Ex Parte Singhal

Patent Trials and Appeals Board

May 24, 2019

12290821 - (D) (P.T.A.B. May. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/290,821
103550 7590
Tara Chand Singhal
P.O. Box 5075
Torrance, CA 90510
FILING DATE FIRST NAMED INVENTOR
11/03/2008 Tara Chand Singhal
05/29/2019
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.
l l 195.123F 2627
EXAMINER
AREVALO, JOSEPH
ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
05/29/2019 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):
singhal@att.net
chand@internetpromise.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TARA CHAND SINGHAL
Appeal2017-007853
Application 12/290,821
Technology Center 2600
Before JEREMY J. CURCURI, AMBER L. HAGY, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 3, 4, 6, 9--12, 14, and 17.2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 Appellant, appearing pro se, identifies the real party in interest as the
applicant/ inventor Tara Chand Singhal. (App. Br. 4.)
2 Appellant's Claims Appendix indicates that claims 5, 13, and 18-20 have
been canceled. (App. Br. 21, 23-24 (Claims App'x).) The Examiner states
that claim 2 was also previously canceled and is not considered. (Final Act.
2.) The Examiner states that claims 7, 8, 15, and 16 "are 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." (Id. at 12.)
Appeal2017-007853
Application 12/290,821
STATEMENT OF THE CASE
Introduction
According to Appellant, "[ t ]he preferred embodiment is on systems
and methods for a location and movement tracking system using GPS
enabled cell phones." (Spec. 1:26-27.) Further according to Appellant:
A location and movement tracking system as in tracking
a fleet of vehicles is a useful application. However, such
systems are costly as they may use specialized hardware and
software.
It is an objective of the preferred embodiment to have a
cheaper and easier to set up location and movement tracking
system so they can be more widely used in many more
applications that have hitherto have not used location and
movement tracking systems.
(Id. at 2:3-10). In particular, Appellant's Specification describes
[a] system that tracks location and movement of geographically
dispersed entities, each equipped with a cell phone with a GPS
function . . . . In this system each entity's cell phone has a slave
agent operable in the entity phone that periodically collects
location data from the GPS function and periodically sends a
time and location data record to a master cell phone using
currently utilized or future developed wireless network.
(Id. at 3 :3-8.) Appellant's Specification further describes "[t]he interface
between the master agent ... and the slave agent ... may be via any number
of currently utilized or future developed protocols, such as short messaging
system (SMS)." (Id. at 7:6-9.)
Illustrative Claim
Claims 1 and 11 are independent. Claim 1, reproduced below with
disputed limitations italicized, is illustrative of the claimed subject matter:
1. A system of tracking location and movement of
geographically dispersed entities, each entity having a GPS
enabled wireless cell phone with a GPS function, comprising:
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(a) a slave cell phone collects the slave cell phone's
location data from the GPS function in the slave cell phone and
sends periodically exclusively by a short messaging system
(SMS) message via a predefined message including a time and a
location data record of the slave cell phone to a master cell
phone, wherein the slave phone suppresses sending location
message records, when there is no change in location from the
previous location message record sent to the master cell phone;
(b) the master cell phone, receives and saves the
location data record received from the slave cell phone via the
SMS message from the slave cell phone, and plots and displays
a location of each of the slave cell phones that are attached to or
in possession of each of the geographically dispersed entities
with cell phones, and wherein a plurality of slave cell phones
and the master cell phone communicate with each other via
SMS messages;
( c) a slave agent in the slave phone identifies and
verifies commands and data from a master agent in the master
cell phone and the master agent in the master phone, identifies
and verifies the location data as having come from the slave
agent in the slave cell phone;
( d) the master cell phone tracks and displays location
and movement data of a one or more of entities with slave cell
phones that are geographically dispersed enabling the system
used for applications from a group that includes, parents
monitoring their children traveling to and from to school and
extended activity away from home, and scout master
monitoring scouts on hiking trips.
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Beyer, Jr., et al.
("Beyer")
Meadows et al.
("Meadows")
Seo
US 2006/0199612 Al
US 2008/0146251 Al
US 2008/0220728 Al
3
Sept. 7, 2006
June 19, 2008
Sept. 11, 2008
Appeal2017-007853
Application 12/290,821
Rejections3
Claims 1 and 11 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite. 4 (Final Act. 2-3; Ans. 2-3.)
Claims 1, 3, 4, 6, 9, 11, 12, and 14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Seo and Beyer. (Final Act. 3-11.)
Claims 10 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Seo, Beyer, and Meadows. 5 (Final Act. 11-12.)
Issues
( 1) Whether the Examiner erred in rejecting claims 1 and 11 under
35 U.S.C. § 112, second paragraph, as indefinite based on the Examiner's
determination that the recitation in claims 1 and 11 of "each of the slave cell
phones" lacks antecedent basis.
(2) Whether the Examiner erred in finding the prior art teaches or
suggests "a slave cell phone collects the slave cell phone's location data
3 All rejections are under the provisions of Title 35 of the United States
Code in effect prior to the effective date of the Leahy-Smith America
Invents Act of 2011.
4 The Final Action, in stating the basis of the rejection under 35 U.S.C.
§ 112, refers to claims 1, 4, 11, 12 and 18. (Final Act. 2.) In the Answer,
the Examiner clarifies that claim 18 "was not intended to be rejected,"
because it had been canceled by the applicant on February 16, 2016. (Ans.
2.) The Examiner also clarifies that "[c]laims 4 and 12 were inadvertently
listed in the heading of the rejection." (Id.) Based on these clarifications,
we consider only claims 1 and 11 to stand rejected under 35 U.S.C. § 112.
5 Although claims 10 and 17 are not included in the listing of rejected claims
on the cover of the Final Action, we view that as a harmless typographical
error, as the body of the rejection discusses claims 10 and 17. (Final Act.
11.) Appellant also acknowledges the rejection of claims 10 and 17. (App.
Br. 19.)
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Application 12/290,821
from the GPS function in the slave cell phone and sends periodically
exclusively by a short messaging system (SMS) message via a predefined
message including a time and a location data record of the slave cell phone
to a master cell phone," as recited in independent claim 1 and
commensurately recited in independent claim 11.
ANALYSIS
A. Section 112 Rejection (Claims 1 and 11)
Claims 1 and 11 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for lacking antecedent basis for the phrase
"each of the slave cell phones." (Final Act. 3.) As the Examiner elaborates
in the Answer, this limitation references multiple slave cell phones by
referring to "each of the" slave cell phones (plural). (See id. 3.) Appellant
responds that "multiple slave cell phones" is a phrase that "does not exist in
claim 1 or any of the claims." (Reply Br. 3.)
Although we agree with Appellant that the claims do not expressly
recite the phrase "multiple slave cell phones," we agree with the Examiner
that the disputed recitation does refer to slave cell phones in the plural. (See
App. Br. 20 (Claims App'x).) Prior to that recitation, however, claims 1 and
11 each refer only to "a slave cell phone," without any indication of plural
slave cell phones communicating their location to a master cell phone.
Appellant does not otherwise address the substance of the Examiner's
rejection or explain how the recitation "each of the slave cell phones"
(plural) finds antecedent basis in these claims.
We conclude the Examiner's rejection of claims 1 and 11 under 35
U.S.C. § 112, second paragraph, is well-taken. For the reasons stated by the
Examiner (Final Act. 3; Ans. 2-3), we agree the claims lack antecedent basis
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Application 12/290,821
for the phrase "each of the slave cell phones." We additionally note that
Appellant, in its Appeal Brief, acknowledges additional lack of clarity in
claim 1, which recites "wherein the slave cell phones that are attached to or
in possession of each of the geographically dispersed entities .... " (See
App. Br. 10.) According to Appellant, "the slave phones that are attacher!'
would be read by an ordinarily skilled artisan as "the slave phones that are
attached" (eliminating "that"). (Id. (underlining omitted).) Appellant fails
to provide a persuasive basis for this assertion, however. In any event, as
Appellant itself notes further in its Reply Brief, "there is enough confusion"
regarding the rejection. (Reply Br. 1.) In light of that confusion, Appellant
requests the Board to "order [the] Examiner to clarify the rejection and work
with [Appellant] to address this rejection." (Id.) We disagree that the
rejection requires further clarification. In any event, should Appellant
consider it helpful, Appellant may contact the Examiner to discuss
appropriate amendments to remedy the lack of clarity in the claims.
Meanwhile, for the foregoing reasons, we sustain the Examiner's
section 112 rejection.
B. Section 103(a) Rejections (Claims 1, 3, 4, 6, 9--12, 14, and 17)6
We have reviewed the Examiner's 35 U.S.C. § 103(a) rejections of
claims 1, 3, 4, 6, 9--12, 14, and 17 in light of Appellant's arguments the
Examiner has erred. We disagree with Appellant's contentions and we adopt
6 Appellant argues claims 1 and 11 collectively with regard to the
Examiner's rejection under 35 U.S.C. § 103(a) over Seo and Beyer. (App.
Br. 11-19.) Separate patentability is not argued for dependent claims 3, 4, 6,
9, 12, or 14. (See id.) Therefore, based on Appellant's arguments, we
decide the appeal of claims 1, 3, 4, 6, 9, 11, 12, and 14 based on claim 1
alone. See 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 12/290,821
as our own: ( 1) the findings and reasons set forth by the Examiner in the
action from which this appeal is taken (Final Act. 3-12) and (2) the reasons
set forth by the Examiner in the Examiner's Answer in response to
Appellant's Appeal Brief. (Ans. 3--4.) We concur with the conclusions
reached by the Examiner, and we highlight the following for emphasis. 7
The Examiner finds Seo teaches most of the limitations of claim 1
(Final Act. 2-5), except the Examiner finds Seo does not disclose the
following:
[T]he short messaging system (SMS); and wherein a plurality
of slave cell phones and the master cell phone communicate
with each other via SMS messages; the master cell phone tracks
and displays location and movement data of a one or more of
entities with the slave phones that are geographically dispersed
enabling the system used for applications from a group that
includes, parents monitoring their children traveling to and
from to school and extended activity away from home, and
scout master monitoring scouts on hiking trips ....
(Id. at 5.) As to these limitations, the Examiner additionally relies on Beyer.
(Id. at 5---6.)
Appellant argues the Examiner's rejection is in error, first, because the
cited prior art "relies on using a central system on a global network,"
whereas "the cellular wireless network that routes SMS messages in the
claimed subject matter is not a central server to a person of ordinary skill in
the art." (App. Br. 11 (emphasis omitted).) In other words, Appellant
argues the claimed invention differentiates over the prior art because, unlike
7 Only those arguments made by Appellant have been considered in this
decision. Arguments Appellant did not make are deemed to be waived in
the current appeal proceeding before the Board. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
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Application 12/290,821
the prior art, Appellant's invention allows the slave phones to communicate
with the master phone "directly" and "without the need for a central server."
(Id. at 12.)
In particular, Appellant argues that "Seo requires use of a central SIP
server." (App. Br. 12.) The Examiner, however, does not rely on Seo for
teaching the communication of location information via SMS, but instead
relies on Beyer for that teaching. (Final Act. 5.) With regard to Beyer,
Appellant contends "Beyer teaches a method of providing a teleconferencing
communication system using a PDA/cellular phone," and "uses a central
server to have this teleconferencing system." (App. Br. 12.) Appellant does
not, however, assert that Beyer requires the teleconferencing central server
to communicate location data. To the contrary, Appellant acknowledges the
Examiner cites to portions of Beyer as teaching "use of SMS texting for
communication of location data." (Id. at 13 (noting Examiner's citation to
,r,r 21, 24, 27, and 28 of Beyer).) After quoting these paragraphs of Beyer,
Appellant asserts:
A fair reading of the above Beyer cites, to a person of ordinary
skill in the art, teaches that cell phones have multiple format
communication capabilities such as, telephone calls, SMS and
TCP/IP internet protocol, via multiple networks such as
cellular, radio and Wi-Fi network that can be used for
communication of any data including transmission of latitude
and longitude information between cell phone devices as in the
following Beyer cites.
(Id. at 16 (emphases added).) Although Appellant acknowledges that the
cited portions of Beyer contain the teachings referenced by the Examiner,
Appellant contends Beyer is deficient because Beyer teaches use of several
different capabilities. "In contrast," Appellant asserts, the "claimed subject
matter is directed to sending GPS location data between master and slave
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cell phones periodically exclusively by SMS messages using only a cellular
wireless network for communication of GPS position data." (Id. ( emphasis
added).) Appellant continues:
A person of ordinary skill in the art with the knowledge of Seo
and Beyer, communication between cell phones may happen
using any modality of a wireless network such as cellular, radio
and Wi-Fi, using any communication protocols of, telephone
calls, SMS and TCP/IP internet protocol, calls, SMS and
TCP/IP internet protocol[.]
A person of ordinary skill in the art does not limit and has no
reason to limit such communication between cell phones to a
single mode that of exclusively using SMS using cellular
network as in the claimed subject matter as providing any
specific benefit or advantage.
The claimed subject matter is directed to using a cellular
wireless network using exclusively SMS protocol and such is
not in the purview of a person of ordinary skill in the art. To a
person of ordinary skill in the art with knowledge of Seo and
Beyer, a central server system is required to distribute location
data to the cell phones as also having the ability to maintain
group identification data.
(Id. at 16-17 (emphases added).)
Appellant, thus, concedes that the prior art teaches sending location
data over a cellular wireless network using SMS protocol, as the Examiner
finds (and we agree), but asserts the Examiner's rejection is nevertheless in
error because the prior art also discloses additional communication networks
and protocols that may be used, and, therefore, does not teach using cellular
/ SMS exclusively. (See id.) This argument is not persuasive of error. The
fact that the prior art teaches multiple mechanisms for accomplishing the
same result does not undermine its disclosure of any one of those
mechanisms or preclude the use of any one of them exclusively. Appellant
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does not, for example, point to any teaching in Beyer that communication
protocols other than SMS are required to perform the functionality that the
claims recite are to be completed "exclusively by a short messaging system
(SMS)," nor do we read Beyer as limited in that regard. Put another way,
we find the prior art's disclosure of multiple mechanisms for sending
location data would have been understood by a skilled artisan as teaching the
use of any suitable combination of the disclosed mechanisms as well as
teaching the use of any disclosed mechanism individually.
Appellant's arguments are unpersuasive also because they are not
commensurate with the scope of the claims. Although claim 1 recites "a
slave cell phone collects the slave cell phone's location data from the GPS
function in the slave cell phone and sends periodically exclusively by a short
messaging system (SMS) message via a predefined message" that location
data to a master cell phone, nothing in claim 1 precludes the use of a central
server as part of the system, as Appellant repeatedly contends. (App. Br. 17
(noting the Examiner fails to understand "the nature and scope of claimed
subject matter directed to 'cell phone tracking' and its features of not using a
central server for cell phone tracking").) Therefore, although Beyer may use
a central server for some aspect of its system's functionality (such as the
teleconferencing feature, as asserted by Appellant (id. at 12)), this does not
undermine Beyer's disclosure of SMS as an exemplary protocol for sending
location information between devices (as the Examiner finds, and we agree).
(See Ans. 3--4; Final Act. 5-6; Beyer ,r,r 21, 24, 27, 28).) Again, Appellant
has pointed to nothing in Beyer that requires use of any additional protocol
for that function.
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In the Reply Brief, Appellant asserts that the Examiner has taken the
position, applying "Broadest Reasonable Interpretation (BRI)," that "a
central server is required for claim 1." (Reply Br. 5.) We do not read the
Examiner's rejection as Appellant does. The Examiner has no reason to read
a "central server" limitation into claim 1, as the Examiner finds Beyer
teaches use of SMS messaging protocol for one cell phone to send location
information to another cell phone using a wireless communication network.
(Final Act. 5, 13; Beyer ,r 24 (noting that the system uses GPS to determine
location information and "through SMS ... or other digital messaging
software" is capable of "transmit[ting] this [location] information ... to
other cellular phones in the communication network via cellular
communications, WiFi or radio").) Beyer does not require, for this feature, a
"central server" any more than Appellant's invention does, as Appellant's
claims and Specification similarly describe use of SMS protocol over a
wireless network (such as that used by "cell phones"). (See Spec. 1 :3-19,
9:24--25; App. Br. 20 (Claims App'x).)
Appellant also argues the Examiner's rejection is in error because the
Examiner has failed to identify a "teaching, suggestion or motivation in the
arts themselves" for making the claimed combination. (App. Br. 17-18.)
Appellant is, essentially, arguing that the Examiner has a burden to provide
some precise teaching, suggestion, or motivation to combine the references
under 35 U.S.C. § 103. We disagree. Although Appellant acknowledges the
Court's KSR decision (KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)),
Appellant overlooks that the Court repudiated any special requirement for
such a showing to establish obviousness. KSR, 550 U.S. at 415 ("We begin
by rejecting the rigid approach of the Court of Appeals."). Rather, the
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requirement is only that the Examiner show "the subject matter as a whole
would have been obvious at the time the invention was made to a person
having ordinary skill in the art to which said subject matter pertains." KSR,
550 U.S. at 406 (quoting 35 U.S.C. § 103) (emphasis added); id. at 418
("[T]he analysis need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.").
We recognize the Examiner must articulate "reasoning with some
rational underpinning to support the legal conclusion of obviousness." In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). However, contrary to Appellant's
contentions, the Examiner's reasoning need not appear in, or be suggested
by, one or more of the references on which the Examiner relies. Instead, a
reason to combine teachings from the prior art "may be found in explicit or
implicit teachings within the references themselves, from the ordinary
knowledge of those skilled in the art, or from the nature of the problem to be
solved." WMS Gaming Inc. v. Int'! Game Tech., 184 F.3d 1339, 1355 (Fed.
Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)).
"Under the correct [obviousness] analysis, any need or problem known in
the field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining the elements in the manner claimed." KSR,
550 U.S. at 420.
In the instant appeal, the Examiner has provided a rationale
supporting motivation by a person of ordinary skill in the art to achieve the
claimed subject matter. (Final Act. 6.) In so doing, the Examiner relies on
Beyer itself as teaching the benefits of using SMS protocol for sending
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location information, to enable tracking. Thus, according to the Examiner,
the ordinarily skilled artisan would have been motivated to use SMS
protocol for sending location information between cell phones, as taught by
Beyer, in Seo' s system of tracking location and movement of cell phones.
(See id. at 5---6.) Specifically, the Examiner finds "the motivation for the
combination would be to use the short messaging system (SMS) to transmit
the location," which would allow "the user to monitor the activity of
different devices and display the multiple entities in the device operating the
system in wireless communication between the cell phones tracking location
and movement of the entities," thus making the system "more efficient and
reliable for tracking [a] user's location." (Id. (citing Beyer ,r,r 21, 24, 27,
28).) Thus, we find the Examiner's reasoning is rational on its face, and is
supported by evidence drawn from the record.
Appellant has not provided persuasive evidence or line of reasoning
explaining why such rationale is erroneous or why a person of ordinary skill
in the art would not have reached the conclusions reached by the Examiner.
See DyStar Textilfarben GmbH & Co. Deutsch/and KG v. CH Patrick Co.,
464 F.3d 1356, 1368 (Fed. Cir. 2006) ("[T]he proper question is whether the
ordinary artisan possesses knowledge and skills rendering him capable of
combining the prior art references."). At most, Appellant has presented
arguments that, as discussed above, are premised on the erroneous
assumption that Beyer' s teaching multiple types of protocols, without
designating SMS as the "exclusive" choice, removes Beyer from the scope
of the claims. For the reasons stated above, we disagree. Consequently, we
are persuaded that the Examiner articulated a sufficient rationale for
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combining the teachings of the cited references, and the provided rationale is
supported by evidence drawn from the record.
For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of claim 1, and we, therefore,
sustain that rejection, along with the rejection of claims 3, 4, 6, 9, 11, 12,
and 14, which are argued collectively with claim 1 on the same basis.
We likewise sustain the Examiner's obviousness rejection of
dependent claims 10 and 17 over the additionally cited prior art listed above
(Meadows). Appellant has not particularly pointed out errors in the
Examiner's reasoning regarding the additional teachings of the further cited
art, but merely asserts patentability based upon these claims' dependency
from independent claims 1 and 11, respectively. (App. Br. 19.)
C. Claim Objections (Claims 1, 2, 7, 8, 15, and 16)
The Examiner also notes objections to claims 1, 2, 7, 8, 15, and 16.
(Final Act. 2, 12.) These issues are not before us. See In re Hengehold, 440
F.2d 1395, 1403 (CCPA 1971); see also MPEP § 706.01(9th ed., 7th rev.,
July 2015) ("[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.
These formal matters should not be combined in appeals to the Board.").
We note, however, an apparent disagreement between Appellant and
the Examiner regarding whether claim 2 remains in the case or was
previously canceled. (See id.; see also Reply Br. 3.) Our review of the file
history confirms that Appellant canceled claim 2 by way of an amendment
filed November 3, 2015. (See Nov. 3, 2015, Amend. at p. 1 ("[C]laim 2 has
been cancelled .... ").) By way of an amendment filed on February 16,
2016, however, Appellant purported to amend claim 2, but in so doing, did
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not indicate claim 2 was being re-inserted (for example, by adding as a new
claim), but simply amended claim 2 as if it had not been canceled. In
response, on May 10, 2016, the Examiner issued a Notice of Non-Compliant
Amendment, per 37 C.F.R. § 1.121. Nevertheless, thereafter, Appellant
included the "amended" claim 2 in its index of claims on appeal.
In any event, claim 2 is not before us, and we leave resolution of the
Examiner's objections to claims 1, 2, 7, 8, 15, and 16 to further prosecution,
if any.
DECISION
The Examiner's 35 U.S.C. § 112, second paragraph, rejection of
claims 1 and 11 is affirmed.
The Examiner's 35 U.S.C. § 103(a) rejections of claims 1, 3, 4, 6, 9--
12, 14, and 17 are affirmed.
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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