Robert Brasher

Patent Trials and Appeals Board

Feb 22, 2022

2021003842 (P.T.A.B. Feb. 22, 2022)

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. 15/428,588 02/09/2017 Robert C. Brasher BRAS001-1 6786 7590 02/22/2022 William C. Milks, III 950 N. San Antonio Road #11A Los Altos, CA 94022 EXAMINER ADDIE, RAYMOND W ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 02/22/2022 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 ROBERT C. BRASHER ____________ Appeal 2021-003842 Application 15/428,588 Technology Center 3600 ____________ Before STEFAN STAICOVICI, MICHAEL L. HOELTER, and WILLIAM A. CAPP, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE. Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision in the Final Office Action (dated May 20, 2020, hereinafter “Final Act.”) rejecting claims 15-34. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The inventor, Robert C. Brasher, is identified as the real party in interest in Appellant’s Appeal Brief (filed Dec. 28, 2020, hereinafter “Appeal Br.”). Appeal Br. 1. Appeal 2021-003842 Application 15/428,588 2 SUMMARY OF DECISION We REVERSE. INVENTION Appellant’s invention is directed “to management of through traffic in the presence of vehicles entering and exiting a roadway.” Spec. 1, ll. 10-11. Claims 15 and 25 are independent. Claim 15 is illustrative of the claimed invention and reads as follows: 15. A system to manage vehicular traffic on a roadway having multiple through lanes of vehicular traffic moving in the same direction to reduce congestion in the vicinity of an entrance enabling vehicles to enter the roadway, the roadway not having a High Occupancy Vehicle (HOV) or Express Lane in the vicinity of the entrance, comprising: a roadway comprising a plurality of m through lanes of vehicular traffic moving in the same direction in the vicinity of an entrance to the roadway where m is an integer and m > 2, wherein the m through lanes are delineated by dashed line segments having a given length between the lanes; and a system comprising a plurality of lane separators positioned between n of the m through lanes where n is an integer and 2 ≤ n ≤ m, which should not be crossed by vehicular traffic along a designated portion of the roadway within a predetermined distance d from the entrance to the roadway; wherein the plurality of lane separators differ from the dashed line segments delineating the m through lanes, the lane separators having a plurality of diverse predetermined lengths different from the given length and being located at predetermined positions with respect to the m through lanes to indicate that vehicular traffic should not cross any lane separator from one lane of the m through lanes in which the vehicular traffic is within the predetermined distance d from the entrance to an adjacent lane where one of the lane separators is positioned between the one lane and the adjacent lane; Appeal 2021-003842 Application 15/428,588 3 wherein the plurality of lane separators define at least one of the m through lanes as an entrance bypass lane distal to the entrance to the roadway and at least one of the m through lanes as a merge lane proximal to the entrance to the roadway to enable vehicles to merge at the entrance into the at least one merge lane; and wherein the plurality of lane separators are located amongst the m through lanes to manage entry of vehicles into the at least one merge lane at the entrance to the roadway. Appeal Br. 21 (Claims App.). REJECTIONS I. The Examiner rejects claims 15-19, 22-29, and 32-34 under 35 U.S.C. § 103 as being unpatentable over Denison2 and Goj.3 II. The Examiner rejects claims 20 and 30 under 35 U.S.C. § 103 as being unpatentable over Denison, Goj, and Guernsey.4 III. The Examiner rejects claims 21 and 31 under 35 U.S.C. § 103 as being unpatentable over Denison, Goj, and Dyke.5 ANALYSIS Rejection I Each of independent claims 15 and 25 recites, inter alia, “a plurality of lane separators positioned between n of the m through lanes . . . which should not be crossed by vehicular traffic along a designated portion of the 2 Denison, US 2009/0060647 Al, published Mar. 5, 2009. 3 Goj, US 2009/0052983 Al, published Feb. 26, 2009. 4 Guernsey, US 5,498,100, issued Mar. 12, 1996. 5 Dyke, US 8,864,408 Bl, issued Oct. 21, 2014. Appeal 2021-003842 Application 15/428,588 4 roadway within a predetermined distance d from the entrance to the roadway.” See Appeal Br. 21 (Claims App.) (emphasis added). The Examiner finds that Denison discloses roadway 12 including, inter alia, a plurality of through lanes 20 having a plurality of lane separators 22, 24 for informing a driver to not cross between lanes 20 along designated portion 32, 36 before entrance 34. Final Act. 4 (citing Denison, paras. 42-50, Fig. 1). Appellant argues that “Denison fails to disclose or suggest that the lane boundaries 22 and 24 are lane separators which should not be crossed.” Appeal Br. 14. According to Appellant, “Denison discloses only one lane change inhibitor 48,” that is, only one “lane separator,” which “is positioned between the discontinuous merge lane 28 and the adjacent through lane 20 of the first roadway 12.” Id (citing Denison, para. 57, Fig. 1). The Examiner responds that Denison’s lane boundaries 22, 24 constitute the claimed “lane separators” because “[l]ane boundaries (22, 24) are illustrated as solid lines, and as any licensed driver knows, solid lines on a road should not be crossed.” Examiner’s Answer (dated Mar. 16, 2021, hereinafter “Ans.”). Ans. 10. According to the Examiner, Denison’s lane separators 22, 24 “are in the form of dashed lines before and after the merge” of roads 12, 18. Id. at 12 (citing Denison, Fig. 1). We appreciate that Denison’s lane boundaries 22, 24 are illustrated as solid lines. See Denison, Fig. 1. We also appreciate that a skilled artisan would readily know that a traffic pattern having a solid line indicates that vehicular traffic is not permitted to cross the solid line. However, in this case, the Examiner’s determination that Denison’s solid lines 22, 24 illustrated in Figure 1 constitute traffic lines that should not be crossed by Appeal 2021-003842 Application 15/428,588 5 vehicular traffic requires speculation on the Examiner’s part. The Examiner does not articulate sufficient facts or technical reasoning to call into question Appellant’s position that “lane boundaries 22 and 24 in Fig. 1 of Denison . . . simply represent lane marking to define the width [26] of the lanes [20].” Appeal Br. 14 (quoting Denison, para. 46) (emphasis omitted). Just because Denison employs solid lines 22, 24 to illustrate lanes 20, it does not mean that Denison also discloses that such solid lines “should not be crossed due to safety concerns,” as the Examiner asserts. See Examiner’s Answer (dated Mar. 16, 2021, hereinafter “Ans.”) 10. Appellant is correct that Denison explicitly discloses “only one lane change inhibitor 48 in Fig. 1” located “between the discontinuous merge lane 28 and the adjacent through lane 20 of the first roadway 12.” Appeal Br. 14 (quoting Denison, para. 57). In particular, Denison’s “lane change inhibitor 48” is “a solid line superimposed on the collinear inner boundaries 22, 42 of the through lane and merge lane 20, 28” for “inhibit[ing] traffic from crossing laterally between the parallel portion 32 [of merge lane 28] and the through lane 20.” Denison, paras. 57, 58 (emphasis omitted). No such disclosure exists in Denison with respect to lane boundaries 22, 24; we could not find any portion of Denison, and the Examiner has not pointed to any portion, which describes solid lines 22, 24 as “lane change inhibitor[s].” Furthermore, Denison explicitly refers to solid line 22 as an “inner boundar[y]” (see Denison, para. 58), which a skilled artisan would understand to mean that solid line 22 merely marks the limits of through lane 20, that is, marks the width (i.e., boundary) of through lane 20. Such an interpretation is consistent with the dashed lines illustrated in Denison’s Appeal 2021-003842 Application 15/428,588 6 Figure 1, which a skilled artisan would readily understand to mean a break in the drawing of though lanes 20. See Ans. 9, Examiner’s annotated Figure 1 of Denison. As such, the Examiner’s determination that Denison’s solid lines 22, 24 are traffic lines that should not be crossed by vehicular traffic, and, thus, constitute the claimed “lane separators,” as called for by independent claims 15 and 25, is mere speculation and conjecture based on an unfounded assumption that in a roadway patent solid lines illustrate lines that should not to be crossed by vehicular traffic. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (the Examiner has the initial duty of supplying the requisite factual basis and may not, because of doubts that the invention is patentable, resort to speculation, unfounded assumptions, or hindsight reconstruction to supply deficiencies in the factual basis). The Examiner’s use of Goj does not remedy the deficiency of Denison discussed supra. See Final Act. 3. Accordingly, for the foregoing reasons, we do not sustain the rejection under 35 U.S.C. § 103 of independent claims 15 and 25, and their respective dependent claims 16-19, 22-24, 26-29, and 32-34, as unpatentable over Denison and Goj. Rejections II and III The Examiner’s use of the Guernsey and Dyke disclosures does not remedy the deficiency of the Denison and Goj combination discussed supra. See Final Act. 5-6. Therefore, we also do not sustain the rejections under Appeal 2021-003842 Application 15/428,588 7 35 U.S.C. § 103 of claims 20 and 30 as unpatentable over Denison, Goj, and Guernsey and of claims 21 and 31 as unpatentable over Denison, Goj, and Dyke. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 15-19, 22-29, 32-34 103 Denison, Goj 15-19, 22-29, 32-34 20, 30 103 Denison, Goj 20, 30 21, 31 103 Denison, Goj 21, 31 Overall outcome 15-34 REVERSED