Ex Parte Stottlemyer

Patent Trial and Appeal Board

Jun 27, 2017

14260453 (P.T.A.B. Jun. 27, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/260,453 04/24/2014 Brett Stottlemyer 83418799 1947
28395 7590 06/29/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER OGUNBIYI, OLUWADAMILOL M
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
2657
NOTIFICATION DATE DELIVERY MODE
06/29/2017 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 BRETT STOTTLEMYER
Appeal 2017-004281
Application 14/260,453
Technology Center 2600
Before JOHN A. JEFFERY, DENISE M. POTHIER, and JASON M.
REPKO, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellant’s invention involves extra-vehicular voice recognition
training including vehicular updating. To this end, a processor is configured
to (1) communicate with an application running on an extra-vehicular
device; (2) determine if new user-sampled voice-recognition improvement
data exists on the device; (3) download any such new improvement data; (4)
store the downloaded data in a profile associated with a driver; and (5)
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Application 14/260,453
utilize the downloaded data to improve voice recognition. See generally
Title; Abstract. Claim 1 is illustrative:
1. A system comprising:
a processor configured to:
communicate with an application running on an extra­
vehicular device;
determine if new user-sampled voice-recognition
improvement data exists on the device;
download any new improvement data determined to exist
on the device;
store the downloaded data in a voice-recognition profile
associated with a driver; and
utilize the downloaded data to improve voice-recognition
when the driver attempts voice input.
THE REJECTIONS
The Examiner rejected claims 1—3, 6—10, 13—17, and 20 under 35
U.S.C. § 103(a) as unpatentable over Zhang (US 2007/0005206 Al; Jan. 4,
2007), Huang (US 5,933,804; Aug. 3, 1999), and Stonehocker (US
2013/0132084 Al; May 23, 2013). Ans. 2-1}
The Examiner rejected claims 4, 11, and 18 under 35 U.S.C. § 103(a)
as unpatentable over Zhang, Huang, Stonehocker, and Roth (US
2011/0294476 Al; Dec. 1,2011). Ans. 8-9.
The Examiner rejected claims 5, 12, and 19 under 35 U.S.C. § 103(a)
as unpatentable over Zhang, Huang, Stonehocker, and Rempel (US
2008/0091426 Al; Apr. 17, 2008). Ans. 9-10.
1 Throughout this opinion, we refer to (1) the Appeal Brief filed May 13,
2016 (“App. Br.”); (2) the Examiner’s Answer mailed January 25, 2017
(“Ans.”); and (3) the Reply Brief filed January 24, 2017 (“Reply Br.”).
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Application 14/260,453
THE REJECTION OVER ZHANG, HUANG, AND STONEHOCKER
Regarding claim 1, the Examiner finds that Zhang discloses a
processor configured to, among other things, communicate with a contacts
application running on an extra-vehicular device, namely mobile telephone
120. Ans. 3, 11—12. Although the Examiner acknowledges that Zhang does
not determine if new user-sampled voice-recognition improvement data
exists on the device, the Examiner finds that Huang teaches this
determination by using a speaker’s alternative pronunciations repeatedly to
update a dictionary. Ans. 3—4, 12—13. The Examiner also acknowledges
that although the Zhang/Huang system fails to “completely teach” that the
processor is configured to download any new improvement data determined
to exist on the device, the Examiner cites Stonehocker’s vocabulary
download module as teaching this limitation in the rejection, but also cites
Zhang’s paragraph 68 in the Answer’s Response to Arguments section.
Compare Ans. 4 with Ans. 13. In light of these collective teachings, the
Examiner concludes that claim 1 would have been obvious. See Ans. 3—5,
11-13.
Appellant argues that Zhang does not communicate with an
application running on an extra-vehicular device. App. Br. 6; Reply Br. 2, 4.
According to Appellant, Zhang does not disclose a “contacts application”
contrary to the Examiner’s assertion, for Zhang’s phone is said to be able to
transfer data to a vehicle’s head unit without using a contacts application, let
alone communicating with that application. Reply Br. 2.
Appellant also contends that Huang does not determine if new user-
sampled voice-recognition improvement data exists on the device, let alone
that such a determination is made by a processor communicating with an
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Application 14/260,453
application running on the device as claimed. App. Br. 6—8; Reply Br. 2—3.
Appellant adds that the Examiner’s reliance on Stonehocker’s vocabulary
download module for teaching downloading new improvement data is
misplaced. App. Br. 7. According to Appellant, not only is Stonehocker’s
vocabulary download module in a mobile device—not a vehicle—updates
are downloaded from a remote server, and are not based on a receiving
device’s processor determining that new words are present. App. Br. 7—8.
Appellant adds that Zhang is likewise deficient in this regard, for not only is
Zhang’s new contact data said to not be user-sampled voice-recognition
improvement data, the proposed combination fails to teach or suggest that
the same processor performs the recited communication, determination, and
download functions. Reply Br. 4—5.
ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Zhang, Huang, and Stonehocker collectively would have taught or
suggested a processor configured to (1) communicate with an application
running on an extra-vehicular device; (2) determine if new user-sampled
voice-recognition improvement data exists on the device; and (3) download
any new improvement data determined to exist on the device?
ANALYSIS
As noted above, a key aspect of the processor recited in claim 1 is its
configuration to perform all five recited functions, including the
communication, determination, and download functions that are at issue in
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Application 14/260,453
this appeal. That is, the same processor must be configured to perform these
functions as Appellant indicates. Reply Br. 5.
One of those functions, however, is conditional, namely, determining
if new user-sampled voice-recognition improvement data exists on the
device and, if so, that new data is downloaded, stored, and utilized to
improve voice recognition. Notably, the last three functions of claim 1 are
performed only if the processor determines that new improvement data
exists on the device; otherwise, these functions are not performed. The
utilization function is also conditional, for downloaded data is utilized to
improve voice recognition when the driver attempts voice input. If no such
attempt is made, the downloaded data is not so utilized.
Although conditional limitations need not be satisfied to meet method
claims reciting those limitations, such as independent claim 8, independent
system claim 1 still requires structure for performing the functions should the
conditions occur. See Ex parte Schulhauser, No. 2013-007847, slip op. at 9—
10, 14—15 (PTAB Apr. 28, 2016) (precedential).2
Nevertheless, because a single processor is configured to perform all
five functions, claim 1 effectively recites a single means claim. Apart from
reciting that the processor is configured to perform these functions, the claim
recites no particular structure to perform them.
Although omitting the term “means” in a claim element creates a
rebuttable presumption that § 112(f) does not apply, such an omission does
not automatically prevent that element from being construed as a means-
2 This decision is available at the Board’s web site at
https://www.uspto.gov/patents-application-process/appealing-patent-
decisions/decisions-and-opinions/precedential.
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plus-function element. Williamson v. Citrix Online, LLC, 792 F.3d 1339,
1348 (Fed. Cir. 2015) (en banc). In such a case, § 112(f) will apply if the
claim term fails to recite sufficiently definite structure, or else recites a
function without reciting sufficient structure for performing that function.
Id. at 1349.
That is the case here. First, the term “processor” is merely a generic
description for software or hardware that performs a specified function,
namely the five recited functions in claim 1. That is, the term “processor” is
simply a nonce word or “non-structural generic placeholder” that is
tantamount to the term “means” because it fails to connote sufficiently
definite structure and, in the context of claim 1, invokes § 112(f). Cf. id. at
1350 (discussing similar nonce words). See also Manual of Patent
Examining Procedure (MPEP) § 2181(I)(A) (9th ed. Rev. 07.2015, Nov.
2015); see also Ex parte Lakkala, 108 USPQ2d 1392 (PTAB 2013)
(expanded panel) (informative); Ex parte Erol, 107 USPQ2d 1963 (PTAB
2013) (expanded panel) (informative); Ex parte Smith, 108 USPQ2d 1198
(PTAB 2013) (expanded panel) (informative)).3
As the expanded panels noted in those informative decisions, a
“processor” is “a general purpose computer, a central processing unit
(‘CPU’), or a program that translates another program into a form acceptable
by the computer being used.” See Lakkala at 1396; see also Erol at 1969;
Smith at 1203. Given this definition, those panels held that the term
3 These three informative Opinions are available from the Board’s web page
entitled “Key Decisions Involving Functional Claiming” at
http://www.uspto.gov/patents-application-process/appealing-patent-
decisions/decisions-and-opinions/key-decisions.
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“processor” in the claims at issue in those cases was a non-structural term
that would not be recognized by skilled artisans as reciting sufficiently
definite structure for implementing the associated functions. See Lakkala at
1397; see also Erol at 1969—70; Smith at 1203—04.
The Examiner, however, does not articulate such a construction.
Nevertheless, we leave that question to the Examiner to consider after this
opinion, as well as the related question of whether the single recited
“processor” in claim 1 is equivalent to a single means limitation that is not
enabled for its scope under § 112(a). See Ex parte Rodriguez, 92 USPQ2d
1395, 1406—11 (BPAI 2009) (precedential) (discussing functional claiming
and scope of enablement); see also MPEP § 2164.08(a) (citing In re Hyatt,
708 F.2d 712 (Fed. Cir. 1983)); MPEP § 2181(V).
Turning to the rejection, we see no error in the Examiner’s reliance on
Zhang, Huang, and Stonehocker for collectively at least suggesting the
limitations of claim 1. First, Appellant does not persuasively rebut the
Examiner’s reliance on Zhang for at least suggesting a processor associated
with Zhang’s head unit 100 communicating with an application running on
an extra-vehicular device, namely mobile telephone 120 in Figure 1 to,
among other things, provide contact data from the phone to the head unit.
Ans. 11—12 (citing Zhang H 51, 65).
As shown in Zhang’s Figure 2, contact data 250 is transferred to the
head unit wirelessly when the mobile telephone communicates with the head
unit 100, and that data is used to update or populate contact data 242 of a
user’s profile data 240. Zhang | 65. To effect transferring the phone’s
contact data to the head unit, there would be some sort of application on the
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phone to enable (1) accessing stored contact data on the phone; and (2)
transferring that data to the head unit. See Zhang H 65, 68.
That the term “application” is defined in the art, quite broadly, as “[a]
program designed to assist in the performance of a specific task . . ,”4 only
bolsters the notion that Zhang at least suggests some sort of phone-based
application to at least assist in accessing the phone’s stored contact data and
transferring that data to the head unit. In fact, even Appellant acknowledges
that there could be code on the phone to instruct delivering contact data to
the vehicle when the phone connects to the vehicle. Reply Br. 2. Notably,
this phone-based code in Appellant’s example is an application under the
term’s plain meaning, for it is a program that at least assists in (1) accessing
the phone’s stored contact data, and (2) transferring that data to the head
unit. And because accessing and transferring the phone’s stored contact data
is triggered when the head unit communicates with the phone (see Zhang
11 65, 68), Zhang at least suggests that the processor associated with the
head unit communicates with an application running on the phone to effect
this data transfer, or that this application-based communication would have
been at least an obvious variation.
Nor do we find error in the Examiner’s reliance on Huang for at least
suggesting determining if new user-sampled voice-recognition improvement
data exists on a device, and that applying such a determination to Zhang’s
system would have been obvious. Ans. 3—4, 12—13. First, when the user
utters a particular pronunciation in Huang’s speech recognition system, it is
“user-sampled” voice-recognition data as the Examiner indicates. Ans. 12
4 Microsoft Computer Dictionary 31 (5th ed. 2002).
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(citing Huang, col. 2,11. 51—64). Second, when the user utters an alternative
pronunciation to yield additional “user-sampled” voice-recognition data, that
alternative pronunciation is effectively “new user-sampled voice-recognition
improvement data” in that the system identifies that alternative
pronunciation, and updates an associated device-based dictionary
accordingly. Ans. 3, 12—13 (citing Huang, col. 2,11. 51—64; col. 4,11. 11—
13).
Given this functionality, we see no error in the Examiner’s conclusion
that providing such a determination in connection with Zhang’s processor
would have been obvious, particularly in light of (1) Huang’s updating a
dictionary responsive to determining that new user-sampled voice-
recognition improvement data exists on the device, and (2) Zhang’s head
unit updating its contact data by downloading contact data from the mobile
telephone. See Zhang | 65. As the Examiner indicates, this downloaded
contact data can be used to expand Zhang’s speech-recognition capability.
Ans. 13. Nor do we see any reason why Zhang’s contact data cannot include
user-sampled voice-recognition improvement data, particularly in light of
Huang. Given Zhang’s and Huang’s collective teachings, then, providing
the ability for Zhang’s processor to also (1) determine if new user-sampled
voice-recognition improvement data exists on an extra-vehicular device,
such as a mobile telephone, and (2) download that new data, would have
been at least an obvious variation yielding a predictable result. See KSR
Inti Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Notably, under the Examiner’s proposed combination, Zhang’s single
processor would be configured to not only communicate with the mobile
telephone’s application, but also determine if new user-sampled voice-
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Application 14/260,453
recognition improvement data exists on that device, and download that new
data in light of Huang. Appellant’s arguments regarding the cited
references’ individual shortcomings (App. Br. 6—8; Reply Br. 2—5), then, do
not show nonobviousness where, as here, the rejection is based on the cited
references’ collective teachings. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
Lastly, we note that the Examiner’s cites Stonehocker for teaching the
recited download function in the rejection (Ans. 4), but cites Zhang for
teaching that feature in the Answer’s Response to Arguments section.
Compare Ans. 4 with Ans. 13. Although Stonehocker is technically
cumulative to Zhang in this regard, we nonetheless see no harmful error in
the Examiner’s reliance on Stonehocker for the limited purpose for which it
was cited, namely merely to show that downloading improvement data as
updates is known in the art, and that doing so would have been obvious. See
Ans. 4. We reach this conclusion emphasizing that, under the Examiner’s
proposed combination, updates are achieved by downloading new user-
sampled voice-recognition improvement data from the phone to the head
unit in the Zhang/Huang system as noted previously. See Ans. 13 (citing
Zhang | 68).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2, 3, 6—10, 13—17, and 20 not argued separately with
particularity.
THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner’s obviousness rejections of claims 4, 5,
11, 12, 18, and 19. Ans. 8—10. Because these rejections are not argued
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Application 14/260,453
separately with particularity (see App. Br. 8—9), we are not persuaded of
error in these rejections for the reasons previously discussed.
CONCLUSION
The Examiner did not err in rejecting claims 1—20 under § 103.
DECISION
We affirm the Examiner’s decision to reject claims 1—20.
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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