Ex Parte Ainsworth et al

Patent Trial and Appeal Board

Nov 21, 2012

11453881 (P.T.A.B. Nov. 21, 2012)

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.
11/453,881 06/16/2006 Miley Ainsworth 02100.0095 7296
22852 7590 11/21/2012
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
KUNDU, SUJOY K
ART UNIT PAPER NUMBER
2857
MAIL DATE DELIVERY MODE
11/21/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MILEY AINSWORTH and OLE PETTER SKAAKSRUD
____________

Appeal 2010-000495
Application 11/453,881
Technology Center 2800
____________

Before DENISE M. POTHIER, JEFFREY S. SMITH
and BRUCE R. WINSOR, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellants have made a Request for Rehearing (hereinafter the
“Request”) under 37 C.F.R. §§ 41.50(b)(2) and 41.52 (2011) of our Decision
of September 7, 2012 (hereinafter the “Decision”), wherein we reversed the
Examiner’s rejection of the appealed claims and entered a new ground of
rejection within 37 C.F.R. § 41.50(b) under 35 U.S.C. § 103(a).
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In the Decision we entered a new ground of rejection of claims 1-17
as unpatentable under 35 U.S.C. § 103(a) over Horstemeyer (US 7,119,716
B2; Oct. 10, 2006; filed Nov. 12, 2003) and Twitchell (US 2006/0023679
A1; Feb. 2, 2006). (Decision 6-10). Appellants contend that in entering the
new ground of rejection the Board misapprehended certain points (Request
1). More particularly Appellants argue as follows:
Argument I: Horstemeyer does not teach or suggest “receiving a
request for sensor data” and “searching for information identifying
qualifying tracking devices” as recited in claim 1. (Request 1-2).
Argument II: The combination of Horstemeyer and Twitchell does
not teach or suggest “identifying qualifying tracking devices” as recited in
claim 1. (Request 2-3).
Argument III: No prima facie case of obviousness has been
established with respect to claims 1-17. (Request 3).

ANALYSIS
We note as an initial matter that:
[the USPTO] applies to the verbiage of the proposed
claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary
skill in the art, taking into account whatever enlightenment by
way of definitions or otherwise that may be afforded by the
written description contained in the applicant’s specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
Argument I
Appellants contend that the setting of a user preference does not teach
or suggest “receiving a request for sensor data” because “[n]o sensor data is
being actively requested when user preferences are set or updated.”
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(Request 2). Appellants’ contention is unpersuasive. First, the contention is
not commensurate with the scope of the claim. Claim 1 does not recite
actively requesting sensor data, rather it recites receiving a request for sensor
data. Second, Appellants merely assert, without pointing to any evidence on
the record, that a setting of a “user preference” that triggers the delivery of a
notification based on sensor data is not a “request for sensor data.”
As described in Horstemeyer (col. 72, ll. 50-55), a party associated
with a personal communications device (PCD) can define a proximity
between a mobile thing (MT) and a stop location or region for triggering
communication to the PCD (i.e., a “triggering parameter”). We conclude
that definition by the party associated with the PCD of the proximity for
triggering a notification is encompassed by the broadest reasonable meaning
of “request for sensor data,” as Horstemeyer’s system determines the
proximity based on data from position sensors within a mobile thing control
unit (MTCU) associated with the MT. (Horstemeyer col. 11, ll. 38-45).
When the party defines the proximity, Horstemeyer’s system receives the
definition, i.e., the request. Accordingly, Appellants have not persuaded us
of error in our finding (Decision 7) that Horstemeyer teaches “receiving a
request for sensor data, the request including a triggering parameter, wherein
the triggering parameter comprises an environmental condition,” as recited
in claim 1.
Appellants further contend that Horstemeyer does not teach or suggest
“searching for information identifying qualifying tracking devices,” as
recited in claim 1, because in Horstemeyer “setting the preference is used to
automatically trigger a notification when a MT moves within the
user-defined predetermined proximity.” (Request 2). As discussed in the
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Decision, a “qualifying tracking device” is construed to be a tracking device
that meets the triggering parameter. (Decision 7). We note that Appellants
do not explained why triggering a notification automatically once the
information identifying qualifying tracking devices is located, precludes
locating the information by “searching.”
As explained in the Decision “[the] triggering parameter . . . is a
location condition, e.g., a predetermined proximity between a Mobile Thing
(MT) and a stop location or region for triggering a notification.” (Id. (citing
Horstemeyer col. 72, ll. 50-55)). Horstemeyer teaches comparing travel data
(i.e., sensor data) from the MT to user preferences (i.e., requests for sensor
data) to determine when the triggering parameter is met by the location
sensor associated with the MT. (See Horstemeyer Figs. 4A, 4B, 5C, 5D,
18). We conclude Horstemeyer’s comparing of MT travel data to the user
preferences to determine if the MT meets the specified condition for
triggering a notification is encompassed within the broadest reasonable
meaning of “searching for information identifying qualifying tracking
devices,” as recited in claim 1.
Accordingly, Appellants have not persuaded us of error in our finding
(Decision 7) that Horstemeyer teaches “searching for information
identifying qualifying tracking devices that meet the triggering parameter,”
as recited in claim 1.
Argument II
Appellants contend that the combination of Horstemeyer and
Twitchell does not teach or suggest:
searching for information identifying qualifying tracking
devices that meet the triggering parameter, wherein each
qualifying tracking device from a first set of the qualifying
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tracking devices is capable of gathering the sensor data, and
each qualifying tracking device from a second set of the
qualifying tracking devices is not capable of gathering the
sensor data
(emphasis by Appellants), as recited in claim 1. (See Request 2).
Appellants explain that:
[i]n Twitchell, a gateway 180 includes a GPS receiver to
determine the geographic location of a shipping vehicle in
which gateway 180 is located. Twitchell at ¶ [0098]. The
shipping vehicle may also include goods with wireless tags
attached. Twitchell at ¶¶ [0049]-[0053]; and Fig. 1. The
wireless tags cannot collect GPS information. Id.
Although a query of [Twitchell’s] gateway 180 would
arguably reveal the GPS location of the shipping vehicle,
Twitchell is silent on any such search identifying the wireless
tags on the goods, Therefore, Twitchell cannot teach or suggest
identifying a "second set of the qualifying tracking devices"
that "is not capable of gathering the sensor data," as recited in
claim 1 (emphasis added).
(Request 3).
We disagree. Referring to Twitchell’s figure 1, Twitchell teaches that
mobile locating Gateway (MLG) 180, which is associated with shipping
vehicle 184, incorporates a wireless reader tag (WRT) (Twitchell ¶ [0098])
that reads wireless tags (WT) (Twitchell ¶ [0050)]). Each of the radio
frequency transducers (RFT) 130 and/or the low power radio frequency
devices (LPRF) 110 within the shipping vehicle 184 comprises a WT or
WRT (Twitchell ¶ [0052)]), which is read by the WRT in MLG 180. Note,
for example, the indicated communication link between MLG 180 and LPRF
110 in figure 1. One of ordinary skill in the art would have understood that
information that identifies Twitchell’s MLG 180 and identifies the location
(i.e., triggering parameter) of MLG 180 (i.e., “qualifying tracking devices
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that meet the triggering parameter, . . . [that are] capable of gathering the
sensor data” (emphasis added)) would also identify Twitchell’s LPRFs 110
and/or RFTs 130 that are within Twitchell’s shipping vehicle 184 and the
location of the LPRFs 110 and/or RFTs 130 (i.e., “qualifying tracking
devices that meet the triggering parameter, . . . [that are] not capable of
gathering the sensor data” (emphases added)).
Accordingly, Appellants have not persuaded us of error in our finding
(Decision 7-8) that the combination of Horstemeyer and Twitchell teaches:
searching for information identifying qualifying tracking
devices that meet the triggering parameter, wherein each
qualifying tracking device from a first set of the qualifying
tracking devices is capable of gathering the sensor data, and
each qualifying tracking device from a second set of the
qualifying tracking devices is not capable of gathering the
sensor data,
as recited in claim 1.
Argument III
Appellants contend that for the reasons stated in Arguments I and II a
prima facie case of the obviousness of claim 1 has not been established.
Appellants further contend that independent claims 7 and 12 and dependent
claims 2-6, 8-11, and 13-17 distinguish over the combination of
Horstemeyer and Twitchell for similar reasons or because of dependency
from one of claims 1, 7, and 12. Appellants do not otherwise argue the
patentability of claims 2-17 with particularity. For the reasons discussed
supra, we find Appellants’ contentions unpersuasive.

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CONCLUSION
We have reconsidered the Decision of September 7, 2012 in light of
Appellants’ comments in the Request, and we have granted Appellant’s
request to the extent that we have reviewed our Decision and considered the
arguments made in the request. We have found no errors in our previous
Decision. Therefore, we deny Appellants’ Request for Rehearing in that we
decline to make any change in the Decision.

ORDER
The Request for Rehearing is denied.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

REHEARING DENIED

kis