FORD GLOBAL TECHNOLOGIES, LLC

Patent Trials and Appeals BoardOct 29, 2021

2020005687 (P.T.A.B. Oct. 29, 2021)

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. 15/465,014 03/21/2017 Ritesh PANDYA 83759808 8491 28395 7590 10/29/2021 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER OHRI, ROMANI ART UNIT PAPER NUMBER 2413 NOTIFICATION DATE DELIVERY MODE 10/29/2021 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 RITESH PANDYA Appeal 2020-005687 Application 15/465,014 Technology Center 2400 BEFORE JAMES R. HUGHES, JENNIFER L. McKEOWN, and SCOTT B. HOWARD, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–19. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ford Global Technologies, LLC. Appeal Br. 1. Appeal 2020-005687 Application 15/465,014 2 CLAIMED SUBJECT MATTER The claims are directed to a method and apparatus for efficient vehicle data reporting. Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A vehicle comprising: a processor configured to: send data, for transmission to a remote computer, to a smartphone in communication with the processor, the sending responsive to a determination that a remote cellular connection cannot be established via a modem of the vehicle; and the data including an instruction for the smartphone to transmit the data to the remote computer. REFERENCE(S) The prior art relied upon by the Examiner is: Name Reference Date Furbeck US 2009/0193320 Al July 30, 2009 Stahlin US 2011/0215758 Al Sept. 8, 2011 Mitchel US 2015/0081399 Al Mar. 19, 2015 Faccin US 2015/0327129 Al Nov. 12, 2015 Kumar US 2018/0255486 Al Sept. 6, 2018, filed Mar. 1, 2017 REJECTIONS Claims 4 and 11–19 stand rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention. Final Act. 2. Claim 1 stands rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Furbeck. Final Act. 3–4. Claims 2 and 3 stand rejected under 35 U.S.C. § 103 as being unpatentable over Furbeck in view of Faccin. Final Act. 4–5. Appeal 2020-005687 Application 15/465,014 3 Claims 4–6 stand rejected under 35 U.S.C. § 103 as being unpatentable over Furbeck in view of Faccin and Kumar. Final Act. 6–8. Claims 7–10 stand rejected under 35 U.S.C. § 103 as being unpatentable over Furbeck in view of Mitchell. Final Act. 8–9. Claims 11, 12, and 14–19 stand rejected under 35 U.S.C. § 103 as being unpatentable over Furbeck in view of Kumar and Faccin. Final Act. 9–16. Claims 13 stands rejected under 35 U.S.C. § 103 as being unpatentable over Furbeck in view of Kumar, Faccin, and Stahlin. Final Act. 17 OPINION Section 112(b) Rejection The Examiner concludes that claims 4 and 11 through 19 are indefinite. Final Act. 2. Specifically, the Examiner concludes that there is insufficient antecedent basis for the term “a local wireless device.” Id. Subsequent to the Final Action, Appellant amended the claims to replace “a local wireless device” with “a smartphone.” Appeal Br. 5. The Examiner entered the proposed amendment. Advisory Act. (July 27, 2020). Although the Examiner did not indicate that the section 112(b) rejection was withdrawn, the Examiner did not address Appellant’s argument in the Answer. Because Appellant amended the claims to remove the claim limitation that the Examiner concluded was indefinite, we do not sustain the Examiner’s rejection of the claims as indefinite. Prior Art Rejection of Claim 1 (Section 102(a)(2)) The Examiner finds Furbeck teaches “the sending responsive to a determination that a remote cellular connection cannot be established via a Appeal 2020-005687 Application 15/465,014 4 modem of the vehicle, and the data including an instruction for the smartphone to transmit the data to the remote computer” as recited in claim 1. Final Act. 3–4; Ans. 4–6. Specifically, the Examiner finds Furbeck’s Figure 4 and paragraphs 59 through 61 disclose that “upon occurrence of a vehicular emergency, a report of the vehicular emergency is automatically made, taking advantage of the availability of a mobile station positioned in proximity to the vehicle at which the vehicular emergency has occurred.” Final Act. 3–4; see also Ans. 4 (“Thus Furbeck discloses in response to vehicular emergency, a report of the vehicular emergency is automatically made, taking advantage of the availability of a mobile station to transmit data.”). The Examiner further finds that Furbeck discloses trying to connect with various paired devices sequentially. Ans. 4–5 (citing Furbeck Fig. 3). Based on the Specification, the Examiner concludes that under broadest reasonable interpretation of “in response to determination” and “instruction”, Furbeck discloses the mechanism of the sending responsive to a determination that a remote cellular connection cannot be established via a modem of the vehicle, and the data including an instruction for the smartphone to transmit the data to the remote computer. Id. at 5–6 (citing Spec. ¶ 48). Appellant argues that, based on the plain and ordinary meaning of the claims, claim 1 requires that “the data is not merely sent to a local smartphone, but rather is sent in response to determining that an onboard modem cannot be used to send the data.” Appeal Br. 5. Appellant further argues that Furbeck “merely teaches sending data to a mobile station (presumably a phone) paired with a vehicle” in response to an emergency, “but not responsive to ‘a determination that a remote cellular connection cannot be established via a modem of the vehicle’ as claimed.” Appeal 2020-005687 Application 15/465,014 5 Appeal Br. 5. With regard to the Examiner’s findings regarding Furbeck Figures 3 and 4, Appellant argues that “[t]hose figures are about attempting to use a first paired device and then a different paired device when the first paired device is not present/available.” Reply Br. 2. Based on the current record, we are sufficiently persuaded by Appellant’s argument that the Examiner erred. Claim 1 recites a processor which sends data for transmission to a remote via a smartphone “responsive to a determination that a remote cellular connection cannot be established via a modem of the vehicle.” Appeal Br. (Claim App.) 1. That is, before sending the data via the smartphone the processor must first determine that the vehicle’s modem cannot establish a cellular connection. See id. However, Furbeck makes no such determination. Furbeck describes a system in which a car always uses a mobile station 12 (smartphone) for communications after an emergency occurs. Furbeck Fig. 1, ¶ 32. Furbeck Figures 3 and 4, which are relied on by the Examiner, simply describe how the vehicle’s apparatus 38—which includes a transceiver 42—finds a paired mobile station 12 to use for communication. See id. at Figs. 1, 3, ¶¶ 32–35, 54–57. The communication is triggered by an emergency, not a determination that the vehicle cannot establish a cellular connection. See id. at Fig. 4. Accordingly, we agree with Appellant that the Examiner’s finding that Furbeck discloses the disputed limitation is in error because it is not supported by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (Examiner’s burden of proving non-patentability is by a preponderance of the evidence); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not, because it may doubt that the Appeal 2020-005687 Application 15/465,014 6 invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”). Therefore, we are constrained on this record to reverse the Examiner’s rejection of claim 1. Prior Art Rejections of Claims 2–10 (Section 103) Appellant argues that dependent claims 2 through 10 are allowable based on their dependency from claim 1. Appeal Br. 6–7. Because the Examiner has not shown that Faccin, Kumar, or Mitchell cures the foregoing deficiencies regarding the anticipation rejection of independent claim 1, we will not sustain the obviousness rejections of dependent claims 2–10 for the same reason. Prior Art Rejection of Claims 11–19 (Section 103) Claim 11 recites a similar feature. Like claim 1, claim 11 recites a processor configured to perform an action2 “responsive to a determination that a cellular connection is unavailable for use in transmitting a data request to a remote server via a modem of the vehicle.” Appeal Br. (Claims App. 2). Relying on the same evidence and arguments discussed above with regard to claim 1, the Examiner finds Furbeck teaches this disputed limitation. See Final Act. 9–10; Ans. 7–9. For the same reasons discussed above for claim 1, we agree with Appellant that the Examiner erred. Accordingly, we are constrained on this record to reverse the Examiner’s rejection of claim 11, along with the rejection of dependent claims 12 and 14–19. 2 Although not relevant to our analysis, the action is searching for both a smartphone and a local Wi-Fi. Appeal 2020-005687 Application 15/465,014 7 Additionally, because the Examiner has not shown that Stahlin cures the foregoing deficiencies regarding the rejection of the independent claim, we will not sustain the obviousness rejection of dependent claim 13 for the same reason. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 4, 11–19 112(b) Indefiniteness 4, 11–19 1 102(a)(2) Furbeck 1 2, 3 103 Furbeck, Faccin 2, 3 4–6 103 Furbeck, Faccin, Kumar 4–6 7–10 103 Furbeck, Mitchell 7–10 11, 12, 14–19 103 Furbeck, Kumar, Faccin 11, 12, 14–19 13 103 Furbeck, Kumar, Faccin, Stahlin 13 Overall Outcome 1–19 REVERSED