In Re: Anderson , 662 F. App'x 958 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: LAWRENCE EVERATT ANDERSON,
Appellant
______________________
2016-1156, 2016-1157
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
13/189,505 and 13/214,202.
______________________
Decided: October 13, 2016
______________________
LAWRENCE EVERATT ANDERSON, Falls Church, VA, pro
se.
THOMAS W. KRAUSE, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
appellee Michelle K. Lee. Also represented by SARAH E.
CRAVEN, BENJAMIN T. HICKMAN.
______________________
Before NEWMAN, LOURIE, and DYK, Circuit Judges.
PER CURIAM.
In these consolidated appeals, Lawrence E. Anderson
(“Anderson”), a patent attorney proceeding pro se, appeals
from two decisions of the United States Patent and
2 IN RE: ANDERSON
Trademark Office (“PTO”) Patent Trial and Appeal Board
(“the Board”), in which the Board affirmed the Examiner’s
rejections of all pending claims of U.S. Patent Applica-
tions 13/214,202 (“the ’202 application”) and 13/189,505
(“the ’505 application”) as unpatentable under 35 U.S.C.
§ 102(b) or § 103(a) (2006). 1 See Ex Parte Anderson,
No. 2013-006406, Application No. 13/214,202, 2015 WL
5469585 (P.T.A.B. Sept. 14, 2015) (“’202 Decision”) (relat-
ing to Appeal No. 2016-1156); Ex Parte Anderson, No.
2013-003878, Application No. 13/189,505, 2015 WL
4607919 (P.T.A.B. July 30, 2015) (“’505 Decision”) (relat-
ing to Appeal No. 2016-1157). Because the Board did not
err in finding the claims of the ’202 and ’505 applications
unpatentable over the cited prior art, we affirm.
BACKGROUND
Anderson is the sole inventor and applicant of the ’202
application, entitled “Solar or Wind Powered Traffic
Monitoring Device and Method,” and the ’505 application,
entitled “Traffic Monitoring Device and Method,” both
directed to a system and method for monitoring the flow
of vehicular traffic. The applications were filed in July
and August of 2011. The ’202 application is a continua-
tion-in-part of the ’505 application.
I. The ’202 Application
The ’202 application has twenty claims, with claims 1,
10, and 19 being the independent claims. Claim 1 reads
as follows:
1. A system for monitoring the flow of vehicular
traffic comprising:
1 Because the ’202 and ’505 applications were filed
before the enactment of the Leahy-Smith America Invents
Act (“AIA”), Pub. L. No. 112-29, 125 Stat. 284 (2011), we
apply the pre-AIA version of 35 U.S.C. §§ 102 and 103.
IN RE: ANDERSON 3
at least two photodetectors that detect the
speed of a vehicle fixedly positioned along a
predetermined roadway by measuring the time
that the vehicle takes to pass between the at
least two photodetectors; the at least two pho-
todetectors being powered by one of solar or
wind power;
at least one transmitter for transmitting the
data relating to the passage of a vehicle at a
predetermined point on a roadway; the trans-
mitter being powered by solar or wind power;
and
a second receiver for receiving the transmitted
data relating to the speed of a vehicle along a
predetermined roadway; the second receiver
being operatively connected to a display for
displaying traffic speeds at points along a
roadway located above the predetermined
roadway, the speed being displayed on the dis-
play for use by a motorist in determining a
route of travel[.]
Appellant’s Appendix (“App.”) 94 (emphases added).
In a final Office Action, the Examiner rejected all
claims of the ’202 application under § 103(a) as obvious
over U.S. Patent Application Publication 2007/0208506
(“Macneille”) in view of U.S. Patent 6,750,787
(“Hutchinson”). The Examiner found that Macneille
discloses a system for detecting the passage of vehicles
and displaying information on traffic flows at points along
a roadway and teaches most of the limitations of inde-
pendent claims 1, 10, and 19, but that it does not “disclose
detecting the speed of the vehicle by measuring the time
that the vehicle takes to pass between the at least two
photodetectors, and displaying traffic speeds at points
along a roadway located above/near the predetermined
roadway.” Id. at 50–51. The Examiner found that
4 IN RE: ANDERSON
Hutchinson teaches those limitations that are missing
from Macneille, namely, detecting and displaying the
speed of individual vehicles. Id. at 51. She reasoned that
it would have been obvious to modify Macneille in view of
Hutchinson “in order to maximize route efficiency by
providing precise traffic speed, with predictable results.”
Id. at 52. She also found that Macneille in view of
Hutchinson teaches the additional limitations of the
dependent claims. Id. at 52–54. In particular, she found
that Macneille teaches detecting traffic flow to provide
motorists with optimal travel routes. Id. at 52–53, 54
(citing Macneille at ¶¶ 17–19, 23–30).
Anderson appealed to the Board, the Examiner re-
sponded with an answer, and Anderson filed a reply. In
September 2015, the Board affirmed the Examiner’s
obviousness rejection of all claims over Macneille in view
of Hutchinson. ’202 Decision, 2015 WL 5469585, at *2–6.
In so doing, the Board “agree[d] with and adopt[ed] the
. . . findings and rationale as set forth in the [Examiner’s]
Answer.” Id. at *2. The Board then addressed Anderson’s
arguments as to each claim, id. at *2–6, and specifically
rejected his argument that “[t]he display of Hutchinson is
not for use by a motorist in determining a route of travel,”
id. at *3 (alteration in original). The Board agreed with
the Examiner that the “for use by a motorist in determin-
ing a route of travel” claim language is “a statement of
intended use” and thus does not limit the scope of the
claims. Id.II. The ’505 Application
The ’505 application also has twenty claims, with
claims 1, 10, and 19 being the independent claims.
Claim 1 reads as follows:
1. A system for monitoring the flow of vehicular
traffic comprising:
IN RE: ANDERSON 5
at least one first transmitter receiver that de-
tects the passage of a vehicle along a roadway
fixedly positioned at a predetermined point ad-
jacent the roadway; and
at least one fixedly positioned second trans-
mitter for transmitting the data relating to the
passage of a vehicle at a predetermined point
on a roadway for use by motorists in determin-
ing a route of travel.
App. 258 (emphases added).
In a final Office Action, the Examiner rejected all
claims of the ’505 application under § 103(a) as obvious
over Macneille in view of U.S. Patent Application Publica-
tion 2011/0095908 (“Nadeem”). The Examiner found that
“Macneille does not explicitly determine traffic speed,”
instead that it teaches determining “traffic flow type
which corresponds to traffic speed.” Id. at 226. She then
found that “Nadeem discloses a system for monitoring the
flow of vehicular traffic, including determining traffic
speed.” Id. (internal citations omitted). She reasoned
that it would have been obvious to modify “Macneille to
determine traffic speed, as suggested by Macneille and
taught by Nadeem, in order to maximize route efficiency
by providing precise traffic speed, with predictable re-
sults,” and thus concluded that independent claims 1, 10,
and 19 would have been obvious over Macneille in view of
Nadeem. Id. at 225–26. The Examiner next found that
Macneille in view of Nadeem renders the dependent
claims obvious. Id. at 226–30.
Anderson appealed to the Board. The Examiner re-
sponded with an answer, in which she replaced the obvi-
ousness rejection of claims 1 and 19 with an anticipation
rejection under § 102(b) in view of Macneille only, because
those claims do not require the detection of traffic speed
as taught by Nadeem. Id. at 264–65. The Examiner
maintained that changing the statutory basis of the
6 IN RE: ANDERSON
rejection did not constitute a new ground of rejection,
because she merely omitted the unnecessary reliance on
Nadeem, and the § 102 rejection was based on the same
teachings of Macneille used to support the § 103 rejection.
Anderson filed a petition to the Director under 37
C.F.R. § 1.181, requesting that the Examiner’s anticipa-
tion rejection be designated as new. Before the Director
issued a decision, Anderson filed a reply brief at the
Board. The Director then dismissed Anderson’s petition
pursuant to 37 C.F.R. § 41.40(d), which provides that a
reply brief filed after the filing of a petition under § 1.181,
but before a decision on that petition, “will be treated as a
request to withdraw the petition and to maintain the
appeal.” App. 360–61 (quoting § 41.40(d)). On Anderson’s
petition for reconsideration, the Director maintained the
dismissal, id. at 366–67; and in September 2013, the
Director denied Anderson’s request for suspension of the
rules, id. at 371–75.
In July 2015, the Board affirmed the Examiner’s an-
ticipation rejection of claims 1 and 19 on the merits, 2 as
well as the obviousness rejection of claims 2–18 and 20
over Macneille in view of Nadeem. ’505 Decision, 2015
WL 4607919, at *1–3. As in the ’202 Decision, the Board
“agree[d] with and adopt[ed] the . . . findings and ra-
tionale as set forth in the [Examiner’s] Answer,” id. at *1,
and then specifically addressed Anderson’s arguments as
to each claim, id. at *1–3.
2 In a footnote, the Board acknowledged the Direc-
tor’s September 2013 decision denying Anderson’s request
to suspend the rules and to designate the § 102 rejection
as a new ground of rejection. ’505 Decision, 2015 WL
4607919, at *1 n.1. The Board did not otherwise comment
on the Director’s decisions.
IN RE: ANDERSON 7
Anderson timely appealed from both decisions of the
Board to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A).
DISCUSSION
We review the Board’s legal determinations de novo,
In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
Board’s factual findings for substantial evidence, In re
Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding
is supported by substantial evidence if a reasonable mind
might accept the evidence to support the finding. Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). “Where
two different conclusions may be warranted based on the
evidence of record, the Board’s decision to favor one
conclusion over the other is the type of decision that must
be sustained by this court as supported by substantial
evidence.” In re Bayer Aktiengesellschaft, 488 F.3d 960,
970 (Fed. Cir. 2007).
Obviousness is a question of law based on underlying
factual findings, In re Baxter, 678 F.3d 1357, 1361 (Fed.
Cir. 2012), including what a reference teaches, In re
Beattie, 974 F.2d 1309, 1311 (Fed. Cir. 1992), and the
existence of a reason to combine references, In re Hyon,
679 F.3d 1363, 1365–66 (Fed. Cir. 2012). Whether the
Board relied on a new ground of rejection is a question of
law. In re Stepan Co., 660 F.3d 1341, 1343 (Fed. Cir.
2011).
I. The ’202 Application
Anderson argues that the Board erred in affirming
the Examiner’s rejection of claims 1–20 of the ’202 appli-
cation as obvious over Macneille in view of Hutchinson.
Anderson challenges the Board’s construction of the “for
use” claim language in independent claims 1, 10, and 19
8 IN RE: ANDERSON
as a non-limiting statement of intended use. 3 Appellant’s
Br. 8–12, 15. Anderson also contends that the Board
failed to show how one of ordinary skill would have com-
bined Macneille and Hutchinson, that combining those
references would defeat the purpose of Macneille, that
Hutchinson does not teach or suggest displaying the
detected vehicular speed for use by a motorist in selecting
a route of travel, and that Hutchinson’s speed detector
does not work across multiple lanes. Id. at 9, 15, 17;
Appellant’s Reply Br. 5, 15.
Additionally, Anderson makes numerous assertions,
most of which are conclusory, that the cited prior art does
not teach or suggest various claim limitations, including:
(1) “photodetectors . . . operatively associated with a light
source that emits light in the solar blind region” and
“light from outside of the solar blind region does not
activate the . . . photodetectors” in claims 2, 16, and 20;
(2) “photodetectors . . . operatively associated with a light
source that emits a modulated light” and “light from the
environment does not activate [the] photodetectors” in
claim 6; (3) “the display is located . . . at a location before
the . . . photodetectors” in claim 2; (4) “determine an
average speed” in claim 7; (5) “sets of at least two photo-
detectors . . . spaced apart at predetermined intervals” so
that a motorist may select a route of travel in claim 3;
(6) “sets of at least two photodetectors . . . spaced apart at
3 Claim 10 recites “the speed being displayed on the
at least one display for use by motorists in determining
whether or not to select passage along the roadway con-
taining the at least one point as a way to navigate through
the region.” App. 97 (emphasis added). Claim 19 recites
“at least one solar powered transmitter for transmitting
the data relating to the speed of a vehicle at a predeter-
mined point on a roadway for use by motorists in deter-
mining a route of travel.” Id. at 99 (emphasis added).
IN RE: ANDERSON 9
intervals exceeding five hundred feet” so that a motorist
may select a route of travel in claim 12; and
(7) “transmitter receivers spaced at intervals along a
roadway for detecting the speed of a vehicle[] passing in
the vicinity” in claim 11. Appellant’s Br. 12–18; see also
App. 94–99 (claims of the ’202 application). With respect
to claim 3, Anderson also argues that the Board erred in
construing “so that motorists may exit the limited access
highway based upon the information relayed” as a state-
ment of intended use. Appellant’s Br. 16. Lastly, with
respect to claims 4 and 13, Anderson disputes the Exam-
iner’s finding that traffic congestion, as disclosed in
Macneille, corresponds to average traffic speed; Anderson
contends that Macneille fails to disclose the claim limita-
tions of “determine average traffic speed” and “the GPS
receiver determines the suggested route for navigation
based upon the average traffic speeds at recorded points
on a roadway.” Id. at 18–20.
We conclude that the Board did not err in affirming
the Examiner’s rejection of claims 1–20 as obvious over
Macneille in view of Hutchinson. In the Examiner’s
answer, she provided a detailed analysis as to each of the
rejected claims, as well as the prior art teachings and her
rationale on obviousness, and the Board adopted those
findings and rationale as its own and also provided fur-
ther analysis. ’202 Decision, 2015 WL 5469585, at *2–6.
On a careful review of the record, we conclude that sub-
stantial evidence supports the Board’s findings that (1)
Macneille teaches most of the limitations of claims 1–20
and discloses a traffic system for detecting and displaying
traffic flow to provide optimal travel routes to motorists;
(2) Hutchinson teaches those limitations that are missing
from Macneille, namely, stationary devices that detect the
speed of passing vehicles by measuring the time it takes a
vehicle to pass between two photodetectors, and then
displaying the speed at points along the roadway; and
(3) one of ordinary skill in the art would have been moti-
10 IN RE: ANDERSON
vated to modify Macneille’s system in view of Hutchinson
to detect the precise traffic speed in order to provide more
efficient travel routes to motorists.
We also agree with the Board that the “for use” claim
language is a statement of intended use. The “for use”
language does not add a structural limitation to the
claimed system or method. Moreover, as the Examiner
found, Macneille teaches the claimed use, namely, to
provide motorists with optimal travel routes. App. 106–
07. Accordingly, even assuming that the “for use” lan-
guage were to be construed as limiting, the prior art
indisputably teaches that limitation.
We are unpersuaded by Anderson’s argument that the
Board erred in adopting the Examiner’s “intended use”
construction because, according to Anderson, the Examin-
er raised the issue of intended use for the first time in her
answer, which constituted a new ground of rejection.
Anderson did not petition the Director to address that
issue, see 37 C.F.R. §§ 1.181, 41.40, but instead chose to
file a reply brief at the Board. Anderson had a full and
fair opportunity to respond to the Examiner’s analysis on
the merits. Stepan, 660 F.3d at 1343–44. We therefore
discern no reversible err in the Board’s decision. 4
Moreover, we are unpersuaded by Anderson’s argu-
ments that the cited prior art does not teach or suggest
4 As indicated infra in the companion case, we lack
jurisdiction to review the decision of the Director on an
applicant’s petition under 37 C.F.R. § 1.181 to designate a
new ground of rejection. Here, however, Anderson alleges
that the Board erred in raising a new ground of rejection
by agreeing with the Examiner on the “intended use”
construction. We have jurisdiction to review whether the
Board raised a new ground of rejection in its decision. See
28 U.S.C. § 1295(a)(4)(A); Stepan, 660 F.3d at 1343–44.
IN RE: ANDERSON 11
various claim limitations, Appellant’s Br. 12–20. On a
careful review of the record, we conclude that substantial
evidence supports the Board’s findings that the prior art
teaches or suggests the disputed limitations. Cf. Bayer,
488 F.3d at 970.
We have considered Anderson’s remaining arguments
but find them to be without merit. Accordingly, because
substantial evidence supports the Board’s factual findings
underlying its conclusion of obviousness, and because the
Board did not otherwise err, we affirm its decision that
claims 1–20 of the ’202 application are unpatentable as
obvious over Macneille in view of Hutchinson.
II. The ’505 Application
Anderson argues that the Board erred in affirming
the Examiner’s rejection of claims 2–18 and 20 of the ’505
application as obvious over Macneille in view of Nadeem.
Anderson contends that one of ordinary skill would not
have combined Macneille and Nadeem. According to
Anderson, Nadeem discloses determining the speed of its
mobile traffic monitoring units, such as a fleet of cars,
using a speedometer, and thus Nadeem does not teach or
suggest determining the speed of passing vehicles as
claimed. Appellant’s Br. 21–22.
Moreover, as in the companion case, Anderson makes
numerous assertions that Macneille and Nadeem do not
teach or suggest various claim limitations, including:
(1) “two first transmitter/receivers which detect the speed
of a passing vehicle by measuring the time taken by the
vehicle to pass between the two first transmit-
ter/receivers, the vehicle being detected by the blockage of
light beams transmitted by the two first transmit-
ter/receivers” in claims 2 and 11; (2) “information . . .
relayed to motorists navigating in the nearby region” in
claims 3 and 12; (3) “at an exit preceding the point” in
claim 3; (4) “determining traffic speed at . . . one point
along a roadway using . . . one first transmitter receiver
12 IN RE: ANDERSON
fixedly positioned along a roadway” and “transmitting the
traffic speed . . . for use by motorists in determining
whether or not to select passage along the roadway con-
taining the . . . one point as a way to navigate through the
region” in claim 10; (5) “displaying traffic speeds” in
claim 15; (6) “average speed” or “average traffic speed” in
claims 16–18; and (7) “photodetectors . . . which deter-
mines the speed of the vehicle by determining the time
the vehicle takes to travel the predetermined distance” in
claim 20. Id. at 20–23, 25–29; see also App. 258–61
(claims of the ’505 application). And with respect to
claims 4 and 13, Anderson disputes the Examiner’s find-
ing that traffic congestion corresponds to average traffic
speed; he contends that Macneille does not disclose the
claim limitations of “determine average traffic speed” and
“the GPS receiver determines the suggested route for
navigation based upon the average traffic speeds at
recorded points on a roadway.” Appellant’s Br. 24–25.
We conclude that the Board did not err in affirming
the Examiner’s rejection of claims 2–18 and 20 as obvious
over Macneille in view of Nadeem. As the Board found,
Nadeem teaches a traffic monitoring system that detects
vehicle speed. ’505 Decision, 2015 WL 4607919, at *2. As
with the combination of Macneille and Hutchinson in the
companion case, we conclude that substantial evidence
supports the Board’s finding that one of ordinary skill in
the art would have modified Macneille’s traffic system in
view of Nadeem’s teaching of detecting vehicle speed in
order to provide more efficient travel routes to motorists.
While it is true that Nadeem does describe a mobile traffic
monitoring system, the Board and the Examiner did not
err in also finding that Macneille teaches a stationary
detector/transmitter of traffic flow information, and that
Nadeem teaches the detection of vehicle speed using a
stationary infrared TrafficEye. Those findings are sup-
ported by substantial evidence.
IN RE: ANDERSON 13
Moreover, as in the companion case, we are unper-
suaded by Anderson’s arguments that the cited prior art
does not teach or suggest various claim limitations.
Appellant’s Br. 23–29. On a careful review of the record,
we conclude that substantial evidence supports the
Board’s findings that the prior art teaches or suggests
those disputed limitations, and thus that Anderson fails
to demonstrate reversible error.
Lastly, although Anderson does not challenge the an-
ticipation rejection of claims 1 and 19 on the merits, he
argues that the PTO erred in not reopening prosecution
after the Examiner changed the statutory basis of the
rejection of those claims, which, according to Anderson,
constitutes a new ground of rejection. Id. at 30–31.
Anderson asks us to reverse the Director’s September
2013 decision denying his request to suspend the rules
and to designate a new ground of rejection. Id. at 31.
We conclude, however, that we lack jurisdiction to re-
view the decision of the Director on a Rule 181 petition
such as in this case. In re Makari, 708 F.2d 709, 711
(Fed. Cir. 1983) (“Our jurisdiction in relation to the Pa-
tent and Trademark Office is limited to review of deci-
sions of boards established in that Office. We do not have
jurisdiction to review decisions of the Commissioner on
petitions.”); see also In re Conte, 36 F. App’x 446, 449–50
(Fed. Cir. 2002) (citing 28 U.S.C. § 1295(a)(4)(A) and
holding that we lack jurisdiction to consider an appeal
from the Director’s decision denying a Rule 181 petition);
In re Hornback, 20 F. App’x 846, 846 (Fed. Cir. 2001)
(stating that “[a]ny review of an adverse ruling of the
Director would first lie, if anywhere, in a district court”
under the Administrative Procedure Act). We therefore
cannot consider Anderson’s challenge of the Director’s
decision on his Rule 181 petition for lack of jurisdiction.
We have considered Anderson’s remaining arguments
but find them to be without merit. Accordingly, because
14 IN RE: ANDERSON
substantial evidence supports the Board’s factual findings
underlying its conclusion of obviousness of claims 2–18
and 20 over Macneille in view of Nadeem, and because the
Board did not otherwise err, we affirm its decision that
claims 2–18 and 20 of the ’505 application are unpatenta-
ble over the cited prior art.
CONCLUSION
For the foregoing reasons, we affirm the Board’s con-
clusion that claims 1–20 of the ’202 application and
claims 2–18 and 20 of the ’505 application are unpatenta-
ble as obvious over the cited prior art.
AFFIRMED