Ex Parte Egly

Patent Trial and Appeal Board

Jan 29, 2019

13414814 (P.T.A.B. Jan. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/414,814 03/08/2012
34082 7590 01/31/2019
ZARLEY LAW FIRM P.L.C.
CAPITAL SQUARE
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350
FIRST NAMED INVENTOR
MarkEgly
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P07526US1 1245
EXAMINER
MA,KAMWAN
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
01/31/2019 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):
kconrad@zarleylaw.com
crasmussen@zarleylaw.com
emarty@zarleylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK EGL Y
Appeal2018-004552
Application 13/414,814
Technology Center 2600
Before JAMES R. HUGHES, CATHERINE SHIANG, and
JASON J. CHUNG, Administrative Patent Judges.
CHUNG, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 3, 18-21, 24--26, 31-37, 40, and 41. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
INVENTION
The invention is directed to an early warning system for traffic signals
and driving conditions. Spec. 1: 10-14. Claim 1 is illustrative of the
invention and is reproduced below:
1. An early warning system, comprising:
a vehicle having a warning device;
the vehicle having a steering wheel with a steering wheel
sensor;
wherein the steering wheel sensor sends information
regarding whether a driver has two hands,
Appeal2018-004552
Application 13/414,814
one hand or no hands on the steering wheel to more than
one processor;
a deactivation switch positioned on the steering wheel;
wherein when the steering wheel sensor senses that no
hands are on the steering wheel a hazard condition is detected
and a warning signal is issued through the warning device.
REJECTIONS AT ISSUE
Claims 1, 3, 18, 19, 24--26, 32, 33, 36, 40, and 41 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over the combination of Bennett
(US 2011/0115617 Al; published May 19, 2011) and Young (US
2004/0124985 Al; published July 1, 2004). Final Act. 2-7.
Claim 20 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, and Rao (US
2012/0256749 Al; filed Apr. 11, 2011). Final Act. 8.
Claim 21 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, and Daniel (US
8,451,109 Bl; filed Jan. 7, 2010). Final Act. 8-9.
Claim 31 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, and N aboulsi (US
2004/0209594 Al; published Oct. 21, 2004). Final Act. 9-10.
Claim 34 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, and Lee (US
2012/0133528 Al; filed Nov. 28, 2011). Final Act. 10.
Claim 35 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, Lermer (US
2010/0117814 Al; published May 13, 2010), and Katsman (US
2010/0157061 Al; published June 24, 2010). Final Act. 11-12.
2
Appeal2018-004552
Application 13/414,814
Claim 37 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Bennett, Young, and Wahlbin (US
2004/0103010 Al; published May 27, 2004). Final Act. 12.
ANALYSIS
The Examiner determines Bennett teaches one central processor, but
fails to teach more than one processor. Final Act. 3. The Examiner finds
there are a finite number of solutions to process information from the
steering wheel sensor, which includes: (1) sending information to the
central processor for issuing warning signals and data collaboration; or (2)
sending information separately to the warning device and the receiver for
local processing. Id. The Examiner finds it would have been obvious to a
person having ordinary skill in the art at the time of the invention to modify
Bennett's early warning system to send the information separately to the
warning device and the receiver for local processing, because it is "obvious
to try" choosing from a finite number of identified, predictable solutions,
with a reasonable expectation of success. Id. The Examiner finds Butts
teaches each major part of a vehicle ( e.g., display, GPS, steering and
braking, transmission, etc.) individually comprises its own controller, which
the Examiner maps to the limitation "more than one processor" recited in
claims 1 and 40. Id. at 13 (citing Butts ,r 82). The Examiner finds Butts
teaches a need to include multiple controllers in a vehicle so as to increase
the diagnostic ability to identify failure of a component and predict the
3
Appeal2018-004552
Application 13/414,814
failure before the component fails, which the Examiner finds would make
Bennett's modification "obvious to try." Id. at 13-14.
Appellant first argues the cited art fails to teach every limitation in
claims 1 and 40 and, therefore, is incapable of providing a finite number of
identified, predictable solutions to the recognized need or problem. App. Br.
3. Second, Appellant argues Bennett addresses the reality that numerous
deficiencies exist in the art related to vehicle safety and driver attentiveness,
which shows that a person having ordinary skill in the art would not be able
to pursue the known solutions with a reasonable expectation of success. Id.
at 3 (citing Bennett ,r 6); Reply Br. 2-3. Appellant's third argument is that
the Examiner's combination would lead to open-ended speculation on how a
hypothetical embodiment would operate in this highly complex technical
field, which is improper in attempting to establish an obvious to try theory.
Id. at 4. Fourth, Appellant argues Bennett includes no indication of critical
parameters of processing, and only provides a general guidance on providing
a single embodiment of a vehicle driver safety device. Id. at 4. Appellant's
fifth argument is Butts pertains to duplication of similar controllers for a
single purpose, but the Examiner ignores features in the claims, disclosure,
and Figures that indicate the processors are positioned in various places
within the vehicle for different purposes-i.e., physical features are beyond
mere duplication. Id. at 4--5. Sixth, Appellants argue Butts does not teach a
sensor, let alone a sensor on a steering wheel that sends information to one
or more processors. Reply Br. 3. We disagree with Appellant and address
the arguments in tum.
As for Appellant's first three arguments (App. Br. 3--4), we disagree
because Butts describes each major part of a vehicle ( e.g., display, GPS,
4
Appeal2018-004552
Application 13/414,814
steering and braking, transmission, etc.) having its own controller, which
teaches the limitation "more than one processor" recited in claims 1 and 40.
Final Act. 13 (citing Butts ,r 82). Furthermore, we agree with the
Examiner's finding that Butts teaches a need to include multiple controllers
in a vehicle so as to increase the diagnostic ability to identify failure of a
component and predicts the failure before the component fails, which would
make Bennett's modification "obvious to try" choosing from a finite number
of identified, predictable solutions, with a reasonable expectation of success.
Final Act. 3, 13-14. Additionally, the U.S. Supreme Court has held "[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results." KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398,416 (2007). Contrary to Appellants' argument
that Bennett and Young do not provide factual support to support the
obviousness rejection (App. Br. 3; Reply Br. 2-3), "[i]f the claim extends to
what is obvious, it is invalid under§ 103" and "the analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. at 418-19.
Appellant's fourth argument (App. Br. 4) is not persuasive because
Butts describes each major part of a vehicle ( e.g., display, GPS, steering and
braking, transmission, etc.) having its own controller that collects data such
as engine speed, engine torque, wheel speed, etc., which are critical
parameters of processing.
Regarding Appellant's fifth argument (App. Br. 4), we note that
claims 1 and 40 do not recite the processors within the vehicle are for
5
Appeal2018-004552
Application 13/414,814
different purposes. "[ A Jppellant' s arguments fail from the outset because ..
. they are not based on limitations appearing in the claims." In re Self, 671
F.2d 1344, 1348 (CCP A 1982). Nonetheless, Butts describes each major
part of a vehicle ( e.g., display, GPS, steering and braking, transmission, etc.)
having its own controller, which teaches processors are positioned in various
places within the vehicle for different purposes. See Butts ,r 82.
As for Appellant's sixth argument, Appellant's argument filed in the
Reply Brief (see Reply Br. 3) is untimely and waived because Appellant has
not shown good cause for the belated presentation. See 37 C.F.R.
§ 41.41(b)(2); compare Final Act. 13-14, with Ans. 4--5. In any event,
Appellant's argument pertaining to Butts (Reply Br. 3) is unpersuasive
because one cannot show nonobviousness "by attacking references
individually" where the rejections are based on combinations of references.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re
Keller, 642 F.2d 413,425 (CCPA 1981)). In this case, Bennett teaches a
steering wheel sensor within a vehicle and Butts teaches multiple processors.
Final Act. 2, 13 (citing Bennett ,r 46, Figs. 1-2; Butts ,r 82).
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision rejecting claims 1, 3, 18-21, 24--
26, 31-37, 40, and 41 under 35 U.S.C. § 103(a).
6
Appeal2018-004552
Application 13/414,814
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
7