Ex Parte Smartt

Board of Patent Appeals and Interferences

Dec 16, 2010

11292392 (B.P.A.I. Dec. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRIAN E. SMARTT
____________

Appeal 2009-009981
Application 11/292,392
Technology Center 3600
____________

Before JENNIFER D. BAHR, STEVEN D.A. McCARTHY and
STEFAN STAICOVICI, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009981
Application 11/292,392

2
The Appellant appeals the Examiner’s final decision rejecting claims 1
4-6 under 35 U.S.C. § 134. More specifically, the Examiner rejects claims 2
4-6 under 35 U.S.C. § 102(b) as being anticipated by Jayaraman (US 3
6,101,390, issued Aug. 8, 2000). We have jurisdiction over the appeal under 4
35 U.S.C. § 6(b). 5
The Appellant in the Notice of Appeal appealed from “the last 6
decision of the [E]xaminer.” The last decision of the Examiner was a Final 7
Office Action mailed November 29, 2007, in which the Examiner rejected 8
claims 4-6. The Appellant in the Appeal Brief conceded that claims 4-6 9
stood rejected but nonetheless stated that “[c]laim 4 is being appealed.” 10
(App. Br. 2). The Appellant appears to have argued only the rejection of 11
claim 4 in the Appeal Brief and the Reply Brief. The Appellant’s statements 12
indicate that the Appellant has withdrawn the appeal as to claims 5 and 6. 13
The Board does not question the Appellant’s decision to withdraw the 14
appeal as to claims 5 and 6. Instead, we suggest that the Examiner cancel 15
the non-appealed claims 5 and 6, and so notify the Appellant, when the 16
application is returned to the Examiner. See MANUAL OF PATENT 17
EXAMINING PROCEDURE § 1215.03. The rejection of claim 4 remains for 18
consideration. 19
We REVERSE. 20
The sole claim in the appeal recites: 21
4. A method for generating an improved database 22
representing a road network, comprising the steps 23
of: 24
recording a plurality of vehicle position data 25
points from one or more vehicles traveling on a 26
baseline road, such that data points for all of the 27
available directions of travel between at least one 28
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alternate road and the baseline road are traveled by 1
at least one of the one or more vehicles and 2
recorded as data points; 3
compiling the vehicle position data; 4
connecting the recorded data points to form 5
a semi-continuous trace of the geometric shape of 6
the baseline road in the improved database; 7
identifying a correspondence between the 8
trace and a representation of the baseline road in 9
an existing database that comprises road identities 10
and/or properties; and 11
assigning one or more of the identities 12
and/or properties from the representation of the 13
baseline road in the existing database to the 14
baseline road representation in the improved 15
database responsive to the identifying the 16
correspondence step. 17
Jayaraman describes a method for generating a table for use in a 18
system for location finding by measuring a signal from a transmitter of 19
unknown location, comparing the signal with transmission signatures stored 20
in the table and selecting one or more likely locations. (Jayaraman, col. 7, ll. 21
35-39). The method starts with collecting time, GPS position and 22
transmission signature data for one or more vehicles traveling along a 23
number of arbitrary and possibly overlapping or intersecting routes. 24
(Jayaraman, col. 3, ll. 26-35; and col. 4, ll. 17-18). The method generates a 25
total neighborhood file by listing for each data point all other data points in a 26
neighborhood of that data point, that is, within a predetermined distance of 27
that data point. (Jayaraman, col. 4, ll. 51 and 52). Data points associated 28
with segments of routes travelled by the one or more vehicles are “binned” 29
by associating with a route trajectory within a contiguous geographic area 30
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each data point which is in a neighborhood of a data point collected from the 1
route within the geographic area and which is not already associated with 2
another bin. (Jayaraman, col. 6, ll. 24-56). An average signature for each 3
bin is determined from covariance data derived from signature data 4
associated with data points in that bin. (Jayaraman, col. 6, l. 66 – col. 7, l. 5
3). Additionally, new routes can be incorporated into the database. 6
(Jayaraman, col. 7, ll. 49-51). 7
Claim 4 recites a step of recording a plurality of vehicle position data 8
points from one or more vehicles traveling on a baseline road, such that data 9
points for all of the available directions of travel between at least one 10
alternate road and the baseline road are traveled by at least one of the one or 11
more vehicles and recorded as data points. This step requires at least one 12
vehicle traveling in all available directions between one alternate road and 13
the baseline road, while recording vehicle position data points. 14
The Appellant is correct in interpreting the term “all available 15
directions” as including any direction on a road within a road network that is 16
not subject to a travel restriction. (See Reply Br. 2). This may include, for 17
example, eight different turn directions between a two-way baseline road 18
crossing a two-way alternate road. This definition is consistent with the 19
disclosure of the Specification. For example, while paragraphs 029 and 030 20
on page 15 of the Specification describe only a preferred embodiment of the 21
method, the paragraphs illustrate the manner in which the Appellant 22
intended to use the term “all available directions” in the Specification. 23
Claim 4 requires only that data points be recorded for all of the 24
available directions of travel between at least one alternate road and the 25
baseline road. This would be true even if the vehicle did not travel all 26
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available directions through the intersection (e.g., did not follow the first 1
road straight through the intersection). 2
That said, the Examiner has not provided a sound basis for belief that 3
Jayaraman inherently discloses recording data points for all of the available 4
directions of travel between at least one alternate road and the baseline road 5
traveled by at least one of the one or more vehicles and recorded as data 6
points. (See App. Br. 6-10). Inherency may not be established by 7
probabilities or possibilities. The mere fact that a certain thing may result 8
from a given set of circumstances is not sufficient to show that the thing is 9
inherent. In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations and 10
quotations omitted). 11
The Examiner finds that: 12
As the vehicles [described by Jayaraman] travel 13
across a given geographic region such as in 14
Figures 3B-3C and 4B-4D, it would be inherent 15
that the vehicles would travel in the long run all 16
the available road directions. Under this approach, 17
data from a new route can be incorporated into an 18
existing calibration table (recorded as data points) 19
to create a new total neighbor file where a 20
driver/navigation system can selected [sic] a 21
specific traveling road from a plurality of paths. 22
(Ans. 8-9). 23
The Appellant points out that Jayaraman’s routes are finite in length 24
and number. (App. Br. 9). “[T]he trajectories described in Jayaraman 25
would not necessarily use all directions of travel between two roads in the 26
long run, and so the claimed feature is not inherent.” (App. Br. 9). 27
Although Jayaraman describes adding new routes, a new route “does not 28
necessarily require recordation of data points for all of the available 29
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6
directions of travel between at least one alternate road and the baseline 1
road.” (App. Br. 9). 2
In other words, Jayaraman’s method does not require vehicles to 3
follow any route which travels all available directions between a baseline 4
road and an alternate road to provide a meaningful calibration table. The 5
possibility that the vehicles might follow such a route by chance does not 6
imply inherency. 7
The Appellant also correctly contends that drawing figures such as 8
Figure 4C of Jayaraman do not depict “travel between two roads in all 9
[available] directions.” (App. Br. 5). The Appellant correctly points out that 10
Jayaraman does not appear to discuss planning a route to travel different 11
directions between two roads. (Reply Br. 3). Jayaraman appears to be 12
interested in correlating positions with transmission signatures and less 13
interested in identifying available directions for traveling between roads. In 14
particular, the route depicted in Figure 4C fails to include a left turn from the 15
lower end of the road, depicted as extending vertically in the drawing figure 16
onto the road depicted as extending horizontally in the drawing figure. The 17
route depicted in Figure 4C also fails to include a right turn from the upper 18
end of the road depicted as extending vertically in the drawing figure onto 19
the road depicted as extending horizontally in the drawing figure. None of 20
Figures 3B, 3C, 4A, 4B and 4C depict a route which travels all available 21
directions between a baseline road and an alternate road. 22
Even assuming for purposes of this appeal only that the Examiner 23
could have articulated a reason why one of ordinary skill in the art might 24
have chosen to collect data points along a route which travels all available 25
directions between a baseline road and an alternate road, Jayaraman does not 26
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disclose recording data points for all available directions between a baseline 1
road and an alternate road. Without an express or inherent disclosure of all 2
limitations of claim 4, the rejection entered by the Examiner for anticipation 3
cannot be supported. 4
We do not sustain the rejections of claim 4 under § 102(b) as being 5
anticipated by Jayaraman. 6
7
DECISION 8
We REVERSE the Examiner’s decision rejecting claim 4. 9
10
REVERSED 11
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Klh 14
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RIM 17
1000 LOUISIANA STREET 18
FIFTY-THIRD FLOOR 19
HOUSTON, TX 77002 20