Ex Parte Lederman et al

Patent Trial and Appeal BoardJun 12, 2014

11872941 (P.T.A.B. Jun. 12, 2014)

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. 11/872,941 10/16/2007 Roger Lederman YOR920070501US1 9774 48150 7590 06/13/2014 MCGINN INTELLECTUAL PROPERTY LAW GROUP, PLLC 8321 OLD COURTHOUSE ROAD SUITE 200 VIENNA, VA 22182-3817 EXAMINER HAN, CHARLES J ART UNIT PAPER NUMBER 3662 MAIL DATE DELIVERY MODE 06/13/2014 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 ROGER LEDERMAN and LAURA WYNTER ____________ Appeal 2012-003583 Application 11/872,941 Technology Center 3600 ____________ Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Roger Lederman and Laura Wynter (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-4, 6-11, 13-18, and 20-23, which are all the pending claims. App. Br. 2. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Appeal 2012-003583 Application 11/872,941 2 CLAIMED SUBJECT MATTER Appellants’ claimed invention relates to estimating real-time travel times or traffic loads (e.g., flows or densities) over a transportation, data, or IP network based on limited real-time data. See, e.g., Spec., pp. 1-2. Claims 1, 8, and 15 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. An apparatus, comprising: a calculator to provide a real-time estimate of a network traffic, said real-time estimate based on limited real-time data about the network traffic calculated in an offline phase and limited real-time data received in a real-time phase, wherein calculations in said offline phase comprise updating at least one descriptive traffic model of an entirety of said network, using recent historical traffic data, to calculate updated splitting percentages throughout said network, so that, during an online phase, said updated splitting percentages can be used to provide flow information for any traffic data that is currently unavailable. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Trayford US 6,882,930 B2 Apr. 19, 2005 Liu (Liu ’817) US 2006/0176817 A1 Aug. 10, 2006 Liu (Liu ’806) US 2006/0178806 A1 Aug. 10, 2006 Appeal 2012-003583 Application 11/872,941 3 REJECTIONS The following rejections are before us for review: I. Claims 1, 8, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Liu ’817 in view of Liu ’806. II. Claims 1-4, 6-11, 13-18, and 20-231 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Trayford in view of Liu ’806. ANALYSIS Rejection I – Claims 1, 8, and 15 as unpatentable over Liu ’817 in view of Liu ’806 Each of independent claims 1, 8, and 15 recites in relevant part that a real-time estimate of network traffic is “based on limited real-time data about the network traffic calculated in an offline phase” and “wherein calculations in said offline phase comprise updating at least one . . . model of an entirety of said network, using recent historical traffic data, to calculate updated splitting percentages throughout said network.” See App. Br., Claims App’x. (emphasis added). The Examiner found that Liu ’817 discloses calculating a real-time estimate of network traffic that is “based on limited real-time data about the network traffic calculated in an offline phase and limited real-time data 1 We note that claims 21-23 are not listed in the caption of the rejection, but also that these claims are specifically addressed in the body of the rejection. See Ans. 5, 7. Appellants present specific arguments for claims 21-23, thereby indicating an understanding that these claims are subject to the rejection. See App. Br. 16. Thus, we treat the omission of claims 21-23 from the caption of the rejection as an inadvertent and harmless error and we refer to the rejection as including these claims herein. Appeal 2012-003583 Application 11/872,941 4 received in a real-time phase.” Ans. 4 (citing Liu ’817, Abstract; paras. [0032], [0033]). However, the Examiner also noted that Liu ’817 “does not explicitly disclose,” inter alia, “wherein calculations in said offline phase comprise updating at least one . . . model of [an] entirety of said network using recent historical traffic data, to calculate updated splitting percentages throughout said network.” Ans. 4-5 (emphasis added). Next, the Examiner found that Liu ’806 “discloses this limitation.” Ans. 5 (citing Liu ’806, Abstract; fig. 6; para. [0047]; claims 1, 11, and 20) (emphasis omitted). The Examiner then concluded that it would have been obvious to one of ordinary skill in the art at the time of the invention “to incorporate the teaching” of Liu ’806 into Liu ’817 “for prediction [of] future travel times over a transportation network.” Ans. 5 (emphasis omitted). Appellants argue that “[n]one of the references currently of record suggests using an offline phase for calculating a complete network model,” which we understand to mirror the claimed limitation of calculations in an offline phase including “updating at least one . . . model of an entirety of said network,” recited in independent claims 1, 8, and 15, as discussed supra. App. Br. 14 (emphasis added); see also id. at 11-13, Reply Br. 2-3. We agree. The Examiner has not established by a preponderance of the evidence that either Liu ’817 or Liu ’806 discloses calculations in an offline phase including “updating at least one . . . model of an entirety of said network,” as recited in independent claims 1, 8, and 15. Initially, although the Examiner correctly established a finding that Liu ’817 discloses calculating traffic for a specific link of a network in an offline phase when real-time data is not Appeal 2012-003583 Application 11/872,941 5 available (see Liu ’817, Abstract), the Examiner did not establish a finding that Liu ’817 also discloses calculating traffic for an entirety of the network during the offline phase, as required by independent claims 1, 8, and 15. Moreover, we note that the Examiner specifically stated that Liu ’817 does not disclose “updating at least one . . . model of [an] entirety of said network,” as discussed in detail supra. See also Ans. 4. Furthermore, the Examiner correctly established a finding that Liu ’806 teaches the concept of calculating updated splitting percentages or probabilities, as recited in the independent claims. However, in the rejection of record, the Examiner did not establish a finding that Liu ’806 teaches the concept of “updating at least one . . . model of an entirety of said network,” as also recited in the independent claims. More specifically, the portions of the cited art relied upon by the Examiner for this teaching (i.e., Liu ’806, Abstract; fig. 6; para. [0047]; claims 1, 11, and 20) are silent as to any disclosure of “updating at least one . . . model of an entirety of said network” as claimed.2 Accordingly, based on the record before us, because neither Liu ’817 nor Liu ’806 discloses calculating traffic for an entirety of the network during the offline phase, we cannot sustain Rejection I. 2 We also note that the Examiner’s response to Appellants’ arguments on this point, while addressing the teaching of splitting percentages or probabilities, does not address or further explain how or where Liu ’806 teaches “updating at least one . . . model of an entirety of said network” as claimed. See Ans. 9-10. Appeal 2012-003583 Application 11/872,941 6 Rejection II – Claims 1-4, 6-11, 13-18, and 20-23 as unpatentable over Trayford in view of Liu ’806 As discussed in detail supra with respect to Rejection I, each of independent claims 1, 8, and 15 recites in relevant part that calculations in an offline phase include “updating at least one . . . model of an entirety of said network.” See App. Br., Claims App’x. (emphasis added). While the Examiner cited to Trayford in Rejection II (rather than to Liu ’817 as in Rejection I) for findings that Trayford discloses certain features of the independent claims, the Examiner also noted that “Trayford does not explicitly disclose wherein calculations in said offline phase comprise updating at least one . . . model of said network using recent historical traffic data.” Ans. 5 (citing Trayford, col. 2, ll. 33-49, col. 4, ll. 19-30) (emphasis added). Although the Examiner correctly established a finding that Trayford discloses calculating traffic for a portion of a network (e.g., geographical areas of interest or strategically relevant locations) in an offline phase when real-time data is not available (see Trayford, col. 2, ll. 33-49), the Examiner did not establish a finding that Trayford also discloses calculating traffic for an entirety of the network during the offline phase, as required by independent claims 1, 8, and 15. Nonetheless, the Examiner then again relied on Liu ’806 for “disclos[ing] this limitation,” based on the same citations to Liu ’806 and the same rationale for incorporating the teachings of Liu ’806 into Trayford as discussed supra with respect to the incorporation of Liu ’806 into Liu ’817 used in Rejection I. Ans. 5 (emphasis omitted). Appeal 2012-003583 Application 11/872,941 7 However, for the same reasons discussed in detail supra, the Examiner did not establish a finding that Liu ’806 teaches the concept of “updating at least one . . . model of an entirety of said network,” as recited in independent claims 1, 8, and 15. Accordingly, based on the record before us, because neither Trayford nor Liu ’806 discloses calculating traffic for an entirety of the network during the offline phase, we likewise cannot sustain Rejection II. DECISION We REVERSE the Examiner’s decision rejecting claims 1, 8, and 15 under 35 U.S.C. § 103(a) as being unpatentable over Liu ’817 in view of Liu ’806. We REVERSE the Examiner’s decision rejecting claims 1-4, 6-11, 13-18, and 20-23 under 35 U.S.C. § 103(a) as being unpatentable over Trayford in view of Liu ’806. REVERSED mls