Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals Board

Feb 28, 2020

14825736 - (D) (P.T.A.B. Feb. 28, 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.
14/825,736 08/13/2015 Andreas PFEIFFER 080437.68042US 3636
23911 7590 02/28/2020
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
BLOUNT, ERIC
ART UNIT PAPER NUMBER
2684
NOTIFICATION DATE DELIVERY MODE
02/28/2020 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 ANDREAS PFEIFFER and THOMAS BURTSCHE

Appeal 2018-005539
Application 14/825,736
Technology Center 2600

Before JOSEPH L. DIXON, STEVEN M. AMUNDSON, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–6, and 9–14. Appeal Br. 4. We
have jurisdiction under 35 U.S.C. § 6(b). On January 21, 2020, Appellant’s
counsel presented arguments at an oral hearing.
We AFFIRM.

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. 2.
Appeal 2019-005539
Application 14/825,736

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CLAIMED SUBJECT MATTER
The claimed invention generally relates to a lane departure prevention
device in a driver assistance system. Appeal Br. 2. The device performs a
warning and/or an intervention when the motor vehicle is too close to a
defined boundary of a predetermined “lane.” Id. The lane is detected with
the aid of environmental features such as road markings, guardrails, or road
sides. Spec. ¶¶ 3, 5. A “normal” lane is defined by the centerline of the
road on one side, and the shoulder of the road on the opposite side. Id. ¶ 18;
Figure. The predetermined lane may instead be altered; for example,
widening the lane by shifting a left boundary from its normal position at the
centerline of the road to the left of the centerline (e.g., in the portion of the
road marked for opposing traffic). Id. ¶ 20, Figure. This reduces
interference by the system with the driver. Id. ¶ 20. The lane is distinct
from the road markings themselves. Id. ¶ 20.

Independent claim 1 is illustrative:
1. A driver assistance system for assisting a driver of a
motor vehicle when leaving a predetermined lane, the driver
assistance system comprising:
a lane departure prevention device equipped with at least
one lane detection unit and a warning and/or transversal control
unit; and
a navigation system providing information about the
defined driving situation, an actual type of road being traveled
on, and a course of the road,
wherein the lane departure prevention device performs a
warning and/or a transverse intervention when the motor
vehicle is too close to a defined boundary of the predetermined
lane, the lane departure prevention device captures information
about a defined driving situation of the motor vehicle, the lane
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Application 14/825,736

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departure prevention device utilizes the captured information
about the defined driving situation such that a currently
predetermined lane is changed depending on the defined driving
situation by shifting the defined boundary of the predetermined
lane depending on the driving situation, and when the motor
vehicle is traveling in a relatively winding road, the lane
departure prevention device processes the information so as to
allow driving on the relatively winding road according to an
ideal trajectory by changing the currently predetermined lane to
a widened lane which is widened only on an inside of a curve
relative to the currently predetermined lane.
Appeal Br. 20 (Claims App.).
Independent claims 6 and 10 recite a method and a driver assistance
system, each having limitations commensurate in scope with claim 1. Id.
Dependent claims 3–5, 9, and 11–14 each incorporate the limitations of their
respective independent claims. Id. Claims 2, 7, and 8 were cancelled during
prosecution. Final Act. 2.

REFERENCE
Name Reference Date
Schmitz US 2008/0258884 A1 Oct. 23, 2008

REJECTION
Claims 1, 3–6, and 9–14 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over Schmitz.

OPINION
Appellant first contends that Schmitz fails to teach the claimed
“changing the predetermined lane into a widened lane” as recited in claim 1.
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Application 14/825,736

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Appeal Br. 4–5. Appellant argues that Schmitz teaches that the warning
time, not the predetermined lane, is lengthened. Id. at 5–6 (citing Schmitz
¶¶ 20–21). Appellant further argues that Schmitz teaches a warning
threshold or warning time but not a lane having a width. Id. at 6–9; Reply
Br. 2–7. Appellant further argues that it would be impermissible to change
the principle of operation of Schmitz from changing the warning time to
changing the travel lane. Appeal Br. 12–13. Appellant further argues that
Schmitz does not teach changing the “marking” of the road. Id. at 9–12.
We are not persuaded by Appellant’s arguments. Appellant’s lane is
defined by left and right boundaries such that the driver will be warned when
the vehicle moves too close to either boundary. Spec. ¶¶ 3, 5, 18, 20.
Schmitz also teaches left and right boundaries such that the driver will be
warned. Schmitz ¶ 24, Fig. 3. The boundaries may be set to provide a
narrow driving lane, using thresholds 212 and 214, or a wider driving lanes
using thresholds 210 and 216. Id. Although Appellant argues that the
thresholds in Schmitz are based on time, Schmitz clearly relates the time and
distance. Id. ¶ 20 (“[t]he setting of the warning thresholds or warning times
essentially takes place as follows . . . the warning threshold is expanded, i.e.,
moved in the direction of smaller values (distance, time)”); see also Hr’g Tr.
3. With respect to the road “markings,” they are the physical markings of
the road that are not changed in either the claimed invention or in Schmitz.
Ans. 6; Hr’g Tr. 5 (changing the road markings themselves would be
“impossible”).
Appellant further contends that Schmitz does not disclose or suggest
“a widened lane which is widened only on an inside of a curve relative to
the currently predetermined lane.” Appeal Br. 13. The Examiner
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acknowledges that “Schmitz does not explicitly show that the lane is
widened only on an inside curve.” Id. (quoting Final Act. 5). The Examiner
then states, “[h]owever, paragraphs 0021-0022 suggest[] that the right and
left boundaries may be adjusted independently of each other.” Id. (quoting
Final Act. 5). The Examiner then states “Schmitz shows that in some
embodiments there is not room for adjusting the lane in a right direction. In
those cases the left (inside of the lane) is adjusted depending on whether or
not an object is detected in proximity to the vehicle.” Id. (quoting Final Act.
5). Appellant contends that the Examiner has not showed support in
Schmitz for the latter statement. Id.
We are not persuaded by Appellant’s arguments, and agree with the
Examiner’s reasoning as being grounded in the disclosure and teachings of
Schmitz. Schmitz discusses operation on “a rural road in which there is no
lane on the right side (trench, alley, or the like).” Schmitz ¶ 22. Schmitz
determines the difference between a rural road and a highway by the number
of lanes on the road and/or the curvature of the lane. Id. ¶ 17. Schmitz
teaches that on such rural road having no lane on the right side, the warning
time is expanded on the left side if no foreign objects are detected on that
side. Id. ¶ 22. The Examiner further cites Schmitz’s teaching that widening
may occur on either side of a lane, independently. Final Act. 5; Ans. 9–10.
We agree that this is supported by Schmitz, as best illustrated by Figure 4 in
which the threshold is expanded only on the side in which there is another
traffic lane having no foreign objects detected therein. Schmitz Fig. 4, ¶ 25.
We agree that the Examiner has sufficiently explained how the cited
teachings of Schmitz would suggest to one having ordinary skill in the art an
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expanded left-side boundary on a winding (high curvature) rural road, as
recited in claim 1.
With respect to Appellant’s argument of hindsight,
[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based on hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill in the art at the time the claimed invention was
made and does not include knowledge gleaned only from
applicant’s disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here, the Examiner
has shown Schmitz to teach an expanded left-side threshold, reaching into an
adjacent driving lane having no obstacles on a winding rural road, and to
teach that one side may be expanded into an adjacent driving lane having no
obstacles. Accordingly, we are not persuaded that the Examiner’s
determination includes any knowledge gleaned only from Appellant’s
disclosure, and therefore are not persuaded that the rejection improperly
relies upon hindsight reconstruction.
For the above reasons, we are not persuaded of error in the rejection
of claim 1, or the rejection of claims 6 and 10 argued on the same reasoning
as for claim 1. Appeal Br. 15. Appellant argues against the rejection of
claim 11 for the same reasons as well. Appeal Br. 17–18. Accordingly, we
sustain the Examiner’s rejection of claims 1, 6, 10, and 11.
With respect to claims 3 and 12, Appellant argues that Schmitz does
not disclose or suggest application to “relatively straight roads.” Appeal Br.
16. The Examiner cites to Schmitz Figures 3 and 4 as showing sections of
relatively straight roads, and to Schmitz paragraphs 21–22 as discussing
examples of a vehicle travelling along a highway, which is interpreted as a
relatively straight road. Ans. 11–12. We agree with the Examiner’s
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characterization of Schmitz, and are not persuaded of error in the rejection of
claims 3 and 12. Accordingly, we sustain the rejection of claims 3 and 12.
With respect to claim 4, Appellant argues that the sections of Schmitz
cited by the Examiner do not teach using “information about the defined
driving situation, a type of driver, and a currently set vehicle driving
mode” to do anything. Appeal Br. 16–17. The Examiner finds Schmitz to
teach
information about the defined driving situation (highway or
rural road shown in paragraph 0021), a type of driver (sleepy,
inattentive in paragraphs 0020, 0023), and a currently set
driving mode (sporty, relaxed shown in paragraph 20) are all
used to determine how to change the currently predetermined
lane (paragraphs 0020-0023).
Ans. 12. We agree with the Examiner’s characterization of Schmitz, and are
not persuaded of error in the rejection of claim 4. Accordingly, we sustain
the rejection of claim 4.
With respect to claims 5, 9, and 14, Appellant argues that Schmitz
does not take risk collision data into account when limiting the currently
predetermining lane to the driver’s own lane, or preventing the widening of
the currently predetermined lane. Appeal Br. 17. Appellant admits that
Schmitz discloses that when no vehicle is detected in an adjacent lane, a
warning threshold is not modified. Id. The Examiner cites Schmitz for
teaching that if foreign objects are detected, the driver’s lane is narrowed.
Ans. 13–14. We agree with the Examiner’s characterization of Schmitz, and
are not persuaded of error in the rejection of claims 5, 9, and 14.
Accordingly, we sustain the rejection of claims 5, 9, and 14.
With respect to claim 13, Appellant argues that Schmitz does not
show a wider lane when the motor vehicle is operated in a comfort mode,
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making arguments similar to those presented against claims 1 and 4. For the
same reasons expressed in sustaining the rejection of claims 1 and 4, we are
not persuaded of error in the rejection of claim 13. Accordingly, we sustain
the rejection of claim 13.

CONCLUSION
For the above-described reasons, we affirm the Examiner’s rejection
of claims 1, 3–6, and 9–14 as being obvious under pre-AIA 35 U.S.C.
§ 103(a).
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)(1)(iv).

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § References/Grounds Affirmed Reversed
1, 3–6, 9–14 103(a) Schmitz 1, 3–6, 9–14

AFFIRMED