Ex Parte Levine

Patent Trial and Appeal BoardFeb 27, 2014

10986927 (P.T.A.B. Feb. 27, 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. 10/986,927 11/15/2004 Alfred B. Levine 11104 8613 7590 02/28/2014 Alfred B. Levine 9005 Seven Locks Road Bethesda, MD 20817 EXAMINER HARRIS, DOROTHY H ART UNIT PAPER NUMBER 2625 MAIL DATE DELIVERY MODE 02/28/2014 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 ALFRED B. LEVINE ____________________ Appeal 2013-004361 Application 10/986,927 Technology Center 2600 ____________________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal 2013-004361 Application 10/986,927 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 30-32, and 34-39. Claims 1-29, and 33 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. A. INVENTION According to Appellant, the invention generally relates to heads-up displays and warnings for driver operated vehicles, and more particularly to such systems for communicating a number of different conditions concerning the vehicle and other vehicles, as well as roadway conditions affecting the safety of driving the vehicle (Spec. 1). B. ILLUSTRATIVE CLAIM Claim 30 is exemplary: 30. A conditionally activated advisory display system for a driver operated host motor vehicle, said display system adapted for installation within said host vehicle, Said display system being conditionally responsive to driver operation of the host vehicle to turn the vehicle, Said display system having a display means, Said display system having sensor means to detect other vehicles near (tp) to the host vehicle, Said display system having controller means responsive to manual control of said host vehicle by the driver to turn said vehicle, Appeal 2013-004361 Application 10/986,927 3 Said sensor means, and controller means being coupled to the display means to conditionally operate said display means to display said other vehicles when said vehicle is manually controlled by said driver to turn the vehicle. C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Breed US 2002/0198632 A1 Dec. 26, 2002 Claims 30-32 and 34-39 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement. Claims 30-32 and 34-39 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Breed. II. ISSUES The dispositive issues before us are whether the Examiner has erred in finding: 1. The added limitation “controller means responsive to manual control of said host vehicle by the driver to turn said vehicle” (claim 30) complies with the written description requirement. 2. Breed teaches a “sensor means to detect other vehicles near to the host vehicle,” “controller means responsive to manual control of said host vehicle by the driver to turn said vehicle,” and “[s]aid sensor means, and controller means being coupled to the display means to conditionally operate said display means” (claim 30, emphasis added). Appeal 2013-004361 Application 10/986,927 4 III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Appellant’s Invention 1. Appellant discloses an omnidirectional traffic display that may not be continuously presented until it is activated by the driver or automatically activated when he begins to turn or signals to turn the vehicle into a different traffic lane, wherein an event responsive controller responds to either the driver’s operation of the conventional vehicle turn signal lever or responds to the vehicle beginning to make a turn into a different lane (Spec. 14; Figs. 6-7). Breed 2. Breed discloses a vehicle accident avoidance system comprising an inter-vehicle communication subsystem used to transmit and receive information between various nearby vehicles (¶ [0511]). 3. Cameras are used for interrogating environment nearby the host vehicle for such functions as blind spot monitoring and the like (¶ [0513]). 4. A driver warning system provides visual and audible warning messages to the driver or others that a hazard exists (¶ [0516]). IV. ANALYSIS 35 U.S.C. § 112, first paragraph The Examiner finds that limitations “which narrow the functional features of the instant claimed display system/controller” so that “they are both ‘responsive to manual control of said host vehicle by the driver to turn said vehicle’ and ‘responsive to manual operation of said turn signaling by Appeal 2013-004361 Application 10/986,927 5 the driver to signal a turn’” are “not supported by the originally filed specification and/or claims” (Ans. 9). In particular, the Examiner points out that the Specification merely states that the controller responds to “either” the driver’s operation of the turn signal lever “or” the vehicle beginning to make a turn (Ans. 10). However, Appellant contends “[t]he claims do not state that both events must occur to activate the display” (App. Br. 8). After reviewing the record on appeal, we agree with Appellant. As an initial matter, we note that independent claims 30, 34, 36, and 39 only require that the display is responsive to one of the condition, and not both. In particular, claim 30 recites that the “display means” is conditionally operated to display only “when said vehicle is manually controlled” (claim 30). Claims 34 and 39 specifically recite that the “controller means” is “responsive to one of” the conditions (claim 34). Claim 36 recites that the “controller means” is only “responsive to the manual operation of said vehicle turn signal controls” (claim 36). Although claims 31 and 32 depending from claim 30 recite the “display means” is also “responsive to” the turn signaling (claims 31 and 32) while claim 37 depending from claim 36 recite the “controller means” is also “responsive to” the manual operation of the vehicle (claim 37), we agree with Appellant’s contention that “[t]he claims do not state that both events must occur to activate the display” (App. Br. 8). We agree with the Examiner and the Specification is clear that the controller responds to either the driver’s operation of the conventional vehicle turn signal lever or responds to the vehicle beginning to make a turn into a different lane (Ans. 10, FF 1). Though we agree with the Examiner that controller responds to only one of the conditions at a time (Ans. 10), we Appeal 2013-004361 Application 10/986,927 6 find that the Specification supports that the controller is responsive to one of the conditions and also responsive to the other, just not at the same time. That is, there is support in the Specification that the controller responds to the driver’s operation of the turn signal lever as well as support in the Specification that the controller responds to the vehicle beginning to make a turn (FF 1). Accordingly, we find that Appellant has shown that the Examiner erred in rejecting claims 30-32 and 34-39 under 35 U.S.C. § 112, first paragraph. 35 U.S.C. § 102(b) With respect to claim 30, Appellant contends “the sensor means [of the claimed invention] is stated as coupled to the display means to conditionally operate the display (thereby visually showing other vehicle” whereas Breed “does not contain this structure nor operate in this manner” (App. Br. 4). In particular, Appellant contends Breed merely discloses “each vehicle senses its own speed, location, and proximity data, and sends it to all other proximate vehicles, for comparison of the data within those vehicles” (id.). Breed discloses a vehicle accident avoidance system comprising an inter-vehicle communication subsystem used to transmit and receive information between various nearby vehicles wherein cameras are used for interrogating environment nearby the host vehicle for blind spot monitoring (FF 1-2). A driver warning system provides visual messages to the driver or others that a hazard exists (FF 3). Although we agree with the Examiner that Breed discloses cameras for blind spot monitoring as well as a warning system that provides warnings Appeal 2013-004361 Application 10/986,927 7 or other emergency messages (Ans. 18), we cannot find any clear teaching in the sections of Breed referenced by the Examiner of “sensor means to detect other vehicles near to the host vehicle,” “controller means responsive to manual control of said host vehicle by the driver to turn said vehicle,” wherein “[s]aid sensor means, and controller means being coupled to the display means to conditionally operate said display means” as required by claim 30 (emphasis added). That is, we find no clear teaching in the referenced sections of a sensor for detecting nearby vehicles and a controller responsive to manual control of the vehicle that are both coupled to the display means to conditionally operate the display means, as required by the claim. That is, we find no clear teaching of a controller responsive to the driver’s manual control of the vehicle along with Breed’s camera for blind spot monitoring both being coupled to the display to conditionally operate the display. Since the Examiner has not made a clear distinction as to what embodiments of Breed teach the “sensor means” and “controller means” coupled to the “display means” to “conditionally operate” the display (claim 30), the Examiner has failed to meet the initial burden of proof required for the anticipation rejection pursuant to 35 U.S.C. § 102(b). Therefore, we are constrained to reverse the Examiner’s rejection of representative claim 30 over Breed. Independent claims 34, 36, and 39 recite similar limitations not taught by Breed, and thus, claims 34, 36, and 39 (and claims 31, 32, 37, and 38 depending respectively from claims 30 and 36), stand with claim 30 over Breed. Appeal 2013-004361 Application 10/986,927 8 V. CONCLUSION AND DECISION The Examiner’s rejections of claims 30-32 and 34-39 under 35 U.S.C. § 112, first paragraph and under 35 U.S.C. § 102(b) are reversed. REVERSED rwk