Ex Parte Miller et al

Patent Trial and Appeal BoardFeb 16, 2016

13384470 (P.T.A.B. Feb. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/384,470 01/17/2012 28395 7590 02/18/2016 BROOKS KUSHMAN P.C./FG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Thomas Lee Miller 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. 83223023 6785 EXAMINER HU,RUIMENG ART UNIT PAPER NUMBER 2649 NOTIFICATION DATE DELIVERY MODE 02/18/2016 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS LEE MILLER, BRIAN BENNIE, DORON M. ELLIOTT, DAVID ANTHONY HATTON, and GARY JABLONSKI Appeal2014-004605 Application 13/384,4701 Technology Center 2600 Before JOHNNY A. KUMAR, LINZY T. McCARTNEY, and TERRENCE W. McMILLIN, Administrative Patent Judges. McMILLIN, Administrative Patent Judge. DECISION ON APPEAL This is a decision2 on appeal under 35 U.S.C. Â§ 134(a) of the final rejection of claims 19 and 20. Final Act. 1.3 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is Ford Global Technologies, LLC. App. Br. 1. 2 Our decision refers to the Final Office Action mailed March 29, 2013 ("Final Act."); Appellants' Appeal Brief filed September 27, 2013 ("App. Br."); the Examiner's Answer mailed December 24, 2014 ("Ans."); Appellants' Reply Brief filed February 24, 2014 ("Reply Br."); and the Specification filed January 17, 2012 ("Spec."). 3 The Final Office Action contains rejections of claims 1-20. Final Act. 1. An Amendment under 37 C.F.R. Â§ 41.33 was filed on September 27, 2013, Appeal2014-004605 Application 13/384,470 REJECTION ON APPEAL Claims 19 and 20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Chutorash et al. (US 2011/0257973 Al, Oct. 20, 2011) ("Chutorash"), Rokusek et al. (US 2006/0019713 Al, Jan. 26, 2006) ("Rokusek"), and Fujioka et al. (US 2007 /0120948 Al, May 31, 2007) ("Fujioka"). Ans. 3; Final Act. 10. THE CLAIMED INVENTION According to Appellants, "[t]he embodiments described herein generally relate to, among other things, a system and method for controlling a privacy mode operation in a vehicle." Spec. 1. Independent claim 19 recites: A vehicle apparatus comprising: a driver status controller configured to receive a wireless signal from a transmitter indicating whether a driver of a vehicle is one of a primary driver and a secondary driver and to transmit a driver status signal over a vehicle communication bus indicating that the driver is the secondary driver; a communication module configured to: receive the driver status signal over the vehicle communication bus; enable the secondary driver to control the operation of a portable occupant communication device (OCD) in a hands free mode such that the driver engages in a conversation with the OCD in the vehicle with a second to cancel claims 1-18. App. Br. 2. This claim amendment was entered. Ans. 2. Thus, claims 19 and 20 remain pending and are the subject of this appeal. Ans. 2. 2 Appeal2014-004605 Application 13/384,470 communication device belonging to a user that is positioned outside of the vehicle in which the conversation is broadcast over speakers in the vehicle; receive an input indicative of the driver disabling the hands free mode and activating a privacy mode to deactivate broadcasting the conversation over the speakers in the vehicle; wirelessly transmit a first command to the portable OCD to disable the hands free mode and to activate the privacy mode in response to the input; receive a driver performance signal over the vehicle communication bus that is indicative of a driving performance for the secondary driver while the privacy mode is active; and wirelessly transmit a second command to the portable OCD to deactivate the privacy mode and to reactivate the hands free mode based on the driver performance signal. App. Br., Claims App. 1. ANALYSIS We have reviewed the rejection of claims 19 and 20 in light of Appellants' arguments presented in the Appeal Brief and Reply Brief. We are not persuaded that Appellants identify reversible error. We agree with and adopt the Examiner's findings, reasoning, and conclusions as set forth in the Final Action (Final Act. 10-14) and the Examiner's Answer (Ans. 3-9). We highlight the following for emphasis. Appellant argues that Chutorash fails to teach, "a communication module configured to ... receive the driver status signal [indicating whether a driver of a vehicle is one of a primary driver and a secondary driver] over the vehicle communication bus," as recited in claim 19. App. Br. 3--4 3 Appeal2014-004605 Application 13/384,470 (bracketed material in original); Reply Br. 1-2. However, the Examiner relied on a combination of Chutorash and Fujioka as providing the teachings relevant to this limitation. Final Act. 10-14. In the Appeal Brief, Appellants fail to present any argument relating to Fujioka. With regard to Chutorash, Appellants argue, "Chutorash fails to teach that the vehicle data bus 1002 receives a driver status signal indicative of the driver being one of a primary driver and a secondary driver." App. Br. 4. 4 But, Fujioka is relied upon by the Examiner as teaching: a vehicle apparatus comprising a driver status controller configured to receive a wireless signal from a transmitter indicating whether a driver of a vehicle is one of a primary driver and a secondary driver and to transmit a driver status signal over a communication bus indicating that the driver is the secondary driver. Final Act. 12; Ans. 4. With regard to Fujioka, the Examiner finds: the current driver of the vehicle is identified by the face authentication by the driver judgment unit 4B [of Fujioka], an instruction for switching to a restricted state during driving may be sent to the mobile telephone of the driver such that the mobile telephone is set to a controlled state during driving based on this instruction, para. 0088 [of Fujioka]. Final Act. 12-13; Ans. 4. These findings are well-supported by Fujioka. Appellants fail to challenge (or even acknowledge or discuss) the findings based on Fujioka in the Appeal Brief. App. Br. 3--4. 4 Figure 10, reference number 1002 labelled "Vehicle Data Bus," of Chutorash clearly teaches a "vehicle communication bus" as recited in claim 19 as found by the Examiner in the Final Office Action (Final Act. 11-12) and the Examiner's Answer (Ans. 3). Appellants fail to dispute this finding. App. Br. 3--4; Reply Br. 1-2. 4 Appeal2014-004605 Application 13/384,470 In the Reply Brief, Appellants present argument relating to Fujioka. Reply Br. 2. But this argument is untimely. 37 C.F.R. Â§ 41.41(b)(2)("Any argument raised in the reply brief which was not raised in the appeal brief ... will not be considered by the Board for purposes of the present appeal, unless good cause is shown.") Appellants fail to show (or even argue) good cause exists for not raising this argument in the Appeal Brief. In addition, the argument related to Fujioka in the Reply Brief is directed towards showing Fujioka fails to teach or suggest a "vehicle communication bus." Reply Br. 2. Specifically, Appellants argue: Assuming, arguendo, that the judgment unit 4B of Fujioka is similar to the presently claimed communication module, the relied on passages and figures of Fujioka as noted directly above fails [sic] to teach, suggest or disclose that the judgment unit 4B of Fujioka receives a driver status signal (or a signal that identifies the secondary driver) over a vehicle communication bus. While the judgment unit 4B performs [the] driver identification by virtue of face authentication via an image from a camera 1; (see; [0029]; this is not the same as receiving a driver status signal (that indicates the secondary driver) over a vehicle communication bus as presently claimed. Id. This argument is misdirected. Chutorash was relied upon for teaching a "vehicle communication bus." Final Act. 11-12; Ans. 3. As discussed above Chutorash teaches this feature and Appellants present no argument to the contrary. Thus, Appellants fail to present arguments relating to whether the combination of Chutorash and Fujioka teaches or suggests, "a communication module configured to: receive the driver status signal over the communication bus," as recited in claim 19. Instead, Appellants challenge each of the cited references individually as failing to teach or 5 Appeal2014-004605 Application 13/384,470 , , .,. ro , , .,. , -t , -t , -t ro i:;; r-T""l-t , , suggest tne reature taugm Dy me omer rererence. J l nese arguments are not persuasive as they fail to address the rejection made by the Examiner which was based on the combination of the cited art. In the Appeal Brief, Appellants argue, "Chutorash also fails to teach, suggest, of [sic] disclose the presently claimed communication module being configured to receive a driver performance signal over the vehicle communication bus that is indicative of a driving performance for the secondary driver while the privacy mode is active." App. Br. 4--5. The Examiner relies on Figure 11, reference numbers 1102, 1104, and 1106, as teaching or suggesting a driver performance signal that is indicative of a driving performance while the privacy mode is active. Final Act. 12; Ans. 3--4. Appellants do not challenge this finding. App. Br. 4--5 .. With regard to the "vehicle communication bus," as discussed above, Chutorash discloses this feature. Also, with regard to differentiation between a primary and a secondary driver, as discussed above, Fujioka discloses this feature. Here again, Appellants fail to address the rejection made by the Examiner which was based on a combination of the teachings of the cited art. For these reasons, we are not persuaded the Examiner erred in rejecting claim 19 as obvious. Claim 20 is not separately argued. Therefore, we affirm the rejection of pending claims 19 and 20. 5 One cannot show nonobviousness by attacking references individually when the rejection is based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Each reference cited by the Examiner must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole. See, In re Merck & Co., Inc., 800 F. 2d 1091, 1097 (Fed. Cir. 1986). 6 Appeal2014-004605 Application 13/384,470 DECISION The rejection of claims 19 and 20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7