I hereby certify that this correspondence is being
`electronically transmitted to the United States Patent and
`Trademark Office, Commissioner for Patents, via the EFS
`pursuant to 37 CFR§ 1.8.
`
`EX PARTE REEXAM
`
`/James A. Collins/
`
`James A. Collins, Reg. No. 43,557
`
`September 26, 201 1
`Date of Signature & Date of Transmission
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`CENTRAL REEXAMINATION UNIT
`
`Ex parte Reexamination of
`U.S. Patent 6,064,970
`
`Robert J. McMillan, et al.
`
`Control No. 90/011,252
`
`.
`Filing Date: August 17, 1998
`
`Confirmation No. 4116
`
`Examiner: Karin M. Reichle
`
`Group Art Unit: 3992
`
`For: MOTOR VEHICLE MONITORING SYSTEM FOR
`DETERMINING A CosT OF INSURANCE
`
`Attorney Docket No. 12741-32
`
`RESPONSE TO OFFICE ACTION
`
`In response to the Advisory Action mailed August 26, 2011, and the Interview Summary mailed
`
`September 14, 2011, please enter the amendments below. The amendments are presented to distinguish
`
`the claimed inventions from the prior art or in response to the pending rejections.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 1 of 39
`
`Page 000100
`
`

`
`AMENDMENTS TO THE CLAIMS
`
`The listing of the claims replaces all prior versions.
`
`1. (amended) A method of generating a database comprising data elements representative of operator or
`
`vehicle driving characteristics, the method comprising:
`
`monitoring a plurality of the data elements representative of an operating state of a vehicle or an action
`
`of the operator during a selected time period; [and,]
`
`recording selected ones of the plurality of data elements into the database when said ones are
`
`determined to be appropriate for recording relative to determining a cost of insurance for the vehicle
`
`during the selected time period, said ones including, a time and location of vehicle operation and a
`
`corresponding log of vehicle speed for the time and location;pn_d
`
`generating actuarial classes of insurance, which group operators or vehicles having a similar risk
`
`characteristic, from actual driving characteristics as represented by the recorded data elements.
`
`2. (cancelled).
`
`3. (amended) The [database] method as defined in claim 1 [2] wherein the data elements comprise raw
`
`data elements, derived data elements and calculated data elements.
`
`4. (amended) A method of insuring a vehicle operator for a selected period based upon operator driving
`
`characteristics during the period, comprising, steps of:
`
`generating an initial operator profile;
`
`generating an insured profile for the vehiclflperattglopior to monitoring any of the vehicle operator’s
`
`driving characteristics, in which the in_s11r?edprofile includes limits and deductibles, for determining a cost
`
`of vehicle insurance;
`
`monitoring the vehicle operator’_s_ driving characteristics during the selected period; and
`
`deciding a tc_)‘g1_l cost of vehicle insurance for the period based upon the [operating] vehicle operator’s
`
`driving characteristics monitored in that period, the insured profile. and a base cost of insurance.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 2 of 39
`
`Page 000101
`
`

`
`5. (amended) A method of determining a cost of vehicle insurance for a selected period based upon
`
`monitoring, recording and communicating data representative of operator and vehicle driving
`
`characteristics during said period, whereby the cost is adjustable by relating the driving characteristics to
`
`predetermined safety standards that are related to a safe operation of a vehicle, the method comprising:
`
`determining an initial insured profile, prior to monitoring any data elements representative of an
`
`operating state of the vehicle or an action of a vehicle operator, and a base cost of vehicle insurance based
`
`on said insured profile, in which said insured profile includes limits and deductibles;
`
`monitoring a plurality of data elements representative of [an] mp operating state of [a] @ vehicle or
`
`[an] Q action of the vehicle operator during the selected period;
`
`recording selected ones of the plurality of data elements when said ones are determined to have a
`
`preselected relationship to the safety standards;
`
`consolidating said selected ones for identifying a surcharge or discount to be applied to the base cost;
`
`and,
`
`producing a final cost of vehicle insurance for the selected period from the base cost and the surcharge
`or discount.
`
`6. (amended) A method of monitoring a human controlled power source driven vehicle, the method
`
`comprising:
`
`extracting one or more data elements by a computer programmed to monitor sensor data from at least
`
`one sensor wherein the one or more elements are of at least one operating state of the vehicle and the at
`
`least one human's actions during a data collection period;
`
`analyzing, grouping, and storing the one or more data elements as group data values in a first memory
`
`related to a predetermined group of elements; and,
`
`correlating the group data values to preset values in a second memory and generating an output data
`
`value based on the correlation wherein the output data value is used to compute an insurance rating for the
`
`vehicle that is based on an actuarial class of insurance, which groups operators or vehicles having a
`
`similar risk characteristic and which represents actual driving characteristics of the vehicle monitored and
`
`recorded from the at least one sensor [FOR] @ the data collection period.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 3 of 39
`
`Page 000102
`
`

`
`7. (original) The method according to claim 6, further including the steps of:
`
`determining if the one or more data elements indicate one or more predetermined triggering events,
`
`where if the determination is positive, correlating the one or more data elements to one or more types of
`
`triggering events stored in a third memory; and,
`
`storing and transmitting a signal corresponding to the determined triggering event to a receiving
`
`system.
`
`8. (original) The method according to claim 6, further including the steps of:
`
`determining if the one or more data elements indicate one or more predetermined triggering events,
`
`where if the determination is positive, correlating the one or more data elements to one or more types of
`
`triggering events stored in a third memory; and,
`
`storing or transmitting a signal corresponding to the determined triggering event to a receiving system.
`
`9. (original) The method as defined in claim 6 wherein the output data value is additionally used for
`
`computing an insurance rating for the vehicle for a future data collection period.
`
`10. (original) The method according to claim 6, further comprising the steps of:
`
`using safety or other actuarial standard values as the preset values; and,
`
`generating an adjusted insurance cost as the output data value.
`
`11. (original) The method according to claim 10, further comprising the steps of:
`
`using location and time as the one or more data elements which are compared to the safety or other
`
`actuarial standard values to generate the adjusted insurance cost.
`
`12. (original) The method according to claim 11 wherein:
`
`the adjusted insurance cost can be for a prospective or retrospective basis.
`
`13. (original) The method according to claim 6, further comprising the steps of:
`
`using safety or other actuarial standard values as the preset values; and,
`
`generating an adjusted underwriting cost as the output data value.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 4 of 39
`
`Page 000103
`
`

`
`14. (original) The method according to claim 13, further comprising the steps of:
`
`using location and time as the one or more data elements which are compared to the safety or other
`
`actuarial standard values to generate the adjusted underwriting cost.
`
`15. (original) The method according to claim 14 wherein:
`
`the adjusted underwriting cost can be for a prospective or retrospective basis.
`
`16. (cancelled).
`
`17. (twice amended) The method according to claim 6, further comprising:
`
`determinigg a location of the vehicle from vehicle tracking navigation signals; and
`
`storing the location of the vehicle in the first memory when the one or more data elements are
`
`stored.
`
`18. (twice amended) The method according to claim 6, further comprising storing a time or date when the
`
`one or more data elements are stored.
`
`19. (cancelled).
`
`20. (twice amended) The method according to claim 6, further comprising:
`
`calculating a rate of acceleration of the vehicle based on the one or more data elements; and
`
`determining whether the rate of acceleration would result in a surcharge or discount during an
`
`insurance billing process.
`
`21. cancelled .
`
`22. (twice amended) The method according to claim 6, further comprising:
`
`recording a number of excessive or sudden acceleration events during the data collection period.
`
`23. (twice amended) The method according to claim 6, further comprising:
`
`monitoring a rate of braking associated with the vehicle by the computer programmed to monitor
`
`sensor data.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 5 of 39
`
`Page 000104
`
`

`
`24. (twice amended) The method according to claim 6, further comprising:
`
`monitoring a rate of braking associated with the vehicle by the computer programmed to monitor
`
`sensor data; and
`
`determining whether the rate of braking would result in a surcharge or discount during an
`
`insurance billing process.
`
`25. gtwice amended) The method according to claim 6. further comprising:
`
`monitoring a rate of braking associated with the vehicle by the computer programmed to monitor
`
`sensor data;
`
`determinirg whether the rate of braking has a preselected relationship to a predetermined safety
`standard" and
`
`recording the rate of braking in the first memory in response to determining that the rate of
`
`braking has the preselected relationship to the safeg standard.
`
`
`26. (twice amended) The method according to claim 6 further comprising;
`
`recording a number of sudden braking events or hard braking situations during the data collection
`
`period.
`
`
`27. (twice amended) The method according to claim 6 further comprising;
`
`determining a location of the vehicle through navigation signals;
`
`monitoring and recording speed data associated with the location of the vehicle through the
`
`computer programmed to monitor sensor data;
`
`identifying a predetermined speed limit associated with the location of the vehicle; and
`
`comparing the speed data to the predetermined speed limit to determine that the speed data
`
`indicates an occurrence of an excessive speed event above the predetermined speed limit.
`
`28. (previously presented) The method according to claim 27, further comprising measuring a time
`
`duration of the excessive speed event above the predetermined speed limit.
`
`
`29. (twice amended) The method according to claim 6 further comlmsing;
`
`determining a location of the vehicle through navigation signals;
`
`monitoring and recording speed data associated with the location of the vehicle through the
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 6 of 39
`
`Page 000105
`
`

`
`computer programmed to monitor sensor data;
`
`extracting speed limit data associated with the location of the vehicle from a computer database;
`
`comparing the speed data to the speed limit data to determine whether the speed data indicates an
`
`occurrence of an excessive speed event above the speed limit data; and
`
`recording the speed data in the first memory in response to determining that the speed data
`
`indicates an occurrence of an excessive speed event above the speed limit data.
`
`30 - 31. (cancelled).
`
`32. (twice amended) The method according to claim 6, further comprising:
`
`monitoring time of day driving data associated with the vehicle;
`
`determining an amount of time that the vehicle is driven at high risk times; and
`
`determining an insurance cost based on the amount of time that the vehicle is driven at high risk
`
`times.
`
`33. (cancelled).
`
`
`34. (twice amended) The method according to claim 6 further comprising:
`
`monitoring driving route data associated with a location of the vehicle;
`
`determining an amount of time that the vehicle is driven in high risk locations; and
`
`determining an insurance cost based on the amount of time that the vehicle is driven in high risk
`locations.
`
`35. {twice amended) The method according to claim 6, further comprising:
`
`recording a lateral acceleration of the vehicle.
`
`36 - 38. gcancelled).
`
`39. (twice amended) The method according to claim 6, further comprising prospectively setting an
`
`insurance cost associated with the vehicle based on at least one of the one or more data elements.
`
`40. gcancelled).
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 7 of 39
`
`Page 000106
`
`

`
`4 l. gtwice amended) The method according to claim 6, further comprising:
`
`using one or more of the one or more data elements to determine the actuarial class of insurance
`associated with the vehicle‘ and
`
`using one or more of the one or more data elements to determine a surcharge or discount to be
`
`applied to a base cost of insurance associated with the vehicle.
`
`42 - 48. (cancelled).
`
`49. gtwice amended) The method according to claim 6, further comprising:
`
`determining acceleration data associated with the vehicle based on at least one of the one or more
`data elements’ and
`
`determining the actuarial class of insurance based on the acceleration data.
`
`50. (twice amended) The method according to claim 6, further comprising:
`
`determining braking data associated with the vehicle based on at least one of the one or more data
`
`elements; and
`
`determining the actuarial class of insurance based on the braking data.
`
`51. gtwice amended) The method according to claim 6, wherein the computer is an on-board computer
`
`comprising a computer processor and computer memory.
`
`52.
`
`reviousl
`
`resented The method accordin to claim6 wherein the ste of extractin com rises
`
`communicating one or more raw data elements to a computer through an on-board diagnostics QOBD)
`
`connector of the vehicle.
`
`53. {previously presented) The method according to claim 6, wherein the at least one sensor comprises an
`
`in-vehicle sensor in operative connection with a data bus of the vehicle, and wherein the step of extracting
`
`comprises monitoring the at least one operating state of the vehicle through the at least one in-vehicle
`SCIISOI‘.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 8 of 39
`
`Page 000107
`
`

`
`54.
`
`reviousl
`
`resented The method accordin to claim 6 wherein the at least one sensor com rises a
`
`power train sensor coupled with the vehicle, an in—vehicle electrical sensor coupled to the vehicle, and an
`
`in-vehicle body sensor coupled with the vehicle;
`
`wherein the one or more data elements comprise a first data element, a second data element, and a
`
`third data element;
`
`wherein the step of extracting comprises:
`
`extracting the first data element from the power train sensor coupled with the vehicle;
`
`extracting the second data element from the in—vehicle electrical sensor coupled to the vehicle;
`
`extracting the third data element from the in-vehicle body sensor coupled with the vehicle.
`
`55. (previously presented) The method according to claim 6, further comprising:
`
`analyzing the one or more data elements to identify a trigger event requiring additional action;
`
`yd
`
`transmitting a location of the vehicle by an on—board computer to a remote control center in
`
`response to determining that the one or more data elements comprise the trigger event.
`
`56 - 61. (cancelled).
`
`
`62. (amended) The method according to claim 6 further comprising generating an insurance cost based
`
`on at least one of the one or more data elements and the actuarial class of insurance.
`
`63. 1 cancelled ).
`
`64. (twice amended) The method according to claim 62 where the insurance cost is for a prospective or
`
`retrospective basis.
`
`65 — 67. (cancelled).
`
`68. (twice amended) The method according to claim 6, further comprising:
`
`calculating a distance traveled by the vehicle based on at least one of the one or more data
`
`elements extracted from the at least one sensor;
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 9 of 39
`
`Page 000108
`
`

`
`determining speed data associated with the vehicle based on at least one of the one or more data
`
`elements;
`
`recording a rate of change in vehicle speed with respect to time based on at least one of the one or
`
`more data elements extracted from the at least one sensor; and
`
`processing the distance traveled, the rate of change in vehicle speed with respect to time, and the
`
`speed data to compute the insurance rating for the vehicle.
`
`69. gpreviously presented) The method according to claim 68, further comprising:
`
`monitoring time of day driving data associated with the vehicle; and
`
`processing the time of day driving data to compute the insurance rating for the vehicle.
`
`70. (twice amended) A method of monitoring a human con1rolled power source driven vehicle, the
`
`method comprising:
`
`extracting one or more data elements by an on-board computer from at least one sensor wherein
`
`the one or more elements are of at least one operating state of the vehicle and the at least one human's
`
`actions during a data collection period;
`
`analyzing, grouping, and storing the one or more data elements as group data values in a first
`
`memog related to a predetermined group of elements;
`
`correlating the group data values to preset values related to safety standards in a second memo_1y
`
`and generating an output data value based on the correlation; and
`
`computing an insurance rating basgmn tlwitput data value for the vehicle for the data
`
`collection period, in which the insurance rafigis based on an actuarial class of insurance that represents
`
`actual driving characteristics of the vehicle monitored and recorded from the at least one sensor, and
`
`setting prospective insurance premiums based on the actuarial class.
`
`71 — 75. {cancelled}.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 10 of 39
`
`Page 000109
`
`

`
`76. {previously presented) The method of claim 5, wherein the surcharge or discount comprises a
`
`discount, and wherein producing the final cost of vehicle insurance comprises applying the discount to the
`
`base cost of vehicle insurance.
`
`77. (previously presented) The method of claim 5, wherein the surcharge or discount comprises a
`
`surcharge, and wherein producing the final cost of vehicle insurance comprises applying the surcharge to
`
`the base cost of vehicle insurance.
`
`78 - 79. (cancelled).
`
`Signci) The method accigto claim Qflther comprising;
`
`deternfig slociddata associated with the vehicle based on at least one of the one or more data
`
`elements;
`
`identifying a predetermined srimfi,
`
`c<):mpa@g;he_s13e_ed data to the predetermin<a<:l_speed limit to determine that the speed data
`
`indicates an occurrence of an excessive speed event above the predetermined speed limit;
`
`measuring an amount of time that a speed of the vehicle is above the predetermined speed limit;
`
`m
`
`computing the insurance rating for the vehicle based on the amount of time that the speed of the
`
`vehicle is above the predetermined speed limit.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 11 of 39
`
`Page 000110
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`

`
`INTRODUCTION
`
`The Patent Owner appreciates the graciousness and the helpful suggestions made by the
`
`Examiners during our September 13, 2011 telephone interview. This response is an effort to advance
`
`prosecution in view of the agreements reached and expressed recognition offered in the Advisory Action.
`
`This response presents the amendments to claims 4 and 5 that were suggested by the Examiners during
`
`the interview. Since agreement was reached with respect to claims 4 and 5, no further discussion of these
`
`claims is presented. This response also presents amendments and written arguments supporting claims 1,
`
`6, and 70‘.
`
`COMMENTS REGARDING INTERVIEW DISCUSSION OF “ACTUARIAL CLASS”
`
`During the telephone interview, it was discussed (and reserved for later consideration) whether
`
`the specification supports the inclusion of the language “which group operators or vehicles having a
`
`similar risk characteristic,” within the phrase “generating actuarial classes of insurance, .
`
`.
`
`.
`
`, from actual
`
`driving characteristics as represented by the recorded data elements” in claim 1. Agreement was reached
`
`that there is support in the specification for “generating actuarial classes of insurance from actual driving
`
`characteristics as represented by the recorded data elements.” Thus, the only remaining question is
`
`whether there is support for the recited definition of an “actuarial class” as something that “groups
`
`operators or vehicles having a similar risk characteristic.” As discussed during the interview, this
`
`1 Claim 70 adopts the language that the Examiner tentatively agrees is supported in the specification (i.e.,
`that the actuarial class of insurance represents actual driving characteristics of the vehicle monitored and
`recorded) and adopts the Examiner’s recognition that the disclosed actuarial classes determine a rating
`(e.g., vehicle or operator) and determine a prospective setting of insurance premiums. For example, the
`Advisory Action states that “the insurance rating system of '970 generating/setting new (i.e. not
`preexisting nor preset) actuarial classes and operator profiles relative thereto based upon/derived or
`developed from actual/current driving characteristics of a monitored vehicle or operator represented by
`data elements .
`.
`. for determining rating (i.e., the vehicle or operator risk) and vehicle insurance costs
`(retrospective adjustment or prospective setting of premiums) of such vehicle or operator so monitored
`and recorded.” 2011-08-26 Advisory Action.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 12 of 39
`
`Page 000111
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`

`
`definition is supported by the term’s usage in the specification as well as the ordinary meaning of the term
`
`in the insurance industry.
`
`First, the specification supports the claimed “actuarial class” definition. The specification
`
`explains that the subject new insurance rating system retrospectively adjusts/prospectively sets premiums
`
`based on data derived from motor vehicle operational characteristics and driver behavior through the
`
`generation of new actuarial classes determined from such characteristics and behavior. Col. 5, lines 34-
`
`38. The specification teaches that the claimed “actuarial classes” are new because they are not based
`
`solely on past realized losses (like the conventional classes based solely on data gathered from past
`
`applicant interviews or existing public records that are not verifiable). Col. 2, lines 38-53. Instead, the
`
`new actuarial classes are based on actual driving characteristics. Col. 3, lines 45-50. These passages
`
`explain how an actuarial class is determined (e.g., for the subject insurance rating system, it is based on
`
`actual driving characteristics), while other passages answer the question of what is an actuarial class. For
`
`example, the specification explains that an actuarial class is a grouping of vehicles/drivers (col. 1, lines
`
`28-30), where a specific vehicle/driver is placed into that group based on having a similar risk
`
`characteristic as the other vehicles/drivers that would be placed into that group (col. 1, lines 53-58; col. 2,
`
`lines 13-21; col. 3, lines 12-18; col. 4, lines 27-57). Thus, the specification supports the claimed
`
`definition of an “actuarial class” as something that “groups operators or vehicles having a similar risk
`
`characteristic.”
`
`Second, the ordinary meaning of “actuarial class” in the insurance industry supports the claimed
`
`definition. The Federal Circuit has highlighted the importance of considering the views of persons of
`
`skill in the art, by stating that “claim language should be read in light of the specification as it would be
`
`interpreted by one ofordinary skill in the art.”2 Two persons skilled in the art have done just that and
`
`provided declarations explaining their understanding of the term “actuarial class” as it is used in the
`
`2 In Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983); see Phillips v. AWH Corporation, 415 F.3d 1303, 1313
`(Fed. Cir. 2005) (en banc).
`
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`Atty. Dkt. No. 12741-32
`Page 13 of 39
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`Page 000112
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`

`
`specification and claims. Specifically, Beth Vecchioli and Robert McMillan provided declarations that
`
`were attached as Exhibits 1 and 2 to Patent Owner’s Response to Office Action filed on April 6, 2011.
`
`These declarations show that persons of ordinary skill in the industry view the term “actuarial class,” as
`
`used in the context of the present application, as a group of individuals or vehicles having similar risk
`
`characteristics. Their views are supported not only by their personal experiences but also by technical
`
`dictionaries used in the insurance industry (e.g., the “Glossary of Insurance Terms” and the “Dictionary of
`
`Insurance Terms”, which are also provided as an exhibit to Patent Owner’s Response to Office Action
`
`filed on April 6, 2011), as explained in their respective declarations. Furthermore, the declarants’ views
`
`are consistent with what is already shown in the intrinsic record: an “actuarial class” is something that
`
`“groups operators or vehicles having a similar risk characteristic.”
`
`ARGUMENTS
`
`Independent claims 1, 6, and 70 stand rejected under 35 U.S.C. 103 as being unpatentable over
`
`Bouchard (’079), in view of Kosaka (’868) and Black Magic. These claims are directed to generating a
`
`database or monitoring a vehicle or driver. Claim 1 recites generating actuarial classes of insurance,
`
`which group operators or vehicles having a similar risk characteristic, from actual driving characteristics
`
`as represented by the recorded data elements. Claim 6 recites that the claimed output data value is used to
`
`compute an insurance rating for the vehicle that is based on an actuarial class of insurance, which groups
`
`operators or vehicles having a similar risk characteristic and which represents actual driving
`
`characteristics of the vehicle monitored and recorded from the at least one sensor, for the data collection
`
`period. Claim 70 recites computing an insurance rating based upon the output data value for the vehicle
`
`for the data collection period, in which the insurance rating is based on an actuarial class of insurance that
`
`represents actual driving characteristics of the vehicle monitored and recorded from the at least one
`
`sensor, and setting prospective insurance premiums based on the actuarial class.
`
`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
`
`Atty. Dkt. No. 12741-32
`Page 14 of 39
`
`Page 000113
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`

`
`Bouchard in view of Kosaka and Black Magic does not generate actuarial classes of insurance;
`
`Bouchard in view of Kosaka and Black Magic does not group individuals or vehicles having a similar
`
`risk characteristic; Bouchard in view of Kosaka and Black Magic does not compute an insurance rating
`
`based on an actuarial class of insurance, which represents actual driving characteristics of the vehicle
`
`monitored and recorded from the at least one sensor; and Bouchard in view of Kosaka and Black Magic
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`does not set prospective insurance premiums based on the actuarial class of insurance.
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`The ’O79 patent discloses an event recording apparatus (ERA) that records selectable vehicle
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`performance, operational status, and/or environment information. The ERA records information useful for
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`accident analysis and driver fitness evaluation. In the preferred embodiment, the information that is
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`recorded is also used to determine a baseline performance standard based on the driver's own past
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`performance against which a driver's present performance can be measured. ’O79 Patent at col. 5, lines
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`57-63 (emphasis added). The “ERA and the driver fitness evaluation system generates a profile of the
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`driver based upon the information that is stored in the ERA.” Id. at col. 6, lines 13-15 (emphasis added).
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`The ’O79 Patent further explains:
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`The system processor monitors each of the external conditions and activities that are relevant to
`determining the fitness of the driver to operate the vehicle. In the preferred embodiment ofthe
`present invention, if driving performance is found to be below the individual standard calculated
`for that particular driver at any time during a trip, the driver is alerted to the fact that driving
`performance is not up to the calculated individual minimum standard. If the driver's performance
`continues to degrade (or, in an alternative embodiment, does not improve), an indication of the
`driver's performance is communicated to a remote site to alert a dispatcher or controller. If the
`driver's performance degrades still further, the vehicle ceases operating after a sufficient warning
`is provided to the driver that such action is imminent. Each step of the process, along with the
`data that is collected at each step of the process, is recorded in the ERA. Id. at col. 6, lines 16-32
`(emphasis added).
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`By selecting appropriate outputs from the sensors and radar system which have been recorded in
`the ERA, (which may include the outputs recorded during past and present trips) a profile of the
`driver is formed. The driver's performance over a recent period of time is compared to a standard
`derived from the ifirsonal profile calculated Iggthe driver's past performance. The results of
`the comparison are used to determine the driver's current fitness to operate a vehicle. In the
`preferred embodiment of the present invention, if the driver's performance at any time during;
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`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
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`Atty. Dkt. No. 12741-32
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`trip is found to be below th_e13_<ersonal standard calculated for that driver, the driver is alerted that
`driving performance is not up to the driver's personal standard. Id. at col. 9, line 59-col. 10, line
`4 (emphasis added).
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`The ’079 Patent further discloses that the information recorded in the ERA may be accessed by a
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`microcontroller and applied to a fitness algorithm which (1) generates a personalizedperformance
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`standard for a driver associated with the ERA, and (2) compares the driver’s performance over a recent
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`and relatively short period of time to the driver’s own personalized performance standard. The flow chart
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`of the fitness algorithm shown in FIG. 18 shows the various personalizedprofiles that are evaluated. See
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`Id. at col. 29, line 67-col. 31, line 37. These personalized profiles include characterizations of the history
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`of the throttle, speed, headway, etc. Id. at col. 30, lines 29-65.
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`Claim 7 of the ’079 Patent uses “classes” to initiate an action or operation that takes place when a
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`driver designation occurs. That action or operation takes place when a driver’s own performance is
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`compared to his/her past performance. Surely, there are many self—rated designations that can describe a
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`driver’s performance. But those designations, like the ones in the ’079 Patent, are not actuarial classes of
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`insurance. The personal performance classifications of claim 7 do not group operators or vehicles having
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`similar risk characteristics. Instead, the designations alert drivers, alert drivers and others, shut down
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`vehicles, or cause no consequence. No groupings of more than one individual or vehicle are generated by
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`claim 7 or the ’079 disclosure. No insurance ratings based on an actuarial class of insurance are created
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`by claim 7 or the ’079 disclosure. No future premiums and insurance ratings based on an actuarial class
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`of insurance are created by claim 7 or the ’079 disclosure. And no future premiums, and insurance
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`ratings, and actuarial classes are based on actual driving characteristics are created by claim 7 or the ’079
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`disclosure. At most, claim 7 designates a single driver’s activity to a non—descript personal class (i.e.,
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`first, second, third, and fourth) that results in a generic action or operation. Even under a broadest
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`reasonable construction such conditional acts do not disclose the claimed limitations.
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`Reexamination Control No. 90/011,252
`U.S. Patent 6,064,970
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`Atty. Dkt. No. 12741-32
`Page 16 of 39
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`Similarly, Kosaka does not rely on or generate actuarial classes (e.g., groupings of vehicles or
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`drivers having a similar risk characteristic) of insurance from actual driving characteristic