Ex Parte Barkowski et al

Patent Trial and Appeal BoardNov 23, 2012

10528180 (P.T.A.B. Nov. 23, 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. 10/528,180 10/06/2005 Andre Barkowski 10191/3571 7041 26646 7590 11/23/2012 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER JEN, MINGJEN ART UNIT PAPER NUMBER 3664 MAIL DATE DELIVERY MODE 11/23/2012 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 ANDRE BARKOWSKI, THOMAS JUNG, ULRICH KERSKEN, and CHRISTIAN JAEGER ____________ Appeal 2010-010472 Application 10/528,180 Technology Center 3600 ____________ Before STEVEN D.A. McCARTHY, MICHELLE R. OSINSKI, and JILL D. HILL, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010472 Application 10/528,180 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 11-15 and 18-24.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter relates to a navigational device for guiding a vehicle within a network of traffic routes. Claims 11 and 24 are the independent claims on appeal. Claim 11 is illustrative of the subject matter on appeal and is reproduced below with the key disputed limitations emphasized: 11. A navigational device for guiding a vehicle within a network of traffic routes, comprising: a processing unit for calculating a travel route to a destination; a display for displaying a guide object, a movement of the guide object along the calculated travel route being displayed in relation to a traffic route, whereby the movement of the guide object represents driving maneuvers to be performed by a driver of the vehicle to reach the destination; a determining arrangement to determine a traffic situation in front of the vehicle by sensing other vehicles in an area surrounding the guided vehicle; and an adaptive controlling arrangement to adaptively control the movement of the guide object depending on the traffic situation. 1 Appellants and the Examiner agree that claims 16 and 17 were canceled and therefore are not pending and are not subject to this appeal. App. Br. 3, Ans. 12. Appeal 2010-010472 Application 10/528,180 3 REJECTIONS Appellants seek review of the Examiner’s rejection of claims 11-15 and 19-21 under 35 U.S.C. § 103(a) as unpatentable over Yuda et al. (US 2002/0049534 A1, pub. Apr. 25, 2002) and Breed et al. (US 2002/0198632 A1, pub. Dec. 26, 2002), Ans. 4, and the Examiner’s rejection of claims 18 and 22-24 under 35 U.S.C. § 103(a) as unpatentable over Yuda, Breed and Hall (US 6,223,125 B1, iss. Apr. 24, 2001), Ans. 5. ANALYSIS Appellants argue that Yuda does not disclose or suggest the recitation in claim 11 of movement of the guide object along the calculated travel route being displayed in relation to a traffic route. App. Br. 8. Appellants also argue that Yuda does not disclose or suggest movement of the guide object representing driving maneuvers to be performed by a driver of the vehicle to reach the destination. Id. Appellants allege that the Examiner’s cited paragraphs of Yuda (i.e., paragraphs [0022], [0026], [0030], [0046], [0049], [0061], and [0079]) merely discuss a symbol to be generated when decisions need to be made (e.g., when the vehicle is N meters before the crossroads), the symbol indicating whether to turn left or right, for example using blinkers on a vehicle symbol, which requires the driver to convert the symbolic, optical display and instructions into an active driving maneuver. Id. Appellants thus allege that Yuda’s disclosed symbol is not a guide object that moves and whose movements are to be emulated. Id. The Examiner finds that Yuda discloses a navigational device for guiding a vehicle within a network of traffic routes, comprising: A processing unit for calculating a travel route to a destination; a display for Appeal 2010-010472 Application 10/528,180 4 displaying a guide object, a movement of the guide object along the calculated travel route being displayed in relation to a traffic route, whereby movement of the guide object represents driving maneuvers to be performed by a driver of the vehicle to reach the destination. Ans. 3-4. The claim recitation “movement of the guide object along the calculated travel route being displayed in relation to a traffic route,” and the claim recitation “whereby the movement of the guide object represents driving maneuvers to be performed by a driver of the vehicle to reach the destination,” are functional. Functional recitations limit the structure defined by an apparatus claim. That is, the structure must be capable of performing the recited function to satisfy the functional limitation. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Thus, to render claim 11 obvious, Yuda’s navigational device would have to be capable of displaying the symbol (e.g., symbol 50) such that movement of the symbol along the calculated travel route is displayed in relation to a traffic route, and movement of the symbol represents driving maneuvers to be performed by a driver of the vehicle to reach the destination. We are not persuaded by the Examiner’s finding that Yuda’s paragraphs [0022], [0026], [0030], [0046], [0049], [0061], and [0079] disclose a symbol moving along the calculated travel route, or movement of the symbol representing driving maneuvers to be performed by a driver. Further, the Examiner does not allege that Yuda’s device would be capable of moving the symbol in the manner recited in claim 11. The Examiner does not find that Breed discloses the claimed symbol movement. Because we are not persuaded by the Examiner’s finding that Yuda discloses “a movement of the guide object along the calculated travel route Appeal 2010-010472 Application 10/528,180 5 being displayed in relation to a traffic route, whereby the movement of the guide object represents driving maneuvers to be performed by a driver of the vehicle to reach the destination,” and this finding forms the basis of the rejection of independent claim 11 and dependent claims 12-15 and 18-23 under 35 U.S.C. § 103(a) as unpatentable over Yuda and Breed, the rejection cannot be sustained. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988). Regarding the rejection of claims 18 and 22-24 under 35 U.S.C. § 103(a) as unpatentable over Yuda, Breed and Hall, because the Examiner has not shown that the references teach a symbol moving (or capable of moving) along a calculated travel route, or movement of the symbol representing driving maneuvers to be performed by a driver for the reasons set forth above, we cannot sustain the rejection of claims 18 and 22-24 under 35 U.S.C. § 103(a). DECISION We reverse the Examiner’s rejection of claims 11-15 and 19-21 under 35 U.S.C. § 103(a) as unpatentable over Yuda and Breed. We reverse the Examiner’s rejection of claims 18 and 22-24 under 35 U.S.C. § 103(a) as unpatentable over Yuda, Breed and Hall. REVERSED Klh