DTN, LLCDownload PDFPatent Trials and Appeals BoardJun 23, 20212020004762 (P.T.A.B. Jun. 23, 2021) Copy Citation 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. Appeal 2020-004762 Application 14/469,875 2 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 Appeal 2020-004762 Application 14/469,875 3 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 Appeal 2020-004762 Application 14/469,875 4 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 Appeal 2020-004762 Application 14/469,875 5 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. Appeal 2020-004762 Application 14/469,875 6 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 Appeal 2020-004762 Application 14/469,875 7 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 Appeal 2020-004762 Application 14/469,875 8 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. Appeal 2020-004762 Application 14/469,875 9 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 Appeal 2020-004762 Application 14/469,875 10 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 Copy with citationCopy as parenthetical citation