Ex Parte Schunder et al

Patent Trial and Appeal BoardApr 29, 2016

13474016 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/474,016 05/17/2012 28395 7590 05/03/2016 BROOKS KUSHMAN P,CJFG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Mark Schunder 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. 83235980 7740 EXAMINER LIN, ABBY YEE ART UNIT PAPER NUMBER 3664 NOTIFICATION DATE DELIVERY MODE 05/03/2016 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 MARK SCHUNDER, MARK SCALF, and JOSEPH J. BERRY Appeal2014-004720 Application 13/474,016 Technology Center 3600 Before JENNIFER D. BAHR, LINDA E. HORNER, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mark Schunder et al. ("Appellants") 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 7-10 and 24--31, which are all the pending claims. Br. 1. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. According to Appellants, the real party in interest is Ford Global Technologies, LLC. Br. 2. Appeal2014-004720 Application 13/474,016 CLAIMED SUBJECT MATTER Appellants' disclosed invention relates to vehicle navigation systems. See Spec. i-f 2. Claims 7, 24, and 28 are independent. Claim 7, reproduced below, is illustrative of the subject matter on appeal. 2 7. A navigation method comprising: determining a route to a destination on a computing system; determining, on the computing system, a road classification for each road or a portion of each road comprising the route; assigning a tolerance to each road or portion of each road based on the determined classification for that road or road portion; using the assigned tolerances, determining points defining the route based on a plurality of lines connecting successive points along the route remaining within the bounded area defined by the tolerance; and delivering the determined points to a vehicle computing system in communication with a server. 2 We do not rely on the Claims Appendix provided with Appellants' Brief because it does not contain an accurate recitation of the claims on appeal. Instead, we refer to the claims as presented in the Amendment filed on April 22, 2013 ("Amendment"), for a listing of the claims of record that are currently pending in the present application. We note that an After-Final Amendment, including proposed revisions to the claims that appear to match the recitations in the Claims Appendix, was filed on November 4, 2013, but was expressly denied entry by the Examiner in the Advisory Action dated November 15, 2013. See Ans. 2. 2 Appeal2014-004720 Application 13/474,016 EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Inoue Kaplan Tu us 5,398, 189 US 6,401,034 Bl US 2004/0254723 Al REJECTIONS The following rejections are before us for review: Mar. 14, 1995 June 4, 2002 Dec. 16, 2004 I. Claims 7-10 and 24--31 stand rejected under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. II. Claims 7, 8, 24, 25, 28, and 29 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan. III. Claims 9, 26, and 30 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan and Tu. IV. Claims 10, 27, and 31 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan and Inoue. ANALYSIS Rejection I-Claims 7-10 and 24-31 as indefinite Appellants do not provide any substantive arguments for the indefiniteness rejection of claims 7-10 and 24--31, despite this rejection being properly made of record (see Final Act. 3) and acknowledged by Appellants in the Brief (see Br. 6). Accordingly, Appellants have waived any argument of error, and we summarily sustain the rejection of claims 7-10 and 24--31under35 U.S.C. Â§ 112, second paragraph, as being 3 Appeal2014-004720 Application 13/474,016 indefinite. See Jn re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection under 35 U.S.C. Â§ 112, second paragraph when the applicant failed to contest the rejection on appeal). Rejection II- Claims 7, 8, 24, 25, 28, and 29 as unpatentable over Kaplan Appellants present arguments against the rejection of these claims as a group. See Br. 6-8. We select claim 7 as the representative claim to decide the appeal of the rejection of these claims, with claims 8, 24, 25, 28, and 29 standing or falling therewith. See 37 C.F.R. Â§ 41.37(c)(l)(iv). The Examiner found that Kaplan discloses a navigation method, substantially as claimed, including using . . . assigned tolerances (boundaries defined by the distance), determining points defining the route based on a plurality of lines (road segments) connecting successive points (points on the road segments or points connecting different road segments) along the route ("solution path") remaining within the bounded area ("area 180 is defined between two boundaries") defined by the tolerance ("distance to the right and left of the path 186 of the solution route"). Final Act. 5 (italics omitted; formatting spaces added). The Examiner further explained that Kaplan's route calculation application calculates a route, which is a "continuous series of road segments" that are a "solution route" between the origin and destination. Col 5[,] Lines 25-30. Since Kaplan states the road segments are continuous with each other, these road segments are lines that connect successive points. . . . When the driver wants to stop at [a] point of interest, an intermediate stop between the origin and destination, the navigation system will search between the boundaries that are parallel to the solution path. Abstract. Col 8[,] Lines 15-36. See 4 Appeal2014-004720 Application 13/474,016 Id. also Figure 10 for the parallel boundaries view. Thus, the navigation system will determine an intermediate point within the bounded area as part of the driver's route. Since the bounded area is based on a certain distance around the solution path, which is made of road segments continuous with each other, the determination of the intermediate point is based on the road segment (lines) and points on the solution path. The navigation will then calculate a new route to incorporate the intermediate stop. Col 9[,] Lines 34-40. Appellants argue that Kaplan does not disclose "using the assigned tolerances, determining points defining the route based on a plurality of lines connecting successive points along the route remaining within the bounded area defined by the tolerance," as claimed. Br. 6-8. In particular, Appellants assert that Kaplan makes only a singular route determination of successive road segments and does not make another determination of points defining the route using assigned tolerances. Id. at 7. According to Appellants; Kaplan determines a single intermediate stopping point rather than a series of points defining the route. Id. We are not persuaded by Appellants' argument because, as the Examiner found, Kaplan discloses determining routes comprising a continuous series of road segments. Final Act. 5 (citing Kaplan, col. 5, 11. 25-30). We agree with the Examiner that, by determining a series of road segments, "Kaplan determines start and end points of each road segment to piece together a route." Ans. 6; see also Final Act. 5 (explaining that because "the road segments are continuous with each other, these road segments are lines that connect successive points"). After assigning a distance to each road segment based on speed limits, Kaplan searches for a point of interest within a bounded area defined by the distance. Kaplan, 5 Appeal2014-004720 Application 13/474,016 col. 8, 11. 15-36. Kaplan then determines a new solution route that includes the point of interest as an intermediate stopping point. Id. at col. 9, 11. 34--40. We agree with the Examiner that "[t]he new route necessarily ... takes into consideration the point of interest, the destination point, which is the same destination as the old route, as well as start and end points which connect the road segments in the route." Ans. 6. Accordingly, Appellants do not apprise us of error in the Examiner's finding that Kaplan discloses determining points defining the route within a bounded area defined by assigned tolerances, which is supported by a preponderance of the evidence. Appellants also argue that Kaplan "never considers whether lines, connecting successive points, remain within a bounded area," and "there is no guarantee that these lines would remain within the bounded area." Br. 7. Appellants also assert that "[t]he only bounded areas [i]n Kaplan relate to searches for POis, and are not taught to cover the entire route, regardless of whether or not a POI is being searched," and "[t]hus, there isn't even a 'bounded area' over the course of the whole route for the 'lines connecting successive points' to remain within." Id. at 8 (emphasis added). These arguments are not convincing because the features upon which Appellants rely (i.e., lines remaining within a bounded area that covers the entire route) are not recited in claim 7. Instead, the claim requires only, in relevant part, "determining points defining the route based on a plurality of lines connecting successive points along the route remaining within the bounded area defined by the tolerance." Amendment 4 (emphasis added). The claim does not call for the plurality of lines connecting the determined points to remain within a bounded area, or that the bounded area cover the entire route. As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 6 Appeal2014-004720 Application 13/474,016 1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well established that limitations not appearing in the claim cannot be relied upon for patentability. See In re Self, 671 F .2d 1344, 1348 (CCP A 1982). Thus, Appellants do not apprise us of error in the Examiner's findings, which are supported by a preponderance of the evidence. Accordingly, we sustain the rejection of claim 7, and of claims 8, 24, 25, 28, and 29 falling therewith, under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan. Rejections III and IV- Claims 9, 10, 26, 27, 30, and 31 as unpatentable over Kaplan and one of Tu and Inoue With respect to the rejections of claims 9, 10, 26, 27, 30, and 31, Appellants do not set forth any additional substantive arguments separate from the arguments discussed supra; instead adding only that neither Inoue nor Tu cures the asserted deficiencies of Kaplan, and otherwise relying on dependency from one of independent claims 1, 24, and 28. Br. 8-9. Accordingly, for the same reasons that Appellants' arguments do not apprise us of error in Rejection II, Appellants also do not apprise us of error in Rejections III or IV. Thus, we likewise sustain the rejections of claims 9, 10, 26, 27, 30, and 31under35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan and one of Tu and Inoue. DECISION We AFFIRM the Examiner's decision rejecting claims 7-10 and 24--31under35 U.S.C. Â§ 112, second paragraph, as being indefinite. 7 Appeal2014-004720 Application 13/474,016 We AFFIRM the Examiner's decision rejecting claims 7, 8, 24, 25, 28, and 29 under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan. We AFFIRM the Examiner's decision rejecting claims 9, 26, and 30 under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan and Tu. We AFFIRM the Examiner's decision rejecting claims 10, 27, and 31 under 35 U.S.C. Â§ 103(a) as being unpatentable over Kaplan and Inoue. 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 8