Ex Parte Schunder et al

Patent Trial and Appeal Board

Apr 29, 2016

13474016 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/474,016 05/17/2012
28395 7590 05/03/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Mark Schunder
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.
83235980 7740
EXAMINER
LIN, ABBY YEE
ART UNIT PAPER NUMBER
3664
NOTIFICATION DATE DELIVERY MODE
05/03/2016 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@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK SCHUNDER, MARK SCALF, and JOSEPH J. BERRY
Appeal2014-004720
Application 13/474,016
Technology Center 3600
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mark Schunder et al. ("Appellants") 1 appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 7-10 and 24--31, which are all
the pending claims. Br. 1. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
According to Appellants, the real party in interest is Ford Global
Technologies, LLC. Br. 2.
Appeal2014-004720
Application 13/474,016
CLAIMED SUBJECT MATTER
Appellants' disclosed invention relates to vehicle navigation systems.
See Spec. i-f 2. Claims 7, 24, and 28 are independent. Claim 7, reproduced
below, is illustrative of the subject matter on appeal. 2
7. A navigation method comprising:
determining a route to a destination on a computing
system;
determining, on the computing system, a road
classification for each road or a portion of each road comprising
the route;
assigning a tolerance to each road or portion of each road
based on the determined classification for that road or road
portion;
using the assigned tolerances, determining points
defining the route based on a plurality of lines connecting
successive points along the route remaining within the bounded
area defined by the tolerance; and
delivering the determined points to a vehicle computing
system in communication with a server.
2 We do not rely on the Claims Appendix provided with Appellants'
Brief because it does not contain an accurate recitation of the claims on
appeal. Instead, we refer to the claims as presented in the Amendment filed
on April 22, 2013 ("Amendment"), for a listing of the claims of record that
are currently pending in the present application. We note that an After-Final
Amendment, including proposed revisions to the claims that appear to match
the recitations in the Claims Appendix, was filed on November 4, 2013, but
was expressly denied entry by the Examiner in the Advisory Action dated
November 15, 2013. See Ans. 2.
2
Appeal2014-004720
Application 13/474,016
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Inoue
Kaplan
Tu
us 5,398, 189
US 6,401,034 Bl
US 2004/0254723 Al
REJECTIONS
The following rejections are before us for review:
Mar. 14, 1995
June 4, 2002
Dec. 16, 2004
I. Claims 7-10 and 24--31 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
II. Claims 7, 8, 24, 25, 28, and 29 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kaplan.
III. Claims 9, 26, and 30 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kaplan and Tu.
IV. Claims 10, 27, and 31 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Kaplan and Inoue.
ANALYSIS
Rejection I-Claims 7-10 and 24-31 as indefinite
Appellants do not provide any substantive arguments for the
indefiniteness rejection of claims 7-10 and 24--31, despite this rejection
being properly made of record (see Final Act. 3) and acknowledged by
Appellants in the Brief (see Br. 6). Accordingly, Appellants have waived
any argument of error, and we summarily sustain the rejection of claims
7-10 and 24--31under35 U.S.C. § 112, second paragraph, as being
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Application 13/474,016
indefinite. See Jn re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (holding
that the Board did not err in sustaining a rejection under 35 U.S.C. § 112,
second paragraph when the applicant failed to contest the rejection on
appeal).
Rejection II- Claims 7, 8, 24, 25, 28, and 29 as unpatentable over Kaplan
Appellants present arguments against the rejection of these claims as a
group. See Br. 6-8. We select claim 7 as the representative claim to decide
the appeal of the rejection of these claims, with claims 8, 24, 25, 28, and 29
standing or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner found that Kaplan discloses a navigation method,
substantially as claimed, including
using . . . assigned tolerances (boundaries defined by the
distance), determining points defining the route based on a
plurality of lines (road segments) connecting successive points
(points on the road segments or points connecting different road
segments) along the route ("solution path") remaining within the
bounded area ("area 180 is defined between two boundaries")
defined by the tolerance ("distance to the right and left of the path
186 of the solution route").
Final Act. 5 (italics omitted; formatting spaces added). The Examiner
further explained that
Kaplan's route calculation application calculates a route, which
is a "continuous series of road segments" that are a "solution
route" between the origin and destination. Col 5[,] Lines 25-30.
Since Kaplan states the road segments are continuous with each
other, these road segments are lines that connect successive
points. . . . When the driver wants to stop at [a] point of interest,
an intermediate stop between the origin and destination, the
navigation system will search between the boundaries that are
parallel to the solution path. Abstract. Col 8[,] Lines 15-36. See
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Appeal2014-004720
Application 13/474,016
Id.
also Figure 10 for the parallel boundaries view. Thus, the
navigation system will determine an intermediate point within
the bounded area as part of the driver's route. Since the bounded
area is based on a certain distance around the solution path,
which is made of road segments continuous with each other, the
determination of the intermediate point is based on the road
segment (lines) and points on the solution path. The navigation
will then calculate a new route to incorporate the intermediate
stop. Col 9[,] Lines 34-40.
Appellants argue that Kaplan does not disclose "using the assigned
tolerances, determining points defining the route based on a plurality of lines
connecting successive points along the route remaining within the bounded
area defined by the tolerance," as claimed. Br. 6-8. In particular,
Appellants assert that Kaplan makes only a singular route determination of
successive road segments and does not make another determination of points
defining the route using assigned tolerances. Id. at 7. According to
Appellants; Kaplan determines a single intermediate stopping point rather
than a series of points defining the route. Id.
We are not persuaded by Appellants' argument because, as the
Examiner found, Kaplan discloses determining routes comprising a
continuous series of road segments. Final Act. 5 (citing Kaplan, col. 5,
11. 25-30). We agree with the Examiner that, by determining a series of road
segments, "Kaplan determines start and end points of each road segment to
piece together a route." Ans. 6; see also Final Act. 5 (explaining that
because "the road segments are continuous with each other, these road
segments are lines that connect successive points"). After assigning a
distance to each road segment based on speed limits, Kaplan searches for a
point of interest within a bounded area defined by the distance. Kaplan,
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Application 13/474,016
col. 8, 11. 15-36. Kaplan then determines a new solution route that includes
the point of interest as an intermediate stopping point. Id. at col. 9,
11. 34--40. We agree with the Examiner that "[t]he new route necessarily ...
takes into consideration the point of interest, the destination point, which is
the same destination as the old route, as well as start and end points which
connect the road segments in the route." Ans. 6. Accordingly, Appellants
do not apprise us of error in the Examiner's finding that Kaplan discloses
determining points defining the route within a bounded area defined by
assigned tolerances, which is supported by a preponderance of the evidence.
Appellants also argue that Kaplan "never considers whether lines,
connecting successive points, remain within a bounded area," and "there is
no guarantee that these lines would remain within the bounded area." Br. 7.
Appellants also assert that "[t]he only bounded areas [i]n Kaplan relate to
searches for POis, and are not taught to cover the entire route, regardless of
whether or not a POI is being searched," and "[t]hus, there isn't even a
'bounded area' over the course of the whole route for the 'lines connecting
successive points' to remain within." Id. at 8 (emphasis added). These
arguments are not convincing because the features upon which Appellants
rely (i.e., lines remaining within a bounded area that covers the entire route)
are not recited in claim 7. Instead, the claim requires only, in relevant part,
"determining points defining the route based on a plurality of lines
connecting successive points along the route remaining within the bounded
area defined by the tolerance." Amendment 4 (emphasis added). The claim
does not call for the plurality of lines connecting the determined points to
remain within a bounded area, or that the bounded area cover the entire
route. As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362,
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Application 13/474,016
1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well
established that limitations not appearing in the claim cannot be relied upon
for patentability. See In re Self, 671 F .2d 1344, 1348 (CCP A 1982). Thus,
Appellants do not apprise us of error in the Examiner's findings, which are
supported by a preponderance of the evidence.
Accordingly, we sustain the rejection of claim 7, and of claims 8, 24,
25, 28, and 29 falling therewith, under 35 U.S.C. § 103(a) as being
unpatentable over Kaplan.
Rejections III and IV- Claims 9, 10, 26, 27, 30, and 31 as unpatentable
over Kaplan and one of Tu and Inoue
With respect to the rejections of claims 9, 10, 26, 27, 30, and 31,
Appellants do not set forth any additional substantive arguments separate
from the arguments discussed supra; instead adding only that neither Inoue
nor Tu cures the asserted deficiencies of Kaplan, and otherwise relying on
dependency from one of independent claims 1, 24, and 28. Br. 8-9.
Accordingly, for the same reasons that Appellants' arguments do not apprise
us of error in Rejection II, Appellants also do not apprise us of error in
Rejections III or IV. Thus, we likewise sustain the rejections of claims 9,
10, 26, 27, 30, and 31under35 U.S.C. § 103(a) as being unpatentable over
Kaplan and one of Tu and Inoue.
DECISION
We AFFIRM the Examiner's decision rejecting claims 7-10 and
24--31under35 U.S.C. § 112, second paragraph, as being indefinite.
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We AFFIRM the Examiner's decision rejecting claims 7, 8, 24, 25,
28, and 29 under 35 U.S.C. § 103(a) as being unpatentable over Kaplan.
We AFFIRM the Examiner's decision rejecting claims 9, 26, and 30
under 35 U.S.C. § 103(a) as being unpatentable over Kaplan and Tu.
We AFFIRM the Examiner's decision rejecting claims 10, 27, and 31
under 35 U.S.C. § 103(a) as being unpatentable over Kaplan and Inoue.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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