Ex Parte Hatton

Patent Trial and Appeal Board

Mar 6, 2017

13644779 (P.T.A.B. Mar. 6, 2017)

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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/644,779 10/04/2012 David Anthony Hatton 83227751 6305
28395 7590 03/08/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER LUI, DONNA V
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
2621
NOTIFICATION DATE DELIVERY MODE
03/08/2017 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):
docketing @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID ANTHONY HATTON
Appeal 2016-008332
Application 13/644,779
Technology Center 2600
Before ERIC S. FRAHM, JOHN P. PINKERTON, and
JOHN D. HAMANN, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1—6, 8—13, 17—19, and 21—24. Claims 7, 14—16, and 20 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal 2016-008332
Application 13/644,779
Disclosed Field of Invention
Appellant discloses a method and system for vehicle enabled
augmentation (Spec., Title, 11; see generally Fig. 5). More specifically, a
visual aid such as a pair of eyeglasses (Fig. 2 (smart lens eyewear device 202
connected to car system via BLUETOOTH); see Spec. 136) having a heads-
up graphical display (see, e.g., Fig. 2A) therein are used to augment a
vehicle driver’s feedback (Spec. H 2—6; Abstract; claims 1, 17, 21).
Exemplary Claims
Exemplary claims 1 and 17, with emphases added to disputed portions
of the claims, read as follows:
1. A system comprising:
a vehicle processor programmed to:
process data from a vehicle module into a format
configured to display the data through a lens of eyeglasses;
prioritize the data by type;
monitor a driver-activity level based on interaction with a
device communicating with the vehicle module; and
in response to the monitored driver-activity level
exceeding a threshold, communicate the data based on the type
to a transceiver for communication to the eyeglasses
for display.
17. A non-transitory computer-readable storage medium,
storing instructions, which, when executed by a vehicle
computing system, cause the system to perform a
method comprising:
preparing data received from a vehicle subsystem, the
prepared data including representations formatted to be
displayed on one or more eyeglasses;
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monitoring a driver-activity level based on driver
interaction with a device communicating with the vehicle
computing system; and
transmitting an amount of the prepared data from the
vehicle subsystem to the eyeglasses to display the data based on
the driver-activity such that as the driver-activity increases the
amount decreases.
The Examiner’s Rejection
The Examiner rejected claims 1—6, 8—13, 17—19, and 21—24 under
35 U.S.C. § 103(a) over the combination of Repetto (US 2005/0046953 Al;
published Mar. 3, 2005) and Talati (US 2013/0038437 Al; published Feb.
14, 2013, filed Aug. 8, 2011). Final Act. 2-12; Ans. 2-A.
Issues on Appeal
Based on Appellant’s arguments in the Briefs (App. Br. 6—8; Reply
Br. 2—3), the following issues are presented on appeal:1
(1) Did the Examiner err in rejecting claims 1—6, 8—13, and 21—24
under 35 U.S.C. § 103(a) over the combination of Repetto and Talati
because the combination fails to teach or suggest “communicat[ing] the data
1 Appellant does not present separate arguments regarding the patentability
of claims 2—6 and 8—13, and instead relies on the arguments presented as to
claim 1 for the patentability of claims 2—6 and 8—13 (see App. Br. 8). Based
on the similarity in the scope of the subject matter recited in independent
claims 1 and 21, Appellant presents similar arguments to claim 1 for the
patentability of independent claim 21 and claims 22—24 depending therefrom
(see App. Br. 8). Therefore, we select independent claim 1 as representative
of the group of claims consisting of claims 1—6, 8—13, and 21—24 rejected as
being obvious over the combination of Repetto and Talati. Remaining
independent claim 17, as well as claims 18 and 19 depending therefrom, has
a different scope than claims 1—6, 8—13, and 21—24, and claims 17—19 are
argued separately by Appellant (see App. Br. 8).
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based on the type to a transceiver for communication to the eyeglasses
for display” “in response to the monitored driver-activity level exceeding a
threshold,” as recited in claim 1?
(2) Did the Examiner err in rejecting claims 17—19 under
35 U.S.C. § 103(a) over the combination of Repetto and Talati because the
combination fails to teach or suggest “transmitting an amount of the
prepared data from the vehicle subsystem to the eyeglasses to display the
data based on the driver-activity such that as the driver-activity increases the
amount decreases,” as recited in independent claim 17, and as similarly
recited in claims 18 and 19 depending therefrom?
ANALYSIS
We have reviewed the Examiner’s rejections (Final Act. 2—12) in light
of Appellant’s arguments in the Appeal Brief (App. Br. 6—8) and the Reply
Brief (Reply Br. 2—3) that the Examiner has erred, as well as the Examiner’s
response to Appellant’s arguments in the Appeal Brief (Ans. 2—4).
Claims 1—6, 8—13, and 21—24
With regard to claim 1, we adopt as our own (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 2—3), and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans. 2—3).
We concur with the conclusions reached by the Examiner with regard to the
obviousness of claim 1 in view of the combination of Repetto and Talati.
We disagree with Appellant’s contentions (App. Br. 6—7; Reply Br. 2—3) that
the Examiner erred in rejecting claim 1 (and claims 2—6, 8—13, and 22—24,
which depend respectively therefrom) because the combination of Repetto
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and Talati teaches or suggests communicating data based on the type of data
to a transceiver for communication to eyeglasses for display based on a
monitored driver-activity level exceeding a threshold as recited in claim 1.
Appellant has failed to show that the Examiner erred because the
arguments (App. Br. 7) are not commensurate in scope with the claims.
Independent claim 1 does not include a limitation requiring not always
presenting critical and/or non-critical data. Instead, claims 1 and 21 require
communicating data to the eyeglasses when driver-activity is above (claim
1), or below (claim 21), a threshold. This, the combination does.
We agree with the Examiner (Final Act. 2—3; Ans. 2—3) that the
combination of Repetto and Talati teaches or suggests the limitations recited
in independent claims 1 and 21. Repetto (Figs. 2, 4, 5; Tflf 11—13, 25, 27—29)
teaches wireless eyeglasses to display vehicle function data to a driver.
Talati (Fig. 1; || 19, 27, 28, 31, 50, 59) teaches displaying vehicle
information to a driver based on appropriateness, which in turn is based on a
measured driver-attention level. It, therefore, would have been obvious to a
person having ordinary skill in the art to communicate and present incoming
tasks and notifications based on driver-activity level to the vehicle operator’s
eyeglasses as appropriate so as not to compromise the driver (Talati || 1,
31).
Accordingly, we sustain the Examiner’s rejection of claim 1, as well
as claims 2—6, 8—13, and 21—24 grouped therewith.
Claims 17—19
We concur with Appellant’s contention (App. Br. 8) that the
combination of Repetto and Talati fails to teach “transmitting an amount of
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the prepared data from the vehicle subsystem to the eyeglasses to display the
data based on the driver-activity such that as the driver-activity increases the
amount decreases,” as recited in independent claim 17 (emphases added).
Although Talati teaches monitoring driver-activity level and using a driver
attention metric to regulate a data queue and prioritize notification messages
(11 19, 27, 59) with fuzzy logic (150), including determining if messages
are appropriate to be shown (H 28, 31), Talati is silent as to determining (i)
the appropriateness of “transmitting an amount of the prepared data from the
vehicle subsystem to the eyeglasses;” and/or (ii) “transmitting an amount of
the prepared data . . . such that as the driver-activity increases the amount
decreases” as recited in independent claim 17 (claim 17 (emphases added)).
And, the Examiner’s response in the Answer of “[sjimilar responses
from [cjlaim 1 apply as well to [cjlaim 17, where limiting an amount of data
is similar to a decrease in displayed data” (Ans. 4), is not helpful in light of
the differing scopes of claim 17 as compared with claims 1 and 21. Claims
1 and 21 do not recite either transmitting or displaying less data based on
driver-activity level. Instead, claims 1 and 21 recite “communicating] the
data” in response to the monitored driver-activity level being above (claim
1) or below (claim 21) a threshold.
Although Talati teaches presenting/displaying data or not
presenting/displaying data to a driver based on appropriateness due to
driver-activity level, Talati is not concerned with transmitting or not
transmitting the data to eyeglasses based on any determination of
appropriateness. In other words, one of ordinary skill in the art would
understand the combination to result in eyeglasses that queue every piece of
data, because every piece of data is transmitted from the vehicle subsystem
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to the eyeglasses, and then certain data is displayed on the eyeglasses based
on appropriateness (in turn based on driver-activity level). Appellant’s
invention recited in claim 17 does not queue all the data in the eyeglasses,
because only appropriate data is ever transmitted to the eyeglasses.
The Examiner (Final Act. 7—8; Ans. 4) has not articulated how/why
Repetto’s eyeglasses would/could be modified by Talati’s driver-activity
level metric and priority queue (that stores or displays messages) to transmit
less data as driver-activity increases) as recited in independent claim 17.
The Examiner leaves us to speculate as to how/why would one of ordinary
skill in the art modify Repetto’s eyeglasses, where data is always displayed
(see Repetto 130; see also App. Br. 6), with Talati’s determination to
display or not display (and instead, queue) data based on driver-activity
level, to produce the subject matter of claim 17 (where less data is
transmitted from the vehicle subsystem to the eyeglasses as driver-activity
level increases). We will not resort to speculation or assumptions to cure the
deficiencies in the Examiner’s fact finding. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967); Ex parte Braeken, 54 USPQ2d 1110, 1112
(BPAI 1999) (“The review authorized by 35 U.S.C. Section 134 is not a
process whereby the examiner . . . invite[s] the [Bjoard to examine the
application and resolve patentability in the first instance.”). .
Accordingly, we do not sustain the Examiner’s obviousness rejection
of claims 17—19.
CONCLUSIONS
(1) The Examiner did not err in rejecting claims 1—6, 8—13, and 21—24
under 35 U.S.C. § 103(a) over the combination of Repetto and Talati
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because the combination teaches or suggests “communicating] the data
based on the type to a transceiver for communication to the eyeglasses
for display” “in response to the monitored driver-activity level exceeding a
threshold,” as recited in claim 1.
(2) The Examiner erred in rejecting claims 17, and dependent claims
18 andl9, under 35 U.S.C. § 103(a) over the combination of Repetto and
Talati because the combination fails to teach or suggest “transmitting an
amount of the prepared data from the vehicle subsystem to the eyeglasses to
display the data based on the driver-activity such that as the driver-
activity increases the amount decreases,” as recited in independent claim 17.
DECISION
The Examiner’s obviousness rejection of (i) claims 1—6, 8—13, and
21—24 is affirmed, and (ii) claims 17—19 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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