Ex Parte Vandivier et al

Patent Trial and Appeal Board

Feb 27, 2018

12776632 (P.T.A.B. Feb. 27, 2018)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/776,632 05/10/2010 Karl Douglas Vandivier 81197146 2754
28395 7590 03/01/2018
RROOKS KTTSHMAN P C /FfTET
EXAMINER
1000 TOWN CENTER HOLLOWAY III, EDWIN C
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
03/01/2018 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 KARL DOUGLAS VANDIVIER, ROBERT BRUCE KLEVE,
PAUL ALDIGHIERI, JON ROBERT VAN WIEMEERSCH,
and STEVEN YELLIN SCHONDORF
Appeal 2017-009070
Application 12/776,6321
Technology Center 2400
Before JEFFREY S. SMITH, NABEEL U. KHAN, and
MICHAEL M. BARRY, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1—7, 12, 15, and 20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Ford Global Technologies, LLC as the real party in
interest. App. Br. 1.
Appeal 2017-009070
Application 12/776,632
BACKGROUND
The Invention
According to Appellants, the invention relates to a method for
querying a vehicle system using a remote wireless device, such as a cell
phone. See Abstract, Spec. 4:3—12. The inquiry is sent from the remote
wireless device to a remote server which then sends the inquiry to a cellular
transceiver in the vehicle. Vehicle systems are queried for information in
accordance with the inquiry. The requested information is then transmitted
back to the remote wireless device via the remote server. See Abstract.
Exemplary independent claim 1 is reproduced below.
1. A method comprising:
receiving an inquiry, initiated at a smart phone, at a
vehicle-installed transceiver;
querying a system in accordance with the inquiry;
receiving system-related information indicating a
malfunctioning part responsive to the query;
transmitting the received information to a smart phone,
responsive to the inquiry, including transmitting identifying
information for a recommended replacement part for the
malfunctioning part.
References and Rejections
1. Claims 1—3, 5, 7, 12, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Schuyler (US 6,429,773 Bl; issued Aug. 6,
2002), Hong (US 2008/0140265 Al; published June 12, 2008), and Nagy
(US 2008/0082221 Al; published Apr. 3, 2008). Final Act. 3-7.
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2. Claims 1—3, 5, 7, 12, 15, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Schuyler, Hong, Nagy, and Pillar (US
2003/0158640 Al; published Aug. 21, 2003). Final Act. 7—8.
3. Claim 15 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Schuyler, Hong, Nagy, and Boss (US 2010/0087983 Al;
published Apr. 8, 2010). Final Act. 8.
4. Claims 4 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Schuyler, Hong, Nagy, and Chesnutt (US 2009/0167524
Al; published July 2, 2009). Final Act. 8—9.
DISCUSSION
The Examiner presents two rejections of claims 1—3, 5, 7, 12, and 20
under 35 U.S.C. § 103(a). See Final Act. 3—8. In the first rejection, the
Examiner finds Schuyler teaches or suggests each of the limitations of claim
1, except that it does not expressly teach that information is received from
one or more systems and that it does not expressly teach that the remote
device is a smartphone. Final Act. 3. To address these deficiencies, the
Examiner relies on Hong as teaching that system-related information is
received from various vehicle sensors, and on Nagy as teaching that
“diagnostic, malfunction, fault and other information” is sent to a
smartphone. Final Act. 4. In the second rejection, the Examiner applies the
same prior art in the same way as in the first rejection, except that
additionally, the Examiner relies on Pillar as explicitly teaching a diagnostic
system identifying a replacement part number for a failed part. Final Act. 7
(Citing Pillar || 99, 388, 393, 394). The Examiner combines this teaching
with Schuyler, Nagy, and Hong, and finds that it would have been obvious
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to transmit a replacement part number to a user’s smartphone for a
replacement part. Final Act. 7.
A.
Appellants argue “[a]t no point, in Nagy or the other art, is
‘replacement part information’ ever transmitted to a user smart phone,
cellular device, or any other device.” App. Br. 5.
Appellants’ argument is unpersuasive because it attacks the references
individually and fails to address the Examiner’s rejection as a whole. The
Examiner relies on Schuyler, not Nagy, as teaching or suggesting that
replacement part information is transmitted to a remote device. Final Act. 3.
Nagy is relied upon as teaching, amongst other things, that the remote device
may be a smartphone. Final Act. 4 (citing Nagy H 3, 4, 27—30, 32, and 48).
B.
Appellants argue “[t]he information provided by Schuyler, for the
sake of argument only, relates to notification that an oil change or
maintenance event is needed. Schuyler does not teach or suggest
identification of a replacement part, let alone transmitting this part
information to the customer.” App. Br. 7. In particular, Appellants argue
“Oil is not a ‘part,’” and that “[n]o one skilled in the art of car maintenance
would consider oil to be a ‘car part.’” App. Br. 7. As support, Appellants
emphasize that the claims have been amended to specify that the
replacement part is ‘ for the malfunctioning parf and that there is “literally
no evidence that oil would be considered a ‘malfunctioning part.’” App. Br.
8.
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Application 12/776,632
Appellants’ argument is unpersuasive. The broadest reasonable
interpretation of the claimed “a recommended replacement part for the
malfunctioning part,” when read in light of the Specification, encompasses
an oil change for oil that needs to be replaced. Appellants’ Specification
describes:
For example, if the status of a replaceable vehicle system were
checked {oil level, headlights, etc.), the light bulbs might be
compared against an “operational” state and the oil might be
compared against a “sufficient level state.”
If a deficiency is detected 603, the microprocessor may
access information stored in a vehicle memory 605 (or broadcast
by a vehicle system) that includes a replacement type (bulb type,
oil weight, etc.). . . .
Accessed information could also include, but is not limited
to, paint color, spark plug type, washer fluid level/type, etc.
Essentially, any replaceable/repairable portion of the vehicle
could be accessed.
When the user receives the information indicating a
deficiency, the user will then also receive information advising
the best replacement for the deficient part/fluid/system, etc.
Spec. 15:31—16:19 (emphases added).
As demonstrated by Appellants’ Specification, in the context of the
claimed invention, oil and other fluids are treated the same as other parts,
such as headlights or spark plugs. Specifically, the method used to inform
the user of replacement of headlights is the same as that used to inform the
user of an oil change. Thus, we agree with the Examiner that Appellants’
Specification supports the conclusion that oil is a replaceable part just as a
headlight is.
Appellants’ statement that “[n]o one skilled in the art of car
maintenance would consider oil to be a ‘car part’” (App. Br. 7) is
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unsupported by any evidence, either intrinsic or extrinsic. It is well settled
that mere lawyer’s arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can it take the place of
evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782
(CCPA 1977).
Moreover, even if oil is not typically referred to as a “malfunctioning
part,” we find Schuyler’s teaching that oil needs to be replaced, at the very
least, renders obvious that a car part needs to be replaced. In light of the
prior art teaching transmission of information regarding an oil change,
Appellants have not presented evidence sufficient to show that transmitting
information regarding a malfunctioning part was “uniquely challenging or
difficult for one of ordinary skill in the art” or “represented an unobvious
step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007). The teaching in the prior art reference
need not be ipsissimis verbis. Structural Rubber Products Com. v. Park
Rubber Com., 749 F.2d 707, 716 (Fed. Cir. 1984). Therefore, we agree with
the Examiner that Schuyler teaches or suggests “receiving system-related
information indicating a malfunctioning part responsive to the query . . .
transmitting identifying information for a recommended replacement part for
the malfunctioning part [to a smartphone].”
Appellants further argue that even if, arguendo, oil is considered a
malfunctioning part, the Examiner “points out that the notification regarding
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oil ‘should be transmitted before a vehicle system fails’” and thus,
Schuyler’s oil is not yet a malfunctioning part. App. Br. 9.
This too is unpersuasive. Even if Schuyler notifies that user of an oil
change before a vehicle system fails (such as an engine), the Examiner is not
relying on the failed vehicle system as the malfunctioning part. Rather, the
Examiner is relying on the oil as the malfunctioning part. See Final Act. 5
(“malfunctioning part (such as oil)”). Schuyler clearly teaches that
notification of an oil change is sent when the oil has degraded below a
predetermined threshold. Schuyler 5:54—57. Thus, the oil itself is deemed
deficient to function as a lubricant for the engine, which suggests it is “a
malfunctioning part” within the meaning of claim 1.
C.
With respect to the Examiner’s reliance on Pillar as transmitting a
replacement part number, Appellants argue that in Pillar the replacement
part information is sent to a maintenance center computer system, not to a
cell phone. According to Appellants, “[s]ince both pieces of art [Nagy and
Pillar] include a perfectly acceptable methodology for handling part
replacement, it is unclear why this particular information would be re-routed
to a cell-phone, other than for the sake of meeting the claim limitations as
presented.” App. Br. 9.
This argument is unpersuasive because it misunderstands the
Examiner’s rejection and attacks the references individually. The Examiner
is not relying on Pillar as teaching transmitting (or “re-routing” as
Appellants contend) information to the user’s cell-phone rather than a
maintenance computer system. The Examiner relies on Schuyler as teaching
the transmission of replacement part information to a user’s device. Final
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Act. 3. The Examiner relies on Pillar only to suggest that the information
being transmitted in Schuyler to a user’s remote device may be modified to
include a replacement part number rather than just information regarding an
oil change. Final Act. 7; see also Ans. 13.
DECISION
The Examiner’s rejection of claims 1—7, 12, 15, and 20 is 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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