Ex Parte Mullick

Patent Trial and Appeal Board

Sep 30, 2016

12534155 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/534, 155 08/03/2009
84649 7590 10/04/2016
Symbus Law Group, LLC
Cliff Hyra
11710 Plaza America Drive
Suite 2000
Reston, VA 20190
FIRST NAMED INVENTOR
ApuMullick
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.
615.000 9104
EXAMINER
SWARTHOUT, BRENT
ART UNIT PAPER NUMBER
2689
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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
following e-mail address( es):
docketing@symbus.com
chyra@symbus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte APU MULLICK
Appeal2015-001322
Application 12/534, 155
Technology Center 2600
Before MICHAEL J. STRAUSS, KEVIN C. TROCK, and
MICHAEL M. BARRY, Administrative Patent Judges.
TROCK, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1--4 and 6-19. 1 We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Claim 5 is cancelled. Br. APP Al (Claims App'x). Also, we note claim 20
stands "objected to as being dependent upon a rejected base claim, but
would be allowable if rewritten in independent form including all of the
limitations of the base claim and any intervening claims." Non-Final Act. 6.
Appeal2015-001322
Application 12/534, 155
Invention
The claimed invention relates to a forward warning system
comprising a light source(s) mounted on a vehicle coupled to the vehicle's
instruments. The vehicle's instrumentation is used to estimate the stopping
distance of the vehicle on which the light source is mounted. The light
source "draws" an image on the road surface, indicating a danger zone in
front of the vehicle. Abstract.
Exemplary Claim
Exemplary claim 1 is reproduced below, with disputed limitations
emphasized:
1. A warning system for vehicles, comprising:
one or more light sources,
a device for translating input from one or more instruments into
operation of the one or more light sources,
a first connection for connecting the device to one or more
instruments, and
a second connection for connecting the device to the one or more
light sources, wherein in operation the device is mounted on a vehicle,
receives information from the instruments, and controls the light
sources based on the information from the instruments in order to
create an image on a surface, wherein the image on the surface extends
from within a car's length in front of the vehicle to a safe stopping
distance for the vehicle and that delineates a zone of danger, wherein
the zone of danger is an area in front of the vehicle within which the
vehicle would be unable to safely stop and is therefore unsafe for
passing vehicles to enter.
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Application 12/534, 155
Rejections
Claims 1, 2, 4, 6, 10, 11, 17, and 18 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Doyle et al. (US 3,949,362; Apr. 6, 1976).
Claims 3, 8, 9, 12-16, and 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Doyle and Toll (US 2012/0025962 Al; Feb. 2,
2012).
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable
over Doyle and Kowalczyk (US 4,641,136; Feb. 3, 1987).
ANALYSIS
We have reviewed the Examiner's rejections and the evidence of
record in light of Appellant's arguments that the Examiner has erred. We
disagree with Appellant's arguments and conclusions. We adopt as our own
( 1) the findings and reasons set forth by the Examiner in the Office Action
from which this appeal is taken and (2) the findings and reasons set forth in
the Examiner's Answer. We concur with the conclusions reached by the
Examiner and further highlight specific findings and argument for emphasis
as follows.
Independent Claims 1, 11, and 13
Appellant contends the Examiner erred in rejecting independent claims
1, 11, and 13 because Doyle fails to teach or suggest a:
device is mounted on a vehicle, receives information from the
instruments, and controls the light sources based on the
information from the instruments in order to create an image on
a surface, wherein the image on the surface extends from within
a car's length in front of the vehicle to a safe stopping distance
for the vehicle and that delineates a zone of danger, wherein the
zone of danger is an area in front of the vehicle within which the
vehicle would be unable to safely stop and is therefore unsafe for
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Application 12/534, 155
passing vehicles to enter
as recited in independent claim 1, and similarly recited in independent
claims 11and13. Br. 11-14, 16-17, and 19.
Appellant asserts Doyle does not teach delineation of an entire danger
zone, but only teaches a lamp shining on a spot on a road to indicate a safe
stopping distance. Br. 12-13. Appellant argues "[a] circular spot of light of
unknown size at some point in the distance cannot reasonably be said to
delineate an entire danger zone extending between a vehicle and that light as
the Examiner argues." Br. 12. Appellant also points out that the
Specification explains that the entire danger zone is preferably marked with
a drawing, not just a line beyond which it is safe to pass. Br. 13.
Appellant also argues it would not have been obvious to modify Doyle
to delineate a zone instead of shining a lamp on a spot. Br. 13-14.
Appellant asserts nothing in the prior art suggests the desirability of seeing a
whole zone of danger. Br. 14.
The Examiner finds, however, and we agree:
Doyle does disclose a device 44 mounted on a vehicle 21 that
controls light source 20 based on information from speed
instruments (col. 4, lines 8-9) in order to create an image on a
road surface (Fig. 1; col. 4, lines 40---43), wherein the image on
the surface extends from within a car's length in front of the
vehicle to a safe stopping distance for the vehicle and delineates
a zone of danger (as depicted in Fig. 1 [)], the light pattern
projected on the roadway (col. 4, line 41) has a first portion that
contacts [the] roadway first closest to vehicle that is transmitting
the light and a second portion of the pattern that contacts [the]
roadway further away from the vehicle. . . . The area on the
roadway that is covered by the light pattern delineates a hazard
zone that other vehicles should not enter since this is considered
an unsafe following distance between the two vehicles. It would
have been quite obvious to one of ordinary skill in the art that if
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Application 12/534, 155
the projected beam pattern distance was unsafe, then any region
between the vehicle and the beam would be even more unsafe.
Thus, the region between the vehicle and the beam would have
been considered an unsafe maneuvering area, and the area on the
roadway where pattern fell would have delineated the outside of
this safety zone.
Ans. 3--4.
The Examiner also finds, and we agree:
Fig. 1 clearly shows a forward portion of the pattern closest to
vehicle and a further portion of the projection further from the
vehicle, such pattern satisfying the claimed limitation in claim 1
of an image on a surface for delineating a danger zone.
Ans. 5.
Accordingly, we are not persuaded by Appellant's arguments that the
Examiner erred in finding Doyle teaches or suggests the disputed limitations
of claim 1. Therefore, we sustain the Examiner's rejection of independent
claims 1, 11, and 13 under 35 U.S.C. § 103(a).
Dependent Claim 22
Appellant contends the Examiner erred rejecting dependent claim 2
because the Examiner failed to provide "Official Notice" that "choosing to
use well-known processor means to determine how much to move the lamp
would have been obvious to one or ordinary skill in the art, in order that
lighting with speed could have been consistently accurate and automatic."
Br. 14 (citing Non-Final Act. 4 ). Appellant contends that use of a processor
for controlling a moving light used to display an image of a zone of danger
in front of a moving vehicle is not capable of instant and unquestionable
demonstration as being well-known. Br. 15 (emphasis removed).
2 "The warning system of claim 1, wherein the device comprises a
processor." Br. APP Al (Claims App'x).
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Application 12/534, 155
The Examiner finds, however, and we agree:
It is believed to be well within the knowledge of one of ordinary
skill in the art to use a processor to perform an automatic control
function, in order to automatically, accurately, efficiently and
quickly perform a desired function. One known example of a
processor performing automatic function is processor 66 in cited
Faibish reference (col. 5, lines 49-52) performing processing
functions in a vehicle system. It is not necessary to include this
reference in the actual rejection since the use of processors is so
well-known in the art, and appellant has not claimed a processor
to perform any functions not already performed by the control
elements in Doyle.
Ans. 5.
Thus, the Examiner properly supports the disputed finding by
providing documentary evidence (i.e., Falbish, US 5,471,214; Nov. 28,
1995) that the disputed limitation was common knowledge at the time of the
invention. See MPEP 2144.03(c). Accordingly, we are not persuaded by
Appellant's arguments that the Examiner erred in finding that it was within
the knowledge of one of ordinary skill in the art to use a processor for the
device recited in dependent claim 2. Therefore, we sustain the Examiner's
rejection of dependent claim 2 under 35 U.S.C. § 103(a).
Dependent Claim 7
Appellant contends the Examiner erred rejecting dependent claim 7
because Kowalczyk is nonanalogous art and there would have been no
reason to combine Doyle and Kowalczyk in the manner proposed by the
Examiner. Br. 21.
Two separate tests define whether prior art is analogous: ( 1) whether it
is from the same field of endeavor, regardless of the problem addressed and,
(2) if the reference is not within the field of the inventor's endeavor, whether
the reference still is reasonably pertinent to the particular problem with
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which the inventor is involved. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir.
2011 ). "A reference is reasonably pertinent if ... it is one which, because of
the matter with which it deals, logically would have commended itself to an
inventor's attention in considering his problem." In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992). "If a reference disclosure has the same purpose as the
claimed invention, the reference relates to the same problem, and that fact
supports use of that reference in an obviousness rejection." Id.
Here, the Examiner finds, and we agree:
Doyle and Kowalczyk both involve modifying transmitted
electro-magnetic energy based on outside factors that would
affect such transmission, Doyle adjusting [an] emitted beam
based on speed, and Kowalczyk teaching that in some
circumstances it is desirable to modify transmitted energy based
on degraded weather conditions. Therefore, the cited references
are analogous as far as adjusting transmitted beams based on
conditions affecting the beams, and one of ordinary skill in the
art would have found it obvious to modify the projected light
pattern of Doyle based on degraded weather for the same reason
that Kowalczyk chose to adjust the radar beam, namely to allow
the beam to function over a desired distance in degraded
conditions.
Ans. 7-8.
Accordingly, we are not persuaded by Appellant's arguments that the
Examiner erred in combining Kowalczyk and Doyle in rejecting dependent
claim 7 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner's
rejection of dependent claim 7.
Dependent Claim 93
3 We note that claims 9 and 10 both depend from claim 5, which has been
cancelled. We exercise our discretion to address the substance of the issues
presented by Appellant for claims 9 and 10 and not to use our authority to
issue a new ground of rejection for these claims under 35 U.S.C. § 112. In
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Appellant contends the Examiner erred rejecting dependent claim 9
because it would not have been obvious to one of ordinary skill in the art to
choose an outline of a box with an X within it to delineate a safety zone
around a vehicle. Br. 18. Appellant argues that, contrary to the Examiner's
assertion that the design inside the box would not have affected its purpose,
"the design of the image does affect the indication to passing cars. It is
important that passing cars understand the meaning of the image. An X
design is universally recognized as a negation and is used worldwide on, for
example, signs indicating to people of all origins and language proficiencies
that certain actions are prohibited." Id.
The Examiner finds, however, and we agree:
Toll teaches creating [an] image of a safety zone using a number
of desired geometric shapes (par. 81 ), and choosing to use a
specific X-shaped image would have merely been an obvious
matter of aesthetic design choice, depending on whether a system
designer wanted to make a projected light pattern easier to
distinguish.
Ans. 7.
Appellant also argues the Examiner erred combining Doyle and Toll to
reject claim 9 (and other claims) because Doyle does not teach or suggest
creating a safety zone around a vehicle, and there would have been no
reason to combine Doyle with another reference in order to gain flexibility
in creating safety zones. Br. 17-18. We disagree.
The Examiner finds, and we agree, Doyle teaches that the area in front
of the vehicle up to the delineation line is unsafe for stopping, so such a line
delineates a danger zone. Ans. 3. Moreover, Toll discloses an apparatus and
the event of further prosecution, the Examiner should require Appellant to
address this defective dependency issue.
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Application 12/534, 155
method for defining a safety zone for a vehicle. Toll, Title. Therefore, it
would have been reasonable for someone of ordinary skill in the art to use a
"scanned laser lamp", as suggested by Toll, in connection with a vehicle
safety illumination system, as disclosed by Doyle, to provide a system
designer with greater flexibility in creating a safety zone around a vehicle.
Non-Final Act. 4 (citing Toll i-f 254). Appellant has not provided persuasive
evidence or reasoning why a person of ordinary skill in the art would not
have reached the conclusions reached by the Examiner.
Accordingly, we are not persuaded by Appellant's arguments that the
Examiner erred in finding that it would have been obvious to one of ordinary
skill in the art to use an outline of a box and an "X" within the box as the
image for the zone of danger as recited in dependent claim 9. Therefore, we
sustain the Examiner's rejection of dependent claim 9 under 35 U.S.C. §
103(a).
Dependent Claim 105
Appellant contends the Examiner erred rejecting dependent claim 10
because the Examiner failed to provide "Official Notice" that "the
illumination from beam 14 in Doyle would have approximated a filled in
box, it being obvious to one of ordinary skill in the art to use known
masking means to create any type of geometric shape that was desired to
create safety zone boundaries as desired by a system engineer." Br. 15
(citing Non-Final Act. 4). Appellant argues that creating "an image of a
zone of danger in front of a moving vehicle in the shape of a filled-in box is
not capable of instant and unquestionable demonstration as being well-
4 See also Toll i-fi-126-27.
5 See footnote 3 supra.
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known." Br. 16 (emphasis removed).
We disagree that the Examiner was required to provide "official
notice" under the facts at issue here. "Official notice" is not always required
for findings of fact. See MPEP § 2144.03(A). Moreover, the Examiner
relies on Doyle in finding Doyle's beam 14 would have approximated a
filled in box thereby teaching or suggesting the disputed limitation of claim
10. Non-Final Act. 4. We also agree with the Examiner's finding that it
would have been obvious to one of ordinary skill in the art to use a known
masking means to create a geometric shape for the safety zone boundaries.
Non-Final Act. 4; see also Ans. 6-7.
Accordingly, we are not persuaded by Appellant's arguments that the
Examiner erred in finding that it would have been obvious to one of ordinary
skill in the art to use a shaded-in box as recited in dependent claim 10.
Therefore, we sustain the Examiner's rejection of dependent claim 10 under
35 U.S.C. § 103(a).
Remaining Dependent Claims
Appellant has not presented separate, substantive, persuasive
arguments with respect to dependent claims 3, 4, 6, 8, 12, and 14--19. See
Br. 14--20. We, therefore, sustain the Examiner's rejection of these claims
under 35 U.S.C. § 103(a). See 37 C.F.R. § 41.37(c)(l)(iv); In re Lovin, 652
F.3d 1349, 1356 (Fed. Cir. 2011) ("We conclude that the Board has
reasonably interpreted Rule 41.37 to require applicants to articulate more
substantive arguments if they wish for individual claims to be treated
separately.").
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DECISION
We AFFIRM the Examiner's rejections of claims 1--4 and 6-19.
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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