2019005038 (P.T.A.B. Nov. 19, 2020)

Lear Corporation

Patent Trials and Appeals BoardNov 19, 2020

2019005038 (P.T.A.B. Nov. 19, 2020)

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. 14/514,529 10/15/2014 Thomas M. O'Brien LEAR 54077 PUS 1387 34007 7590 11/19/2020 BROOKS KUSHMAN P.C. / LEAR CORPORATION 1000 TOWN CENTER TWENTY-SECOND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER NGUYEN, STEVEN H D ART UNIT PAPER NUMBER 2414 NOTIFICATION DATE DELIVERY MODE 11/19/2020 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 THOMAS M. O’BRIEN, JASON G. BAUMAN, GERARD L. GRABOWSKI, and STEPHEN M. HUMPHREY Appeal 2019-005038 Application 14/514,529 Technology Center 2400 Before TERRY J. OWENS, BRADLEY W. BAUMEISTER, and JOHN A. EVANS, Administrative Patent Judges. Opinion for the Board filed by Administrative Patent Judge OWENS. Opinion Concurring filed by Administrative Patent Judge BAUMEISTER. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, 6, 21, 23, 25, and 26. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Lear Corporation (Appeal Br. 2). Appeal 2019-005038 Application 14/514,529 2 CLAIMED SUBJECT MATTER The claims are directed to a vehicle gateway apparatus. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A vehicle gateway apparatus comprising: a vehicle controller configured to communicate over vehicle networks connected to the vehicle controller with vehicle devices connected to the vehicle networks; a cellular data transceiver embedded in the vehicle controller to provide the vehicle gateway apparatus with cellular data network connectivity, wherein the cellular data transceiver provides an always-on, direct cellular connection between the vehicle controller and an external Internet access node in communication with the Internet; and a non-cellular, wireless data transceiver embedded in the vehicle controller to provide the vehicle gateway apparatus with short range wireless connectivity, wherein the wireless data transceiver is one of a WiFi™ wireless data transceiver and a Bluetooth™ wireless data transceiver and provides an always- on, direct wireless connection between the vehicle controller and an area within the vehicle whereby the cellular data transceiver, the vehicle controller, and the wireless data transceiver in conjunction with one another establish an always- on Internet hotspot for a mobile device within the vehicle; wherein communication from the mobile device to the Internet is enabled in direct order from the mobile device to the wireless data transceiver to the vehicle controller to the cellular data transceiver to the Internet access node to the Internet, and communication from the Internet to the mobile device is enabled in direct order from the Internet to the Internet access node to the cellular data transceiver to the vehicle controller to the wireless data transceiver to the mobile device; wherein communication from the mobile device to a remote entity connected to the Internet is enabled in direct order from the mobile device to the wireless data transceiver to the vehicle controller to the cellular data transceiver to the Internet access node to the Internet to the remote entity, and communication from the remote entity to the mobile device is Appeal 2019-005038 Application 14/514,529 3 enabled in direct order from the remote entity to the Internet to the Internet access node to the cellular data transceiver to the vehicle controller to the wireless data transceiver to the mobile device; wherein communication from the remote entity to one of the vehicle devices is enabled in direct order from the remote entity to the Internet to the Internet access node to the cellular data transceiver to the vehicle controller to the vehicle network connecting the one of the vehicle devices to the vehicle controller to the vehicle device; wherein the communication from the mobile device to the remote entity via the vehicle controller includes a request for re-flash software for the one of the vehicle devices; wherein, in response to receipt by the remote entity of the request for the re-flash software, the communication from the remote entity to the one of the vehicle devices via the vehicle controller includes the re-flash software. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Habermas US 2005/0256614 A1 Nov. 17, 2005 Addepalli US 2014/0215491 A1 July 31, 2014 Jang US 2014/0325500 A1 Oct. 30, 2014 REJECTIONS Claims 1, 3, 6, 21, 23, 25, and 26 stand rejected under 35 U.S.C. § 103 over Addepalli in view of Habermas and Jang.2 2 The Examiner includes 35 U.S.C. § 102(a)(1–2) in the statement of the rejection but provides no anticipation rationale (Final Rej. 2–5). Hence, the inclusion of 35 U.S.C. § 102(a)(1–2) appears to be inadvertent. Appeal 2019-005038 Application 14/514,529 4 OPINION The Appellant’s independent claims (1 and 21) require that communication from a mobile device to a remote entity connected to the Internet is enabled in direct order from the mobile device to a wireless data transceiver to a vehicle controller to a cellular data transceiver to an Internet access node to the Internet to the remote entity, and that the communication includes a request for re-flash software. Jang discloses a vehicle electronic control unit updating system comprising an update device (200, which corresponds to the Appellant’s vehicle controller), a user terminal (300, which corresponds to the Appellant’s mobile device), and an update server (400, which corresponds to the Appellant’s remote entity) (¶ 27). The user terminal (300) can request the update server (400) to download re-flash software to an electronic control unit, or can direct the update device (200) to request that download (¶¶ 32, 46, 62). The Appellant argues (Appeal Br. 8): In contrast to “mobile device” 300 being connected through “vehicle controller” 200 to “remote entity” 400 pursuant to the feature A2,[3] Jang describes “vehicle controller” 200 being connected to "remote entity" 400 upon receiving a request from “mobile device” 300 (FIG. 1; and the Abstract “(a) allowing an update device [200] of a vehicle to wirelessly connect to an update server [400], at a request of a user terminal [300]”). Accordingly, “mobile device” 300 is not connected to “remote entity” 400 through “vehicle controller” 200 pursuant to the feature A2. 3 Feature A2 is: “wherein the communication from the mobile device to the remote entity via the vehicle controller includes a request for re-flash software for the one of the vehicle devices” (Appeal Br. 6). Appeal 2019-005038 Application 14/514,529 5 The Appellant also argues that Jang does not disclose “one communication from user terminal 300 to update server 400 through update device 200” (Reply Br. 3). The Appellant’s independent claims require that communication from a mobile device to a remote entity connected to the Internet is enabled in direct order from the mobile device to the remote entity via, in order, a wireless data transceiver, a vehicle controller, a cellular data transceiver, an Internet access node, and the Internet. The Appellant’s argument is limited to communication enabled in direct order from the mobile device to the vehicle controller to the remote entity. Jang enables the user terminal (300) to communicate a request for re-flash software to the update server (400) by directing the update device (200) to send the request to the update server (400) (¶¶ 32, 46, 62). Jang, therefore, enables communication of the request for re-flash software in direct order from the user terminal (300) to the update device (200) to the update server (400). Accordingly, we are not persuaded of reversible error in the rejection. CONCLUSION The Examiner’s rejection is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 6, 21, 23, 25, 26 103 Addepalli, Habermas, Jang 1, 3, 6, 21, 23, 25, 26 Appeal 2019-005038 Application 14/514,529 6 TIME PERIOD FOR RESPONSE 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. § 1.136(a)(1)(iv). AFFIRMED Appeal 2019-005038 Application 14/514,529 7 BAUMEISTER, Administrative Patent Judge, concurring. I agree with the Majority’s legal conclusion that Appellant has not demonstrated error in the Examiner’s rejection. I write separately because I do not believe that the Board needs to address the question of whether Jang discloses “[a] communication from the mobile device to the remote entity via the vehicle controller,” as recited in independent claim 1. In fact, I see no reason why the Examiner needs to rely on Jang at all in order to establish a prima facie showing of obviousness under 35 U.S.C. § 103. The combination of Addepalli and Habermas is sufficient. In relation to the first point, Appellant argues, as follows: In contrast to “mobile device” 300 being connected through “vehicle controller” 200 to “remote entity” 400 pursuant to the feature A2, Jang describes “vehicle controller” 200 being connected to “remote entity” 400 upon receiving a request from “mobile device” 300 (FIG. 1; and the Abstract “(a) allowing an update device [200] of a vehicle to wirelessly connect to an update server [400], at a request of a user terminal [300]”). Accordingly, “mobile device” 300 is not connected to “remote entity” 400 through “vehicle controller” 200 pursuant to the [claimed] feature A2. Appeal Br. 8. This argument is unpersuasive because the Examiner relies on the combination of Addepalli and Habermas—not Jang—for teaching this disputed communication architecture, which Appellant references as feature A2. Final Act. 2–4. And Appellant does not challenge whether the combination of Addepalli and Habermas teaches or suggests “[a] communication from the mobile device to the remote entity via the vehicle controller,” as claimed. Appeal 2019-005038 Application 14/514,529 8 Thus, Appellant’s failure to argue any deficiency in the combination of Addepalli and Habermas regarding this communication architecture is a sufficient basis to affirm the obviousness rejection. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”). For completeness, though, it is worth noting also that the Examiner relies on Jang for teaching that the communication request can include a request specifically for re-flash software for one of the vehicle devices. Final Act. 4. But independent claim 1 only recites that a mobile device communicates with a remote entity to request re-flash software and “in response to receipt by the remote entity of the request for the re-flash software, the communication from the remote entity to the one of the vehicle devices via the vehicle controller includes the re-flash software.” Claim 1 does not recite that any physical state of any device is changed as a result of the downloading of the re-flash software or that any other subsequent action is taken with the re-flash software. As such, claim 1’s recitation of the specifics of the software being requested and downloaded (i.e., re-flash software) appears to constitute non-functional descriptive material. “When presented with a claim including nonfunctional descriptive material, an Examiner must determine whether such material should be given patentable weight.” Ex Parte Halligan, 89 USPQ2d 1355, 1367 (BPAI 2008) (non-precedential). In making this determination for a process claim, the relevant inquiry becomes whether there is a “new and unobvious functional relationship” between the process and the descriptive material. Appeal 2019-005038 Application 14/514,529 9 MPEP § 2111.05 (citing In re Kao, 639 F.3d 1057, 1072–74 (Fed. Cir. 2011); King Pharm. Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1278 (Fed. Cir. 2010)). For claims involving a computer process, the Board has held that the nature of the information being manipulated by the computer should not be given patentable weight absent evidence that the information is functionally related to the process “by changing the efficiency or accuracy or any other characteristic” of the steps. Ex parte Nehls, 88 USPQ2d 1883, 1888 (BPAI 2008) (precedential). See also Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (non-precedential) (holding “wellness-related” data stored in a database and communicated over a network was nonfunctional descriptive material as claimed because the data “does not functionally change” the system). Accordingly, claim 1’s recitation that the requested and downloaded software is re-flash software does not further distinguish claim 1 over prior art that merely requests and downloads any software in the manner otherwise claimed. The Examiner has established, then, that claim 1 is rendered obvious by the combination of Addepalli and Habermas, without Jang.