Ex Parte Lacy et al

Patent Trial and Appeal Board

Jul 28, 2016

12061444 (P.T.A.B. Jul. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/061,444 04/02/2008 Patricia Sue Lacy
91959 7590 08/01/2016
GE GPO- Transportation- The Small Patent Law Group
3135 Easton Turnpike
Fairfield, CT 06828
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.
231315 8501
EXAMINER
FE!, JORDAN S
ART UNIT PAPER NUMBER
3665
NOTIFICATION DATE DELIVERY MODE
08/01/2016 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):
gpo.mail@ge.com
marie.gerrie@ge.com
lori.E.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PATRICIA SUE LACY, AJITH KUTTANNNAIRKUMAR,
GLENN ROBERT SHAFFER, and JENNIFER B. YOUNG
Appeal2014-005903
Application 12/061,444
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-005903
Application 12/061,444
STATEMENT OF THE CASE 1
Patricia Sue Lacy, et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject under 35 U.S.C. § 103(a):
(1) claims 1-14, 17-23, 26-32, 42, 43, 45--47, and 49 as unpatentable over
Ackerman (US 5,803,411; iss. Sept. 8, 1998) and Nickles '225 (US
2007/0250225 Al; pub. Oct. 25, 2007)2,3; (2) claim 24 as unpatentable over
Ackerman, Nickles '225, and Hawthorne (US 6,263,266 Bl; iss. July 17,
1 In the Non-Final Action, the Examiner states that "[i]n the arguments filed
512412013 [Appellants] did not present any new arguments or statements in
regards to the priority of the newly amended claims. Therefore the
[E]xaminer assumes that the following priority dates previously granted in the
action dated 1/31/2013 based on [Appellants'] response to the request for
information previously sent are the current priority dates: Claims 1-6, 8-14,
17-29, 31, 32, 42, 45, 47, and 49 have been granted an effective filing date of
June 19, 2007[.] Claims 7, 30, 43, 44, 46, 48 have been granted an effective
filing date of April 2, 2008." Non-Final Act. 2 (mailed Aug. 1, 2013).
Appellants do not address priority of the subject application in the Appeal
Brief or F'-eply Brief. i~\:..ccordingly, priority of the subject application is not
before us for review.
2 In the Answer, the Examiner states that "[t]he ground(s) of rejection set forth
in the Office action dated 8/1/2013 from which the appeal is taken have been
modified by the pre-appeal brief conference decision dated 1/28/2014." Ans.
2 (emphasis added). This ground of rejection differs from the one made by
the Examiner in the Non-Final Action (i.e., the same set of claims is rejected
under Ackerman, Nickles '225, and Kane (US 2006/0041342 Al; pub. Feb.
23, 2006)). Compare Ans. 2--4 (mailed Feb. 19, 2014) with Non-Final Act.
5-7. Accordingly, we consider this ground of rejection to be a New Ground
of Rejection by the Examiner.
3 The Examiner discusses claims 13, 14, and 20 in the body of the rejection
but these claims are not included the heading of the rejection. See Ans. 2, 6-
7, 11. We consider omission of claims 13, 14, and 20 in the heading of the
rejection to be an inadvertent error by the Examiner. Claim 48 is included in
the heading of the rejection but there is no discussion of claim 48 in the body
of the rejection. See id. at 2-12. We consider inclusion of claim 48 in the
heading of the rejection to be an inadvertent error by the Examiner.
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Appeal2014-005903
Application 12/061,444
2001) 4 ; (3) claim 25 as unpatentable over Ackerman, Nickles '225, and
Peer (US 6,163,755; iss. Dec. 19, 2000)5; and (4) claims 44 and 48 as
unpatentable over Ackerman, Nickles '225 and Nickles '901 (US
6,144,901; iss. Nov. 7, 2000). Claims 15, 16, and 33--41 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a system, method and computer
software code for controlling a powered system." Spec. para. 5; Figs. 26, 27.
Claims 1, 18, and 26 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A method comprising:
obtaining information specific to a trip for a powered
vehicle to travel from a first location to a second location along
one or more routes, the information including trip setup data
representative of one or more characteristics of the trip and
vehicle setup data representative of one or more characteristics
of the powered vehicle;
presenting the information to an operator of the powered
vehicle;
receiving verification of at least some of the information
4 The Examiner includes the Kane reference in the heading of the rejection but
only discusses the Hawthorne reference in body of the rejection. See Ans. 12-
13. We consider inclusion of the Kane reference in the heading of this
rejection to be an inadvertent error by the Examiner.
5 This ground of rejection differs from the one made by the Examiner in the
Non-Final Action (i.e., claim 25 is rejected under Ackerman, Nickles '225,
Kane, and Peer). Compare Ans. 13 with Non-Final Act. 16-17. Accordingly,
we consider this ground of rejection to be a New Ground of Rejection by the
Examiner. See note 2 supra.
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Appeal2014-005903
Application 12/061,444
from the operator via an operator input device prior to the
powered vehicle starting movement to travel along the one or
more routes for the trip; and
creating a trip plan subsequent to the information being
presented to the operator, subsequent to the verification of the at
least some of the information being received from the operator,
and prior to the powered vehicle starting the movement to travel
along the one or more routes for the trip, the trip plan created
based on the at least some of the information that is verified by
the operator, the trip plan including operational conditions that
are designated for the powered vehicle during the trip according
to locations of the powered vehicle as the powered vehicle travels
from the first location to the second location so that the powered
vehicle is controlled according to the operational conditions
based on where the powered vehicle is located.
ANALYSIS
Obviousness over Ackerman and Nickles '225
Claims 1-14, 17-23, 26-32, 42, 43, 45-47, and 49
Independent claim 1 calls for the step of "receiving verification of at
least some of the information from the operator via an operator input device
prior to the powered vehicle starting movement to travel along the one or
more routes for the trip" and a "trip plan created based on the at least some
of the information that is verified by the operator." Appeal Br. 39, Claims
App (emphasis added). The Examiner finds that Ackerman discloses these
limitations. 6 See Ans. 3 (citing Ackerman, col. 6, 1. 45---col. 7, 1. 4); see also
6 The Examiner additionally finds that "the step of presenting the data is
implicit in Ackerman." Ans. 3. The Examiner further takes the position that
"assuming arguendo that Ackerman does not present the data to the operator,
Nickles ['225] clearly teaches that the information is presented to the operator
and also how it is presented to the operator." Id. In other words, the Examiner
relies on Nickles '225 "solely for the explicit teachings of presenting of the
data to the operator." Id. at 4.
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Appeal2014-005903
Application 12/061,444
id. at 16-17; id. at 17 (citing Ackerman, col. 7, 1. 16).
Appellants contend that the portions of Ackerman cited by the
Examiner do not disclose the above-cited limitations. See Reply Br. 3---6,
8-9.
Appellants' arguments are persuasive. Ackerman discloses:
To verifj; that the information obtained utilizing the
verification reader 36 is correct, a second arrangement is
provided for determining the train length and/or the number of
axles present on the train 10. One such second arrangement
includes a wheel detector 38 which physically detects the number
of wheels on the train as the train passes thereby. In tum, the
number of axles present on the train 10 as detected. This
information is transmitted or relayed to the wayside computer
40, which compares the information received from the
verification reader 36 and the wheel detector 38. If the wayside
computer 40 determines that the information corresponds with
each other, that is to say the number of axles calculated from the
tag information (of tags 30) supplied to the wayside computer 40
equals the number of axles detected by the wheel detector 38,
then the trip stop 42 is deactivated, allov,ring the train 10 to enter
the main portion 22 of the track 18, and other train information,
such as, without limitation, train length, numbers of vehicles and
vehicle order, is transmitted or relayed by the wayside computer
40 to the onboard computer 24. If, however, the information
does not correspond, then the train must be inspected to
determine the reason for the difference between the interrogated
information and the wheel detector 38. Any discrepancies
between the number of vehicles identified by the verification
reader 36 and the number of axles identified by the wheel
detection must be corrected before the train 10 can enter the main
portion 20 of the track 18.
Ackerman, col. 6, 1. 45---col. 7, 1. 4 (italics added); see also Ackerman, col.
7, 11. 29-38; Reply Br. 3---6; Ans. 3, 16-17. We agree with Appellants that
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Appeal2014-005903
Application 12/061,444
the above-cited portion of Ackerman "shows that a verification step does
occur ... , but the verification is performed by a computer, not an
operator." Reply Br. 4.
Ackerman further discloses:
Still another second arrangement of verifying the train
length and/or the number of axles present on the train 10 includes
an onboard train operator inputting into the onboard computer
24, via a keyboard 48, train length information and/or the number
of axles present on the train 10 or equivalents thereof whereby
the train length and/or number of axles can be derived by the
onboard computer 24. Alternatively, a person positioned outside
the train 10 can count the number of vehicles in the train, the
number of axles and the like, from which the train length and/or
number of axles can be derived and then input this information,
via a keyboard 54, into the wayside computer 40.
Ackerman, col. 7, 11. 16-28 (italics added); see also Ans. 17. Here,
Appellants correctly point out:
[T]he operator merely uses the keyboard to input data into the
onboard computer, not to verify any information that is presented
to the operator for verification. For example, the "second
arrangement" that includes the operator inputting train
information into the onboard computer is not an alternative
embodiment for verifying train length and other train
information that uses an operator instead of a computer. Instead,
"arrangements" as used in Ackerman refer to sources of
information that provide such train information to the computer
to allow the computer to process and verify the information.
Reply Br. 5; see also id. at 3--4, 6. In other words, Ackerman only refers to
an operator as a source or "arrangement" for inputting train information into
the onboard computer for verification by the onboard computer. See id. at 3,
5. As such, while Ackerman permits an operator to input train related
information for verification, Ackerman's verification of such information is
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Appeal2014-005903
Application 12/061,444
performed by onboard and/or wayside computers and not by the operator.
Additionally, the Examiner fails to provide sufficient evidence or technical
reasoning to establish that the operator in Ackerman necessarily performs
the claimed verification. See Ans. 3, 16-17. Consequently, based on the
foregoing, we agree with Appellants that Ackerman fails to disclose the step
of "receiving verification of trip-related information from an operator."
Reply Br. 6.
Moreover, the claimed step of creating a trip plan requires, inter alia,
that the trip plan is created based on the at least some of the trip-specific
information that is verified by the operator. See Appeal Br. 39, Claims App.
As discussed supra, Ackerman discloses that verification of trip setup data is
performed by onboard and/or wayside computers and not by the operator.
Thus, based on the foregoing reasons, the Examiner fails to establish a prima
facie case that the combined teachings of Ackerman and Nickles '225
disclose the method of independent claim 1.
Independent claims 18 and 26 call for a system and a device,
respectively, and include language similar to that discussed above for claim
1. See Appeal Br. 41--44, Claims App. The Examiner relies on the same
unsupported findings and conclusions for claims 18 and 26 as those
discussed above for claim 1. See Ans. 2--4. Thus, the Examiner's findings
and conclusions with respect to Ackerman and Nickles '225 are deficient for
claims 18 and 26 as well.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner's rejection of independent claims 1, 18, and 26 and their
respective dependent claims 2-14, 17, 19-23, 27-32, 42, 43, 45--47, and 49
as unpatentable over Ackerman and Nickles '225.
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Appeal2014-005903
Application 12/061,444
Obviousness over Ackerman, Nickles ;225, and any of
Hawthorne, Peers, or Nickles '901
Claims 24, 25, 44, and 48
The Examiner's rejections of (1) claim 24 as unpatentable over
Ackerman, Nickles '225, and Hawthorne (see Ans. 12-13); (2) claim 25 as
unpatentable over Ackerman, Nickles '225, and Peer (see id. at 13); and (3)
claims 44 and 48 as unpatentable over Ackerman, Nickles '225, and Nickles
'901 (see id. at 14--15) are each based on the same unsupported findings and
conclusions discussed above with respect to the rejection of claims 1 and 18.
The Examiner does not rely on Hawthorne, Peers, or Nickles '901 to remedy
the deficiencies of Ackerman. Accordingly, for reasons similar to those
discussed above for the rejection of claims 1 and 18, we do not sustain the
Examiner's rejections of (1) claim 24 as unpatentable over Ackerman,
Nickles '225, and Hawthorne; (2) claim 25 as unpatentable over Ackerman,
Nickles '225, and Peer; and (3) claims 44 and 48 as unpatentable over
Ackerman, Nickles '225, and Nickles '901.
DECISION
We REVERSE the decision of the Examiner to reject claims 1-14,
17-32, and 42--49.
REVERSED
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