Ex Parte Lindsay et al

Patent Trial and Appeal Board

Feb 14, 2013

11250273 (P.T.A.B. Feb. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHARLES LEE LINDSAY, VANCE FRANKLIN BROWN,
GENE GARY DAIGLE, and MIKE ALAN ROSE
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Appeal 2010-009763
Application 11/250,273
Technology Center 2600
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Before MAHSHID D. SAADAT, MIRIAM L. QUINN, and
BARBARA A. PARVIS Administrative Patent Judges.

QUINN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-12 and 14-24. Claim 13 has been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
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STATEMENT OF THE CASE
Introduction
Appellants’ invention relates generally to the field of outdoor signs
and, more particularly, to a system and method for controlling outdoor signs.
(Spec. 1, ll. 9-10.) Independent claim 1 is illustrative of the invention and
reads as follows:
1. A system for controlling outdoor signs,
comprising:
an electronic sign having a price that is controllable;
a controller sending a price signal that controls the price
on the outdoor sign; and
an electronic feedback system that determines if the
outdoor sign is operative, wherein operative means that the sign
is legible and correct after the sign has been updated.

References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:

Blowers US 6,298,474 B1 Oct. 2, 2001
Wells US 2004/0172372 A1 Sep. 2, 2004
Moss US 2005/0160014 A1 Jul. 21, 2005

U.S. Energy Information Administration, A Primer on Gasoline Prices,
(9/30/2004), http://www.eia.doe.gov/pub, (currently archived via PURL at
http://purl.access.gpo.gov/GPO/LPS56212 (hereinafter “DoE”).
The Examiner’s Rejections
Claims 1-4, 6-11, 14-15, and 17 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Wells in view of Blowers. (Ans. 4-10.)
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Claims 5, 12, and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wells in view of Blowers, and in further view of Moss.
(Ans. 10-11.)
Claims 18-19 and 22-24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wells in view of Blowers and DoE. (Ans. 11-14.)
Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Wells in view of Blowers and DoE, and in further view of
Moss. (Ans. 14-15.)

ISSUES
Appellants challenge all of the Examiner’s rejections in this appeal.
Based on Appellants’ arguments, the dispositive issues on appeal are:
a) Whether the Examiner erred in rejecting claims 1, 10, and 18 as
being obvious over the combination of Wells and Blowers. (App.
Br. 8-10, 13-14.) In particular, the issue turns on whether the
Examiner’s rationale for combining these references is reasonable
and adequately supported. (Id.)
b) Whether the Examiner erred in finding that Blowers discloses the
step of “when the displayed price contains an error, transmitting an
error message,” as recited in claim 14. (App. Br. 10.) In
particular, the issue turns on whether “a pass/fail decision” in
Blowers teaches the claimed step of transmitting an error message.
(Id.)
c) Whether the Examiner erred in rejecting claims 5, 16, and 20 based
on obviousness grounds. (App. Br. 11-12). In particular, the issue
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turns on whether the Examiner’s rationale for combining Wells
and Moss is reasonable and adequately supported. (Id.)
d) Whether the Examiner erred in rejecting claim 12, because
Blowers fails to disclose “transmitting an alert signal including the
display price.” (App. Br. 11.)
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions.
Claims 1, 10, and 18
Appellants contend that the Patent Office has used hindsight in
combining Wells and Blowers to reject claim 1, because these references are
allegedly directed to solving incongruent problems, and because neither
reference discloses an electronic feedback system in the outdoor sign that
determines if the sign is operative. (See App. Br. 8-9.) Appellants proffer
identical arguments concerning claims 10 and 18. (See App. Br. 10, 13-14.)
Thus, being confronted with an allegation that the Examiner has used
hindsight, we look at the stated reasoning for the rejection to assess whether
it provides a reasonable and adequately supported rationale.
First, we note that the Examiner’s rejection explains that Blowers
discloses a machine vision system that verifies the text within an image to
make sure that the expected text is present and readable. (Ans. 5 (citing
Blowers, col. 10, ll. 6-10) (emphasis added).) We do not agree with
Appellants’ contention that the Examiner mischaracterized Blowers’
disclosure. (Reply 1.) We also do not agree with Appellants’ contention
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that Blowers is not pertinent to the particular problem with which the
inventor was concerned. (Reply 2.) As stated by the Examiner, the use of
machine vision in point of sale systems is conventional, and such use solves
the problem of verifying that displayed text, such as that used in an
electronic display, is appropriate. (Ans. 15-16 (stating also that the use of
machine vision verification is known in point of sale systems as taught by
Welch (U.S. Patent No. 5,883,968)).) Additionally, under the broadest
reasonable interpretation in the context of the Specification, In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997), we find that the claim language does
not preclude the use of a machine vision system to verify that the text is
legible and correct after the text has been updated.
Further, we find no error in the Examiner’s determination that a
person of ordinary skill in the art at the time of the invention would have
looked to available technology to improve the Wells invention. (Ans. 16.)
According to the Examiner, the improvement of Wells to include automated
and real-time feedback is a predictable result of the automatic verification of
the displayed price using the technology disclosed in Blowers. (Ans. 5.)
Appellants’ argument – that “the only reason the Patent Office would
combine a reference for determining a price for fuel with a reference for a
machine vision software is hindsight” (App. Br. 9.)  is unpersuasive. That
argument does not show error in the Examiner’s finding, such as by stating
why one of ordinary skill in the art at the time of the invention, motivated to
automate verification of displayed text as disclosed in Blowers, would not be
capable of providing that automated verification after the automatic
adjustment of the fuel price signs disclosed in Wells. See DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
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1356, 1368 (Fed. Cir. 2006) (“[T]he proper question is whether the ordinary
artisan possesses knowledge and skills rendering him capable of combining
the prior art references.”).
Accordingly, we conclude that the Examiner’s rejection of claims 1,
10, and 18 as obvious over the combination of Wells and Bowers is
reasonable and well supported by the record.
Claim 14
Appellants contend that the passage of Blowers that the Examiner
relies on does not discuss a sign or transmission of an error message and that
“[a] pass/fail decision is not the transmission of an error message.” (App.
Br. 10.) We do not agree with Appellants’ conclusions. Instead, we agree
with the Examiner’s finding that Blowers teaches transmitting an error
message (fail answer), when the displayed text (price) contains an error.
(Ans. 16.) Further, we find that Blowers’ disclosure of pass/fail folders
confirms the Examiner’s finding that the pass/fail answer is transmitted. See
Blowers, col. 10, ll. 21-22. Accordingly, we conclude that the Examiner did
not err in determining that Blowers discloses the claimed step of transmitting
an error message.
Claims 5, 16, and 20
Appellants contend that Moss is directed to a consumer oriented
device and that there is no way to combine that device with Wells, which is
directed to managing prices for a retail outlet. (App. Br. 11-12, 15-16.) We
do not agree with Appellants’ conclusion.
The Examiner finds that Moss discloses sending alerts of different
prices, while Wells discloses a method of adjusting prices in a retailer.
(Ans. 17.) Appellants do not contest either finding, but nevertheless take
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issue with the proffered combination as inappropriate hindsight. (App. Br.
11-12, 15-16.) We find, however, that the Examiner is correct in his
determination that Moss and Wells are both related to transmission of
retailer prices. (Ans. 17.) We also find reasonable the Examiner’s stated
rationale for determining that a person of ordinary skill in the art would use
“Moss’s method of notifying a customer with an alert signal including a
displayed price and transmitting the alert to a wireless device (as taught by
Moss) because Wells already teaches transmitting different retail site pricing
information transmittal to a central office.” (Ans. 11.) The motivation is
provided by Moss – to provide immediate comparison of different retail site
prices. (Ans. 11 (citing Moss, ¶¶ [0004]-[0005]).)
Accordingly, we conclude that the Examiner’s obviousness rejection
of claims 5, 16, and 20 is reasonable and well supported by the record.
Claim 12
Appellants contend that the Examiner erred in rejecting claim 12
because Blowers makes a pass/fail decision, but does not send an alert signal
including a display price as required by the claim. (App. Br. 11.) We do not
agree with Appellants’ conclusion.
The Examiner’s rejection points to Moss, not Blowers, as teaching the
transmission of an alert signal or message. (Ans. 10-11.) Therefore,
Appellants’ argument fails to show error in the Examiner’s rejection of the
claim over Moss.

CONCLUSIONS
On the record before us, and based on Appellants’ arguments
concerning claims 1 and 10, we conclude that the Examiner did not err in
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rejecting claims 1 and 10, as well as claims 2-4, 6-9, 11, 14-15, and 17, not
argued separately, as being obvious over Wells and Blowers. (See App. Br.
10.)
We further conclude that, based on Appellants’ arguments concerning
claim 18, the Examiner did not err in rejecting claim 18, as well as claims 19
and 22-24 not argued separately, as being obvious over Wells, Blowers and
DoE. (See App. Br. 14.)
We further conclude that, based on Appellants’ arguments concerning
claims 5, 12, and 16, the Examiner did not err in rejecting those claims as
being obvious over Wells, Blowers, and Moss.
Finally, we conclude that, based on Appellants’ arguments concerning
claim 20, the Examiner did not err in rejecting claims 20 and 21, not argued
separately, as being obvious over Wells, Blowers, Moss, and DoE. (See
App. Br. 16.)

DECISION
The Examiner’s decision rejecting claims 1-12 and 14-24 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

ELD