Christos Karanicolas

Patent Trials and Appeals Board

Nov 1, 2019

13704915 - (D) (P.T.A.B. Nov. 1, 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.
13/704,915 12/17/2012 Christos Karanicolas 06740003US 1023
62008 7590 11/01/2019
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
DIVELBISS, MATTHEW H
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
11/01/2019 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):
patent@maierandmaier.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRISTOS KARANICOLAS1
____________

Appeal 2018-004557
Application 13/704,915
Technology Center 3600
_____________

Before JOSEPH A. FISCHETTI, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seek our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 21–32 and 35–41. We have jurisdiction under
35 U.S.C. § 6(b).

1
We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Clever
Devices Ltd. Appeal Br. 2.

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SUMMARY OF DECISION
We affirm.

THE INVENTION
Appellant states, “[t]he present invention relates generally to the
enhancement of a transit schedule, and more particularly, to a method for
generating an enhanced transit schedule using an existing transit schedule
and a history of variance.” Spec. ¶ 3.2
Claim 21, reproduced below, is representative of the subject matter on
appeal.
21. A system for generating an enhanced transit schedule, the system
comprising:

a plurality of GPS devices operationally linked to communications
devices, and

an enhanced transit schedule generator, the enhanced transit schedule
generator comprising a user input device, a display, a processor and a
memory, the memory containing instructions that, when executed by the
processor, cause the processor to execute the following steps:

retrieving, using the processor and from the memory, an existing
transit schedule, the existing transit schedule comprising a plurality of
entries, each of the plurality of entries comprising a plurality of schedule
parameters, the plurality of schedule parameters including at least a route
number, a direction, a stop, and scheduled passing time information;

receiving, from the plurality of GPS devices, arrival time data
comprising a plurality of historical passing times;

calculating, with the processor and using the existing transit schedule
and the arrival time data, schedule adherence data comprising a plurality of

2 “Spec.” refers to the Substitute Specification filed December 22, 2016.
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schedule deviations, each of the plurality of schedule deviations
corresponding to a specific entry in the plurality of entries;

storing the plurality of schedule deviations in the memory;

grouping, with the processor, the plurality of schedule deviations into
a plurality of groups, wherein grouping the plurality of schedule deviations
into a plurality of groups comprises separating each of the plurality of
schedule deviations into a group based on the numerical value of said
schedule deviation, and wherein the plurality of groups comprises an on-
time group of schedule deviations comprising schedule deviations that are
substantially zero, an early group of schedule deviations comprising
schedule deviations that are substantially negative, and a late group of
schedule deviations comprising schedule deviations that are substantially
positive;

computing, with the processor, a plurality of group average
deviations, each of the plurality of group average deviations corresponding
to one of the plurality of groups of schedule deviations;

computing, with the processor, a plurality of exponential weighted
average deviations, each exponential weighted average deviation being
computed from a plurality of group average deviations;

generating, with a processor, a plurality of adjusted entries by
adjusting the scheduled passing time information of each entry in the
plurality of entries by said corresponding exponential weighted average
distribution;

generating, using the processor, an enhanced transit schedule
comprising a plurality of adjusted entries, and further comprising variance
data, the enhanced transit schedule being fixed in value for one or more
days; and

displaying, with the processor and on the display, one or more
elements of the enhanced transit schedule.

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THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Name Reference Date
Beinhaker US 2006/0161335 A1 July 20, 2006
Chapman US 2008/0071465 A1 March 20, 2008
Schmier US 2002/0099500 A1 July 25, 2002
The following rejections are before us for review.
Claims 21–32 and 35–41 are rejected under §101 as being directed to non-
statutory subject matter.
Claims 21–23, 26–32 and 35–41 are rejected under §103(a) as being
patentable under Schmier and Chapman.
Claims 24 and 25 are rejected under §103(a) as being patentable under
Schmier, Chapman, and Beinhaker.

FINDINGS OF FACT
We adopt the Examiner’s findings as set forth on pages 2–8 in the
Final Office Action3 and on pages 4–8 in the Examiner’s Answer,
concerning only the 35 U.S.C. § 101 rejection.

3 All references to the Final Office Action refer to the Final Office Action
mailed on July 6,2017. All references to the Specification refer to the
Specification amended on December 22, 2012.
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ANALYSIS
35 U.S.C. § 101 REJECTION
We will affirm the rejection of claims 21–32 and 35–41 under
35 U.S.C. § 101.
The Appellant argues claims 21–32 and 35–41 as a group. We select
claim 21 as the representative claim for this group (App. Br. 17–19), and so
the remaining claims stand or fall with claim 21. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2015).
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
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 id. 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
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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, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 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
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
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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. (alterations in original) (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 PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“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
(2) additional elements that integrate the judicial exception into
a practical application (see Manual of Patent Examining
Procedure (“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 Guidance.
The U.S. Court of Appeals for the Federal Circuit has explained that
“the ‘directed to’ inquiry applies a stage-one filter to claims, considered in
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light of the [S]pecification, based on whether ‘their character as a whole is
directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether
the focus of the claims is on a specific improvement in relevant technology
or on a process that itself qualifies as an “abstract idea” for which computers
are invoked merely as a tool. See id. at 1335–36.
In so doing, as indicated above, we apply a “directed to” two prong
test: 1) evaluate whether the claim recites a judicial exception, and 2) if the
claim recites a judicial exception, evaluate whether the claim “appl[ies],
rel[ies] on, or use[s] 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 judicial exception.” Guidance at
53; see also MPEP § 2106.05(a)–(c), (e)–(h).
The Specification states:
Public transit is a part of every-day life in many parts of the
world and, in particular, urban environments. Commuters rely
on transit schedules to plan their trips. Most commuters rely on
published, existing, predetermined transit schedules, which do
not take into account conditions that may affect the transit
schedule such as road work, weather, transit system repair
work, street closures, vehicle malfunctions, strikes, and the like.
For this reason, such published, static, transit schedules may be
considered unreliable.
Specification ¶ 5.
The preamble says the claim is “for generating an enhanced transit
schedule.” Claim 21. Understood in light of the Specification, claim 21,
recites, in pertinent part,
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retrieving, …, an existing transit schedule, the existing transit
schedule comprising a plurality of entries, each of the plurality
of entries comprising a plurality of schedule parameters, the
plurality of schedule parameters including at least a route
number, a direction, a stop, and scheduled passing time
information; receiving, …arrival time data comprising a
plurality of historical passing times; calculating, …using the
existing transit schedule and the arrival time data, schedule
adherence data comprising a plurality of schedule deviations,
each of the plurality of schedule deviations corresponding to a
specific entry in the plurality of entries; storing the plurality of
schedule deviations…; grouping, …the plurality of schedule
deviations into a plurality of groups, wherein grouping the
plurality of schedule deviations into a plurality of groups
comprises separating each of the plurality of schedule
deviations into a group based on the numerical value of said
schedule deviation, and wherein the plurality of groups
comprises an on-time group of schedule deviations comprising
schedule deviations that are substantially zero, an early group of
schedule deviations comprising schedule deviations that are
substantially negative, and a late group of schedule deviations
comprising schedule deviations that are substantially positive;
computing, …a plurality of group average deviations, each of
the plurality of group average deviations corresponding to one
of the plurality of groups of schedule deviations; computing,
…a plurality of exponential weighted average deviations, each
exponential weighted average deviation being computed from a
plurality of group average deviations; generating, … a plurality
of adjusted entries by adjusting the scheduled passing time
information of each entry in the plurality of entries by said
corresponding exponential weighted average distribution;
generating, …an enhanced transit schedule comprising a
plurality of adjusted entries, and further comprising variance
data, the enhanced transit schedule being fixed in value for one
or more days; and displaying, …one or more elements of the
enhanced transit schedule.
Accordingly, the Examiner found that the claims are “directed to
enhancing an existing transit schedule by grouping schedule deviations,
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computing average deviations, and updating the existing transit schedule
based on the computation which is analogous to collecting information,
analyzing it, and displaying certain results of the collection and analysis.”
(Final Act. 3).
Based on the Examiner’s finding, and the intrinsic evidence listed
above, we find that claim 21 is directed to a way of generating an enhanced
transit schedule using an existing transit schedule and a history of variance.
Relevant to this determination are the recitations in claim 21 reciting,
generating, … a plurality of adjusted entries by adjusting the
scheduled passing time information of each entry in the
plurality of entries by said corresponding exponential weighted
average distribution; generating, … an enhanced transit
schedule comprising a plurality of adjusted entries, and further
comprising variance data, the enhanced transit schedule being
fixed in value for one or more days.
These are concepts performed in the human mind as mental processes
because the steps of calculating, grouping, and computing data mimic
human thought processes of observation, evaluation, judgment, and opinion,
perhaps with paper and pencil, where the data interpretation is perceptible
only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823
F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839
F.3d 1089, 1093–94 (Fed. Cir. 2016). Accordingly we find claim 21 is
directed to a mental process. The patent-ineligible end of the spectrum
includes mental processes. Guidance at 52, citing Mayo, 566 U.S. at 71.
Turning to the second prong of the “directed to” test, claim 21 only
generically requires “an input device,” “a processor,” “a memory,” “a
plurality of GPS devices,” “communications devices,” and “a display.”
These components are described in the Specification at a high level of
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generality. See Spec. ¶¶ 30, 31, Fig. 6. We fail to see how the generic
recitations of these most basic computer components and/or of a system so
integrates the judicial exception as to “impose[] a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Guidance at 53. We also find no
indication in the Specification that the claimed invention effects a
transformation or reduction of a particular article to a different state or thing.
That the claims do not preempt all forms of the abstraction or may be
limited to transit schedules, does not make them any less abstract. See OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(“And that the claims do not preempt all price optimization or may be
limited to price optimization in the e-commerce setting do not make them
any less abstract.”).
Turning to the second step of the Alice analysis, because we find that
the claims are directed to abstract ideas/judicial exceptions, the claims must
include an “inventive concept” in order to be patent-eligible, i.e., there must
be an element or combination of elements sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs., 566 U.S. at
72–73).
Concerning this step, the Examiner found the following: “the elements
of the instant process, when taken in combination, together do not recite
significantly more than the abstract idea itself.” (Final Act. 5).
We agree with the Examiner. “[T]he relevant question is whether the
claims here do more than simply instruct the practitioner to implement the
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abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do
not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to effect retrieving, calculating, storing, grouping, computing, and
applying decision criteria to data as a result amounts to electronic data query
and retrieval—one of the most basic functions of a computer. All of these
computer functions are well-understood, routine, conventional activities
previously known to the industry. See Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); see also In re Katz Interactive
Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011)
(“Absent a possible narrower construction of the terms ‘processing,’
‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any
general purpose computer without special programming”). In short, each
step does no more than require a generic computer to perform generic
computer functions. The claims do not, for example, purport to improve the
functioning of the computer itself. In addition, as we stated above, the
claims do not affect an improvement in any other technology or technical
field. The Specification spells out different generic equipment and
parameters that might be applied using this concept and the particular steps
such conventional processing would entail based on the concept of
information access under different scenarios (see, e.g., Spec. ¶ 30–31).
Thus, the claims at issue amount to nothing significantly more than
instructions to apply the abstract idea using some unspecified, generic
computer. Under our precedents, that is not enough to transform an abstract
idea into a patent-eligible invention. See Alice, 573 U.S. at 225–226.
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Considered as an ordered combination, the computer components of
Appellant’s claims add nothing that is not already present when the steps are
considered separately. The sequence of data reception-analysis (calculating,
grouping, retrieving, storing, and computing) is equally generic and
conventional or otherwise held to be abstract. See Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving,
selecting, offering for exchange, displaying, allowing access, and receiving
payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath &
Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence
of data retrieval, analysis, modification, generation, display, and
transmission was abstract), Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of
processing, routing, controlling, and monitoring was abstract). The ordering
of the steps is, therefore, ordinary and conventional.
We have reviewed all the arguments Appellant has submitted
concerning the patent eligibility of the claims before us that stand rejected
under 35 U.S.C. § 101. (App. Br. 7–12, Reply Br. 3–8). We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellant argues:
The claims of the present invention can be analogized to the
claims at issue in Enfish, LLC v. Microsoft Corporation,[4]
which dealt with the patentability of claims having to do with a
logical model for a computer database. The Federal Circuit
determined that this data structure — which had no physical

4 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
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inputs and outputs, and existed entirely on a computer — was
“not directed to an abstract idea within the meaning of Alice.”
App. Br. 9.
We disagree with Appellant that under the holding in Enfish our
decision would be different. Appellant’s claims are not directed to an
improvement in computer technology like that of claim 17 in Enfish and
therefore were patent eligible. In Enfish, the invention at issue was directed
at a wholly new type of logical model for a computer database: a self-
referential table that allowed the computer to store many different types of
data in a single table and index that data by column and row information.
Enfish, 822 F.3d at 1330–32. In finding the claims “not directed to an
abstract idea,” but “to a specific improvement to the way computers
operate,” the Federal Circuit noted that “the claims are not simply directed to
any form of storing tabular data, but instead are specifically directed to a
self-referential table for a computer database.” Enfish, 822 F.3d at 1336–37
(emphasis in original). We find nothing in the claims before us arising to
this level of technical improvement in the generically claimed, “an input
device,” “a processor,” “a memory,” “a plurality of GPS devices,”
“communications devices,” and “a display,” which arises to the level of
technical proficiency as found in Enfish. Instead, we find the claims are
focused on “economic or other tasks for which a computer is used in its
ordinary capacity.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1336.
Likewise unpersuasive are Appellant’s analogies of the appealed
claims to those in Amdocs (Israel) Limited v. Openet Telecom Inc., 841 F.3d
1288. (Appeal Br. 10). In Amdocs, the court adopted the district court’s
interpretation of the claim term “enhance,” stating, it approved “reading the
‘in a distributed fashion’ and the ‘close to the source’ of network
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information requirements into the term ‘enhance.”’ Id. at 1300. The court
then went on to find the claim’s “enhancing” limitation necessarily requires
that these generic components operate in an unconventional manner to
achieve an improvement in computer functionality. See id. at 1300–1301.
No such evidence of unconventional operation of the claimed generic
devices is made of record in the appeal before us here.
Appellant also argues, “the limitations are meaningful because they
integrate the abstract idea into a particular application that performs a useful
function.” (Appeal Br. 12).
We disagree with Appellant because as found supra, the plain focus of
the claims is on economic or other tasks for which a computer is used in its
ordinary capacity and not on an improvement to computer functionality. See
Enfish 822 F.3d 1327 at 1335–1336 citing Alice 573 U.S. 208 at 225. The
alleged improvement lies in the abstract idea itself, not to any technological
improvement. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281,
1287–88 (Fed. Cir. 2018). “A claim for a new abstract idea is still an
abstract idea.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (citing Mayo, 566 U.S. at 90).
Although we agree with Appellant that the claims must be read as a
whole, we nevertheless find, on balance, that claim 21 is directed to an opt-
in method of managing billed transactions for the reasons specified above
with respect to our “directed to” findings. As found supra, claim 21 only
includes the following generically recited device limitations: “an input
device,” “a processor,” “a memory,” “a plurality of GPS devices,”
“communications devices,” and “a display.” As discussed supra, claim 21
recites abstractions, i.e.,
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generating, …a plurality of adjusted entries by adjusting the
scheduled passing time information of each entry in the
plurality of entries by said corresponding exponential weighted
average distribution; generating,… an enhanced transit schedule
comprising a plurality of adjusted entries, and further
comprising variance data, the enhanced transit schedule being
fixed in value for one or more days.
“A claim for a new abstract idea is still an abstract idea.” Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (citing Mayo,
566 U.S. at 90). To the extent Appellant is arguing that these are additional
elements constituting an inventive concept, such features cannot constitute
the “inventive concept.” Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed.
Cir. 2018) (Moore, J., concurring) (“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.”);
see also BSG Tech. LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir.
2018) (“It has been clear since Alice that a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”).
Finally, we note Appellant’s other arguments, directed to now-
superseded USPTO guidance (Appeal Br. 12), have been considered but are
not persuasive of error. (See Guidance at 51 (“Eligibility-related guidance
issued prior to the Ninth Edition, R–08.2017, of the MPEP (published Jan.
2018) should not be relied upon.”)).

35 U.S.C. § 103(a) REJECTION
Each of independent claims 21, 37, and 38 requires, “... generating,
using the processor, an enhanced transit schedule comprising a plurality of
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adjusted entries, and further comprising variance data, the enhanced transit
schedule being fixed in value for one or more days.”
The Examiner found concerning this limitation that:
Chapman teaches fixing data and updating data on
larger and more regular intervals such as a single day or
longer as contemplated by the claims as described in the
following paragraphs: Paragraph Number [0042] teaches the
types of input data used to generate predictions of future traffic
conditions may include a variety of current, past, and expected
future conditions, and outputs from the prediction process
include the generated predictions of the expected traffic
conditions on each of multiple target road segments of interest
for each of multiple future times (e.g., every 5, 15 or 60
minutes in the future) within a pre-determined time interval
(e.g., three hours, or one day). Paragraph Number [0146]
teaches such other actions may include, for example,
periodically (e.g., once per day, once per week, etc.)
recalculating historical data reading distributions (e.g., for the
last 120 days) for each of one or more time categories for each
of multiple traffic sensors.
(Final Act. 22).
Appellant argues,
As such, the present rejection of the claim on the grounds that
this limitation is taught by Schmier as modified by Chapman,
and on the grounds that a person of ordinary skill in the art
would be motivated to make this combination on the grounds
that Schmier ‘teach[es] updating and fixing times in the
schedule as quickly as is possible’ amounts not just to the
Office reading the limitation of a fixed schedule out of the
claims, but the Office reading the converse of the limitation (i.e.
an intentionally highly variable schedule) into the claims.
Looking next at the Chapman reference, Chapman is
alleged to teach or suggest ‘fixing and updating data on larger
or more regular intervals’, such that its combination with the
Schmier reference would allegedly teach or suggest all of the
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limitations of the present independent claims. However,
looking at the cited portion of Chapman, Chapman does not
disclose producing an enhanced transit schedule. Paragraph
[0042] of Chapman teaches that the prediction of expected
traffic conditions for each of multiple road segments of interest
may take place for a grouping of set future times (such as 5, 15,
or 60 minutes into the future) within a pre-determined time
interval (such as 3 hours or one day). Likewise, paragraph
[0146] teaches that sensor data distributions may be
periodically recalculated for each of multiple traffic sensors, in
order to properly characterize the health of each traffic sensor in
the face of changing conditions such as the initiation or
completion of road construction projects.
(Appeal Br. 15).
We agree with Appellant. We begin by construing the meaning of the
claim term, “the enhanced transit schedule being fixed in value for one or
more days.” The Specification states that the “schedule enhancer 918 may
then develop a new schedule for a number of days based on a number of
days of historical data 914.” Specification ¶ 35. The Specification does not
lexicographically define “fixed.” The term “fixed” means “not subject to
change or fluctuation.”5 Thus, we construe the claimed “enhanced transit
schedule” to be not subject to change or fluctuation for one or more days.
Chapman at paragraph 42 discloses a process in which types of input
data are used to generate predictions. More specifically, Chapman discloses
at paragraph 42:
the prediction of future traffic conditions may be initiated for
various reasons and at various times, such as in a periodic
manner (e.g., every five minutes), when any or sufficient new
input data is received, in response to a request from a user, etc.
Thus, the prediction process of the expected traffic conditions can be

5 https://www.merriam-webster.com/dictionary/fixed (APPENDIX A).
Appeal 2018-004557
Application 13/704,915

19

updated in a periodic manner (e.g., every five minutes), but is less than the
claim requirement of one day. In other words, we agree that Chapman at
paragraph 42 teaches updating the prediction of future traffic conditions on a
regular, periodic, interval, but we fail to find where paragraph 42 teaches
“being fixed in value for one or more days.” It is not apparent and the
Examiner does not show how the selected time interval is for example, a
matter of design choice or otherwise would have been obvious.
Chapman at paragraph 146 discloses that data from traffic sensors
(sensor health) can be recalculated “periodically (e.g., once per day, once per
week, etc.) recalculating historical data reading distributions (e.g., for the
last 120 days) for each of one or more time categories for each of multiple
traffic sensors.” While the periodic recalculation of the data associated with
the traffic sensors of once per day meets the claim requirement of being
fixed for one or more days, it is again unclear, and the Examiner does not
explain how, the sensor health periodic recalculation drives the updating of
the overall scheduling which is analogous to the claimed “enhanced transit
schedule.”
Therefore, we do not sustain the obviousness rejection of independent
claims 21, 37, and 38. Because claims 22–32, 35, 36, 39–41 depend from
one of claims 21, 37, and 38 and because we cannot sustain the Examiner’s
obviousness rejection of claims 21, 37, and 38, the Examiner’s obviousness
rejection of claims 22–32, 35, 36, 39–41 likewise cannot be sustained.

CONCLUSION

Claims 35 U.S.C. § Basis Affirmed Reversed
Appeal 2018-004557
Application 13/704,915

20

Rejected
21–32,
35–41
101 Eligibility 21–32, 35–41
21–23,
26–32,
35–41
103 Schmier, Chapman 21–23, 26–
32, 35–41
24, 25 103 Schmier, Chapman,
Beinhaker
24, 25
Overall Outcome 21–32, 35–41

DECISION
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed.
See 37 C.F.R. § 41.50(a)(1).
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

Notice of References Cited

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Appeal 2018-004557
Application 13/704,915

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APPENDIX A