Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals Board

Oct 21, 2020

15276096 - (D) (P.T.A.B. Oct. 21, 2020)

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.
15/276,096 09/26/2016 Stefan LINDHUBER 080437.63748C1 7734
23911 7590 10/21/2020
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
TO, TUAN C
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
10/21/2020 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):
edocket@crowell.com
mloren@crowell.com
tche@crowell.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEFAN LINDHUBER, CHRISTIAN POPP,
and CHRISTOF SCHULZE

Appeal 2020-001781
Application 15/276,096
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1 and 37–52. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Bayerische
Motoren Werke Aktiengesellschaft. Appeal Br. 1.
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BACKGROUND
The Specification discloses that “[t]he invention relates to a driver
assistance system for driver assistance for consumption controlled driving.”
Spec. ¶ 3.

ILLUSTRATIVE CLAIM
Claim 1 is the only independent claim on appeal and recites:
1. A driver assistance system for assisting a driver to achieve
optimized driving of a vehicle, the driver assistance system
comprising:
a controller that is configured to suggest an efficiency
range to the driver; and
a display unit that is configured to display at least one
visually highlighted range when an accelerator pedal angle is in
the efficiency range suggested by the controller.
Appeal Br., Claims App. A-1.
REJECTIONS
1. The Examiner rejects claims 1, 37–44, and 46–52 under 35 U.S.C.
§ 103(a) as unpatentable over Kim.2
2. The Examiner rejects claim 45 under 35 U.S.C. § 103(a) as unpatentable
over Kim in view of Blackard.3
DISCUSSION
Claim 1
With respect to claim 1, the Examiner finds that Kim teaches a system
as claimed including a controller and a display unit, except that the

2 Kim et al., US 8,224,561 B2, iss. July 17, 2012.
3 Blackard et al., US 2011/0043348 A1, pub. Feb. 24, 2011.
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Examiner indicates that Kim does not expressly disclose displaying a
highlighted range when an accelerator pedal angle is in an efficiency range
suggested by the controller. Final Act. 3 (citing Kim Figs. 1, 2; col. 3, ll.
23–27, 32–67). However, the Examiner determines that displaying a
highlighted range when an accelerator pedal angle is in the suggested
efficiency range would have been obvious based on Kim’s disclosure, which
“suggests an accelerator pedal in a fuel consumption range while teaching
positi[ve] acceleration/negative acceleration,” and in order to increase
efficiency. Id. at 8; see also Ans. 11.
We agree with and adopt the Examiner’s findings and determination
with respect to the rejection of claim 1. See Final Act. 2–3, 7–8; see also
Ans. 9–11. As discussed below, we are not persuaded of error by
Appellant’s arguments.
Appellant first argues that “no evidence was provided tending to show
that Kim discloses or even suggests” a display unit configured to display a
highlighted range when an accelerator pedal angle is in the efficiency range
suggested by the controller. Appeal Br. 2–3. Appellant further contends
that Kim does not mention anything pertaining to an accelerator pedal angle.
See id. at 4–5. We disagree. In the rejection, the Examiner explains that
Kim teaches a display unit that is configured to display a current fuel
consumption level that “allows a driver to know where the current driving
state is among” low, moderate, and high fuel consumption ranges, and that
Kim teaches that the display pointer will move based on the acceleration or
deceleration of the vehicle. Final Act. 3.
We agree with the Examiner. See Kim col. 3, l. 23–col. 4, l. 13. Kim
discloses a calculation unit that “calculates a current instantaneous fuel
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consumption level and a target driving condition for achieving optimal fuel
consumption level of the vehicle.” Id. at col. 3, ll. 23–25. Kim discloses
that a display control unit “displays the current fuel consumption level and
the optimal fuel consumption level on a display such that a driver can
compare the current . . . level with the optimal . . . level so as to pursue the
target driving condition.” Id. at col. 3, ll. 32–36. Further, Kim discloses
displaying low, moderate, and high fuel consumption ranges on a bar graph
and also displaying the current fuel consumption as a pointer on the bar
graph. Id. at col. 3, l. 56–col. 4, l. 2. Kim discloses that the pointer moves
up and down the bar graph depending on the current driving state and that
“[t]he driver can, instinctively, discern the current fuel consumption level
and adjust the extent to which a brake or accelerator pedal is pressed in order
to achieve the optimal fuel consumption level.” Id. at col. 4, ll. 2–13. This
disclosure provides evidence that the display unit is configured to display
highlighted ranges related to fuel efficiency and discloses that the driver can
modify the angle of the brake and accelerator pedals, i.e., the extent to which
either pedal is pressed, to achieve a specific efficiency range.
Appellant also argues that the Examiner fails to provide a reason why
one of ordinary skill would have modified Kim to arrive at the claimed
invention. Appeal Br. 3. Appellant further argues that Kim already teaches
achieving optimum fuel efficiency without modification. Reply Br. 4. We
are not persuaded, and we agree with the Examiner’s reasoning. The
Examiner indicates that the reason for providing the proposed modification
to the teachings of Kim would be to allow the driver to achieve the desired
fuel efficiency. See Final Act. 7. In the Answer, the Examiner determines
that “[t]he motivation to modify the Kim reference is to achieve driving with
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good fuel economy based upon opening degrees of the accelerator pedal.”
Ans. 11. The evidence discussed above at least suggests that one of ordinary
skill in the art would modify Kim, to the extent necessary, such that the
angle of the accelerator pedal may be changed to achieve a desired fuel
efficiency.
Appellant further argues that “the claim clearly requires that the
‘controller suggest an accelerator pedal angle.’ And, the controller of Kim
does not suggest anything, let alone an accelerator pedal angle.” Appeal Br.
4. Appellant does not explain adequately how the claim requires a controller
that suggests an accelerator pedal angle. The claim requires a control that
suggests “an efficiency range” and a display unit that displays a highlighted
range when the pedal angle is in the efficiency range. As discussed above,
we agree with the Examiner that Kim at least suggests a system with this
functionality. Kim discloses a controller and display that display low,
moderate, and high fuel consumption ranges and that the driver can change
the angle of the pedals to achieve a specific range of fuel consumption. See,
supra.
In the Reply Brief, Appellant notes that the claim requires “an
accelerator pedal angle is in the range suggested by the controller,” and
Appellant argues that “[t]he Examiner has simply failed to provide any
evidence that Kim teaches a controller that suggests an accelerator pedal
angle.” Reply Br. 2. Again, Appellant does not explain how the language of
the claim requires a suggested accelerator pedal angle. Further, as
discussed, Kim discloses that the current state of fuel consumption is shown
on a bar graph with low, moderate, and high fuel consumption ranges such
that a driver would know the efficiency of the vehicle in the current driving
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state, and Kim further discloses that the driver can change the degree to
which the pedals are pressed in order to achieve a current state within a
specific range of fuel consumption.
Finally, Appellant argues acceleration and deceleration may be caused
by other factors including operation of the brake pedal or environmental
factors such as the slope on which the vehicle is operating. Reply Br. 3.
Thus, Appellant argues that even if Kim teaches that acceleration and
deceleration are caused by the driver, acceleration and deceleration are not
necessarily tied to the accelerator pedal angle. Id. We are not persuaded
because, as discussed above, Kim teaches that the desired fuel consumption
level can be achieved based on the extent to which the brake or accelerator
pedals are pressed, i.e., the desired level can be achieved by pressing the
pedals to the desired angle.
Based on the foregoing, we are not persuaded of error in the rejection
of claim 1 as obvious over Kim, and thus, we sustain the rejection of this
claim.
Claim 37
With respect to claim 37, Appellant argues that “[t]here is no teaching
in Kim of displaying anything associated with ‘a driving style of the
driver,’” and that Kim does not disclose a suggested efficiency range.
Appeal Br. 5–6. We are not persuaded for the reasons provided by the
Examiner. See Ans. 11–12. Specifically, we agree that Kim’s teaching of a
low fuel consumption range is akin to a suggested efficiency range and that
the display of the current driving state is accurately considered to represent
the driving style of the driver. Ans. 11–12. Thus, when the current driving
state is in the low fuel consumption range, the display unit displays a
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visually highlighted range and a visual cue that the driver’s driving style is
in a suggested efficiency range. Accordingly, we sustain the rejection of
claim 37.
Claim 38
With respect to claim 38, Appellant argues that Kim does not provide
a suggested efficiency range and thus, Kim does not teach informing the
driving regarding how well the driver is following a suggested fuel
efficiency range. Appeal Br. 6–7. We agree with the Examiner that Kim’s
pointer representing the current fuel efficiency state of the vehicle in relation
to the low, moderate, and high fuel consumption ranges sufficiently
discloses the claimed subject matter of claim 38. Thus, we also sustain the
rejection of claim 38.
Claim 39
With respect to claim 39, Appellant argues that Kim does not disclose
the features of this claim because “Kim is silent regarding both a ‘driving
style’ and ‘an accelerator pedal angle.’” Appeal Br. 7. Appellant also
asserts that Kim never mentions anything regarding resetting a visually
highlighting range. Id. We agree with the Examiner that Kim teaches
resetting the visually highlighted fuel consumption ranges based on the
current driving style of the driver. As discussed previously, Kim suggests
that the current fuel consumption state of the vehicle is affected by the angle
to which the accelerator and brake pedals are pressed; Kim teaches that the
fuel consumption state is depicted as a pointer on a bar graph showing; and
that this is indicative of a driving style of the driver. Further, Kim discloses
that the highlighted low, moderate, and high fuel consumption ranges on the
display are reset based on the current driving style, i.e., the current state of
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fuel consumption. See Kim col. 4, ll. 14–26. Kim discloses an example in
which a current high acceleration rate will move the pointer 42 to the far end
of the bar graph and change the widths of the highlighted fuel consumption
ranges, which “allows [for] the driver to perceive the current driving state of
the vehicle more clearly and to pursue the optimal target driving condition.”
Id. Based on the foregoing, we sustain the rejection of claim 39.
Claim 40
Appellant argues that the Examiner relies on the same findings for
claims 39 and 40 and that Kim does not disclose the resetting of a
highlighted range to display it as a dark light, a gray colored illumination, or
a blinking light, as required by claim 40. Appeal Br. 7. We agree. The
Examiner finds that Kim discloses green, yellow, and orange colors for the
low, moderate, and high fuel consumption ranges displayed. Ans. 13. The
Examiner finds that “[t]he color of the high fuel consumption range is
visually darker than that of the moderate fuel consumption range when the
pointer (42) moves in the direction to the high fuel consumption range.” Id.
However, this does not explain how Kim teaches that the visually
highlighting range is reset to achieve such coloring. Rather, Kim merely
discloses these colors for the low, moderate, and high consumption ranges,
but does not appear to disclose that these colors are somehow reset at any
time. Accordingly, we do not sustain the rejection of claim 40.
Claim 41
Appellant argues that Kim’s pointer only points to a level of current
fuel consumption and Kim does not otherwise teach any arrow pointing in
an efficient direction as required by claim 41. Appeal Br. 7. We agree.
With respect to this claim, the rejection does not include any discussion of
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the claim requirement that an arrow pointing toward an efficient direction
must be displayed. See Final Act. 4–5. In the Answer, the Examiner
explains that Kim’s pointer points to a low fuel consumption range, which
the Examiner indicates is sufficient to teach the claim requirement. Ans. 14.
We disagree. The claim requires “a recommendation . . . for changing the
driving style by displaying an illuminated arrow pointing toward an efficient
direction.” Appeal Br., Claims App. A-2. The Examiner does not explain
how Kim’s pointer represents a recommendation as required by the claim.
Accordingly, we do not sustain the rejection of claim 41.
Claim 42
Claim 42 requires display of both a highlighted range “followed by a
dynamic range that is not highlighted, if the accelerator pedal angle falls
within the dynamic range.” Appeal Br., Claims App. A-2. The Examiner
finds:
Kim teaches that the moderate fuel consumption range and the
high fuel consumption range are displayed as bar graph (41),
wherein moderate fuel consumption range and the high fuel
consumption range are shown as to include a visually highlighted
range that is followed by a range that is not highlighted (column
3, lines 56–67).
Final Act. 5. We agree with Appellant that this finding fails to explain how
Kim teaches a dynamic range as claimed. See Appeal Br. 8. In the Answer,
the Examiner finds that Kim teaches that the moderate fuel consumption
range is followed by a high consumption range when the driver accelerates
and the pointer moves in the direction of the high consumption range. Ans.
14. Yet, the Examiner still fails to explain how this is a teaching of a
dynamic range that is not highlighted when the accelerator angle falls within
the dynamic range. Thus, we also do not sustain the rejection of claim 42.
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Claim 43
Claim 43 requires that an energy recovery range is highlighted when
the accelerator pedal is not depressed. Appeal Br., Claims App. A-2. We
agree with Appellant that the Examiner has not established that Kim teaches
an energy recovery range. See Appeal Br. 8. In the rejection, the Examiner
merely states that the driver can discern the current consumption level and
adjust the pedals to achieve optimum fuel consumption. Final Act. 5. In the
Answer, the Examiner finds, without explanation, that Kim’s “low fuel
consumption range is actually an energy recover range.” Ans. 15. However,
we do not see any disclosure of an energy recovery range in the cited
portions of Kim provided by the Examiner. Thus, we also do not sustain the
rejection of this claim.
Claim 44
Claim 44 requires that “the display unit displays an image shown as a
symbol or text information conveying a need to reduce the speed to achieve
the efficiency range suggested by the controller.” Appeal Br., Claims App.
A-2. The Examiner finds that Kim teaches that the display control unit is
configured to display the current fuel consumption and optimal fuel
consumption such that the driver knows whether the current state is in the
optimal fuel consumption range. Final Act. 5. We agree with the Examiner
that Kim at least suggests that the pointer conveys information to the driver
regarding the need to reduce speed to achieve a suggested efficiency range,
as required by claim 44. As discussed previously, based on the location of
the pointer, Kim discloses that “[t]he driver can, instinctively, discern the
current fuel consumption level and adjust the extent to which a brake or
accelerator pedal is pressed in order to achieve the optimal fuel consumption
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level.” Kim col. 4, ll. 10–13. Based on the foregoing, we sustain the
rejection of claim 44.
Claim 46
We agree with Appellant that the Examiner has not pointed to any
disclosure in Kim that teaches or suggests that the display “is further
configured to display a success display that shows . . . an increased range . . .
or an amount of fuel . . . saved,” as required by claim 46. See Appeal Br. 9.
In the Answer, the Examiner indicates that the Kim teaches this limitation
because “the width of the fuel consumption range can vary depending on the
current driving state.” Ans. 16 (citing Kim Fig. 2; col. 16–26). But the
Examiner does not explain how this teaches or suggests a display of any
increased range or fuel savings and only indicates that the driver can better
discern current driving conditions within a specific range. Thus, we also do
not sustain the rejection of this claim.
Claims 47–52
Claim 47 further requires that “the display unit displays a
recommended energy optimization action.” Appeal Br., Claims App. A-3.
In the rejection, the Examiner states that “Kim teaches that the display
control unit (40) is configured to display a recommended energy
optimization action (column 4, lines 14-26).” Final Act. 5. In the Answer,
the Examiner explains that Kim teaches an “indication of the current fuel
consumption . . . [that] allows the driver to know where the current driving
state is among the low fuel consumption range, moderate fuel consumption
range, and high fuel consumption range.” Ans. 17. However, we agree with
Appellant that the Examiner has only shown that the cited portions of Kim
merely show that Kim “teaches allowing the driver to perceive the current
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driving state of the vehicle,” but the Examiner fails to explain how this
teaches or suggests the claimed display of a recommended energy
optimization action. Reply Br. 10. Thus, we are persuaded of error and do
not sustain the rejection of claim 47. Claims 48–52 depend from claim 47,
and the Examiner does not provide evidence or analysis with respect to these
claims that cures the deficiency in the rejection of claim 47. Accordingly,
we also do not sustain the rejection of claims 47–52.
Obviousness of Claim 45 over Kim and Blackard
Claim 45 depends from claim 44 and further requires that “the symbol
consolidates multiple functions in order to make it easier for the driver to
recognize the symbol and to prevent driver confusion caused by displaying
different symbols.” Appeal Br., Claims App. A-2. The Examiner
acknowledges that Kim does not teach or suggest the claimed feature and
finds:
Blackard is directed to a system that provides assistance to
drivers with shifting gears of vehicle in which a display is shown
to display several symbols that consolidates multiple functions
in order to make the driver to identify the symbol among the
symbols on the display (Figure 2, Current gear 9, Next gear: 10,
Optimum RPM: 1725; Figure 6, Current gear 8, Next gear 7,
Optimum RPM 2200).
Final Act. 6. The Examiner determines that it would have been obvious to
modify Kim based on Blackard “for the advantage of making [it] easier for
the driver to recognize symbols and preventing the confusions caused by
displaying different symbols.” Id. However, the claim requires a symbol
that consolidates multiple functions, whereas the Examiner finds and points
to a display with multiple symbols representing different functions. See
Blackard Fig. 6. Thus, the Examiner does not adequately explain how
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Blackard teaches a symbol that consolidates multiple functions, as claimed.
Accordingly, we do not sustain the rejection of claim 45.
CONCLUSION
We AFFIRM the rejection of claims 1, 37–39, and 44. We
REVERSE the rejections of claims 40–43 and 45–52.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 37–44,
46–52
103(a) Kim 1, 37–39,
44
40–43,
46–52
45 103(a) Kim, Blackard 45
Overall
Outcome
1, 37–39,
44
40–43,
45–52

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R.
§ 1.136 (a)(l)(iv) (2018).

AFFIRMED IN PART