Ex Parte Zeng et al

Patent Trial and Appeal Board

Mar 8, 2016

13036538 (P.T.A.B. Mar. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/036,538 02/28/2011
65798 7590 03/08/2016
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD A VENUE
SUITE 300
BLOOMFIELD HILLS, MI 48304
FIRST NAMED INVENTOR
Shuqing Zeng
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P0083 20-RD-MJL 5138
EXAMINER
HILGENDORF, DALE W
ART UNIT PAPER NUMBER
3662
MAILDATE DELIVERY MODE
03/08/2016 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
Ex parte SHUQING ZENG, JEREMY A. SALINGER, and
WILLIAM J. CHUNDRLIK, JR.
Appeal2013-010244
Application 13/036,538 1
Technology Center 3600
Before EDWARD A. BROWN, THOMAS F. SMEGAL, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Shuqing Zeng, et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner's final rejection under 35 U.S.C. § 103(a) of: (1)
claims 1, 2, 4--8, 11-17 and 19-22 as unpatentable over Lee (US
2010/0082195 Al, pub. Apr. 1, 2010) and Kawakami (US 7,542,840 B2, iss.
June 2, 2009); (2) claim 9 as unpatentable over Lee, Kawakami, and
Varadarajan (US 7,184,073 B2, iss. Feb. 27, 2007); and (3) claim 10 as
unpatentable over Lee, Kawakami, and Yokoyama (US 2009/0088966 Al,
pub. Apr. 2, 2009).2 We have jurisdiction under 35 U.S.C. § 6(b ).
1 According to Appellants, the real party in interest is GM Global
Technology Operations LLC. Appeal Br. 3.
2 Claims 3 and 18 have been canceled. Id.
Appeal2013-010244
Application 13/036,538
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Claims 1, 15 and 19 are independent. Claim 15 is reproduced below
and illustrates the claimed subject matter, with disputed limitations
emphasized.
15. A method for controlling a vehicle, the method
compnsmg:
detecting a failure of a primary sensing device;
determining a heading and displacement for the vehicle
based on images received from a secondary sensing device;
generating vehicle and lane information in response to
data received from the images from the secondary sensing
device, a digital map, a plurality of vehicle dynamics sensors and
a plurality of object sensors;
generating a collision free vehicle path in response to the
vehicle and lane information from the lane information fusion
module and an object map derived from the plurality of object
sensors;
controlling the vehicle lateral movement by following the
collision free vehicle path; and
alerting a driver to take control of steering the vehicle.
ANALYSIS3
Obviousness of claims 1, 2, 4-8, 11-17 and 19-22 over Lee and
Kawakami
Claims 1, 2, 6---8, and 11-17
Appellants present argument for the patentability of claims 1, 15, and
19 together and also present separate argument for claim 19. See Appeal Br.
3 The rejection of claims 21and22 under 35 U.S.C. § 112, second
paragraph, has been withdrawn. See Advisory Action dated April 22, 2013.
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7-10; Reply Br. 1-3. We select claim 15 as the representative claim for
claims 1, 2, 6-8, 11-17, and claims 1, 2, 6-8, 11-14, 16, and 17 stand or fall
with claim 15. See 37 C.F.R. § 41.37(c)(l)(iv). We also address the
argument for claim 19.
Regarding claim 15, the Examiner finds that Lee teaches a method,
inter alia, "for providing path generation for lane centering and lane changes
in an autonomously driven vehicle." Final Act. 2-3. While determining that
Lee does not teach the "claimed detecting a failure of the primary sensor,
and alerting the driver to take control of [steering] the vehicle," the
Examiner finds that Lee teaches "that front, rear and side cameras can detect
the lane marks" (citing Lee, para. 20), and that "the failure of the front
camera [primary sensor] would cause the system to use the rear and side
cameras for lane keeping." Id. at 4. The Examiner reasons that "since the
system is redundant, the lane keeping would continue without the need for
driver intervention." Id.
The Examiner also finds "[r]egarding the claimed failure of the
primary sensor, [Kawakami teaches] 'situations in which the lane keep
system side fails to continue the control [of the vehicle], e.g., upon a failure
in recognizing a lane from the photographic image taken by the camera
[primary sensor],"' (citing Kawakami, col. 1, 11. 47-50), but also describes
"controlling the vehicle by preventing the departure from the driving lane
upon deactivation of the lane keeping system." Id. (citing Kawakami, col. 1,
11. 57---60).
Furthermore, the Examiner states "[r]egarding the claimed alerting
[of] the driver to take control of the steering," Kawakami teaches "[b]oth an
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audio and visual warning are presented to the driver to indicate the
operational situation of the lane keeping." Id.
Based on the foregoing, the Examiner concludes that
[i]t would have been obvious ... to combine the autonomous
vehicle control and a plurality of redundant sensors of Lee et al
with the driver warning of lane keeping failure of Kawakami et
al in order to prevent the vehicle from departing the road upon
the deactivation of the lane keeping system . . . and to draw
driver's attention to a warning, thus encouraging the driver to
perform a steering operation to avoid the departure from the road.
Id. (citing Kawakami, col. 1, 11. 59---61 and col. 4, 11. 62---64).
Appellants take issue with the analysis and conclusions presented in
the Final Action, first contending that "failure to recognize a lane from a
photographic image taken does not teach or suggest detecting a failure of a
primary sensing device that controls vehicle lateral movement ... as [it] is
clear [from] the discussion in Kawakami that a driver is warned when
conditions for centering the vehicle in a lane are not met." Appeal Br. 8
(citing col. 2, 11. 31--45).
Appellants continue by contending that because "Kawakami
inherently discloses that the system operates with a properly functioning
primary sensor, because a properly working sensor is necessary to determine
when to issue these warnings," that "neither Lee nor Kawakami disclose
detecting a failure in the primary sensing device," and therefore "do not
teach Appellant's claimed lane controller that detects a failure in the primary
sensing device and that generates a collision free path." Id. See also Reply
Br. 2.
Regarding Appellants' first contention, we determine the scope of the
claims in a patent application not solely on the basis of the claim language,
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but upon giving claims "their broadest reasonable interpretation consistent
with the specification" and "in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). "It is the
[Appellants'] burden to precisely define the invention, not the PTO's." In re
Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (citation omitted).
Appellants have not pointed to any lexicographic definition in the
Specification of the term "failure" in the claimed step of "detecting a failure
in the primary sensor," or identified any other disclosure therein that
precludes the Examiner from construing "failure" to include "[a]ny failure in
the lane keep system, sensor failure, camera failure, unclear photographic
image or deactivation of the cruise control [that] would trigger the driving
control to prevent the vehicle from departing the lane." Ans. 5. In this
regard, we note that the Specification describes a primary sensing device
that is "obstructed or otherwise fails." See Spec. para. 13. This description
appears to imply that "obstructed" is an example of a "failure" of the
primary sensing device.
Furthermore, the Examiner points out that "if the lane keep system [of
Kawakami] fails to control, the system will prevent the vehicle from
departing the lane or road for any deactivation of the lane keep system."
Ans. 5 (citing Kawakami, col. 1, 11. 46-50and11. 56-60). The Examiner
also explains that while Kawakami discloses "the example of 'a failure in
recognizing a lane from the photographic image taken by the camera,' ...
this is just one example of a reason that the lane keeping system fails to
control the vehicle," and that "[a]ny other failure can result in the lane keep
system not controlling the vehicle." Id.
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Appellants also contend that while "Kawakami [merely] discloses
providing a warning for a particular instance of lane departure detection,
which is indicated by the use of' a steering operation,'" claim 15 "[alerts] a
driver to take control of steering the vehicle." Appeal Br. 10. However as
the Examiner explains, column 2, lines 46-60 of Kawakami teaches "that
[when] the activation condition of the driving road keeping means is not
[met] ... and the driving control executes a driving road departure warning
to inform the driver that the vehicle can depart the road," that "draws the
driver's attention to the warning and encourages the driver to perform the
steering operation." Ans. 5. Appellants have not apprised us of any error in
the Examiner's findings or conclusions, and we find none.
Claim 19
Regarding claim 19, Appellants also contend that neither of
paragraphs 78 and 79 of Lee "disclose generating a collision free vehicle
path using calculations for an artificial potential repulsion field as claimed
by [Appellants]." Appeal Br. 10. However, as the Examiner explains,
"[Lee teaches] this limitation although the exact phrase of 'an artificial
potential repulsion field' is not in Lee." Ans. 7. After correctly
summarizing the teaching of paragraphs 78 and 79 of Lee, the Examiner
concludes that "[Lee cites] the equivalent by adjusting the vehicle path and
speed, and determining a clear and safe vehicle path." Id. See also Final
Act. 9. Appellants have not apprised us of any error in the Examiner's
findings or conclusions, and we find none.
In the Reply Brief at page 2, Appellants argue for the first time that
"the Examiner is clearly relying on [Appellants'] disclosure to teach a lane
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controller that is configured to detect a failure in a primary sensing device."
However, Appellants did not present this argument in the Appeal Brief, and
it is not responsive to an argument raised in the Answer. Thus, Appellants
did not set forth this argument in a timely manner prior to filing of the Reply
Brief to permit the Examiner an opportunity to fully respond. See 37 C.F.R.
§ 41.41(b)(2) (2014) ("Any argument raised in the reply brief which was not
raised in the appeal brief, or is not responsive to an argument raised in the
examiner's answer ... will not be considered by the Board for purposes of
the present appeal, unless good cause is shown."). Moreover, the Examiner
is not relying on Appellants' Specification, but rather, on the teachings of
Lee and Kawakami, i.e., knowledge that was within the level of ordinary
skill at the time the claimed invention was made. Consequently, Appellants'
apparent "hindsight" argument is not persuasive.
In view of the above, we sustain the rejection of claims 1, 2, 6-8, 11-
17, and 19 as unpatentable over Lee and Kawakami.
Claims 4 and 5
Dependent claims 4 and 5 are limited to heterogeneous vehicle
sensors that include "a digital map database from a global positioning
system module." The Examiner first relies on Lee for disclosing a global
position sensing system in paragraph 68. Final Act. 6. However, Appellants
point out that paragraph 68 of Lee merely "discloses a GPS system
generally." Appeal Br. 11.
In response, the Examiner then relies on paragraphs 27 and 28 of Lee
and reasons that "it is well-known in the art for a GPS system to provide a
digital map database." Ans. 8. Appellants correctly respond that neither
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paragraph 27 nor 28 of Lee contains a "teaching of a digital map database
from a GPS module," further pointing out that "Figure 1 of Lee discloses
that lane detection uses cameras and a mid-range radar." Reply Br. 3. We
agree with Appellants that there is no teaching in paragraphs 27, 28, (or 68)
of Lee "of a digital map database from a GPS module." As such, because
the Examiner does not establish that Lee discloses a "digital map database,"
the Examiner's legal conclusion of obviousness is not supported by evidence
and, thus, cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (holding that "[t]he legal conclusion of obviousness must be
supported by facts. Where the legal conclusion is not supported by facts it
cannot stand.").
Accordingly, we do not sustain the rejection of claims 4 and 5 over
Lee and Kawakami.
Claim 20
Appellants contend that claim 20 would not have been obvious over
the cited prior art because "Lee does not disclose using a digital map from a
GPS system." Appeal Br. 11. However, we find Appellants' contention to
be unavailing as it is not commensurate with the scope of claim 20, which is
not limited to "using a digital map from a GPS system," but merely recites a
"digital map." See Appeal Br. 18, Claims App. "[L]imitations are not to be
read into the claims from the specification." In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989)).
For the foregoing reason, we sustain the rejection of claim 20 as
unpatentable over Lee and Kawakami.
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Claim 21 and 22
Claims 21 and 22 depend from claim 19. After reciting the limitations
of claim 21, Appellants advance the same arguments for claims 21 and 22
that we found unpersuasive regarding claim 19. Appeal Br. 11-12. Thus,
we sustain the rejection of claims 21 and 22 as being unpatentable over Lee
and Kawakami for the same reasons stated above in sustaining the rejection
of claim 19.
Obviousness of claim 9 over Lee, Kawakami, and Varadarajan
Appellants argue that even "[a]ssuming arguendo [that] Varadarajan
discloses [the] language of Appellant's claim 9," that "Varadarajan fails to
provide the teaching missing from Lee and Kawakami." Appeal Br. 12.
We are not persuaded of any deficiencies in the combination of Lee
and Kawakami with respect to independent claim 1. Thus, we sustain the
Examiner's rejection of dependent claim 9 as being unpatentable over Lee,
Kawakami, and Varadarajan for the same reasons stated above in sustaining
the rejection of claim 1.
Obviousness of claim 10 over Lee, Kawakami, and Yokoyama
Appellants recite the limitations of claim 10 and argue that
"[a]ssuming arguendo [that] Yokoyama provides this teaching,"
"Yokoyama fails to disclose the teaching missing from Lee and Kawakami."
Appeal Br. 13.
As we are not persuaded of any deficiencies in the combination of Lee
and Kawakami with respect to claim 1, we sustain the rejection of dependent
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claim 10 as being unpatentable over Lee, Kawakami, and Yokoyama for the
same reasons stated above in sustaining the rejection of claim 1.
DECISION
We AFFIRM the Examiner's rejections of claims 1, 2, 6-17 and 19-
22.
We REVERSE the Examiner's rejection of claims 4 and 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2012).
AFFIRMED-IN-PART
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