Ex Parte 7113867 et al

Patent Trial and Appeal Board

Mar 11, 2016

95002012 (P.T.A.B. Mar. 11, 2016)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/002,012 06/06/2012 7113867 94568.002US1 9204
22852 7590 03/07/2017
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
LIE, ANGELA M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
03/07/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

IONROAD, LTD.,
Requester and Respondent,

v.

MOBILEYE TECHNOLOGIES LTD.,
Patent Owner and Appellant.
____________

Appeal 2015-007925
Reexamination Control No. 95/002,012
United States Patent 7,113,867 B1
Technology Center 3900
____________

Before BRADLEY W. BAUMEISTER, JENNIFER L. McKEOWN, and
IRVIN E. BRANCH, Administrative Patent Judges.

McKEOWN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

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Patent Owner requests rehearing of our decision dated March 11,
2016 (“Dec.”), where we affirmed the Examiner’s decision to reject claims
1–7 in the above-identified inter partes reexamination. Request for
Rehearing filed April 11, 2016 (“Req. Reh’g”). For the reasons noted
below, the request is granted to the extent the Decision has been
reconsidered, but is denied with respect to modifying the affirmance of the
Examiner’s decision to reject claims 1–7 as unpatentable over Matthews and
Lee.

THE OBVIOUSNESS REJECTION
Patent Owner asserts that the Board misapprehended certain aspects
of Lee, and, thus erroneously concluded that Lee and Matthews teaches the
limitations of claim 1 of the ’867 patent. Req. Reh’g 1–2. Patent Owner
contends that neither Matthews nor Lee teaches the recited scaling factor or
using the scaling factor to generate a time to contact estimate, as required by
claim 1. Req. Reh’g 2.
Patent Owner, in the Rehearing Request, first repeats arguments that
Matthew is limited to using a centroid technique for determining a time to
contact and, as such, “fails to teach or suggest determining any length values
between the two horizontal lights in successive images or using any ratio of
such length values to generate a time-to-contact.” Req. Reh’g. 2–3. Patent
Owner acknowledges that Matthews discusses other concepts, such as
looming, but maintains that the discussion does not teach or suggest the
scaling factor limitation. Req. Reh’g. 3. For example, Patent Owner
maintains that “there is certainly no teaching or suggestion in Matthews’s
brief discussion of looming to use a specific ratio of length values between
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two features in determining a time-to-contact” and that Lee likewise lacks
any comparison of length values between two features. Req. Reh’g 4.
We disagree. Patent Owner’s argument that Matthews is limited to
only centroid techniques fails to consider Matthew’s additional teachings.
See, e.g., Matthews 25 (describing that time to contact techniques may use
segment centroids for individual point features, but also disclosing that time
to contact techniques may use size variation for individual objects).
Matthews expressly discloses considering size variation of individual
objects, which at least suggests a comparison of size, to determine the time
to contact. See Matthews 25 (“Time to contact techniques may also be
applied to individual objects by considering their size variation.”). Lee also
teaches comparison of lengths, expressly referring to the separation of two
points on an obstacle, such as tail lights of a vehicle. Lee 441; RAN 24.
We note, as we did in the Decision, that there is no dispute that
“edges” of an obstacle, such as vehicle edges, are squarely within the scope
of the recited “features” of an obstacle. Dec. 7 n.2. As such, determining
the length between two features may be the width or height of an obstacle or
object. The scaling factor, then, is merely a ratio or comparison of size
variation, i.e. a comparison of the width or height in one image with the
width or height in a second successive image.1 Moreover, we note that the

1 We note that “size” is defined as “physical proportions, dimensions,
magnitude or extent.” Webster's II New College Dictionary, p. 1033 (1995).
A skilled artisan would, therefore, understand “size variation” to at least
suggest change in dimension, i.e. a measure in one direction, such as height
or width. A prior art reference’s teachings are not considered in a vacuum,
but rather considered together with the knowledge of ordinarily skilled
artisans. See In re Paulsen, 30 F.3d 1475, 1480–81 (Fed. Cir. 1994). Cited
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claim broadly recites using the ratio to generate the time to contact estimate
without any limitation on how the ratio must be used.
While the Examiner additionally points to Lee for teaching “a ratio
between a dimension length associated with two features of the obstacle in a
first one of the at least two images and the same length between the same
two features of the obstacle in a second one of the at least two images,” the
Examiner nevertheless expressly relies on the particular looming teaching of
Matthews in finding that the combination teaches the scaling factor
limitation. See RAN 22, 24. We recognize that this looming disclosure of
Matthews does not expressly refer to a first and second image, but, as the
Examiner also finds, Matthews is generally directed to using tracking
techniques in image sequences to obtain information, such as time to
contact. Matthews 1 (Summary); RAN 2; see also RAN 24 (referring to Lee
as teaching that the rate of separation can be calculated when there are two
frames). Considering these teachings together, the combination of Matthews
and Lee at least suggests the recited “scaling factor that defines a ratio
between a dimension length associated with two features of the obstacle in a
first one of the at least two images and the same length between the same
two features of the obstacle in a second one of the at least two images and
uses the ratio to generate a time-to-contact estimate of the vehicle with the
obstacle.”
Patent Owner next asserts that the Board misapprehended Lee’s
inverse of the proportionality rate. Req. Reh’g. 6. Specifically, Patent

references, then, do not have to explain every detail to render a claimed
invention obvious because the reference speaks to those skilled in the art.
Id. at 1480.
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Owner explains that “Lee’s ‘inverse of the proportionate rate of separation,’
[] is not a ratio of length values” and “[a] ‘rate of separation’ is not a length-
-----it is a time-varying quantity.” Id. Patent Owner further maintains that,
according to Lee, the inverse of the proportionate rate of separation is
defined as a rate of dilation and is equal to angular separation over rate of
separation. Id.
Patent Owner, however, presents this argument for the first time in the
Rehearing Request. Compare App. Br.42–47, Reb. Br. 23–25 with Resp.
Br. 21–23, Request 68. As such, this argument is waived as untimely. See
37 CFR 41.79(b)(2)(“Arguments not raised in the briefs before the Board
and evidence not previously relied upon in the briefs are not permitted in the
request for rehearing except as permitted by paragraphs (b)(2) and (b)(3) of
this section.”). Moreover, we agree with Requester that Matthews and Lee
together teach or suggest using or including the w1/w2 ratio in calculating
the inverse of the proportionate rate of separation, i.e. the time to contact.
Namely, as discussed above, Matthews at least suggests this limitation.
We also agree with Requester that Lee’s disclosure of determining the
time to contact from “the inverse of the proportionate rate of separation” at
least suggests normalizing the rate of separation, where separation is a
length between two features of an obstacle. As Requester explains,
Using length separation (width w) in Lee, the “rate of separation”
refers to the manner in which the separation changes over time,
i.e., (w1-w2)/ ∆t. Lee, however, uses the “proportional rate of
separation,'” where “proportional” (as opposed to absolute)
means that the rate of separation is normalized (or divided) based
on the width of the obstacle. That is, the numerator (w1-w2) is
divided by the width w2, such that the “proportional rate of
separation” is:
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where w1/w2 is the claimed scaling factor S.
TPR Reh. Comments 5; see also Lee 27 (discussing generally how distance
and velocity variables are relative to a standard and not in absolute terms).
Lee does not refer to an inverse proportion, as suggested by Patent Owner
(Req. Reh’g. 8), but rather the inverse of the proportionate rate.
The obviousness rejection based on Matthews and Lee combined also
differs from the anticipation rejection based on Goodrich because the
teachings of Matthews and Lee at least suggest the calculations are
performed when determining the time to contact, not just that the ratio
mathematically could be calculated. As such, we are not persuaded of error
in determining that the combination of Matthews and Lee teach the recited
scaling factor and using the ratio to generate a time to contact estimate, as
recited in claim 1.
Accordingly, for the reasons indicated in our decision, as well as the
reasons set forth by Requester and the Examiner, we are unpersuaded of
error in finding that Matthews and Lee combined, either alone or with
additionally cited prior art, render claims 1–7 unpatentable.

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CONCLUSION
For the foregoing reasons, we grant the request to the extent we have
reconsidered our decision of March 11, 2016, but deny Owner’s request to
modify the affirmance of the Examiner’s decision to reject claims 1–7 as
unpatentable over Matthews and Lee.

DENIED

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Patent Owner:

Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, NY 10281

For Third-Party Requester:

Guy Yonay
Pearl Cohen Zedek Latzer Barataz LLP
1500 Broadway
12th Floor
New York, NY 10036