Ex Parte Puckett et al

Patent Trial and Appeal Board

Jun 26, 2017

12790903 (P.T.A.B. Jun. 26, 2017)

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.
1350-01301 1577
EXAMINER
EUSTAQUIO, CAL J
ART UNIT PAPER NUMBER
2683
MAIL DATE DELIVERY MODE
12/790,903 05/31/2010
62763 7590
Tod T. Tumey
Tumey LLP
P.O. BOX 22188
HOUSTON, TX 77227-2188
06/26/2017
Darryl D. Puckett
06/26/2017 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 DARRYL D. PUCKETT and MICHAEL J. VICKICH
Appeal 2017-002609
Application 12/790,9031
Technology Center 2600
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
final decision rejecting claims 1, 2, 5—12, 14, and 16—26, which are all the
claims pending in the application. Claims 3,4, 13, and 15 were cancelled
previously. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse and institute a new ground of rejection under the
provisions of 37 C.F.R. § 41.50(b).
1 According to Appellants, the real party in interest is The Texas A&M
University System. App. Br. 3.
Appeal 2017-002609
Application 12/790,903
CLAIMED SUBJECT MATTER
Claims 1,11, and 26 are independent claims. The claims generally
relate to monitoring traffic on a roadway in real-time. Spec. Abstract.
Claim 1 is representative and reproduced below:
1. A system for analyzing traffic patterns on a roadway in
real-time, comprising:
a plurality of reader devices, wherein the reader devices
include capturing a unique network identifier of a device in a
vehicle when the device is disposed in reader range of the reader
devices, and wherein the reader devices also include means for
immediately time stamping each captured unique network
identifier upon reception, wherein the reader devices anonymize
the time stamped unique network identifiers to provide time
stamped anonymous unique network identifiers, means for
immediately forwarding a time stamped anonymous unique
network identifier to a host module; and
wherein the host module receives the time stamped
anonymous unique network identifier, and wherein the host
module determines travel information from the time stamped
anonymous unique network identifier by comparing the time
stamped anonymous unique network identifier for a particular
vehicle at a first reader device to time stamped anonymous
unique network identifiers captured from a second reader device
for the particular vehicle.
REJECTIONS
Claims 1, 2, 6—9, 11, 12, 16—19, and 21—26 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Marchasin et al.
(US 2008/0238719 Al; Oct. 2, 2008), Young et al. (US 2009/0210141 Al;
Aug. 20, 2009), and Bespalov et al. (US 2009/0080973 Al; Mar. 26, 2009).
Final Act. 4—13.
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Claims 10 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Marchasin, Young, Bespalov, and Luciani
(US 2002/0107634 Al; Aug. 8, 2002). Final Act. 13-14.
Claims 5 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Marchasin, Young, Bespalov, and Mittelsteadt et al.
(US 2005/0171663 Al; Aug. 4, 2005). Final Act. 1^U15.
OPINION
The Examiner finds the combination of Marchasin, Bespalov, and
Young teaches or suggests each limitation of each of the independent claims.
Final Act. 4—8. In particular, the Examiner relies on Marchasin to teach or
suggest each recited step of claim 1 except (1) “a plurality of reader devices”
because Marchasin discloses a single law enforcement vehicle using a single
radio frequency identification (RFID) reader, id. at 6; (2) “immediately time
stamping” because Marchasin discloses only identifying a vehicle’s
associated information in real-time, id. at 6—7; and (3) “anonymiz[ing]” the
vehicle’s association information, id. at 7. The Examiner further relies on
paragraph 5 of Young to teach or suggest immediate time stamping upon
identification of a vehicle. Id.
Appellants contend the Examiner erred in finding Young teaches or
suggests “immediately time stamping,” as recited in claim 1. App. Br. 11—
12; Reply Br. 10. In particular, Appellants assert Young teaches populating
a log file with sensor identifiers from a scan which may last approximately
1.28 seconds, and not closing the log file until a set number of recorded
sensor identifiers are populated. App. Br. 12 (citing Young || 32, 33).
Appellants argue Young’s “log files may have multiple sensor identifiers
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that are recorded at different times but are not stamped with a specific time
until all parameters of the log file are satisfied.” Id. Appellants further
argue “sensor identifiers are not ‘immediately time stamped’ but are
associated with a log file that may comprise sensor identifiers recorded over
at least 1.28 seconds but may be longer depending on set parameters.” Id.
We are not persuaded of Examiner error. Young is directed to
monitoring traffic by disposing sensors at known locations along a route.
Young Abstract. According to Young, a first sensor “initiates a first inquiry
scan according to a Bluetooth standard.” Young 15. Upon the first sensor
receiving a first inquiry response from a mobile device at a first time, Young
discloses storing a first device identifier of a mobile device (e.g., in a
vehicle) to associate with a “first sensor identifier and a first time stamp that
reflects the first time.” Id. (emphasis added). Accordingly, Young teaches
time stamping the time the first sensor received the first inquiry response
from the mobile device.
Further, as the Examiner explains, and we agree, neither “the
specification nor the claim defines any particular quantified time period
which is associated with the claimed ‘immediately time stamping.’” Ans. 10
(emphasis added). Young discloses a second sensor, disposed at a second
location along the same route as the first sensor, initiating a second inquiry
scan. Young discloses that upon receiving a second inquiry response
including the first device identifier, “at least one vehicle traffic statistic is
derived based on the first time stamp, the first location, and the second time
stamp.” Young 15. We find that to derive one vehicle traffic statistic based
on the first time stamp and the second time stamp of the vehicle traveling on
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the route, Young at least suggests immediately time stamping the first
inquiry response.
Appellants also contend “the Examiner’s rationale] for combination
... is erroneous and based solely on impermissible hindsight in order to
reject the claims. For example, Marchasin does not disclose, teach, and/or
suggest an embodiment that measures the speed of a vehicle.” App. Br. 11;
see also Reply Br. 9.
The Examiner relies on Bespalov to teach or suggest a plurality of
reader devices along a stretch of highway to ascertain traffic flow. Final
Act. 6 (citing Bespalov Abstract; || 29—32, 51, 58; Figure 4). The Examiner
further states that although Marchasin’s law enforcement vehicle does not
measure speed, “one of ordinary skill in the art would have come to the
conclusion law enforcement vehicles issuing citations are notoriously known
for possessing a means of determining a violator’s speeding infraction and
providing a citation memorializing the event.” Ans. 6. The Examiner
concludes it would have been obvious to incorporate Bespalov’s teaching of
multiple reader devices along the stretch of highway into Marchasin’s single
law enforcement vehicle using a single reader device to capture a vehicle’s
RFID tag. See generally id. at 4—6. Specifically, the Examiner finds “[o]ne
of ordinary skill in the art would have substituted the at least different law
enforcement vehicles using the embodiment discussed in Bespalov to
provide a scheme which meets the claimed invention.” Final Act. 6
(emphasis added).
“[Rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
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Application 12/790,903
with some rational underpinning to support the legal conclusion of
obviousness.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Combining
references can be based on common sense as long as the reasoning is
explained sufficiently. See Perfect Web Techs., Inc. v. InfoUSA, Inc.,
587 F.3d 1324, 1328-29 (Fed. Cir. 2009).
We agree with Appellants that the reason the Examiner proffers for
combining Bespalov with Marchasin lacks a rational underpinning. The
Examiner does not provide sufficient rationale because the Examiner merely
states that it would have been obvious to combine Marchasin and Bespalov
in order to “meet[] the claimed invention.” See Final Act. 6. Even assuming
the Examiner’s finding that the enforcement vehicle disclosed by Marchasin
measures a vehicle’s speed, there is no explanation of why an artisan of
ordinary skill would have combined the asserted teachings of Bespalov and
Marchasin. Thus, we agree with Appellants, at least with respect to the
combination of Bespalov with Marchasin in rejecting independent claim 1,
the Examiner has not articulated a reason with rational underpinnings to
support the conclusion of obviousness. See KSR, 550 U.S. at 418.
The rejection of independent claims 11 and 26 relies on the same
rationale for combining Bespalov with Marchasin as provided for claim 1.
Additionally, although the Examiner cites an additional reference in the
rejection of claims 5, 10, 14, and 20, the rejections rely on the same
combined teachings and rationale and do not rely on the additionally cited
references to cure the deficient rationale. Thus, claims 11 and 26, and
claims 2, 5—10, 12, 14, and 16—25, which ultimately depend from one of
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claims 1,11, and 26, are rejected using the same deficient teaching and
rationale. Accordingly, we reverse the Examiner’s rejections of claims 1, 2,
5-12, 14, and 16-26.
NEW GROUNDS OF REJECTION
We enter new grounds of rejection pursuant to our authority under
37 C.F.R. § 41.50(b). We reject claims 1,11, and 26 under 35 U.S.C.
§ 103(a) as being unpatentable over Young; and claims 10 and 20 under
35 U.S.C. § 103(a) as being unpatentable over Young and Luciani.
Claims 1.11. and 26
Young is directed to monitoring traffic using multiple sensors at
known locations by identifying Bluetooth devices. Young Abstract.
Figure 1 of Young is illustrative and is reproduced below:
> SC
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“FIG. 1 illustrates a block diagram of an exemplary traffic monitoring
system.” Young 112. As illustrated, Figure 1 of Young shows a traffic
monitor (130) and two sensors (110, 120) along a roadway (R). Young 118.
Young teaches “[a]s a vehicle VI travels in the direction of arrow A along
the roadway R, it passes within a first area 115 sufficiently proximate to the
first sensor 110 that the first sensor 110 is able to detect the presence of a
Bluetooth device onboard the vehicle VI.” Young 120. Young further
teaches the first sensor (110) collects a Bluetooth device identifier (DID1) of
a discoverable Bluetooth device (Dl) in the vehicle (VI) as the vehicle (VI)
enters the first area (115) at a first time (Tl), and a second sensor (110)
collects the same identifier (DID1) as the vehicle (VI) enters the second area
(125) at a second time (T2). Young 120. Young further teaches that first
sensor (110) stores the identifier (DID1) and the first time (Tl), and the
second sensor stores the identifier (DID1) and the second time (T2).
Young 121.
As further illustrated, the first and second sensors (110, 120)
communicate collected identifiers and timestamps to the traffic monitor
(130) for analyzing. Young 125. Young recites:
For example, the traffic monitor 130 may generate, store, and/or
display a travel time for the vehicle VI to travel from the first
area 115 proximate the first sensor 110 to the second area 125
proximate the second sensor 120 by taking the difference of
time T4 when the identifier DID1 was collected at the second
sensor 120 and the time Tl when the identifier DID1 was
collected at the first sensor 110.
Young 125.
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Accordingly, we find Young teaches or suggests every limitation of
independent claims 1 and 26. Specifically, Young discloses the following:
a system for analyzing traffic patterns on a roadway in real­
time, comprising:
a plurality of sensors (110, 120) (the claimed “reader devices”),
wherein the sensors (110, 120) include capturing a Bluetooth device
identifier (e.g., DID1) (the claimed “unique network identifier”) of a
Bluetooth device in a vehicle (VI) when the Bluetooth device is
disposed in reader range (115, 125) of the sensors, and wherein the
sensors (110, 120) also include means for immediately time stamping
(e.g., T1 for 110, T4 for 120) each captured identifier (e.g., DID1)
upon reception,
the sensors (110, 120) anonymize the time stamped unique
network identifiers to provide anonymous time stamped unique
network identifiers (e.g., DID1) (“[t]o further address privacy
concerns, only a portion of the MAC address may be used as the
identifier, or the identifier may be derived from the MAC address,
such that even the complete MAC address is not stored,” Young 122),
means for forwarding the time stamped identifier (e.g., DID1)
to a traffic monitor (130) (the claimed “host module”); and
wherein the traffic monitor (130) receives the time stamped
identifier (e.g., DID1), and wherein the traffic monitor (130)
determines travel information (e.g., “time T4 — time T1 = travel time
DID1” from Figure 1; 125) from the time stamped identifier (e.g.,
DID1) by comparing the time stamped identifier (e.g., DID1) for a
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particular vehicle at a first sensor (110) to time stamped identifiers
(e.g., DID1) captured from a second sensor (120) for the particular
vehicle (VI).
Young does not explicitly disclose “immediately forwarding the time
stamped anonymous unique network identifier” (emphasis added).
However, it would have been obvious to a person having ordinary skill in
the art to configure the sensors (110, 120) to immediately forward the
identifiers in applications where real time traffic monitoring and analysis is
useful, such as detecting the speed of vehicles to assist in determining
current traffic flow conditions. See, e.g., Young 13 (“instantaneous speed
of vehicles may be monitored to determine traffic flow speed” (emphasis
added)). Accordingly, we conclude Young teaches or suggests the subject
matter recited in independent claims 1 and 26.
Regarding claim 11, the references presented above for claim 1 are
equally applicable to claim 11. Young additionally teaches that vehicles
(e.g., VI) are on a roadway (R). Young Fig. 1.
Claims 10 and 20
Claim 10 depends from independent claim 1 and further recites that
“the host module identifies travel information outside of a range.”
Appellants assert Luciani’s Bluetooth reader operates in a single location,
but contend “Luciani does not teach or suggest two locations as required by
claim 10 to determine traffic flow.” Reply Br. 11.
We disagree with Appellants’ arguments. At the outset, we note
Appellants’ contention is not commensurate with the scope of claim 10 and,
thus, does not persuade us of error. See In re Self, 671 F.2d 1344, 1348
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(CCPA 1982). Claim 10 does not require two locations to determine traffic
flow. Claim 10 merely requires identification of “travel information outside
a range,” which appears to be nothing more than identification of statistical
anomalies in collected data. See, e.g., Spec. 130 (describing that the system
may include “algorithms that eliminate travel information outside of a
desired range ... to exclude data that does not accurately represent the true
travel information”).
The Examiner finds, and we agree, Luciani teaches identifying travel
information outside of a range. Final Act. 13—14 (citing Luciani || 30, 32,
34); see also Ans. 12 (additionally citing Luciani || 20, 37). Paragraph 32
of Luciani, as relied upon by the Examiner, discloses:
The traffic intensity is then determined by comparing the speed
of vehicles with a reference speed for a given road. At low
vehicle speeds, such as between 10 and 20 Km/h, some confusion
may arise between a vehicle and a wireless unit carried by a
person while walking. But, on a major thoroughfare, all traffic
under for example 20 Km/h can be considered to be congested.
Luciani, in disclosing comparing the speed of vehicles with a reference
speed for a given road teaches or suggests identifying the speed of vehicles
outside of a reference speed range for the given road. Thus, Luciani
suggests the claimed “host module identifies travel information outside of a
range.”
However, as discussed above, we reverse the Examiner’s rejection of
claims 10 and 20 because the rejection lacks a sufficient rationale for
combining Bespalov with Marchasin. We newly reject claims 10 and 20
under 35 U.S.C. § 103(a) as being unpatentable over Young and Luciani,
simply adopting the Examiner’s rationale for combining Luciani (see Final
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Act. 14) in light of the teachings and suggestions of Young, which were
discussed above with respect to independent claims 1,11, and 26.
The Patent Trial and Appeal Board is a review body, rather than a
place of initial examination. We have made new rejections regarding
claims 1, 10, 11, 20, and 26 under 35 U.S.C. § 103(a), pursuant to 37 C.F.R.
§ 41.50(b). However, we have not reviewed the dependent claims 2, 5—9,
12, 14, 16—19, and 21—25 to the extent necessary to determine whether these
claims are unpatentable over Young, Luciani, and/or other prior art. We
leave it to the Examiner to ascertain the appropriateness of further rejections
based on our findings. Our decision not to enter a new ground of rejection
for all claims should not be considered as an indication regarding the
appropriateness of further rejection or allowance of the non-rejected claims.
See MPEP § 1213.03.
DECISION
For the above reasons, we reverse the Examiner’s decision to reject
claims 1, 2, 5—12, 14, and 16—26.
We enter a new ground of rejection for claims 1, 10, 11, 20, and 26
pursuant to 37 C.F.R. § 41.50(b).
Section 41.50(b) provides “[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
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(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the prosecution will be
remanded to the examiner. The new ground of
rejection is binding upon the examiner unless an
amendment or new Evidence not previously of
Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner
reject the claims, appellant may again appeal to the
Board pursuant to this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under §41.52 by the Board
upon the same Record. The request for rehearing
must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new
ground of rejection and also state all other grounds
upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in the MPEP § 1214.01.
REVERSED
37 C.F.R, § 41.50(b)
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