at least a segment of the route extending to a
second point further along the route than the first point, the trip
plan designating operational settings of the first train as a
function of at least one of distance or time along the route;
automatically controlling the first train according to the
trip plan as the first train travels along the route segment, said
trip plan being configured for increasing efficiency of the first
train by at least one of reducing fuel use of the first train or
reducing emissions produced by the first train along the
segment of the route;
measuring actual efficiency of the train during travel of
the first train according to the trip plan; and
updating the trip plan during travel of the first train based
on the actual efficiency that is measured.
REJECTIONS
Claims 118-120 are rejected under 35 U.S.C. § 102(b) as anticipated
by Polivka (US 5,828,979, iss. Oct. 27, 1998).
Claims 42, 44, 45, 47--49, 59---61, 63, 66, 68, 70, 79, 81-84, 123, 128-
132, and 136-138 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Polivka and Horst (US 2004/0129840 Al, pub. July 8, 2004).
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Application 11/385,354
Claim 50 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Polivka, Horst, and Julich (US 2004/0172175 Al, pub. Sept. 2, 2004).
Claim 62 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Polivka, Horst, and Kull (US 5,744,707, iss. April 28, 1998).
Claim 125 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Polivka, Horst, and Kisak (US 2004/0245410 Al, pub. Dec. 9, 2004).
Claims 126 and 127 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Polivka, Horst, and Nahla (US 2005/0107954 Al, pub.
May 19, 2005).
Claim 133 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Polivka and Kisak.
Claims 134 and 135 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Polivka and Nahla.
ANALYSIS
Claims 118-120 as anticipated by Polivka
Claim 118
The Examiner found that Polivka discloses a method for operating a
first train, as recited in claim 118, including creating a trip plan including a
plurality of power and notch settings and communicating the trip plan to the
first train. Final Act. 7-9; Ans. 4.
Appellants argue that Polivka does not describe creating a trip plan
that includes a plurality of designated power and notch settings but instead
corrects power settings when a train falls behind schedule. Appeal Br. 23-
25; Reply Br. 4. Appellants also argue that Polivka describes a trip plan that
schedules times of departure or arrival but the scheduled times are not power
or notch settings. Reply Br. 3.
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Application 11/385,354
The Examiner has established by a preponderance of evidence that
Polivka discloses a method for operating a train by creating a trip plan with
at least one of a plurality of power settings or notch settings for the first train
to follow as a function of distance or time along the route. In Polivka, after
computer dispatch 702 sends a trip plan to first train 704, onboard computer
708 creates a trip profile including a velocity profile versus time or distance
that provides power settings so the train meets its departure and arrival times
and in-train forces stay at acceptable levels. Polivka, 10:31---60, 7:3-11.
Power adjuster 234 compares estimated and actual time and velocity and
adjusts power settings so the train arrives on time. Polivka, 8:47-55; Ans. 4.
Appellants also argue that Polivka does not disclose communicating a
trip plan to a train because the corrective power settings are determined by
onboard controller 208 and are not communicated to the train. Appeal Br.
25. Appellants further argue that Polivka communicates a "trip plan" to a
train that includes estimated times of arrival and departure, rather than notch
or power settings as claimed. Reply Br. 4.
The Examiner's finding that Polivka discloses communicating a trip
plan to a train is supported by a preponderance of evidence. As discussed
above, Polivka discloses that onboard controller 208 computes a set of train
commands that control the train's operation including velocity profiles and
power settings. Train controller 208 thus computes a set of train commands
that cause the train to operate on the movement timeline profile derived from
the received movement plan. Polivka, 6:36-45. The plan and commands
are communicated to display 220 in the cab for an engineer or to actuators
for automatic activation. Id. at 6:46-50, Fig. 4; Final Act. 8-9.
Thus, we sustain the rejection of claim 118.
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Appeal2014-009677
Application 11/385,354
Claim 120
The Examiner also found that Polivka discloses route or train data that
comprises weather or maintenance conditions as recited in claim 120, which
depends from claim 118. Final Act. 9. The Examiner found that Polivka
discloses a method that responds to track repair and maintenance forces and
crews. Id. (citing Polivka, 2:7-10).
Appellants argue that Polivka's disclosure of schedule repairs is not a
maintenance condition but is a repair of a schedule. Appeal Br. 26-27. This
argument is not persuasive of error in the Examiner's findings above. The
Examiner reasonably interpreted maintenance conditions as repairs of the
track because repairs and maintenance affect trip plans and schedules. Ans.
4--5. Appellants disclose that their system optimizes trip plans to allow for
slower operation for weather conditions and track maintenance. Spec. ,-r 57.
Thus, we sustain the rejection of claim 120.
As Appellants do not argue claim 119 separately, we also sustain the
rejection of claim 119. See 37 C.F.R. § 41.37(c)(l)(iv).
Claims 42, 44, 45, 47--49, 59-61, 63, 66, 68, 70, 79, 81--84, 123, 128-132,
and 136--138 as unpatentable over Polivka and Horst
Claims 42, 44, 45, 47--49, 59---61, 63, 66, 68, 70, 79, 81-84, 123, and
128-130
The Examiner found that Polivka discloses the method substantially
as recited in claim 42 including measuring actual efficiency/energy of the
train during travel of the train according to the trip plan by estimating the
brake application point (col. 10, lines 1-16, claim 8) and updating the trip
plan during travel based on actual efficiency by measuring the end of train
location based on the number and types of cars, topography, and expected
length of the train (col. 9, lines 22-34). Final Act. 11-12; Ans. 3--4.
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Appeal2014-009677
Application 11/385,354
Appellants argue that Polivka describes estimating a brake application
point and determining where the end of train unit is located, but neither act
teaches or suggests updating any trip plan based on a measurement of actual
efficiency of the train as recited in claim 42. Appeal Br. 21-22; Reply Br. 2.
The Examiner has not established by a preponderance of evidence that
Polivka teaches updating a trip plan during travel of a first train based on the
measured actual efficiency of the train as claimed. Polivka's determination
of the location of the end-of-train unit is not used to update a trip plan or its
operational settings. Even if this determination resulted in the update of a
trip plan, the Examiner has not explained how such location determination is
based on a measurement of the actual efficiency of the train during travel.
Final Act. 12; Ans. 3--4. The Examiner's finding that it is well known that
train companies manufacture the most efficient trains possible to reduce cost
so efficiency must be measured is not supported by any evidence of record. 1
Even so, the Examiner has not explained adequately how a general emphasis
on efficiency would have made it obvious to update a trip plan during travel
of a train (versus manufacture of a train) based on a measured efficiency of
the train.
1 We do not view this "finding" of the Examiner as taking Official Notice.
In any case, this matter is not appropriate for Official Notice as it relates to a
core issue in the case, rather than a peripheral issue that is capable of ready
and accurate verification. See KIS HIMPP v. Hear-Wear Techs., LLC, 751
F.3d 1362, 1366 (Fed. Cir. 2014) ("Board cannot accept general conclusions
about what is 'basic knowledge' or 'common sense' as a replacement for
documentary evidence for core factual findings in a determination of
patentability.") (citing In re Zurko, 258 F.3d 1379, 1385-86 (Fed. Cir.
2001)); see also Manual of Patent Examining Procedure§ 2144.03 (Rev. 7,
Nov. 2015) (discussing requirements for taking Official Notice).
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Application 11/385,354
Thus, we do not sustain the rejection of claim 42 or its dependent
claims 44, 45, 47--49, 59---61, 63, 66, 68, 70, 79, 81-84, 123, and 128-130.
Claim 136
Claim 13 6 depends from claim 118 and recites that the trip plan is
created to increase efficiency by reducing fuel used or emissions produced
and the trip plan objective is changed as a function of the distance of the
train to a destination location. The Examiner found that Polivka teaches this
feature of reducing fuel used or emissions produced as an objective of a trip
plan and changing the objective as a function of distance of the train to a trip
destination by changing the planned speed. Final Act. 18-19; Ans. 5---6.
Appellants argue that Polivka makes no mention of creating a trip
plan objective of reducing fuel consumption or fuel emissions or changing a
trip objective as a function of the train distance to a destination. Appeal Br.
33-34. Appellants argue that Horst does not teach this feature. Id. at 34.
Appellants also argue that their Specification does not disclose new future
speed limit changes as changes in a trip objective. Reply Br. 6-7.
These arguments are not persuasive in view of Polivka's teaching of
routing of trains using a Shortest Path First algorithm where distance is a
performance measure or where fuel usage measures performance. Polivka,
6:5-11; Final Act. 11; Ans. 3. Appellants disclose the use of "faster" time
objectives and slower operation at the end of the trip. Spec. i-fi-156-57.
Polivka teaches that train controller 208 can determine new train commands
as unforeseen conditions occur during movement. Polivka, 7:3-11.
Thus, we sustain the rejection of claim 136.
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Application 11/385,354
Claim 137
The Examiner determined that it would have been obvious to try to
create a trip plan based on previous trip plans and train configurations. Final
Act. 19; Ans. 6.
Appellants argue that Polivka creates a system wide movement plan
for trains and separates the plan into individual plans for various trains so it
is unclear why a skilled artisan would refer to a previously made trip plan
for an individual train when forming a system wide movement plan. Appeal
Br. 36, 38-39.
The Examiner had a reasonable basis for determining that it would
have been obvious to use previous trip plans based on previous routes and
train consists as a basis for formulating a trip plan for a similar or same train
over a similar or same route. Polivka teaches storage of train and track data
for use in planning trips. Polivka, 6:5-24. Polivka also uses known train
rules and track segment information for planning trips. Id. at 6:25-35.
Thus, we sustain the rejection of claim 137.
Claim 131
We agree with Appellants that the Examiner has not established that
Polivka or Horst teaches or suggests a method that presents several trip plans
to an operator for selection of one trip plan used to control the train. Appeal
Br. 39--43. The Examiner's finding that Horst teaches the display panel 34
with individual light sources 36 and light emitting diodes for the operative
conditions of a train that can be selected by the operator does not address a
method that determines and presents several trip plans to a train operator to
select a single trip plan.
Thus, we do not sustain the rejection of claim 131.
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Appeal2014-009677
Application 11/385,354
Claim 132
As discussed above, Polivka teaches selection of trip plans based on
fuel usage (Polivka, 6:5-11) (Final Act. 21) and Appellants' arguments do
not address or persuade us of error in that finding. Appeal Br. 43--44. Thus,
we sustain the rejection of claim 132.
Claim 138
Appellants do not separately argue the patentability of claim 138,
which depends from claim 118. Therefore, we sustain that rejection.
Claims 50, 62, and 125-127
The Examiner rejected claims 50, 62, and 125-127 as unpatentable
over Polivka and Horst, in combination with one of Julich, Kull, Kisak, and
Nahla. Final Act. 21-25. The Examiner relied on Julich, Kull, Kisak, or
Nahla to teach features in each of claims 50, 62, and 125-127, but not to
overcome deficiencies of Polivka and Horst discussed above for claim 42,
from which these claims depend. Id. Thus, we do not sustain the rejections
of these claims.
Claim 13 3 as unpatentable over Polivka and Kisak
The Examiner rejected claim 133 as unpatentable over Polivka and
Kisak. Final Act. 25-26. Because Appellants do not present arguments for
this rejection, we summarily sustain the rejection. See Appeal Br. 47--48.
Claims 134 and 135 as unpatentable over Polivka and Nahla
The Examiner rejected claims 134 and 135 as unpatentable over
Polivka and Nahla. Final Act. 26-27. Because Appellants do not present
arguments for this rejection, we summarily sustain the rejection. See Appeal
Br. 47--48.
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Appeal2014-009677
Application 11/385,354
DECISION
We AFFIRM the rejections of claims 118-120 and 132-138.
We REVERSE the rejections of claims 42, 44, 45, 47-50, 59-63, 66,
68, 70, 79,81-84, 123, 125-130,and 131.
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
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