Ga¿tan Martens

Patent Trials and Appeals Board

Oct 30, 2019

13932067 - (D) (P.T.A.B. Oct. 30, 2019)

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.
13/932,067 07/01/2013 Gaëtan Martens 2092/US 7771
75090 7590 10/30/2019
TOMTOM INTERNATIONAL B.V.
IP Creation
De Ruyterkade 154
AMSTERDAM, 1011 AC
NETHERLANDS
EXAMINER
ALMANI, MOHSEN
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
10/30/2019 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):
patents@tomtom.com
tony@parklegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GAËTAN MARTENS
____________

Appeal 2018-009100
Application 13/932,067
Technology Center 2100
____________

Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.

BELISLE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 3–11, 16, and 18–23, but appeals only rejected claims 1, 3, 6, 16,
19, and 23. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2017). Appellant identifies the
real party in interest as TomTom Global Content, B.V. App. Br. 1.
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STATEMENT OF THE CASE
The Claimed Invention
Appellant’s invention generally relates to “methods of identifying
locations at which discrepancies or deviations exist between real world
features and digital map data intended to represent those features.”
Spec. 1:10–11.
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. A method for identifying discrepancies in digital map data,
comprising:
selecting one or more candidate locations as a subset of
locations within positional data relating to the movement of a
plurality of devices with respect to time in an area;
determining a distribution of travel directions of the
devices at each one of the candidate locations as a directional
histogram, the directional histogram comprising a plurality of
bins, each bin being associated with a different travel direction
for traversal of the candidate location, and each bin storing a
representation of a number of devices that traversed the
candidate location in a corresponding travel direction;
allocating each of the candidate locations to one or more
predetermined categories based upon the directional histogram
at each candidate location; and
comparing the candidate locations against a database of
map data and identifying locations of possible discrepancies in
the digital map data based upon the category of each candidate
location.
App. Br. 19 (Claims Appendix).

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The Applied References
The Examiner relies on the following references as evidence of
unpatentability of the claims on appeal:
Johnson US 2010/0256903 A1 Oct. 7, 2010
Porikli US 2012/0207384 A1 Aug. 16, 2012

Janssen, S.T.M.C., Design and Classification of Roads From the
Viewpoint of Driving Task Analysis, Institute for Road Safety
Research SWOV, The Netherlands (1976) (“Janssen”).

The Examiner’s Rejections
The Examiner made the following rejections of claims 1, 3–11, 16,
and 18–23, and those of claims 1, 3, 6, 16, 19, and 23 are on appeal:
Claims 1, 3–11, 16, and 19–23 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Johnson and Porikli. Final
Act. 2–12.
Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Johnson, Porikli, and Janssen.

ANALYSIS2
Appellant disputes the Examiner’s finding that Johnson and Porikli
render obvious claims 1, 3, 6, 16, 19, and 23 (of finally rejected claims 1, 3–
11, 16 and 19–23), including independent claims 1, 16, and 19. App. Br. 3,
9–18; Reply Br. 2–3. Appellant does not appeal the Examiner’s finding that

2 Throughout this Decision, we have considered Appellant’s Appeal Brief
filed December 3, 2017 (“App. Br.”); Appellant’s Reply Brief filed
September 24, 2018 (“Reply Br.”); the Examiner’s Answer mailed July 23,
2018 (“Ans.”); the Final Office Action mailed May 24, 2017 (“Final Act.”);
and Appellant’s Specification filed July 1, 2013 (“Spec.”).
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Johnson, Porikli, and Janssen render obvious dependent claim 18. App.
Br. 3. Appellant argues the appealed claims in three groups, namely
(i) independent claims 1, 16, and 19, (ii) dependent claims 3 and 23, and
(iii) dependent claim 6. See App. Br. 9–18. Thus, for purposes of our
analysis, we select independent claim 1 and dependent claims 3 and 6 as
representative claims, and any claim not argued separately will stand or fall
with our analysis of the rejection of claims 1, 3, or 6. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Independent Claim 1
Appellant argues “Johnson does not describe or suggest . . . anything
like determining a distribution of travel directions at candidate location[s],
particularly as a histogram.” App. Br. 10–11. Appellant also argues
“Johnson has collections/clusters of similar off-route data, but does not have
the functional equivalent of the distribution of travel directions for
candidate locations.” Id.; see Reply. Br. 2–33 (“Johnson does collect off-
route data into groups for analysis. Johnson does not ‘determine a
distribution of travel directions of the devices at each one of the
candidate locations.’”). Appellant further argues “[w]ithout the directional
histograms for the distribution of travel directions at each one of the
candidate locations, it is not possible that Johnson describes an allocating
operation based upon the directional histograms for the distribution of
travel directions.” App. Br. 11.

3 Appellant’s Reply Brief on record does not contain the required signature
and patent practitioner registration number. See 37 C.F.R §§ 1.4, 1.33(b),
11.18.
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The Examiner responds Johnson teaches all limitations as recited in
claim 1, except for the “histogram” feature, but Porikli teaches that feature,
and it would have been obvious to the skilled artisan to modify Johnson
based on knowledge of “histograms” as known data structures to arrive at
the invention of claim 1. See Ans. 3–10. In particular, the Examiner finds
Johnson teaches, inter alia:
(a) “[I]dentifying a location representing an off-route occurrence
by analyzing GPS data generated by vehicles that in certain time and certain
location rerouted from a planned route.” Ans. 4 (citing, e.g., Johnson ¶ 24
(“[T]he off-route data includes vehicle data necessary to determine both its
location and heading.”)).
(b) Determining “a distribution of travel directions of vehicles by
distributing off-route occurrences/number of vehicles rerouted in a location
from a planned route to a particular cluster/bin which is associated with the
direction of the rerouted vehicles. In other words, each cluster/bin
represents at least a location where a number of off-route [occurrences]
occurred in [a] certain travel direction.” Ans. 5 (citing, e.g., Johnson ¶ 27
(“[A] cluster can be defined as a set of off-route occurrences for which the
associated vehicles have a location and heading that each meet a pre-
established requirement.”)).
(c) “[A] plurality of clusters/bins, each cluster being associated
with a different travel direction for traversal of the candidate location, and
each cluster storing a representation of a number of devices that traversed
the candidate location in a corresponding travel direction.” Ans. 6.
We agree with and adopt as our own the Examiner’s findings and
conclusions in the Final Action and Answer concerning claim 1, including
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those listed above, and find Appellant’s arguments as to claim 1
unpersuasive of Examiner error. In particular, we agree that Johnson teaches
identifying off-route occurrences of devices and distributing data (including
location and heading or travel direction data) concerning each such
occurrence into data clusters or bins for further analysis. See Johnson ¶¶ 24–
27. Johnson’s data clusters define “a set of off-route occurrences for which
the associated vehicles have a location and heading that each meet a pre-
established requirement.” Johnson ¶ 27. As such, Johnson’s clusters may
include multiple clusters defined by the same location but different headings
or travel directions to which Johnson assigns or distributes off-route
occurrences. Based on the foregoing, we find Appellant does not show
persuasively that the Examiner erred in finding that the combination of
Johnson and Porikli teaches “determining a distribution of travel directions
of the devices at each one of the candidate locations,” as broadly recited in
claim 1. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (During prosecution, an application’s claims are given their
broadest reasonable scope consistent with the specification.).
Moreover, contrary to Appellant’s statement (App. Br. 9), Appellant
argues against Johnson and Porikli individually (App. Br. 9–14), and then
concludes “neither Johnson nor Porikli separately describe or suggest the
independent claims. There is further no combination of Johnson and Porikli
that describes or suggests the independent claims” (App. Br. 14; see Reply
Br. 2–3). One cannot show nonobviousness by attacking references
individually where the rejection is based on a combination of references.
See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Also, we find Appellant’s conclusory
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attorney argument concerning the combination of Johnson and Porikli
unpersuasive of Examiner error. Indeed, it is well settled that mere attorney
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); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974) (attorney argument is not evidence).
Accordingly, we sustain the Examiner’s rejection under pre-AIA
35 U.S.C. § 103(a) of independent claim 1. For similar reasons, we sustain
the Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of independent
claims 16 and 19, which recite commensurate limitations and were not
argued separately. Additionally, we sustain the Examiner’s rejection under
pre-AIA 35 U.S.C. § 103(a) of claims 4, 5, 7–11, and 20–22, which depend
therefrom and were not argued separately.4
Dependent Claims 3 and 23
Appellant argues “Porikli does not describe or suggest the language of
dependent claims 3 and 23.” App. Br. 15. In particular, Appellant argues
“Porikli . . . is limited to using the mean of the gradients to reorient
histogram bins . . . . Porikli, aside from the superficial use of some of the
same general terms, does not describe or suggest an operation that is
equivalent to the operation in dependent claims 3 and 23.” App. Br. 16.

4 The Examiner should consider whether, in light of the recent Office
Guidance concerning subject matter eligibility, the claims satisfy 35 U.S.C.
§ 101 or are instead directed, for example, to sorting data (e.g., travel
directions) into bins to form a directional histogram, i.e., mathematical
concepts (e.g., mathematical relationships, formulas, equations, or
calculations) and, therefore, an abstract idea. Although the Board is
authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should
be drawn when the Board elects not to do so. See MPEP § 1213.02.
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The Examiner responds “[t]here is no computational detail or specific
computational requirement associated with ‘determining a rotation invariant
histogram based upon the directional histogram’ in claim 3.” Ans. 11. The
Examiner finds “[c]laim 3 simply adds another term ‘a rotation invariant
histogram’ to be determined based on ‘the directional histogram’ without
any specific detail how a rotation invariant histogram is determined from a
count value.” Ans. 11. The Examiner explains “Porikli is used for showing
that a histogram is just a data structure that can be used alternatively for
representing selected data points that have associated direction determined
by a decision function of a classifier.” Ans. 11–12 (citing Porikli ¶¶ 86–90).
The Examiner finds “Porikli also shows . . . how a value in [a] histogram bin
can be represented as [a] rotation invariant of the value” (Ans. 12 (citing
Porikli ¶ 90 (“[T]he histogram bins are reoriented accordingly . . . to achieve
the rotation invariance of the descriptor.”))), “and this is what claim 3
requires, determining a rotation of a value that is included in a histogram
bin” (Ans. 12). Appellant’s Reply Brief does not address these findings and
conclusions by the Examiner. See generally Reply Br.
We agree with and adopt as our own the Examiner’s findings and
conclusions in the Final Action and Answer concerning claim 3, including
those listed above, and find Appellant’s arguments as to claim 3
unpersuasive of Examiner error. In particular, we agree with the Examiner
that Porikli teaches that histograms are data structures that can be used as an
alternative for representing selected data points, and that such a data
structure also can be represented in a rotation invariant form, so as to
provide a rotation invariant histogram. See Ans. 11–12; Porikli ¶¶ 86–90.
Furthermore, Appellant’s argument as to claim 3 merely repeats disclosure
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in Porikli and then asserts Porikli does not describe or suggest the language
of dependent claims 3, without substantive explanation as to why the
combination of Johnson and Porikli do not do so. We find such an argument
unpersuasive. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art.”).
Based on the foregoing, we find Appellant does not show persuasively
that the Examiner erred in finding that the combination of Johnson and
Porikli discloses “determining a rotation invariant histogram based upon the
directional histogram,” as broadly recited in claim 3. See In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d at 1364. Accordingly, we sustain the Examiner’s
rejection under pre-AIA 35 U.S.C. § 103(a) of dependent claim 3. For
similar reasons, we sustain the Examiner’s rejection under pre-AIA
35 U.S.C. § 103(a) of dependent claim 23, which recites commensurate
limitations and was not argued separately.
Dependent Claim 6
Appellant argues “Johnson does not describe or suggest the language
of dependent claim 6.” App. Br. 17. In particular, Appellant argues Johnson
“has nothing to do with” the limitations of claim 6, and “does not mention
proximate candidate locations, associations between proximate candidate
locations . . ., and/or some determination of associations of locations based
on a distribution of travel directions at each location.” App. Br. 17. We find
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Appellant’s argument unpersuasive, because Appellant merely recites the
language of claim 6 and makes a naked assertion that Johnson does not
mention that language. See 37 C.F.R. § 41.37(c)(1)(iv); In re Lovin,
652 F.3d at 1357.
Regardless, the Examiner finds Johnson discloses “a new and/or
moved road is identified by determining the distance and heading of each re-
route occurrence in a cluster to the distance and heading of the nearest road
segment in a map database,” and this teaches determining an association
between proximate candidate locations based upon the distribution of travel
directions at each candidate location. Final Act. 9 (quoting Johnson ¶ 33).
We agree, and note that Johnson teaches associating clusters with various
road conditions (see Johnson ¶ 34 (“The clusters can also be associated with
other road conditions.”)), and determining whether an association exists
between off-route occurrences at different locations (see Johnson ¶ 28
(“[I]f the two points do not pass this threshold distance test, then it is
assumed that all other off-route data positioned beyond this point in the
ordered list will also not pass this threshold distance test and so for those
points the additional tests (comparisons) need not be made.”)).
Based on the foregoing, we find Appellant does not show persuasively
that the Examiner erred in finding that the combination of Johnson and
Porikli teaches “determining an association between proximate candidate
locations based upon the distribution of travel directions at each candidate
location,” as broadly recited in claim 6. See In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d at 1364. Accordingly, we sustain the Examiner’s rejection
under pre-AIA 35 U.S.C. § 103(a) of dependent claim 6.

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CONCLUSION
Claims
Rejected 35 U.S.C. § Basis Affirmed Reversed
1, 3–11, 16,
19–23
103 Johnson, Porikli 1, 3–11,
16, 19–23

18 103 Johnson, Porikli,
Janssen
18
Overall
Outcome
1, 3–11,
16, 18–23

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).
See 37 C.F.R. § 41.50(f).

AFFIRMED