Ex Parte Robinson et al

Patent Trial and Appeal Board

Sep 22, 2016

11172499 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111172,499 0613012005
72823 7590
Quinn Law Group, PLLC
39555 Orchard Hill Place
Suite 520
Novi, MI 48375
09/26/2016
FIRST NAMED INVENTOR
Timothy A. Robinson
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.
GP-304940-PTA-CD 8284
EXAMINER
KING, RODNEY P
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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):
amb@quinnlaw group .com
US Docketing@quinnlawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY A. ROBINSON, JAMES H. STEWART,
STEPHEN J. HUSSEY, and YARED G. TADESSE
Appeal2014-008967
Application 11/172,499
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1, 3-16, and21-25. App. Br. 2. Claims 2 and 17-20
have been canceled. 1 Appeal Br. 22, 24, Claims App. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.
1 The Claims Appendix at page 24 of the Appeal Brief lists claim 16 both as
a claim to be considered on appeal (there is a formatting error, see the end of
claim 15) and as a cancelled claim. We are aware of no cancellation of
claim 16 in the record. Accordingly, we consider the listing of claim 16 as a
cancelled claim to be a typographical error, and we will consider claim 16 as
before us on appeal.
Appeal2014-008967
Application 11/172,499
THE CLAIMED SUBJECT MATTER
The disclosed subject matter relates to "[a]n automated data collection
and transmission system [that] would provide the ability to observe the
behavior of vehicular components and systems in the field (i.e. remotely), as
the components and systems are being operated." Spec. i-f 3. Independent
method claims 1 and 11 are illustrative of the claims on appeal and are
reproduced below:
1. A method for collecting data from a vehicle including a
maintenance system, the method comprising:
initializing a recorder module in the maintenance system,
wherein the recorder module includes a microprocessor and an
algorithm;
wherein the algorithm is configured for initialization of
data collection after vehicle start-up;
wherein the maintenance system is configured to
communicate wirelessly with a remote network such that data
may be transmitted wirelessly between the remote network and
the maintenance system;
\'I/herein the remote net\'l/ork is located off board the
vehicle;
receiving a setup command wirelessly from the remote
network wherein the setup command indicates the type of
performance data to be collected from at least one of a vehicle
component and a vehicle system monitored by the maintenance
system;
wherein the at least one of the vehicle component and the
vehicle system includes at least one of a steering system
component, a braking system component, a fuel storage system
component, an engine component, a heating, ventilating and air
conditioning system component, a battery, a transmission
component, a motor component, an alternator, a fuel pump
component, a water pump component, and a regulator
component;
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Application 11/172,499
collecting performance data from the at least one of the
vehicle component and the vehicle system monitored by the
maintenance system;
monitoring, time stamping, and storing data from one or
more vehicle control modules controlling the at least one of the
vehicle component and the vehicle system;
wherein the data is time stamped by the microprocessor;
determining if one or more predefined triggers are met;
receiving programming data wirelessly from the remote
network if one of the predefined triggers has been met;
reprogramming the maintenance system using the
programming data such that the operation of one or more of the
vehicle systems and components monitored by the maintenance
system is modified;
recording at least a portion of the data in the recorder
module if one of the predefined triggers has been met, wherein
said recording at least a portion of the data includes recording at
least a portion of the data before or after the vehicle has been
turned off; and
powering-off the recorder module after the vehicle has
been turned off and said recording has been completed to
preserve data and conserve energy.
11. A method for collecting data from a vehicle including a
maintenance system, the method comprising:
initializing a recorder module in the maintenance system,
wherein the recorder module includes a data storage device and
an algorithm configured for initialization of data collection after
vehicle start-up, and the maintenance system is configured to
wirelessly transmit data to and wirelessly receive data from a
remote network;
wherein the remote network is located oftboard the
vehicle;
wherein initializing the recorder module includes testing
the data storage device;
receiving a setup command wirelessly from the remote
network;
wherein the setup command indicates the type of data to
be collected by the maintenance system;
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Application 11/172,499
collecting data from one or more predefined sources in
response to the setup command;
collecting data representing the vehicle location from a
global positioning system interface on the vehicle using the
maintenance system;
receiving a maintenance instruction wirelessly from the
remote network wherein the maintenance instruction indicates
the performance data to be transmitted from one or more vehicle
systems and components monitored by the maintenance system;
transmitting the performance data wirelessly to the remote
network from one or more vehicle systems and components
monitored by the maintenance system;
determining if one or more predefined triggers are met,
wherein one of the predefined triggers is the vehicle location;
rece1vmg maintenance system programming data
wirelessly from the remote network if one of the predefined
triggers has been met, including maintenance system
programming data corresponding to the vehicle location;
wherein receiving the maintenance system programming
data includes reprogramming the maintenance system to modify
the operation of one or more monitored vehicle systems and
components;
recording at least a portion of the data in the recorder
module if one of the predefined triggers has been met;
supplying power to the recorder module after the vehicle
is turned off such that any unrecorded data may be preserved;
and
powering-off the recorder module after the unrecorded
data is preserved to conserve energy.
REFERENCES RELIED ON BY THE EXAMINER
Bouchard US 5,465,079 Nov. 7, 1995
Kapolka US 2005/0060070 Al Mar. 17, 2005
Fujita JP 2002-070637 Mar. 8, 2002
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Application 11/172,499
THE REJECTION ON APPEAL
Claims 1, 3-16, and 21-25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fujita, Kapolka, and Bouchard.2, 3, 4, 5
ANALYSIS
Appellants argue claims 1, 3-10, and 22-25 together. App. Br. 10-
15. We select independent claim 1 for review with claims 3-10 and 22-25
standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
Appellants also argue claims 11-16 and 21-23 together. App. Br. 15-19.
We select independent claim 11 for review with claims 12-16 and 21-23
standing or falling with claim 11.
Claim 1
The Examiner finds that Fujita discloses several limitations of claim 1
except for, inter alia, time stamping data from one or more vehicle control
modules. Final Act. 4---6. For that limitation the Examiner relies on
Kapolka. Final Act 6-7. The Examiner further finds that neither Fujita nor
2 Claim 2 is listed in the statement of rejection in the Final Action; however,
claim 2 is cancelled. See Appellants' Request for Continued Examination
dated August 2, 2012. We consider this a typographical error in the
statement of rejection.
3 Claim 3 is not listed in the statement of rejection in the Final Action;
however, claim 3 is included in the body of the rejection. We consider this a
typographical error in the statement of rejection.
4 Claims 17-20 are listed in the statement of rejection in the Final Action;
however, claims 17-20 are cancelled. See Appellants' Request for
Continued Examination dated August 2, 2012. We consider this a
typographical error in the statement of rejection.
5 Claims 21-25 are not listed in the statement of rejection in the Final
Action; however, claims 21-25 are included in the body of the rejection.
We consider this a typographical error in the statement of rejection.
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Application 11/172,499
Kapolka disclose the limitation directed to "powering-off the recorder
module after the vehicle has been turned off." For that limitation, the
Examiner turns to Bouchard. Final Act. 7-8. Appellants do not challenge
the Examiner's reliance on Bouchard for disclosing this limitation.
Regarding the time stamping functionality of Kapolka, the Examiner
finds that Kapolka "contains a modular Fuel Tax Reporting Application 880
which collects/records GPS position/timestamp reports from the vehicle
[i-fi-f][Ol 16, 0168, 0169]." Final Act. 7. The Examiner further states that,
"since the application modules [of Kapolka] (including modular Fuel Tax
Reporting Application 880), through server 202, collect data from the
controller 308 [i-f][0102], the data inherently includes the timestamp
information, and it can be interpreted that the system 100 is timestamping
information via the controller 308" (i.e., "time stamped by the
microprocessor" as claimed). Final Act. 7.
Appellants contend that Kapolka's Fuel Tax Reporting Application
880 does not timestamp data and point to paragraph 169 of Kapolka for
support. App. Br. 12; see also Reply Br. 3. Paragraph 169 ofKapolka
states, in part
Fuel Tax Application 880 may collect the following data
periodically, (e.g., every 30 minutes): GPS location information
and date/time information. Fuel Tax Application 880 may collect
the following data once per day at, for example, midnight (local
time with respect to the user's time zone): total vehicle distance
(based on, e.g., the vehicle odometer), total idle fuel (volume of
fuel consumed by vehicle 104 while vehicle 104 was idling),
total idling time, and total fuel used.
Appellants interpret paragraph 169 of Kapolka as follows: "Kapolka
collects 'date/time information' according to a samplingfrequency and as a
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Application 11/172,499
separate data element and saves the date/time information as a separate
data element with the other information collected (GPS, distance, fuel, etc.)
until the data can be reported."6 App. Br. 12. Appellants further argue that
because one of the data elements sampled at the sampling frequency
established by Kapolka's Fuel Tax Application 880 is date/time information,
"there is no need or motivation to add the additional operating steps,
expense, processor functionality, and data storage requirements to timestamp
each of the other data elements sampled concurrently with sampling of the
'date/time information."' App. Br. 13-14.
As noted by the Examiner, Fujita discloses "collecting time data of
component failure," but that "Fujita does not specifically disclose timestamp
data" thereof. Ans. 3. Hence, the Examiner relies on Kapolka "which
discloses an [on-board computer or unit] OBU 105 that implements a Fuel
Tax Application 880 that may collect fuel volume/fuel used (inherent fuel
pump component), total idling time (inherent engine component) GPS
position and time stamping data for all of the aforementioned [i-fi-f] [O 168,
0169]." Ans. 3 (emphasis added). The Examiner concludes:
Kaploka [sic] et al. also states that the OBU 105 mentioned above
may include a vehicle data processing module 105b to process
data obtained from the vehicle components [i-f][0053].
Examiner's position is that the module 105b has to inherently
include at least a microprocessor in order to perform the above
processing step, and one of ordinary skill in the art would be
motivated to combine the recorder of Fugita [sic] with the time
6 Appellants appear to acknowledge that Kapolka collects "date/time
information" at certain intervals, but that such information is retained "as a
separate data element." Appellants do not indicate where Kapolka teaches
the frequent collection of this "date/time information" "as a separate data
element" or that such "date/time information" is unrelated to or unassociated
with the other data collected at that time.
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Application 11/172,499
stamping features of Kapolka because it is considered to be well
known to be desirable for a user to identify the time of various
vehicle parameters, including GPS position of Kapolka et al.,
every so often in order to know the latest information within a
specified period of time [i-f] [ 0170].
Ans. 4.
Appellants respond by asserting that Kapolka's Fuel Tax Application
resides on an off-board (off-vehicle server) and that such server "cannot be a
'microprocessor' of a recorder module in a vehicle." Reply Br. 3.
Appellants' arguments are not persuasive. We are not persuaded that,
"Kapolka's collection of 'date/time information' is not 'time stamping data
using a microprocessor."' App. Br. 12. Paragraphs 168 and 169 ofKapolka
discusses collecting GPS, date, and time data at various intervals (i.e., every
15, 30, or 60 minutes) and other data once per day. Paragraph 168 ofKapolka
teaches that in order to satisfy IFTA [International Fuel Tax Association]
requirements, Kapolka discloses a system to collect "vehicle mileage by
jurisdiction" "by collecting frequent GPS position/timestamp reports." See
also Kapolka i-f 167. In other words, Kapolka's Fuel Tax Application 880
teaches timestamp data in order to be in compliance with IFTA's miles-by-
jurisdiction data requirement.
Appellants' also contend that Kapolka's off-vehicle server which hosts
the Fuel Tax Application 880 cannot be a "microprocessor" of a recorder
module in a vehicle. App. Br. 13-14. However, Kapolka includes an on-
board "vehicle data processing module 105b" to process data obtained from
the vehicle components (Kapolka i1 53) and Appellants do not explain how
Kapolka's data processing module 105b fails to include a microprocessor to
process the data obtained. Final Act. 7; Ans. 4. The Examiner also finds that
Fujita teaches the use of a microprocessor. Final Act. 4 (referencing Fujita i1i1
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13 and 17-20). Hence, employing Fujita's processor, or adding an on-board
microprocessor to Fujita, to monitor vehicle system/component conditions
and time stamping the occurrence of such events by the microprocessor would
have been obvious "in order to provide diagnostic data of the vehicle to a
user." Final Act. 7.
Appellants' argument concemmg Kapolka's Fuel Tax Application
residing on an off-board server and that such server "cannot be a
'microprocessor' of a recorder module in a vehicle," focuses only on a part of
the overall teachings of Kapolka and ignores the portions of Kapolka relied
upon by the Examiner. Furthermore, "[n]on-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references." In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986).
Accordingly, based on the record presented and for the foregoing
reasons, we sustain the Examiner's rejection of claim 1 and its dependent
claims 3-10 and 23-25.
Claim 11
The Examiner finds that Fujita discloses "wherein initializing the
recorder module includes testing the data storage device." Final Act. 10.
The Examiner notes that "Fujita discloses data recording part 21 (record
memory) which is checked by investigating its remaining capacity." Ans. 4
(referencing Fujita i-f 27). Paragraph 27 of Fujita states, in part: "The
memory possible capacity of the data recording part 21 (record memory) of
the driving recorder 6 is driving recorder 6 inside, and is checked by
investigating the remaining capacity in which the data writing of the data
recording part 21 is possible." Emphasis added.
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Appellants contend, "[c]hecking for open capacity [of Fujita's data
recording part 21] is not 'testing' as recited by Applicant's claims 11 and
23." Reply Br. 7.
The Specification does not provide a definition of the term "testing,"
either generally or particularly with respect to the claimed "data storage
device" (see, e.g., Spec. i-fi-16, 20). However, paragraph 6 of Appellants'
Specification discusses how "[v]ehicles are often tested" for their "ability to
collect vehicle data" in certain circumstances. In light of this disclosure, we
consider "investigating the remaining capacity" of the data storage device of
Fujita to be a form of "testing" that component for its ability to perform its
intended function of storing data. We also tum to dictionary definitions of
the terms "test" and "check" to determine their common usage and meaning.
"Test" has been defined as "an act of using something to find out whether it
is working correctly or how effective it is"7 and as "the means by which the
presence, quality, or genuineness of anything is determined."8 "Check" has
been defined as "the act of looking at or giving your attention to something
to get information, often to help you decide if something is correct, safe, or
suitable"9 and as "to inspect or test the performance, condition, safety, etc.
of (something)." 1° From these definitions it is apparent that, if not perfectly
7 Cambridge Online Dictionary,
http:// dictionary .cambridge. org/us/ dictionary I english/test; last visited Sept.
12, 2016.
8 The Random House College Dictionary 1357 (Rev. ed. 1980).
9 (Cambridge Online Dictionary,
http://dictionary.cambridge.org/us/dictionary/english/check; last visited
Sept. 12, 2016).
10 The Random House College Dictionary 229 (Rev. ed. 1980) (emphasis
added).
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Application 11/172,499
synonymous, the terms "test" and "check" have in common the act of
inspecting something to ascertain its presence, suitability, condition,
performance or effectiveness, among other characteristics. For this reason,
we understand Fujita's act of checking the remaining capacity of the data
recording part to be a form of testing that component.
Appellants address the motivation to check the capacity of the data
recording part 21 at initialization of the driving recorder, noting that "[a]t
[i-f] [0021 ], Fujita discloses 'a storage capacity presupposes for convenience
that it is 80 MB . .. when the control unit 5 is in an ON state (at the time of
power supply ON), the sampling of various data is always performed."'
Reply Br. 7 (emphasis in original). From this. Appellants conclude:
"because Fujita 'presupposes' a storage capacity of 80 MB when the driving
recorder is initialized, there is no motivation to 'check' the capacity of the
data recording part 21 at initialization." Reply Br. 7. However,
presupposing a storage capacity at the onset is not the same as checking or
"investigating the remaining capacity" of the storage device. Fujita i127.
Regarding the performance of this testing/checking operation upon
initialization of the recorder, Appellants state:
Fujita's "checking" the capacity of the data recording part 21 at
[0027] occurs when the "record method of data is changed" in
response to "a failure code output signal outputted from the
control unit 5." See Fujita at [0024]. Fujita only "checks"
memory capacity when a failure code is outputted, e.g., after the
vehicle is operating (in operation status [0027]). Therefore,
Fujita's "checking" only occurs after, not during, initialization of
the driving recorder 6.
Reply Br. 7.
However, contrary to Appellants' assertion, paragraph 24 of Fujita
does not disclose that checking "only" occurs when a failure code is
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outputted (i.e., after initialization of the recorder). Instead, paragraph 24 of
Fujita discusses a "record method of data" that "is changed" according to
certain circumstances, one being "the residual storage capacity of the data
recording part 21." Paragraph 24 is silent regarding other checking of the
storage device at other times.
On this point, Appellants acknowledge that "it is possible that the
RAM card 12 could be in the slot when the recorder module is initialized."
App. Br. 18 (emphasis added). Appellants further acknowledge that "Fujita
discloses that sampling of data by Fujita's driving recorder 6 is
automatically started by ON of an ignition switch." Reply Br. 7 (referencing
Fujita i-f 18). Hence, when Fujita's recorder is turned ON (such as when the
RAM card in the slot), sampling data is "automatically started." However,
before such sampled data can be stored, Fujita teaches "investigating the
remaining capacity" of the memory before "writing of the data" occurs.
Fujita i-f 27. In short, Appellants' contentions that Fujita fails to teach the
limitation, "wherein initializing the recorder module includes testing the data
storage device," is not persuasive of Examiner error in view of the teachings
of Fujita.
Accordingly, based on the record presented and for the foregoing
reasons, we sustain the Examiner's rejection of independent claim 11 and
dependent claims 12-16, 21-23.
DECISION
The Examiner's rejections of claims 1, 3-16, and 21-25 are affirmed.
No time period for taking any subsequent action in connection with
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this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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