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Patent Trials and Appeals Board

Jun 23, 2021

2020004762 (P.T.A.B. Jun. 23, 2021)

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.
14/469,875 08/27/2014 Ian James Miller 1057001-105.1 6836
97242 7590 06/23/2021
Kutak Rock LLP
2300 Main Street, Suite 800
Kansas City, MO 64108
EXAMINER
CORDERO, LINA M
ART UNIT PAPER NUMBER
2857
NOTIFICATION DATE DELIVERY MODE
06/23/2021 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@kutakrock.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
Ex parte IAN JAMES MILLER and JASON LINDEN GEER
_______________
Appeal 2020-004762
Application 14/469,875
Technology Center 2800
_______________

Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
JANE E. INGLESE, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6, 8–11, 14–16, and 20–23 of
the ‘875 Application. See Final Act. 1; Appeal Br. 1. We have jurisdiction
under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.

1 In our Decision, we refer to the Specification filed Aug. 27, 2014 (“Spec.”)
of Application 14/469,875 (“the ’875 Application”); the Final Office Action
dated Mar. 1, 2019 (“Final Act.”); the Appeal Brief filed Aug. 16, 2019
(“Appeal Br.”); the Examiner’s Answer dated Apr. 8, 2020 (“Ans.”); and the
Reply Brief filed June 8, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies TWC Patent Trust LLT as the real party in interest. Appeal Br. 4.
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BACKGROUND
The subject matter of the ’875 Application relates to automated global
weather notification systems. Spec. Title. According to the applicant, basic
forecast grids generally known in the art typically contain raw data that
requires additional processing, typically through human intervention. Spec.
¶ 3. The automated global weather notification system described in the ’875
Application is said to obtain and process observational weather data in order
to automatically determine if a weather notification should be generated.
Spec. ¶ 12. The ’875 Application indicates that the system is capable of
generating weather notifications for particular geographic locations based on
the observational weather data as well as the application of business rules
and conditional variables that may vary based upon the particular geography
at issue. Spec. ¶ 12.
Claim 1 is representative of the ’875 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A method of producing informational weather
notifications, the method comprising:
obtaining, by one or more processors, an aggregated forecast
dataset corresponding to a geographic area, wherein the
aggregated forecast dataset is aggregated from two or
more datasets selected from the group consisting of a
dataset associated with a rainfall predictions for a
plurality of forecast time periods, a dataset associated
with snowfall predictions for the plurality of forecast
time periods, a dataset associated with ice predictions for
the plurality of forecast time periods, a dataset associated
with extreme heat predictions for the plurality of forecast
time periods, a dataset associated with extreme cold
predictions for the plurality of forecast time periods, a
dataset associated with high wind for the plurality of
forecast time periods, a dataset associated with
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thunderstorm predictions for the plurality of forecast time
periods, and a dataset associated with fog predictions for
the plurality of forecast time periods,
wherein the datasets for the plurality of forecast time
periods comprise a first forecast time period and a
second forecast time period, wherein the first
forecast time period is different from the second
forecast time period, and
wherein the datasets for the plurality of forecast time
periods for each of the two or more datasets are
organized in a grid structure having more than one
spatial resolution, including a first spatial
resolution and a second spatial resolution in which
each resolution defines a pre-defined set of spacing
between grid elements having one or more forecast
values, wherein the second spatial resolution is
different from the first spatial resolution;
evaluating, by the one or more processor, a plurality of pre-
defined business rules specific to a targeted geographic
location of a plurality of targeted geographic locations
each located within, and as a portion of the geographic
area,
wherein each evaluation comprises:
comparing a threshold value for a notification
defined in a business rule of the plurality of
pre-defined business rules to one or more
forecast values determined as an average or
as an interpolation of values associated with
a plurality of neighboring grid elements in at
least one of the two or more datasets for a
given forecast time period, wherein the
threshold value is varied based on a second
grid structure, wherein each element of the
second grid structure has a data value
associated with elevation for the geographic
area to which the second grid structure
corresponds; and
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determining whether a notification associated with
the comparison is at least a pre-defined
duration from a last generated notification
event, wherein the last generated notification
event is a last forecast time period that a
threshold comparison associated with the
given notification category is met and offset
by a pre-defined expiration period; and
in response to the evaluation, causing, by the one or more
processor, for each targeted geographic area having a
user of a plurality of users, transmission of an
informational weather notification to each user of the
plurality of users associated with the targeted geographic
area.
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Name Reference Date
Schwoegler US 2001/0030624 A1 Oct. 18, 2001
Zimmers et al.
(“Zimmers”)
US 6,816,878 B1 Nov. 9, 2004
Repelli et al.
(“Repelli”)
US 2006/0271297 A1 Nov. 30, 2006
Mitchell et al.
(“Mitchell”)
US 2009/0210353 A1 Aug. 20, 2009
Sznaider et al.
(“Sznaider”)
US 2010/0013629 A1 Jan. 21, 2010
Hancock et al.
(“Hancock”)
US 2014/0200903 A1 July 17, 2014
Bai et al. (“Bai”) US 2014/0244188 A1 Aug. 28, 2014
REJECTIONS
The Examiner maintains the rejections of claims under 35 U.S.C.
§ 103 as follows: (1) claims 1, 3, 4, 6, 8–11, 20, 21, and 23 over Sznaider in
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view of Schwoegler, Bai, Repelli, Zimmers, and Hancock; and (2) claims
14–16 and 22 over Sznaider in view of Mitchell, and further in view of
Schwoegler, Bai, Repelli, Zimmers, and Hancock. Final Act. 6–35; Ans. 3.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections . . . .”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error in the Examiner’s
rejection.
Appellant argues the pending claims as a group. Appeal Br. 11–13.
We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv) (2018).
Regarding claim 1, the Examiner relies on Sznaider as the primary
reference. Final Act. 6–13. The Examiner finds, inter alia, that Sznaider
teaches a second grid structure to adjust threshold values based on additional
information (e.g., distance), in order to accurately generate relevant weather
notifications. Id. at 11. The Examiner finds that Zimmers teaches an alert
notification system comprising a field used to store an elevation at a
subscriber’s location and a field used to store a flood zone code for the
subscriber. Id. at 12. The Examiner determines that it would have been
obvious to one of ordinary skill in the art to adjust threshold values based on
additional information in order to generate relevant weather notifications
accurately, as taught in Sznaider. Id.
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Appellant argues that Sznaider fails to teach, “comparing a threshold
value for a notification that is varied based on a second grid structure,
wherein each element of the second grid structure has a data value
associated with elevation for the geographic area to which the second grid
structure corresponds.” Appeal Br. 9. Appellant argues, “the recited
invention predicates alerts based on threshold values that (i) are
standardized, in the sense that they vary as a function relative grid element
elevation, and (ii) are not set by a user,” and Sznaider does not. Id. at 10.
The Examiner finds that the broadest reasonable interpretation of
“wherein each element of the second grid structure has a data value
associated with elevation for the geographic area to which the second grid
structure corresponds” does not require that the threshold value is varied
according to the elevation, but only that the threshold value is varied
according to the second grid structure, and each grid point contains an
elevation value. Ans. 6. The Examiner finds that Appellant interprets the
claim limitation too narrowly, i.e., that the limitation recites a threshold
based on elevation. Id.
Appellant argues that the Examiner’s interpretation is inconsistent
with the Specification and interpretation of those of skill in the art. Reply
Br. 2. Appellant quotes the Specification: “[t]he conditional variable 140
may utilize the elevation values to modify business rules 130 appropriately.”
Id. (quoting Spec. ¶ 31). Appellant contends that one of ordinary skill in the
art would understand that “the recitation of each element of the second grid
structure having a data value associated with elevation for the geographic
area to which the second grid structure corresponds is for the purpose of
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modifying business rules, thereby resulting in threshold values being varied
according to elevation.” Id. at 2–3.
We disagree with Appellant’s interpretation and agree with that of the
Examiner.
During prosecution, an application’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id. We do not
restrict claims to specific embodiments. Phillips v. AWH Corp., 415 F.3d
1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the specification often
describes very specific embodiments of the invention, we have repeatedly
warned against confining the claims to those embodiments.”). The
“broadest reasonable interpretation” standard does not prejudice the
applicant, who has the ability to correct errors in claim language and to
adjust the scope of claim protection as needed during prosecution by
amending the claims. In re Yamamoto, 740 F.2d 1569, 1571–72 (Fed. Cir.
1984).
Contrary to Appellant’s urging, the limitation “wherein the threshold
value is varied based on a second grid structure, wherein each element of the
second grid structure has a data value associated with elevation for the
geographic area to which the second grid structure corresponds” does not
require that the threshold value varies with elevation. The claim as written
requires that the second grid structure has a data value associated with
elevation, but not that it varies with elevation. Appellant provides only
attorney argument regarding the understanding of one of ordinary skill in the
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art. It is well settled that arguments of counsel cannot take the place of
factually supported objective evidence. See, e.g., In re Huang, 100 F.3d
135, 139–40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984); see also Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
1043 (Fed. Cir. 2017) (“Attorney argument is not evidence.”).
Appellant’s argument that Sznaider does not predicate alerts based on
threshold values that are standardized, in the sense that they vary as a
function relative grid element elevation, and not set by a user (Appeal Br.
10) is unpersuasive, as neither limitation is required by claim 1. Limitations
not appearing in the claims cannot be relied upon for patentability. 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.”).
Appellant also argues that Sznaider does not teach threshold values
based on distance between grid elements, but rather, based on distance to a
user. Reply Br. 3 (quoting Sznaider ¶ 94).
Sznaider teaches, inter alia, automatically collecting weather
information related to the entire geographic area in which a business
operates, and providing weather warnings on a site-specific basis so only
sites to be impacted by adverse weather conditions receive such warnings.
Sznaider ¶¶ 16, 20–21.
[I]f tornadic activity is detected, the location, direction of
movement and speed of the tornado is automatically assessed to
determine whether the tornado poses a threat to any location
operated by the business. If so, the business locations likely to
be affected by the tornado are identified and the arrival time of
the tornado at each identified business location is determined.
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Id. ¶ 28. Thus, the location, direction of movement, and speed of the
tornado will be determined based on distances between grid elements.
For the above reasons, we sustain the rejection of claim 1 as obvious
over Sznaider in view of Schwoegler, Bai, Repelli, Hancock, and Zimmers.
We sustain the rejection of claims 3, 4, 6, 8–11, 20, 21, and 23 as obvious
over these references for the same reasons.
We sustain the rejection of claims 14–16 and 22 over Sznaider in view
of Mitchell, and further in view of Schwoegler, Bai, Repelli, Zimmers, and
Hancock because Appellant merely argues that Mitchell fails to cure the
deficiencies in the other references. See Appeal Br. 12–13.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6, 8–
11, 20, 21, 23 103
Sznaider,
Schwoegler, Bai,
Repelli, Zimmers,
Hancock
1, 3, 4, 6,
8–11, 20,
21, 23

14–16, 22 103
Sznaider, Mitchell,
Schwoegler, Bai,
Repelli, Zimmers,
Hancock
14–16, 22
Overall
Outcome
1, 3, 4, 6,
8–11, 14–
16, 20–23

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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) (2018).
AFFIRMED