Ex Parte Wiseman

Board of Patent Appeals and Interferences

Sep 30, 2011

11113885 (B.P.A.I. Sep. 30, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAY WISEMAN
____________

Appeal 2009-010147
Application 11/113,885
Technology Center 2600
____________

Before MAHSHID D. SAADAT, CARL W. WHITEHEAD, Jr.,
and BRADLEY W. BAUMEISTER, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 66-87 and 89-91. Claims 1-65 and 88 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part and enter a new ground of rejection under 37 C.F.R.
§ 41.50(b).

STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to a traffic control system to enable
red/green color blind individuals to determine whether to proceed or not
without the need to deduce the color based on the location of the light (Spec.
¶ [0013]; Abstract).
Exemplary Claims
Claims 66, 73, 81, and 90 are representative and read as follows:
66. A traffic control system for controlling automobile
flow, the system comprising:
a stop signal consisting essentially of a red light defining
a horizontal bar;
a caution signal consisting essentially of a yellow light;
a go signal consisting essentially of a green light defining
a vertical bar; and
wherein at least one of the lights forms a bar which is at
least three times greater in length than in height or width.

73. A traffic control system for controlling automobile
flow, the system comprising:
a red light, a yellow light and a green light, wherein at
least one of the lights forms a bar which is at least three times
greater in length than in height or width, and
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at least one light comprising an arrow with a bar disposed
and maintained perpendicular to the arrow so as to indicate that
a driver may not proceed.

81. A method for indicating whether an automobile
can proceed through an intersection, the method comprising
having an arrow with a shaft pointing in a direction in which
the automobile is to proceed, and disposing a bar perpendicular
to the arrow shaft only when the automobile is not authorized to
proceed.

90. A method for controlling traffic, the method
comprising illuminating a red horizontal bar to indicate that a
driver may not proceed through an intersection, the bar being
the only signal which indicates that the driver may not proceed,
the bar further being at least three times greater in length than in
height or width.

Claim Rejections
The Examiner relies on the following prior art in rejecting the claims:
Adler US Des. 85,143 Sep. 22, 1931
Sibley US 1,988,633 Jan. 22, 1935
Leppert US 2,228,835 Jan. 14, 1941
Gartner US 5,898,381 Apr. 27, 1999
Shin US 6,072,407 Jun. 6, 2000
Claims 81 and 82 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Sibley.
Claim 90 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Leppert.
Claim 91 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sibley and Shin.
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Claims 66, 67, and 75-77 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Leppert and Adler.
Claims 68-70 and 72 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Leppert, Adler, and Sibley.
Claims 71, 87, and 89 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Leppert, Adler, Sibley, and Gartner.
Claims 73, 74, and 83-86 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Leppert and Sibley.
Claims 78 and 79 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Adler and Sibley.
Claim 80 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Adler and Gartner.

ISSUES
Did the Examiner err in rejecting the claims under 35 U.S.C.
§§ 102(b) and 103(a)? The specific issues before us are whether:
(1) Sibley anticipates claim 81 by disclosing the claim term
“disposing a bar perpendicular to the arrow shaft only when the automobile
is not authorized to proceed;”
(2) Leppert anticipates claim 90 by disclosing the claim term
“illuminating a red horizontal bar … the bar further being at least three times
greater in length than in height or width;”
(3) the combination of Leppert and Alder teaches or suggests “a bar
which is at least three times greater in length than in height or width,” as
recited in claims 66 and 75;
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(4) the combination of Leppert and Sibley teaches or suggests “a bar
which is at least three times greater in length than in height or width” and
“an arrow with a bar disposed and maintained perpendicular to the arrow so
as to indicate that a driver may not proceed,” as recited in claim 73.

ANALYSIS
35 U.S.C. § 102 Rejections
Claim 81
The Examiner takes the position that Figure 1 of Sibley shows the
arrow 23, with shaft 22 and a bar 25 perpendicular to the arrow shaft,
indicates when an automobile is not authorized to proceed (Ans. 4). The
Examiner further cites to column 4, lines 25-52 for describing the
perpendicular bar 32 in Figure 6 which meets the claimed “disposing a bar
perpendicular to the arrow shaft ‘only’ when the automobile is not
authorized to proceed” (Ans. 9).
Appellant contends that using the horizontal bar shown in Figures 1
and 4 of Sibley do not meet the claimed step of disposing a bar
perpendicular to the arrow shaft only when the automobile is not authorized
to proceed because the bars in Sibley are always present and illuminated
(App. Br. 11). Appellant asserts that their invention “indicates permissibility
of travel through the appearance or disappearance of the perpendicular bar,”
which is not shown in Sibley (id.).
We do not find Appellant’s arguments persuasive of any error in the
Examiner’s stated position. As explained by the Examiner (Ans. 9), and as
is apparent from Sibley’s Figures 1, 4, and 6 and the accompanying
description on page 2 of the reference, the horizontal bars 25, 28, 28’, and 32
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shown below the turn arrows are illuminated in red or green to indicate
whether the automobile is authorized to proceed. Appellant’s argument that
the arrangements disclosed in Sibley do not help those who are color blind
(App. Br. 11) is not commensurate with the claim language since claim 81
does not preclude the use of any additional features such as color associated
with the perpendicular bar. Further, the color of bar 32 shown in Figure 6 of
Sibley remains unchanged and its presence indicates that the automobile is
not authorized to proceed without a complete stop (see p. 2, right-hand col.
ll. 25-52).
In view of the above discussion, since we find no error in the
Examiner’s finding that all of the claimed limitations are present in the
disclosure of Sibley, the Examiner’s 35 U.S.C. § 102(b) rejection of
independent claim 81, and of dependent claim 82 not argued separately, is
sustained.
Claim 90
In rejecting claim 90 as anticipated by Leppert, the Examiner relies on
Figure 8 of Leppert and explains that the depicted color symbols are
rectangular bars indicating standard traffic colors (Ans. 3, 10). We agree
with Appellant (App. Br. 12-13) that Figure 8 of Leppert merely represents
color symbols instead of the actual shape of an illuminated horizontal bar as
indicated by the description of figure 8 on page 1 of the reference.
For the foregoing reasons, we are persuaded of error in the
Examiner’s position and do not sustain the 35 U.S.C. § 102(b) rejection of
independent claim 90.

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35 U.S.C. § 103 Rejections
Claim 66
The Examiner finds that Figure 8 of Leppert shows the traffic signals
forming a bar which is at least three times greater in length than height or
width whereas Adler discloses a traffic signal having a red horizontal bar
and a green vertical bar (Ans. 5, 9-10). Appellant challenges the Examiner’s
position by pointing out that, as discussed with respect to claim 90,
Leppert’s Figure 8 merely depicts color samples and Adler’s rectangular
bars are not at least three times greater in length than height or width (App.
Br. 15). Appellant contends the patentability of claim 75 based on the same
arguments presented for claim 66 (App. Br. 16).
As previously stated with respect to claim 90, Leppert does not teach
or suggest traffic signals forming a bar which is at least three times greater
in length than height or width. Additionally, Adler which is relied upon for
teaching the claimed ratio, does not cure the above-noted deficiency.
For the foregoing reasons, we are persuaded of error in the
Examiner’s position and do not sustain the 35 U.S.C. § 103(a) rejection of
claims 66 and 75, and of claims 67, 76, and 77 not separately argued, over
Leppert and Adler.
Claim 73
The Examiner finds that Figure 8 of Leppert shows the traffic signals
forming a bar having the claimed dimensional ratio, whereas Sibley
discloses a traffic signal having an arrow 23 and a bar 25 perpendicular to
the arrow with a horizontal bar 32 disposed below the arrow (Ans. 7, 11).
Appellant presents arguments similar to those discussed above with
respect to Leppert’s failure to disclose a rectangular bar which is at least
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three times greater in length than height or width (App. Br. 17) and Sibley’s
use of color for illuminating the bar disposed perpendicular to the arrow
(App. Br. 17-18). Appellant further argues that the combination of the
references teaches away from the claimed invention (App. Br. 18) because
Leppert is concerned with using different shapes to identify different colors
and Sibley deals with arrows and turn signals (App. Br. 18-20). Appellant
contends the patentability of claim 74 based on the same arguments
presented for claim 73 (App. Br. 20).
As previously stated with respect to claim 90, Leppert does not teach
or suggest traffic signals forming a bar which is at least three times greater
in length than height or width. However, as stated by the Examiner (Ans.
12), Leppert discloses traffic light in three colors and Sibley discloses signal
lights in the form of arrows 22, 23, and 31 having the claimed dimensional
ratio and bars disposed perpendicular to the arrow in the form of bars 25 and
32, also having the claimed dimensional ratio (see Figures 1, 4, and 6).
Contrary to Appellant’s response (Reply Br. 7) that Sibley’s drawings relied
on by the Examiner are not shown to be to scale, it is the dimensional ratio
of the bars the Examiner relies on, and not the actual dimensions. Moreover,
similar to Appellant’s drawings showing the claimed bar and its dimensional
ratio, the overall proportions of the signals and the casing 10 shown in
Figures 1, 2, 4, and 6 of Sibley disclose the specific ratio of three times
greater in length than height or width.
Therefore, we find that Sibley provides for the claimed “at least one
of the lights forms a bar which is at least three times greater in length than in
height or width” and “at least one light comprising an arrow with a bar
disposed and maintained perpendicular to the arrow.” We also find that
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Leppert suggests using the different colors recited as red, yellow and green
light. For the foregoing reasons and as explained above, we find no error in
the Examiner’s stated rejection with respect to claims 73 and 74, and of
claims 83-86 not separately argued.
Claims 68-72, 78, 79, 80, 87, 89, and 91
Appellant does not argue the patentability of these claims with any
particularity and merely relies on the reasons stated for their base claims
(Reply Br. 6). Therefore we sustain the 35 U.S.C. § 103(a) rejections of
claims 68-72, 78, 79, 80, 87, 89, and 91.

New Ground of Rejection Under 37 C.F.R. § 41.50(b)
Under 37 C.F.R. § 41.50(b), we enter a new ground of rejection
under: (1) 35 U.S.C. § 102(b) for claim 90 and (2) 35 U.S.C. § 103(a) for
claim 66, 75.
For the reasons stated above with respect to claim 73, we find that
Sibley discloses the claimed “at least one of the lights forms a bar which is
at least three times greater in length than in height or width” and “at least
one light comprising an arrow with a bar disposed and maintained
perpendicular to the arrow.” We also find that Leppert would have
suggested using different colors recited as red, yellow and green lights in
addition to the red and green colors provided in Sibley.
Our decision in this regard only considers independent claims 66, 75,
and 90 and does not reflect on the adequacy of the prior art evidence applied
in support of a rejection for dependent claims 67, 76, and 77. We invite the
Examiner to determine patentability of these claims over Leppert and Sibley
alone or in combination with other prior art.
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CONCLUSIONS
The Examiner erred in rejecting claim 90 under § 102 and claims 66,
67, and 75-77 under § 103. However, we find no error in the Examiner’s
rejections of claims 68-74, 78-87, 89, and 91.

DECISION
The Examiner’s decision rejecting claims 68-74, 78-87, 89, and 91 is
affirmed, but reversed with respect to claims 66, 67, 75-77, and 90.
We have also entered a new ground of rejection under 37 C.F.R.
§ 41.50(b) for claims 66, 75, and 90.

FINALITY
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of
rejection . . . shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims
so rejected or new evidence relating
to the claims so rejected, or both, and
have the matter reconsidered by the
examiner, in which event the
proceeding will be remanded to the
examiner. . . .

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(2) Request rehearing. Request that
the proceeding be reheard under
§ 41.52 by the Board upon the same
record. . . .

No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)

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