Ex Parte AndersonDownload PDFPatent Trial and Appeal BoardJul 30, 201513189505 (P.T.A.B. Jul. 30, 2015) 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. 13/189,505 07/23/2011 LAWRENCE E. ANDERSON TrafficMonit1 1349 91424 7590 07/30/2015 Lawrence E. Anderson 6304 Waterway Dr. Falls Church, VA 22044 EXAMINER CHEN, SHELLEY ART UNIT PAPER NUMBER 3663 MAIL DATE DELIVERY MODE 07/30/2015 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 LAWRENCE E. ANDERSON ____________ Appeal 2013-003878 Application 13/189,505 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, PHILIP J. HOFFMANN, and BRADLEY B. BAYAT, Administrative Patent Judges. BAYAT, Administrative Patent Judge. DECISION ON APPEAL Lawrence E. Anderson (Appellant)1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED INVENTION Appellant’s claimed “invention is directed to monitoring of traffic using set radio frequencies for localized traffic reporting, Global Positioning Systems and/or traffic signs” (Spec. ¶ 3). Claim 1, reproduced below, is representative of the subject matter on appeal (App. Br., Claims Appendix). 1. A system for monitoring the flow of vehicular traffic comprising: at least one first transmitter receiver that detects the 1Appellant identifies the real party in interest as Lawrence E. Anderson (App. Br. 1). Appeal 2013-003878 Application 13/189,505 2 passage of a vehicle along a roadway fixedly positioned at a predetermined point adjacent the roadway; and at least one fixedly positioned second transmitter for transmitting the data relating to the passage of a vehicle at a predetermined point on a roadway for use by motorists in determining a route of travel. REJECTIONS The following rejections are before us for review. Claims 1 and 19 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Macneille (US 2007/0208506 A1, pub. Sept. 6, 2007).2 Claims 2–18 and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Macneille and Nadeem (US 2011/0095908 A1, pub. Apr. 28, 2011). FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.3 ANALYSIS We have reviewed Appellant’s arguments in the briefs against the Examiner’s rejection of record and response to arguments, and we are not persuaded the Examiner erred in rejecting claims 1–20. As such, we agree with and adopt the Examiner’s findings and rationale as set forth in the Answer on pages 4–24, and we note the following for emphasis. Anticipation by Macneille 2 We note that the Examiner altered the grounds of the final rejection with respect to claims 1 and 19 to an anticipatory rejection over Macneille (see Ans. 3). Appellant’s petition to the Director to designate this as a new ground of rejection was denied on September 24, 2013. 3 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2013-003878 Application 13/189,505 3 Independent claims 1 and 19 Appellant contends that Macneille does not disclose “at least one first transmitter receiver that detects the passage of a vehicle along a roadway fixedly positioned at a predetermined point adjacent the roadway” because “Macneille’s image capture device 14 is positioned on a moving vehicle 12 to take pictures” (Reply Br. 3). Appellant argues that “the data relating to the passage of a vehicle is not transmitted for use by motorists in determining a route of travel” (id.). Appellant’s contention is unpersuasive because the Examiner does not rely on capture device 14 for describing this limitation. Rather, we agree with the Examiner that traffic device 28 stationed (fixed) on the side (adjacent) of the road for “captur[ing] images of the road including traffic flow information, classify[ing] the traffic flows, and transmit[ting] corresponding images to other vehicles and/or other stationary traffic devices” via the transmitter/receiver describes this disputed limitation (Ans. 14, citing Macneille ¶ 23). Indeed, traffic flow in Macneille is monitored by traffic device 28 to detect passage of vehicles along the road and communicate the flow of traffic to provide optimal travel routes for the driver or motorist (Macneille ¶ 24; see Ans. 14–16). Therefore, we are not persuaded the Examiner erred in rejecting claims 1 and 19 as being anticipated by Macneille. Thus, we sustain the rejection of independent claims 1 and 19 under 35 U.S.C. § 102(b). Obviousness over Macneille and Nadeem Claims 2 and 5–9 Appellant argues that “[c]laim 2 recites two transmitters used to measure the time taken by the vehicle to pass between. Assuming, Appeal 2013-003878 Application 13/189,505 4 arguendo, that Macneille disclosed using two lidars, the lidars would each measure vehicular speed and not the time taken by the vehicle to pass between” (Reply Br. 4). Appellant, however, attacks Macneille individually and fails to address the Examiner’s actual rejection to establish an insufficiency in the combined teachings of the references. For instance, the Examiner relies on Nadeem for determining vehicle speed (Ans. 8–9). Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Therefore, we are not persuaded the Examiner erred in rejecting claim 2 as being unpatentable over Macneille and Nadeem. Appellant relies on the reasons stated with respect to claim 2 for dependent claims 5–9 (Reply Br. 4). Thus, we sustain the rejection of claims 2 and 5–9 under 35 U.S.C. § 103(a). Claims 3 and 12 With respect to claims 3 and 12, Appellant asserts that Macneille is directed to image capture and “[i]t is not understood how the Examiner is combining the concepts of image capture and radar AND meeting the limitations of [the] claim[s]” (Appeal Br. 11–14, Reply Br. 6). Appellant has merely made conclusory statements that the combination does not render the claimed invention, rather than addressing any insufficiency or error with the Examiner’s rationale and reasoning for the combination as presented in the Answer (Ans. 18–19). We are not persuaded of error without further explanation refuting the Examiner’s rationale. Thus, the rejection of claims 3 and 12 under 35 U.S.C. § 103(a) is sustained. Appeal 2013-003878 Application 13/189,505 5 Claim 4 and 13 Appellant argues that “Macneille does not recite the determination of average traffic speed which the GPS receiver determines suggested routes based upon average traffic speed at recorded points on a roadway” as recited in claim 4 (Reply Br. 8) and that “[n]o basis is found that traffic congestion corresponds to average traffic speed” (Appeal Br. 15). The Examiner provides a rationale and sufficient explanation with regards to traffic flow and traffic congestion as taught by Macneille in relation to average traffic speed (Ans. 21–22). Indeed, we find that paragraphs 17 and 19 of Macneille as cited by the Examiner and reproduced by Appellant in the briefs support the Examiner’s rationale, but Appellant does not point to any error or insufficiency in this rationale with regards to the combination of Macneille and Nadeem. For instance, Nadeem discloses providing “data related to the number of vehicles, per lane traffic, traffic density, vehicle speed and the like, and thus provides information about a status of traffic, and about changing traffic conditions” (Nadeem ¶ 104). The test for obviousness is not whether the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). As such, we are not persuaded the Examiner erred in rejecting claim 4. Thus, we sustain the rejection of claim 4 under 35 U.S.C. § 103(a). Claim 10 Appellant argues that Macneille in view of Nadeem fail to disclose the limitation recited in claim 10, because “one would not look to the teachings of Nadeem to modify the Macneille system inasmuch as Nadeem is directed Appeal 2013-003878 Application 13/189,505 6 to the optimization of traffic lights…[o]ne may not select bits and pieces of the prior art from references having differing objectives without proper basis for making the combination” (Appeal Br. 18). We are not persuaded by this argument because we agree with the Examiner that both Macneille and Nadeem are in fact directed to the same field of endeavor (Ans. 22), regardless of the problem addressed. We therefore sustain the rejection of claim 10. Claims 11, 14–18, and 20 We have considered Appellant’s arguments with respect to claims 11, 14–18, and 20 (Appeal Br. 18–24. Reply Br. 11–17), but we are unpersuaded of error for the reasons set forth above. As such, we adopt the Examiner’s findings and rationale as our own, and we sustain the rejection of claims 11, 14–18, and 20 under 35 U.S.C. § 103(a). CONCLUSIONS OF LAW We conclude that Appellant has not shown that the Examiner erred in rejecting the claims as listed in the Rejections section above. DECISION The Examiner’s rejections of claims 1–20 are affirmed. 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 mls Copy with citationCopy as parenthetical citation