Ex Parte Wurster

Patent Trial and Appeal Board

Jan 15, 2013

11670680 (P.T.A.B. Jan. 15, 2013)

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.
11/670,680 02/02/2007 Charles Wurster 7577
7590 01/16/2013
Cars To Go, LLC
166 South 222nd Avenue
Buckeye, AZ 85326
EXAMINER
JUNG, ALLEN J
ART UNIT PAPER NUMBER
3628
MAIL DATE DELIVERY MODE
01/16/2013 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 CHARLES WURSTER
____________

Appeal 2010-009201
Application 11/670,680
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and BIBHU R.
MOHANTY, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-009201
Application 11/670,680

2
STATEMENT OF THE CASE
The Appellant seeks our review under 35 U.S.C. § 134 (2002) of the
final rejection of claims 1-7 and 30-48 which are all the claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF THE DECISION
We REVERSE.

THE INVENTION
The Appellant’s claimed invention is directed to a system for
calculating rates for use of transportation services (Spec. [0002]). Claim 1,
reproduced below, is representative of the subject matter on appeal.

1. A method of utilizing an electronic transportation service
system, comprising:
providing an electronic communication link between a
transportation resource service provider, transportation
resource vendor, and transportation resource user through the
electronic transportation service system, the transportation
resource user utilizing the electronic communication link to
make an inquiry in the electronic transportation service system
for a transportation resource having a plurality of attributes,
the electronic transportation service system responding with a
match for the transportation resource having the plurality of
attributes and, [1] if no match is found for the transportation
resource having the plurality of attributes, the electronic
transportation service system responding with an alternative
transportation resource aligned with the plurality of
attributes, the transportation resource user selecting a
transportation resource to travel from an origin to a
destination, the transportation resource being controlled by the
transportation resource vendor;
[2] selecting a route that the transportation resource must
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travel from the origin to a the destination, the transportation
resource service provider using the electronic transportation
service system to select the route by,
(a) measuring a distance that the transportation
resource must travel from the origin to the destination
(b) estimating time to travel the route based on
weather, distance, traffic and road conditions, and
(c) accounting for safety factors that adversely
influence the travel experience for the transportation resource
user over the route;
estimating fuel consumption of the transportation resource
based on distance and terrain over the route;
determining driver compensation in operating the
transportation resource to travel the route; and
calculating a rate for use of the transportation resource
based on travel time, fuel consumption, and driver compensation;
wherein transportation resource service provider
communicates with the transportation resource vendor via the
electronic communication link to authorize dispatch of the
transportation resource to the transportation resource user at
the origin and travel the route to the destination if the rate
is approved by the transportation resource user, the
transportation resource service provider coordinating an
agreement between first and second transportation resource
vendors so that an authorized dispatch to the first
transportation resource vendor is transferrable to the second
transportation resource vendor and revenue generated from the
authorized dispatch is shared between the first and second
transportation resource vendors and transportation resource
service provider according to the agreement.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Hileman US 2003/0040944 A1 Feb. 27, 2003
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Application 11/670,680

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Manning US 6,604,081 B1 Aug. 5, 2003
McCullough US 6,932,419 B1 Aug. 23, 2005
Greyhound.com, Greyhound Company, found at:
http://web.archive.org/web/20051103071732/greyound.com/company
(hereafter “Greyhound”).

The following rejections are before us for review:
1. Claims 1-7, 30-39, and 41 are rejected under 35 U.S.C. § 112,
second paragraph.
2. Claims 1-6 and 30-48 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hileman, Manning, and Greyhound.
3. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Hileman, Manning, and McCullough.

FINDINGS OF FACT
We find that the findings of fact used in the Analysis section below
are supported at least by a preponderance of the evidence:1

ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
The Examiner has determined that claim 1 is indefinite because while
a conditional statement “if no match is found…” is given, the alternative
condition, which would be “if a match is found…” is missing from the claim
(Ans. 3). In contrast, the Appellant has argued that the claims are not

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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indefinite and Section 112, second paragraph, does not require the recitation
of every operating condition that may be encountered (Br. 13).
We agree with the Appellant. The test for definiteness under 35
U.S.C. § 112, second paragraph, is whether “those skilled in the art would
understand what is claimed when the claim is read in light of the
specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1576 (Fed. Cir. 1986) (citations omitted). Here, one of ordinary skill
in the art would understand what is being claimed in reference to the
limitation “if no match is found…..” and the claim is merely broad and not
indefinite. For this reason this rejection is not sustained. Claims 31 and 41
have been rejected for the same reasons and the rejection of these claims is
not sustained as well.
Rejections under 35 U.S.C. § 103(a)
The Examiner has determined that claim 1 is improper because the
prior art cited fails to disclose elements of the following claim limitation
from claim 1 (see Brief at 14-17 for arguments):
responding with a match for the transportation resource having the
plurality of attributes and, [1] if no match is found for the
transportation resource having the plurality of attributes, the
electronic transportation service system responding with an
alternative transportation resource aligned with the plurality of
attributes, the transportation resource user selecting a
transportation resource to travel from an origin to a
destination, the transportation resource being controlled by the
transportation resource vendor
(claim 1, emphasis added).
Here, the cited claim limitation requires that a system first respond
with a match for the transportation resource, and if no match is found the
system responds with an alternative resource aligned with the plurality of
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attributes in some manner. The Examiner has asserted that this is shown in
Hileman at paragraph [0032] and Figure 3 (Ans. 4).
We disagree with this finding by the Examiner. Hileman at paragraph
[0032] does disclose calculating the optimal route for a mode of
transportation but it is not specifically disclosed here that this was done
because no initial match was found as required by the claim. Figure 3 fails
to disclose this cited claim limitation as well. For these reasons, the
rejection of claim 1 and its dependent claims is not sustained. Claim 31
contains a similar limitation and the rejection of this claim and its dependent
claims is not sustained as well.
With regards to claim 41 the Appellant argues that the prior art does
not teach or suggest the following claim limitation (see Brief at 27-28):
wherein the transportation resource service provider coordinates an
agreement between first and second transportation resource vendors
so that an authorized dispatch to the first transportation resource
vendor is transferrable to the second transportation resource vendor
and revenue generated from the authorized dispatch is shared between
the first and second transportation resource vendors and transportation
resource service provider according to the agreement.
(Claim 1).
The claim here requires in part that “revenue generated from the
authorized dispatch is shared between the first and second transportation
resource vendors and transportation resource service provider according to
the agreement.” The Examiner has cited to the Greyhound document which
shows that the Greyhound Company has four subsidiaries as well as
partnerships with companies such as Amtrak (Ans. 7). While we agree with
the Examiner’s particular finding that revenue sharing is well known, we do
not find the combination of references here to be obvious as asserted at page
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7 of the Answer. Here, there is no articulated reasoning with rational
underpinnings for the cited combination of Hileman, Manning, and
Greyhound and then to further use revenue sharing in the manner claimed
without impermissible hindsight. For these reasons the rejection of claim 41
and its dependent claims is not sustained.

CONCLUSIONS OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting the claims as listed in the Rejections section above.

DECISION
The Examiner’s rejection of claims 1-7 and 30-48 is reversed.

REVERSED

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