Perry Robinson. Macneille et al.

Patent Trials and Appeals Board

Oct 30, 2019

15067877 - (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.
15/067,877 03/11/2016 Perry Robinson MACNEILLE 83608174 2974
28395 7590 10/30/2019
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
INGRAM, THOMAS P
ART UNIT PAPER NUMBER
3668
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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PERRY ROBINSON MACNEILLE, NUNZIO DECIA,
JOSEPH WISNIEWSKI, and ANDREA BOWES CHOWANIC
____________

Appeal 2018-006942
Application 15/067,877
Technology Center 3600
____________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

O’HANLON, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–8 and 13–20. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b). We AFFIRM.
In explaining our Decision, we refer to the Specification filed March
11, 2016 (“Spec.”), the Final Office Action mailed September 8, 2017
(“Final Act.”), the Appeal Brief filed December 5, 2017 (“Appeal Br.”), the

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies Ford Global Technologies, LLC as the real
party in interest. Appeal Br. 2.
Appeal 2018-006942
Application 15/067,877

2
Examiner’s Answer mailed April 19, 2018 (“Ans.”), and the Reply Brief
filed June 19, 2018 (“Reply Br.”).
SUMMARY OF THE INVENTION
Appellant’s disclosed invention “relate[s] to a method and apparatus
for congestion reduction through cooperative adaptive cruise control.” Spec.
¶ 1. Claims 1, 9, and 13 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1. A system comprising:
a processor configured to:
determine traffic density over a road segment;
model traffic parameters to maximize traffic flow over
the road segment, based on the traffic density and travel
characteristic data received from a plurality of vehicles exiting
the road segment;
determine a change to traffic, using the model, that would
improve traffic flow; and
send control instructions to a vehicle, to control the
vehicle in accordance with the change.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Huang US 2012/0148094 A1 June 14, 2012
Hannah US 2016/0097648 A1 Apr. 7, 2016
Taylor US 2016/0379486 A1 Dec. 29, 2016
Appeal 2018-006942
Application 15/067,877

3
REJECTIONS2
I. Claims 13–20 stand rejected under 35 U.S.C. § 101 as being directed
to patent-ineligible subject matter.
II. Claims 1 and 3–8 stand rejected under 35 U.S.C. § 102(a)(2) as being
anticipated by Taylor.
III. Claim 2 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Taylor and Huang.
IV. Claims 13 and 15–20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Taylor and Hannah.
V. Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Taylor, Hannah, and Huang.
ANALYSIS
Rejection I – Patent-Ineligible Subject Matter
Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo

2 A rejection of claims 9–12 under 35 U.S.C. § 103 as being unpatentable
over Taylor, Hannah, and Linden (US 6,317,678 B1, iss. Nov. 13, 2001) was
withdrawn by the Examiner. Final Act. 9–11; Ans. 3.
Appeal 2018-006942
Application 15/067,877

4
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 192
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
Appeal 2018-006942
Application 15/067,877

5
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The USPTO published revised guidance on the application of § 101.
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50 (Jan. 7, 2019) (the “2019 Eligibility Guidance” or “Guidance”). Under
the Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
Appeal 2018-006942
Application 15/067,877

6
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See 2019 Eligibility Guidance.
Analysis
In contesting the rejection under 35 U.S.C. § 101, Appellant argues
claims 13–20 together. Appeal Br. 5; Reply Br. 2. We select claim 13 to
decide the appeal of this rejection, with claims 14–20 standing or falling
with claim 13. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner determines that claim 13
is directed to the abstract idea of itself of determining optimal
traffic speeds which includes the nominal steps of gathering
data (e.g., determine traffic density), processing data (e.g.,
model optimal traffic patterns, determine a speed to density
curve) and transmitting/storing data (e.g., send the speed to
density curve to a vehicle entering a road segment) which are
similar to the concepts identified by the courts to be abstract
such as comparing new and stored information and using rules
to identify options in Smartgene (i.e., using the rules of the
model to identify an appropriate speed to travel) or collecting,
analyzing, and displaying data without technical means in
Electric Power Group (i.e., collecting the traffic density data
and analyzing it before sending the curve to the vehicle).
Appeal 2018-006942
Application 15/067,877

7
Final Act. 5 (citing SmartGene, Inc. v. Advanced Biological Labs., S.A., 555
F. App’x. 950, 951–55 (Fed. Cir. 2014); Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350 (Fed. Cir. 2016)). The Examiner also determines that
“the additional elements[,] when considered both individually and as a
combination[,] do not amount to significantly more than the abstract idea.”
Id. In particular, the Examiner explains that “[t]he claim recites the
additional element of a processor. However, the processor is merely used as
a generic general purpose computer component to act as a tool to perform
the abstract idea rather than adding concrete limitations that would transform
the abstract idea into patent eligible subject matter.” Id.
(1) Does claim 13 recite a judicial exception?
Claim 13 recites a system having a processor configured to
“determine traffic density” for a particular road segment, “model optimal
traffic parameters to maximize traffic flow” based on data received from a
plurality of vehicles, and “determine a speed to density curve, using the
model,” to maximize traffic flow for the road segment. Appeal Br. (Claims
App. 3). In other words, the system analyzes observed traffic data to
determine a speed to density curve that would maximize vehicle flow rate
for a road segment. This analysis of collected data is an evaluation that can
be performed in the human mind, which falls in the “mental processes”
grouping of abstract ideas enumerated in the 2019 Eligibility Guidance (i.e.,
an observation, evaluation, judgment, opinion). See Guidance, 84 Fed. Reg.
at 52; see also Elec. Power Grp., 830 F.3d at 1353–54 (discussing how
“collecting information” and “analyzing information by steps people go
Appeal 2018-006942
Application 15/067,877

8
through in their minds, or by mathematical algorithms, without more” are
abstract ideas).
Regarding the recitation of a “processor” in claim 13, we note that, if
the broadest reasonable interpretation of a claim covers performance in the
mind but for the recitation of generic computer components, then it is still in
the mental processes category unless the claim cannot practically be
performed in the mind. See Intellectual Ventures ILLC v. Symantec Corp.,
838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the exception of generic
computer-implemented steps, there is nothing in the claims themselves that
foreclose them from being performed by a human, mentally or with pen and
paper.”); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375,
1372 (Fed. Cir. 2011) (holding that the incidental use of “computer” or
“computer readable medium” does not make a claim otherwise directed to
process that “can be performed in the human mind, or by a human using a
pen and paper”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1139, (Fed. Cir. 2016) (holding that claims to the mental process of
“translating a functional description of a logic circuit into a hardware
component description of the logic circuit” are directed to an abstract idea,
because the claims “can be . . . performed mentally or with pencil and
paper”). Here, but for the recitation of a generic computer component
(“processor”), the functions recited in claim 13 can be practically performed
in the human mind, or with pencil and paper. Thus, the Examiner correctly
determined that the claim recites a judicial exception, namely, an abstract
idea. See Final Act. 5.
Appeal 2018-006942
Application 15/067,877

9
(2) Does claim 13 recite additional elements that integrate the
judicial exception into a practical application?
Having found that claim 13 recites a judicial exception, namely,
mental processes, which are abstract ideas, we are instructed by the 2019
Eligibility Guidance to determine whether the claim recites “additional
elements that integrate the exception into a practical application.” See 2019
Eligibility Guidance, 84 Fed. Reg. at 54; see also MPEP § 2106.05(a)–(c),
(e)–(h). This evaluation requires us to determine whether an additional
element or a combination of additional elements in the claim applies, relies
on, or uses the judicial exception in a manner that imposes a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the exception. If the recited judicial
exception is integrated into a practical application, the claim is not “directed
to” the judicial exception.
Appellant argues that, “[p]ursuant to the December 2016 guidance,
the appropriate consideration for whether or not the claims include the
requisite ‘something more’ necessary to make an abstract idea patent
eligible, is to determine if the claim, as a whole concept, represents an
uncommon or atypical solution.” Appeal Br. 5 (citing Example 35 of
Subject Matter Eligibility Examples: Business Methods (Dec. 15, 2016),
available at https://www.uspto.gov/sites/default/files/documents/ieg-bus-
meth-exs-dec2016.pdf (the “2016 Eligibility Examples”)). Appellant asserts
that the Examiner considers the claim only on an element-by-element basis.
Id.; see also Reply Br. 2 (asserting “the Example explains that, in light of
[BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016)], Examiners are supposed to provide the ‘something more’
analysis with regards to the whole solution, and not just the individual
Appeal 2018-006942
Application 15/067,877

10
elements as the Examiner has done here”). We are not persuaded by this
argument.
In Example 35, referenced by Appellant, hypothetical claims directed
to a method of conducting a secure ATM transaction were deemed eligible
because the combination of steps “operate[d] in a non‐conventional and non‐
generic way to ensure that the customer’s identity is verified in a secure
manner that is more than the conventional verification process employed by
an ATM alone.” 2016 Eligibility Examples 10. The 2016 Eligibility
Examples explains that, “[i]n combination, these steps do not represent
merely gathering data for comparison or security purposes, but instead set up
a sequence of events that address unique problems associated with bank
cards and ATMs (e.g., the use of stolen or ‘skimmed’ bank cards and/or
customer information to perform unauthorized transactions).” Id.
According to the 2016 Eligibility Examples, the example claims are similar
to the eligible claims in BASCOM because “the claimed combination of
additional elements presents a specific, discrete implementation of the
abstract idea.” Id. However, unlike the claims at issue in BASCOM,
Appellant’s claim 13 is not directed to a solution that improves an existing
technological process (e.g., it does not improve the performance of a
computer system itself). See BASCOM, 827 F.3d at 1351.
Claim 13 recites a “processor configured to” perform the functions
discussed above, as well as “send the speed to density curve to a vehicle
entering the road segment.” Appeal Br. (Claims App. 3). Sending the speed
to density curve to a vehicle is simply a generic step of transmitting data,
which constitutes insignificant extra-solution activity. See, e.g.,
CyberSource, 654 F.3d at 1370 (“We have held that mere ‘[data-gathering]
Appeal 2018-006942
Application 15/067,877

11
step[s] cannot make an otherwise nonstatutory claim statutory.’” (alterations
in original) (quoting In re Grams, 888 F.2d 835, 840 (Fed. Cir. 1989))); see
also 2019 Eligibility Guidance, 84 Fed. Reg. at 55 (identifying “add[ing]
insignificant extra-solution activity to the” abstract idea as an example of
when an abstract idea has not been integrated into a practical application).
Moreover, the “processor” is merely a generically-recited computer element
that does “no more than generally link the use of a judicial exception to a
particular technological environment or field of use.” 2019 Eligibility
Guidance, 84 Fed. Reg. at 55; see also Bilski, 561 U.S. at 610–11 (“[T]he
prohibition against patenting abstract ideas ‘cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment’ or adding ‘insignificant postsolution activity.”’) (quoting
Diehr, 450 U.S. at 191–92). In this regard, the computer element recited in
claim 13 (i.e., “processor”) is simply invoked as a generic tool to gather,
analyze, and transmit data.
Appellant has not provided any specificity regarding any particular
inventive technology associated with the element in claim 13. The
“processor” computer element described in the Specification and recited in
the claim appears to function in a generic manner to gather data, execute
program instructions and operations, and output results. See, e.g., Spec. ¶¶
18–32. There is no further description, in the claims or the Specification, of
any particular technology for performing the steps recited in the claim other
than generic computer components used in their ordinary capacity as tools to
apply the abstract idea. In this regard, the “recitation of generic computer
limitations does not make an otherwise ineligible claim patent-eligible.”
Appeal 2018-006942
Application 15/067,877

12
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (citing Alice, 573 U.S. at 222).
For the above-stated reasons, we determine that the additional
elements recited in independent claim 13 beyond the judicial exception,
whether considered alone or in combination, do not integrate the abstract
idea into a practical application. In other words, claim 13 is “directed to” an
abstract idea.
(3) Does claim 13 add any specific limitations beyond the
judicial exception that are not “well-understood, routine, and
conventional” in the field?
Because we determine that claim 13 fails to recite additional elements
that integrate the judicial exception into a practical application, in
accordance with the 2019 Eligibility Guidance, we next consider whether the
claim adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field or instead “simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception.” See 2019 Eligibility Guidance, 84 Fed. Reg. at 56.
Appellant argues that
the Examiner presents absolutely no evidence that it is common
or typical to determine traffic density and then to model how
traffic that dense should be moving in order to optimize traffic
flow. This solution both improves the ability of vehicles to
travel at optimum speeds and improves the ability of adaptive
and cooperative cruise control systems to control other vehicles
than the vehicle in which they are installed. None of this data is
“commonly” or “typically” available, and thus the claims
represent the requisite “something more” when considered as a
Appeal 2018-006942
Application 15/067,877

13
whole concept and not piecemealed out into individual
elements.
Appeal Br. 5. Appellant asserts “that the claimed solution is not routine or
common, in that no system of which Applicant has been made aware
routinely or commonly models traffic to determine a speed to density curve
in order to maximize traffic flow.” Reply Br. 2. This argument is
unpersuasive.
The functions of determining traffic density, modeling optimal traffic
parameters, and determining a speed to density curve represent the judicial
exception itself (i.e., the abstract idea, namely, mental processes). However,
the inventive concept under step two of the Mayo/Alice test cannot be the
abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims
ineligible because the only alleged “inventive concept” is the
abstract idea.
Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290–91 (Fed. Cir. 2018) (“Our precedent has consistently employed this
same approach. If a claim’s only ‘inventive concept’ is the application of an
abstract idea using conventional and well-understood techniques, the claim
has not been transformed into a patent-eligible application of an abstract
idea.”).
As for Appellant’s argument that claim 13 is an improvement in
adaptive cruise control systems and a vehicle’s ability to travel at optimum
speeds (see Appeal Br. 5), we note that claim 13 does not recite any
limitations that actually apply the speed to density curve and control a
Appeal 2018-006942
Application 15/067,877

14
vehicle. See Final Act. 3 (explaining that, “[a]s the claims currently are
recited, however, there is merely data collection, data analysis, and data
transfer functions being performed by claim 13 that do not require a vehicle
to be controlled”). In other words, the purported improvement to the
functioning of the vehicle and adaptive cruise control system argued by
Appellant is not within the scope of claim 13. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“Many of appellant’s arguments fail from the outset
because . . . they are not based on limitations appearing in the claims.”).
Moreover, the processor gathering vehicle data to determine traffic
density, model optimal traffic parameters, determine a speed to density
curve, and send the curve to a vehicle amounts to a conventional computer
element performing basic functions to gather, process, and transmit data.
There is no indication in the record before us that the recited processor
invokes any asserted inventive programming, requires any specialized
computer hardware or other inventive computer components, i.e., a
particular machine, or that the claimed invention is implemented using other
than a conventional computer component to perform conventional computer
functions.
For the reasons discussed above, we find no element or combination
of elements recited in claim 13 beyond the judicial exception that is not
“well-understood, routine, conventional” in the field or that contains any
“inventive concept” or adds anything “significantly more” to transform the
abstract concept into a patent-eligible application. Alice, 573 U.S. at 221.
Accordingly, we sustain the rejection of claim 13, and claims 14–20 falling
therewith, under 35 U.S.C. § 101 as being directed to patent-ineligible
subject matter.
Appeal 2018-006942
Application 15/067,877

15
Rejection II – Anticipation by Taylor
In rejecting independent claim 1, the Examiner finds that Taylor
discloses, in relevant part, “a processor configured to . . . send control
instructions to a vehicle, to control the vehicle in accordance with the change
(see at least Fig 2, element 314; ¶186-187; navigation recommendation
requests are sent to OBVIPRO...suggestive speed...).” Final Act. 6–7. The
Examiner takes the position that Taylor’s disclosure of “sending a
‘recommendation’ to the vehicle to change speed or routes reads on the
limitation of ‘[sending] control instructions to a vehicle.’” Id. at 3
(alteration in original).
Appellant argues that claim 1 requires “actually instructing control of
the vehicle through control instructions, which is more than sending a mere
recommendation and is more likely to actually result in an impact on
traffic.” Appeal Br. 6. Appellant asserts that “the function of the
instructions is to control the vehicle, there is not an alternative that results in
the vehicle not being controlled, because that is literally the function of the
instructions at the vehicle.” Id. According to Appellant, “[t]he point of the
claim is to control traffic, which could not be once vehicles can elect not to
follow the instructions, such as is the case when those instructions are the
prior art’s mere recommendations.” Reply Br. 3; see also Appeal Br. 6
(“[Taylor’s] only actual control of anything is with respect to controlling
lights and signals ([0186]). Otherwise, the data is just a set of
recommendations that any given vehicle owner can choose to follow or
not.”). We are not persuaded by this line of argument.
To the extent Appellant appears to argue that Taylor fails to actually
control a vehicle according to the control instructions, such an argument is
Appeal 2018-006942
Application 15/067,877

16
not commensurate with the scope of claim 1. As stated by our reviewing
court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name
of the game is the claim.” It is well established that limitations not
appearing in the claim cannot be relied upon for patentability. See Self, 671
F.2d at 1348. Here, claim 1 recites, in relevant part, “a processor configured
to . . . send control instructions to a vehicle, to control the vehicle in
accordance with the change.” Appeal Br. (Claims App. 1). In other words,
the claim requires a processor that functions to send (i.e., transmit) control
instructions to a vehicle, but does not recite that the processor functions to
actually control the vehicle. Further, claim 1 does not recite a vehicle as an
element of the system, nor does the claim recite any limitations requiring
that a vehicle follow the control instructions. In other words, whether or not
the control instructions sent by the processor to the vehicle are actually
executed by the vehicle is outside the scope of the claim.
With respect to Taylor, the reference discloses “a system to manage
monitored traffic density in relationship to spatial locational flow rates.”
Taylor, Abstract. In particular, Taylor discloses that “[a]n optimal traffic
flow pattern is periodically calculated at block 216 using vehicle transmitted
and receiving data from multiple vehicles over time. This optimal traffic
flow pattern may be based on without limitation road congestion.” Id. ¶ 185.
Taylor also discloses that “[t]raffic flow modification may . . . be directed
towards specific vehicles to suggest alternate routes, and granular
decelerate/accelerated speeds recommendations.” Id. ¶ 186. In other words,
Taylor’s system optimizes traffic flow by directing vehicle speed. Although
Taylor uses the term “recommendations” rather than “instructions,” we fail
to see a distinction between the “control instructions” recited in claim 1 and
Appeal 2018-006942
Application 15/067,877

17
Taylor’s speed recommendations. Namely, Appellant does not point to any
description in the Specification providing a special definition of “control
instructions.” Thus, Appellant does not apprise us of error in the Examiner’s
broad, but reasonable, interpretation of Taylor’s speed recommendations
being control instructions.
For the above reasons, we sustain the rejection of claim 1, and its
dependent claims 3–8, for which Appellant relies on the same arguments
(Appeal Br. 6), as anticipated by Taylor.
Rejection III – Obviousness based on Taylor and Huang
In contesting the rejection of claim 2, Appellant relies on the
arguments presented for independent claim 1, from which claim 2 depends.
See id. at 11. For the reasons discussed above, Appellant’s arguments fail to
apprise us of error in the rejection of claim 1, and, likewise, fail to apprise us
of error in the rejection of claim 2. Accordingly, we sustain the rejection of
claim 2 as unpatentable over Taylor and Huang.
Rejection IV – Obviousness based on Taylor and Hannah
In rejecting independent claim 13, the Examiner finds that Taylor
teaches a processor configured to
determine a speed data, using the model, that would maximize
traffic flow (see at least ¶186; traffic flow modification
information is sent to manage and modify the general or
specific traffic flow... ); and . . . send the speed data to a vehicle
entering the road segment (see at least Fig 2, element 314;
¶186-187; navigation recommendation requests are sent to
OBVIPRO...suggestive speed...).
Final Act. 12. The Examiner finds that Taylor does not teach “a speed to
density curve.” Id. However, the Examiner finds that “Hannah teaches
Appeal 2018-006942
Application 15/067,877

18
using a speed to density curve as a reference for optimizing traffic flow.” Id.
(citing Hannah, Fig. 1). The Examiner determines that it would have been
obvious “to modify the system disclosed by Taylor, with the speed to density
curve function taught by Hannah, as it would provide an easier reference to
optimal speeds that can be used for various traffic densities.” Id.
Appellant argues that Hannah does not teach “a speed to density
curve,” as claimed, but, rather, “a flow to density curve.” Appeal Br. 9; see
also Reply Br. 4 (asserting that Hannah’s Figure 1 “is a flow to density
curve, because it is designed to show how density impacts speed based on
flow”). Appellant asserts that “[t]he data in Figure 1 shows linear
relationships between speeds and densities for which it is unapparent how
such a conversion into a curve that modeled optimal speeds and current
densities (or any densities) would even be achieved.” Appeal Br. 10. We
agree that a sustainable case of obviousness has not been established.
Hannah teaches that “[t]he curve in the graph shown in FIG. 1 is
representative of how traffic density (vehicles per mile along a road) effects
vehicle flow (vehicles per hour passing a point).” Hannah ¶ 6. Hannah also
teaches, with respect to Figure 1, that “[t]he intersecting straight lines show
vehicle speed at the intersection with the curve (flow divided by density).”
Id. ¶ 7. In this regard, Appellant correctly points out that the curve in Figure
1 of Hannah is a flow to density curve. See Appeal Br. 9; Reply Br. 4.
The Examiner appears to concede that Figure 1 of Hannah does not
depict a “speed to density curve,” as claimed. See Final Act. 4 (explaining
that, “while Hannah doesn’t verbatim show a figure with ‘speed to density’
it nonetheless shows the correlation between flow, density, and traffic speed
which can be used to control the flow of traffic”). The Examiner takes the
Appeal 2018-006942
Application 15/067,877

19
position that “[o]ne of ordinary skill in the art at the time the invention was
filed would readily view the information provided by Hannah and directly
correlate a ‘speed to density’ curve for given flows.” Id. According to the
Examiner, Hannah “provides the same useful information to one of ordinary
skill in the art to show that speed changes can be made in order to ‘optimize
traffic flow.’” Ans. 6. The Examiner’s position is unavailing.
Here, the Examiner has not sufficiently articulated a rational
evidentiary underpinning to explain why, given the teachings of Hannah,
one of ordinary skill in the art would have been prompted to modify the
system of Taylor to determine a speed to density curve and send it to a
vehicle, as required claim 13. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (requiring “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”) (cited with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Even
if one of ordinary skill in the art viewing Hannah’s Figure 1 would recognize
a “correlation between flow, density, and traffic speed which can be used to
control the flow of traffic” (Final Act. 4), the Examiner has not set forth any
evidence or reasoning as to how Hannah’s flow to density curve could be
converted into a speed to density curve. Even assuming, arguendo, that the
data shown in Hannah’s Figure 1 can be used to derive a speed to density
curve for controlling traffic flow, this does not provide a reason for doing
so. In other words, the Examiner does not adequately explain why, based on
the disclosure of Hannah, one of ordinary skill in the art would modify the
system of Taylor to include determining a speed to density curve from
Hannah’s flow to density curve, and a reason for such modification is not
otherwise evident from the record.
Appeal 2018-006942
Application 15/067,877

20
For the above reasons, the Examiner has not met the burden of
establishing a proper case that claim 13 is unpatentable based on the cited
references. Accordingly, we do not sustain the rejection of claim 13, or its
dependent claims 15–20, as unpatentable over Taylor and Hannah.
Rejection V – Obviousness based on Taylor, Hannah, and
Huang
The rejection of claim 14, which depends from independent claim 13,
relies on the same proposed combination of Taylor and Hannah that we find
deficient for the reasons discussed above in connection with Rejection IV.
See Final Act. 14. The Examiner relies on Huang for teaching additional
features, but does not articulate any findings or reasoning that would remedy
the aforementioned deficiency in the combination of Taylor and Hannah.
See id. Accordingly, for the reasons discussed above, we do not sustain the
rejection of claim 14 as unpatentable over Taylor, Hannah, and Huang.

CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
13–20 101 Eligibility 13–20
1, 3–8 102(a)(2) Taylor 1, 3–8
2 103 Taylor, Huang 2
13, 15–20 103 Taylor, Hannah 13, 15–20
14 103 Taylor, Hannah,
Huang
14
Overall Outcome 1–8, 13–20
Appeal 2018-006942
Application 15/067,877

21
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