Ex Parte Hatton et alDownload PDFPatent Trials and Appeals BoardJun 27, 201914471419 - (D) (P.T.A.B. Jun. 27, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/471,419 08/28/2014 28395 7590 07/01/2019 BROOKS KUSHMAN P.C./FG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR David Anthony Hatton 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. 83453402 1030 EXAMINER MARTINEZ BORRERO, LUIS A ART UNIT PAPER NUMBER 3668 NOTIFICATION DATE DELIVERY MODE 07/01/2019 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): 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, HUSSEIN F. NASRALLAH, ABRAHAM G. PHILIP, and CLARA BENNIE 1 Appeal2018-005646 Application 14/471,419 Technology Center 3600 Before JENNIFER D. BAHR, EDWARD A. BROWN, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Ford Global Technologies, LLC (Appellant) is the applicant as provided in 37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 1. Appeal2018-005646 Application 14/471,419 THE CLAIMED SUBJECT MATTER Claims 1, 14, and 20 are independent. Claims App. 1-3. Claim 14, reproduced below, is illustrative of the claimed subject matter. 14. A vehicle computer system comprising: a wireless transceiver configured to communicate with a mobile device; a processor configured to: 1.) determine an emergency event has occurred utilizing vehicle data collected by vehicle sensors; 2.) receive an encoded event data record (EEDR) from a restraint control module that includes data related to the emergency event; 3.) send the EEDR to the mobile device; and 4.) instruct the mobile device to contact and send the EEDR to an emergency service provider. REJECTIONS I. Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. II. Claims 1-20 stand rejected under 35 U.S.C. § I02(a)(2) as being anticipated by Marumoto et al. (US 2011/0254676 Al, issued Oct. 20, 2011, hereinafter "Marumoto"). 2 Appeal2018-005646 Application 14/471,419 DISCUSSION Rejection I-Patent Eligibility Principles of Law An invention is patent-eligible if it claims a "new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. § 101. However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court's two-step framework, described in Mayo and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework, we first determine what concept the claim is "directed to." See Alice, 573 U.S. at 219 ("On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4 in petitioners' application explain the basic concept of hedging, or protecting against risk."). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192 3 Appeal2018-005646 Application 14/471,419 (1981) ); "tanning, dyeing, making waterproof-cloth, vulcanizing India rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that "[a] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We view respondents' claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula."). Having said that, the Supreme Court also indicated that a claim "seeking patent protection for that formula in the abstract ... is not accorded the protection of our patent laws, ... and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment." Id. (citing Benson and Flook); see, e.g., id. at 187 ("It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection."). If the claim is "directed to" an abstract idea, we tum to the second step of the Alice and Mayo framework, where "we must examine the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent- eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A claim that recites an abstract idea must include 'additional features' to ensure 'that the [claim] is more than a drafting effort designed to monopolize the [abstract idea]."' Id. ( quoting Mayo, 566 U.S. at 77). 4 Appeal2018-005646 Application 14/471,419 "[M]erely requir[ing] generic computer implementation[] fail[ s] to transform that abstract idea into a patent-eligible invention." Id. The United States Patent and Trademark Office (hereinafter "USPTO" or "Office") published revised guidance on the application of§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent Subject Matter Eligibility Guidance ("2019 Eligibility Guidance") ( available at https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf). Under that guidance, we first look to whether the claim recites: ( 1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity, such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.0S(a}-(c), (e}-(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are not "well-understood, routine, conventional" in the field (see MPEP § 2106.0S(d)); or ( 4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See 2019 Eligibility Guidance. Analysis Appellant presents arguments primarily for independent claim 20, as well as an argument specifically directed to independent claims 1 and 14. 5 Appeal2018-005646 Application 14/471,419 Appeal Br. 3-6. Appellant does not present any separate arguments for the dependent claims. Thus, we decide the appeal of the rejection under 35 U.S.C. § 101 on the basis of independent claims 1, 14, and 20, with each of the dependent claims standing or falling with the independent claim from which it depends. See 37 C.F.R. § 41.37(c)(l)(iv) (permitting the Board to select a single claim to decide the appeal as to a single ground of rejection of a group of claims argued together). (1) Do the claims recite ajudicial exception? Claim 1 recites a processor configured to "determine an emergency vehicle event based upon the vehicle data and a pre-defined threshold." Claims App. 1. Claim 14 recites a processor configured to "determine an emergency event has occurred utilizing vehicle data collected by vehicle sensors." Id. at 3. Claim 20 recites "in response to detecting an emergency event utilizing vehicle data collected from vehicle sensors." Id. at 4--5. Making this determination, or detecting an emergency event, entails evaluating the outputs from the sensors and determining whether the event indicated by the sensors exceeds threshold criteria and, as such, is a mental process that can be performed in the human mind, or using pen and paper. See Spec. ,r 58. Thus, claims 1, 14, and 20 recite mental processes ( concepts performed in the human mind), which is one of the groupings of abstract ideas identified in the 2019 Eligibility Guidance. Additionally, claim 1 recites the processor is configured to "record an encoded event data record (EEDR) including decipherable data" and "send the encoded event data record" to a mobile device; claim 14 recites the processor is configured to "receive an encoded event data record (EEDR) from a restraint control module" and send it to a mobile device; and claim 20 6 Appeal2018-005646 Application 14/471,419 recites "recording, utilizing a vehicle processor, an encoded event record (EER) including decipherable emergency event data" and sending the encoded event record "and a data identifier decoder" to a mobile device. Claims App. 1, 3-5. Encoding and decoding are processes that can, and have been, performed in the human mind. See RecogniCorp., LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1326 (Fed. Cir. 2017) (stating, "Morse code, ordering food at a fast food restaurant via a numbering system, and Paul Revere's 'one ifby land, two ifby sea' signaling system all exemplify encoding at one end and decoding at the other end."); id. (stating that "standard encoding and decoding [is] an abstract concept long utilized to transmit information"). Thus, recording, receiving, and sending encoded records, as recited in claims 1, 14, and 20, are mental processes, that is, concepts performed in the human mind, which is an abstract idea. Appellant argues that the aforementioned "limitations cannot be performed mentally, in a human's head, or using pen and paper" because "the claims articulate specific vehicle hardware utilized to conduct several limitations." Appeal Br. 3--4. Aside from pointing out that the claims recite performing these functions using hardware (i.e., a processor), Appellant does not explain why determining, based on vehicle data, the occurrence of an emergency event, and recording or receiving encoded data cannot be performed in the human mind, or using pen and paper. For the above reasons, the Examiner correctly determined that claims 1, 14, and 20 recite a judicial exception, namely, mental processes, which are abstract ideas. 7 Appeal2018-005646 Application 14/471,419 (2) Do the claims recite additional elements that integrate the judicial exception into a practical application? Following our Office guidance, having found that claims 1, 14, and 20 recite a judicial exception, namely, mental processes, we are instructed next to determine whether the claims recite "additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.0S(a}-(c), (e}-(h))." See 2019 Eligibility Guidance. This evaluation requires us to determine whether an additional element or a combination of additional elements in the claims applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claims are more than a drafting effort designed to monopolize the exception. Id. If the recited judicial exception is integrated into a practical application, the claims are not "directed to" the judicial exception. Id. The additional limitations in claim 1 are a transceiver in communication with a vehicle computer system, and a processor configured to perform the aforementioned recording, receiving, sending, and determining steps, as well as steps of receiving vehicle data from vehicle sensors, and "instruct[ing] the mobile device to send the encoded event data record to an emergency-service provider." Claims App. 1. The additional limitations in claim 14 are "a wireless transceiver configured to communicate with a mobile device" and a processor configured to perform the aforementioned determining, receiving, and sending steps, as well as "instruct[ing] the mobile device to contact and send the EEDR to an emergency service provider." Id. at 3. The additional limitations in claim 20 are "utilizing a vehicle processor" to perform the aforementioned 8 Appeal2018-005646 Application 14/471,419 recording step, and a step of "instructing the mobile device to dial an operator and send the EER and data identifier decoder." Id. at 4--5. The vehicle processor, transceiver, and vehicle computer system are claimed only generically and, thus, do not integrate the abstract idea into a practical application. Appellant argues that "claim 20 utilizes structure not found in a general-purpose computer, such as 'a vehicle processor,' a 'wireless transceiver' that communicates with a 'mobile device,' and a 'vehicle sensor."' Appeal Br. 5. Appellant also argues that claims 1 and 14 "are directed to specific apparatuses known in the art, a restraint control module and vehicle computer system." Id. at 4. However, we find no indication in the Specification, nor does Appellant direct us to any indication, that the operations recited in the claims invoke any assertedly inventive programming, require any specialized computer hardware or other inventive computer components, i.e., a particular machine, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions and a generic transceiver to send and receive data from and to the generic computer components. See, e.g., Spec. ,r 17 ( describing a "BLUE TOOTH transceiver"). Merely that the processor and computer are labeled as a "vehicle" processor or computer does not integrate the abstract idea into a practical application, as these labels, at most, limit the abstract idea to one field of use (vehicles). See Bilski v. Kappas, 561 U.S. 593, 612 (2010) (stating that "limiting an abstract idea to one field of use ... did not make the concept patentable"). The function of "receiv[ing] vehicle data from one or more vehicle sensors" recited in claim 1 is simply a generic step of data collection, which is insignificant extra-solution activity. See, e.g., CyberSource, 654 F.3d at 9 Appeal2018-005646 Application 14/471,419 1370 (reiterating "that mere '[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory."' (alterations in original) ( quoting In re Grams, 888 F.2d 835, 840 (Fed. Cir. 1989))); see also 2019 Eligibility Guidance (identifying "add[ing] insignificant extra-solution activity to the" abstract idea as an example of when an abstract idea has not been integrated into a practical application). Appellant's Specification does not specify any particular form or embodiment of the instruction sent to the mobile phone, nor do the claims recite any further limitations of the instruction. See, e.g. Spec. ,r 63 (merely broadly referring to "instructions"); Claims App. 1, 3, 4--5. Given this breadth of disclosure and claiming, the instructing step is simply insignificant post-solution activity, namely, outputting a result of the abstract idea. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (pointing out "that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis"). Further, we find no indication in the Specification that the claimed invention effects a transformation or reduction of a particular article to a different state or thing. Nor do we find anything of record, short of attorney argument, that attributes any improvement in computer technology and/or functionality to the claimed invention or that otherwise indicates that the claimed invention integrates the abstract idea into a "practical application," as that phrase is used in the 2019 Eligibility Guidance. Appellant argues that the claims "are directed to a specific way a vehicle processor operates with specific types of hardware" and that "the 10 Appeal2018-005646 Application 14/471,419 [S]pecification of the present application clearly focuses on vehicle-related improvements that do not attempt to cast a broad net on abstract ideas." Appeal Br. 4. Appellant misapprehends the controlling precedent to the extent Appellant maintains that the claims are patent-eligible because there is no risk of preemption. The Supreme Court has described "the concern that drives [the exclusion of abstract ideas from patent eligible subject matter] as one of pre-emption." Alice, 573 U.S. at 216 (characterizing preemption as a driving concern for patent eligibility is not the same as characterizing preemption as the sole test for patent eligibility). However, "[t]he Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability," and "[fJor this reason, questions on preemption are inherent in and resolved by the§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct. at 2354). "[P]reemption may signal patent ineligible subject matter, [but] the absence of complete preemption does not demonstrate patent eligibility." Id. Appellant also argues that "claim 20 is directed to a specific method for improving technology on vehicle-based computer hardware." Appeal Br. 4. However, Appellant does not explain, nor direct our attention to disclosure in the Specification explaining, how the method recited in claim 20 improves the way the computer hardware functions. Rather, the vehicle- based computer hardware appears to be generic computer hardware performing generic computer operations of receiving, recording, analyzing, and transmitting data. See Ans. 5 (pointing out that "there is not a single statement in the [S]pecification that demonstrates that an improvement to 11 Appeal2018-005646 Application 14/471,419 hardware is taking place"). Appellant argues that "[i]t is not a requirement that the [S]pecification explain how the claimed invention improves a computer or other technology," but cites paragraph 51 of the Specification as purportedly demonstrating such an improvement. Appeal Br. 5. The portion of the Specification cited by Appellant as demonstrating an improvement in technology on the vehicle computer hardware relates to sending a report to a hospital or doctor to potentially facilitate treatment of the patient. Appeal Br. 5; Spec. ,r 51. This disclosure does not relate to any improvement in the operation of the vehicle-based computer hardware itself. As to Appellant's insistence that a statement in the Specification explaining how the claimed invention improves a computer or other technology is not required, Appellant asserts claim 20 is directed to significantly more than the abstract idea because, according to Appellant, claim 20 is directed to a method for improving technology on vehicle-based computer hardware. Appeal Br. 4. In order for this assertion to be accorded any weight, Appellant must support the assertion with technical reasoning or evidence, whether from the Specification or elsewhere in the record, to demonstrate an improvement in the computer hardware. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). As discussed above, Appellant has not provided such support, and we find no evidence or indication of such an improvement in the record before us. For the above reasons, we determine that no additional element or combination of additional elements in claim 1, claim 14, or claim 20 applies, relies on, or uses the judicial exception (mental processes) in a manner that imposes a meaningful limit on the judicial exception, such that the claim is 12 Appeal2018-005646 Application 14/471,419 more than a drafting effort designed to monopolize the exception. In other words, claims 1, 14, and 20 are "directed to" an abstract idea. (3) Do the claims add any specific limitations beyond the judicial exception that are not "well-understood, routine, and conventional" in the field? Because we determine that claims 1, 14, and 20 fail to recite additional elements that integrate the judicial exception into a practical application, in accordance with the 2019 Eligibility Guidance, we next consider whether the claim adds a specific limitation beyond the judicial exception that is not "well-understood, routine, conventional" in the field or instead "simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception." See 2019 Eligibility Guidance. As for the hardware, as discussed above, the claims merely recite a generic computer, processor, and transceiver. Appellant cannot reasonably contend that there is a genuine issue of material fact regarding whether operation of these components is well-understood, routine, or conventional, where, as here, there is nothing in the Specification to indicate that the operations recited in the claims require any specialized hardware or inventive computer components or that the claimed invention is implemented using other than generic components operating in their normal, routine, and ordinary capacity. Appellant argues that "the claimed invention is not directed to a 'well- understood, routine, conventional activity,'" and, for the first time in the Reply Brief, insists that the Examiner must "'prove' that a series of steps is 'routeine and convention [sic]."' Reply Br. 2 ( quoting Berkheimer v. HP, Inc., 881 F.3d 1360 (Fed. Cir. 2018)). As for the steps recited in claims 1, 13 Appeal2018-005646 Application 14/471,419 14, and 20, the functions of receiving data, recording data, and sending data (instruction) are some of the most basic functions of a computer. See Alice, 573 U.S. at 225 ( describing "electronic recordkeeping" as "one of the most basic functions of a computer" and stating that electronic recordkeeping, receiving data (i.e., operating on new data), and issuing automated instructions "are 'well-understood, routine, conventional activit[ies]' previously known in the industry"). As for the remaining steps, determining an emergency event and encoding/ decoding, as discussed above, these are mental processes, which is the abstract idea itself. Addressing step two of the Mayo/Alice framework in Berkheimer, the Federal Circuit held that the question of whether a claim element or combination of elements is well-understood, routine, and conventional to a skilled artisan in the relevant field is a question of fact. Berkheimer, 881 F.3d at 1368. However, it could not be clearer from Alice, that under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and "as an ordered combination" to determine whether the additional elements, i.e., the elements other than the abstract idea itself, "transform the nature of the claim" into a patent-eligible application. Alice, 573 U.S. at 217. See Mayo, 566 U.S. at 72-73 (requiring that "a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an 'inventive concept,' sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law itself' ( emphasis added)). In other words, the inventive concept under step two of the Mayo/Alice test cannot be the abstract idea itself: 14 Appeal2018-005646 Application 14/471,419 It is clear from Mayo that the "inventive concept" cannot be the abstract idea itself, and Berkheimer . .. leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged "inventive concept" is the abstract idea. Berkheimer, 890 F.3d at 1374 (Moore, J., concurring). See also BSG Tech. LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290-91 (Fed. Cir. 2018) ("Our precedent has consistently employed this same approach. If a claim's only 'inventive concept' is the application of an abstract idea using conventional and well-understood techniques, the claim has not been transformed into a patent-eligible application of an abstract idea."). For the reasons discussed above, we find no element or combination of elements recited in claim 1, claim 14, or claim 20 beyond the judicial exception that is not "well-understood, routine, conventional" in the field or that contains any "inventive concept" or adds anything "significantly more" to transform the abstract concept into a patent-eligible application. Alice, 573 U.S. at 221. Accordingly, we sustain the rejection of claims 1, 14, and 20, as well as claims 2-13, which fall with claim 1, and claims 15-19, which fall with claim 14, under 35 U.S.C. § 101 as being directed to patent- ineligible subject matter. Rejection II-Anticipation Principles of Law When claim terminology is construed in the USPTO, claims are to be given their broadest reasonable interpretation consistent with the specification, reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. A cad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). 15 Appeal2018-005646 Application 14/471,419 The Federal Circuit has described the correct inquiry for determining the broadest reasonable construction as follows: The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification proscribes or precludes some broad reading of the claim term adopted by the examiner. And it is not simply an interpretation that is not inconsistent with the specification. It is an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., an interpretation that is "consistent with the specification." In re Smith Int'!, Inc., 871 F.3d 1375, 1382-1383 (Fed. Cir. Sept. 26, 2017). To anticipate a claim, a prior art reference must disclose every limitation of the claimed invention, either expressly or inherently. Blue Calypso, LLCv. Groupon, Inc., 815 F.3d 1331, 1341 (Fed. Cir. 2016). Analysis Appellant groups independent claims 1 and 14 together in contesting the anticipation rejection. Appeal Br. 6-7. Appellant presents a separate argument for independent claim 20 and dependent claims 3 and 15. Appeal Br. 7-8. Appellant does not present any separate arguments for dependent claims 2, 4--13, and 16-19 apart from their dependence on either claim 1 or claim 14. See id. at 7. We select claim 14 to decide this appeal as to claims 1, 2, 4--14, and 16-19. See 37 C.F.R. § 4I.37(c)(l)(iv). We address the rejection of claims 3, 15, and 20 separately. Claims 1, 2, 4-14, and 16--19 The Examiner found that Marumoto discloses all the limitations of claim 14. See Final Act. 18-20. The only argument that Appellant presents in the Appeal Brief contesting the rejection of claim 14 is that the Examiner "has not established that the 'encoded event data record' is disclosed in 16 Appeal2018-005646 Application 14/471,419 Marumoto." Appeal Br. 6-7. 2 Appellant argues that, in reading the "encoded event data record" on the image data converted from analog to digital, the Examiner applies "an unreasonably broad interpretation of the term 'encoding' [that] is inconsistent with the claim language and [S]pecification." Id. at 7. Appellant urges that, consistent with the claims and Specification, encoding should be construed as a "process of applying a specific code, such as letters, symbols and numbers, to data for conversion into an equivalent cipher." Id. (citing an online definition, applicable to computer technology). Appellant contends that the Specification shows that "the encoded event data record may be difficult to decipher without the decoder and may be different across vehicle platforms or various suppliers." Id. Appellant's Specification describes an event data record comprising many bits and bytes of information stored and transmitted in a particular specification version, or format. Spec. ,r,r 33--41. Computers must store all digital data using some type of encoding, as encoding is the format in which data is stored and transmitted. Appellant's encoding is not a secret encoding intended to be unreadable to unauthorized users for security reasons. The "data may be presented in a format that may be difficult to decipher without a DID encoder, as only various bits and bytes may be presented without a standardized format." Id. ,r 34. Appellant's processor supplies a decoder to 2 Appellant presents new arguments on page 3 of the Reply Brief. These arguments are untimely, and Appellant does not present any evidence or explanation to show good cause why it should be considered by the Board at this time. See 37 C.F.R. § 4I.41(b)(2) ("Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer ... will not be considered by the Board for purposes of the present appeal, unless good cause is shown."). 17 Appeal2018-005646 Application 14/471,419 make sure the recipient can read and understand the format in which the data is stored. See id. ,r 35. Accordingly, consistent with Appellant's Specification, all digital data is stored and transmitted as encoded data, whether the encoding happens to be a standardized format or a non- standardized format. Marumoto stores, processes, and transmits data from many sensors, including imaging data, which is converted from analog to digital data, as part of the driving condition data. See, e.g., Marumoto ,r,r 3, 36, 39, 45, 69, 75, 88, 151, 162. Thus, Marumoto's driving condition data is "encoded" data, consistent with Appellant's Specification. For the above reasons, Appellant does not apprise us of error in the Examiner's finding that Marumoto' s driving condition data, including the digital imaging data, is an "encoded event data record" as recited in claim 14. Accordingly, we sustain the rejection of claim 14, as well as claims 1, 2, 4--13, and 16-19, which fall with claim 14, as anticipated by Marumoto. Claims 3, 15, and 20 Claims 3 and 15 expressly recite a processor configured to send a data decoder, and claim 20 recites steps of "sending the EER and a data identifier decoder utilized to decipher the record" and "instructing the mobile device to ... send the EER and data identifier decoder." Claims App. 1, 4--5 (emphases added). In addressing the decoder limitations, the Examiner cites the disclosure in paragraph 98 of Marumoto directed to server 6 being formed to work in cooperation with traffic center, police, and insurance company servers to share information, as well as the disclosure in paragraphs 41, 63, and 66 of Marumoto directed to communicating with the 18 Appeal2018-005646 Application 14/471,419 police station or insurance via the mobile telephone terminal and line. See Final Act. 12, 21, 25-26. We agree with Appellant that the Examiner fails to identify with sufficient specificity where in these paragraphs Marumoto discloses a data decoder to establish anticipation. See Appeal Br. 8-9. Accordingly, we do not sustain the rejection of claims 3, 15, and 20 as anticipated by Marumoto. DECISION The Examiner's decision rejecting claims 1-20 under 35 U.S.C. § 101 is AFFIRMED. The Examiner's decision rejecting claims 1, 2, 4--14, and 16-19 under 35 U.S.C. § 102(a)(2) is AFFIRMED. The Examiner's decision rejecting claims 3, 15, and 20 under 35 U.S.C. § 102(a)(2) 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). See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 19 Copy with citationCopy as parenthetical citation