Ex Parte Anderson

Patent Trial and Appeal Board

Jul 30, 2015

13189505 (P.T.A.B. Jul. 30, 2015)

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).

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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).
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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,
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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.
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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
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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