Ex Parte Throop et al

Patent Trial and Appeal Board

Jun 22, 2016

13190600 (P.T.A.B. Jun. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/190,600 07/26/2011
28395 7590 06/24/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Medville Jay Throop
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.
83190181 2480
EXAMINER
JEON, JAE UK
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
06/24/2016 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 MEDVILLE JAY THROOP, BRIAN DAVID
TILLMAN, SCOTT DAVID WOJTKOWICZ, and DANIEL
WILLIAM FORTHOFFER
Appeal2014-007170
Application 13/190,600
Technology Center 2100
Before JON M. JURGOVAN, ADAM J. PYONIN, and
NABEEL U. KHAN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-20, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2014-007170
Application 13/190,600
STATEMENT OF THE CASE
Introduction
Appellants' disclosure is directed "a method and apparatus for
automatic module upgrade" of vehicles. Spec. i-f 1. Claims 1, 10, and 15 are
independent and reproduced below for reference (with emphases added):
1. A computer-implemented method comprising:
determining at a vehicle that an update server connection
should be established;
establishing a wireless connection between the vehicle and
the update server using a wireless device in wireless
communication with a vehicle computing system;
sending at least a vehicle identification number (VIN)
number to the update server;
downloading a module update corresponding to the sent
VIN number; and
flashing a module to which the update corresponds.
10. A non-tranistory1 computer readable storage medium
storing instructions that, when executed by a vehicle computing
system, cause a processor thereof to perform the method
compnsmg:
determining at a vehicle that a connection to an update
server should be established;
establishing a wireless connection between the vehicle and
the update server using a wireless device in wireless
communication with a vehicle computing system;
sending at least a vehicle identification number (VIN)
number to the update server;
downloading one or more module updates corresponding
to the sent VIN number; and
flashing one or more modules to which the one or more
updates correspond.
1 Although claim 10 recites "non-tranistory," we consider this to be a
typographical error and treat claim 10 as reciting "non-transitory."
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Application 13/190,600
15. A system comprising:
at least one remote terminal;
at least one update server; and
a plurality of vehicles each having at least a vehicle
identification number (VIN) number associated therewith and at
least one updateable software module installed thereon, wherein
an authorized user can access the at least one update server from
the at least one remote terminal to instruct updating of a plurality
of the vehicles identified by a VIN number,
wherein a communication system of the at least one
vehicle to be updated is operable to establish communication
with the update server and to transmit the VIN number
associated with the vehicle thereto,
wherein responsive to reception of the VIN number, the
update server is operable to send an updated software module
installation package to the vehicle, and wherein upon receipt of
the updated software module installation package, the vehicle is
operable to reflash a software module corresponding to the
updated software module installation package.
References and Rejections
Claims 1, 4, 10, and 13 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Habermas (US 2005/0256614 Al; Nov. 17, 2005).
Final Act. 2.
Claims 2, 3, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Habermas and Herle (US 2004/0261073 Al;
Dec. 23, 2004). Final Act. 4.
Claims 5-8 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Habermas and Hesselink (US 2005/0149481 Al; July 7,
2005). Final Act. 5.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Habermas, Hesselink, and Cisco (Cisco Application
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Application 13/190,600
Control Engine Module Administration Guide, Software Version A4 (2.0),
February 2011). Final Act. 7.
Claims 15-18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Habermas and Lee (US 2004/0187011 Al; Sept. 23,
2004). Final Act. 8.
Claims 19 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Habermas, Lee, and Hesselink. Final Act. 11.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner erred. We agree with Appellants' arguments
regarding independent claims 10 and 15; however we disagree with
Appellants' arguments regarding independent claim 1 and adopt as our own
the Examiner's corresponding findings and reasoning in the rejection of
claim 1.
A. Independent Claim 1
Appellants argue the Examiner erred in rejecting independent claim 1,
because "[t]he claims call for a vehicle to contact a remote server, provide a
VIN, and then download an update associated with a VIN" (Br. 6), and
Habermas "lacks teachings of VIN transmission from vehicle to remote
system and downloading from a remote system based on VIN transmission"
(Br. 7). Appellants also contend "claim 1 calls for communication using a
wireless device in wireless communication with the vehicle. Habermas' s
device 120 is never disclosed as being in wireless communication with the
vehicle." Br. 7.
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Appeal2014-007170
Application 13/190,600
We are not persuaded the Examiner erred. We find Habermas
discloses the claimed update server and a wireless device in wireless
communication with a vehicle, for updating the vehicle software based on
stored VIN codes. See Ans. 19; Habermas Fig. 1, i-fi-135, 36.
Regarding the VIN limitation recited by claim 1, Appellants'
arguments are not commensurate with the claim scope. Particularly, the
Examiner correctly notes that "the limitations of[] claim 1 do[] not
specifically require[ ]'calling for a vehicle to contact a remote server', as
argued by the applicant, rather [the claim] requires[ ]'a computer-
implemented method; ... sending at least a vehicle identification number
(VIN) number to the update server."' Ans. 15. We agree with the Examiner
that Habermas inherently discloses the disputed limitation, because the VIN
"must have been transmitted ... in order to use the VIN number to search
and update the current status of ECUs of that specific vehicle." Id. (citing
Habermas i135). That is, Habermas discloses a remote "vehicle information
database" containing VIN codes, and these codes need to be sent to the
database for them to be stored within the database. See Habermas i135.
Accordingly we agree with the Examiner that Habermas discloses the
limitations of independent claim 1. We sustain the rejection of claim 1, and
for the same reasons, claims 2-9 which depend thereon. See Br. 7-8.
B. Independent Claims 10 and 15
The Examiner rejects independent claim 10 "under the same rationale
as cited in the rejection of claim 1." Final Act. 3. Appellants argue the
Examiner erred, "for at least a similar reason" as argued for independent
claim 1. App. Br. 7.
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Application 13/190,600
We find Appellants' arguments---discussed above with respect to
claim I-are commensurate with the scope of claim 10, which recites "[a]
non-tranistory [sic] computer readable storage medium ... when executed by
a vehicle computing system, cause a processor thereof to perform the method
comprising: ... sending at least a vehicle identification number (VIN)
number to the update server" (emphasis added).
We are persuaded by Appellants that the Examiner erred in rejecting
claim 10, because the Examiner's finding-that Habermas inherently
discloses sending a VIN to the server by the vehicle (see Ans. 13}-relies on
"a possibility, [and] absolutely none of this is taught" by Habermas's system
(Br. 7). 2 We agree with Appellants that Habermas does not necessarily
disclose the vehicle computing system sends the VIN to the server: for
example, the manufacturer or vehicle operator could separately upload the
VIN to the database using computer 150 or other network connection. See
Habermas Fig. 1; see also Br. 7. Further, Habermas explicitly discloses
using a VIN for server initiated updates (see Habermas i-f 35, 36), whereas
vehicle initiated service requests (see Habermas i-f 31) are silent as to car
identification, indicating such identification may not be necessary. See Br.
6. Therefore, we do not sustain the Examiner's rejection of independent
claim 10.
Claim 15 similarly recites a VIN transmission limitation involving a
vehicle ("a communication system of the at least one vehicle ... operable to
establish communication with the update server and to transmit the VIN
2 See In re Oelrich, 666 F.2d 578, 581(CCPA1981) (citations removed)
("Inherency ... may not be established by probabilities or possibilities. The
mere fact that a certain thing may result from a given set of circumstances is
not sufficient.").
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Application 13/190,600
number associated with the vehicle thereto"), which the Examiner finds
taught by Habermas. See Final Act. 8-9. As discussed above with respect
to claim 10, we agree with Appellants that Habermas does not disclose such
limitation inherently. See Br. 8. Further, Lee-which is additionally cited
in the rejection---does not cure the deficiencies of Habermas. See id.; see
also Final Act. 8-10. Thus, on the record before us, we find the Examiner
has not presented a prima facie case of unpatentability of independent claim
15.
Accordingly, we do not sustain the Examiner's rejection of
independent claims 10 and 15, or the claims dependent thereon.
DECISION
The Examiner's rejections of claims 1-9 are affirmed.
The Examiner's rejections of claims 10-20 are reversed.
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-IN-PART
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