Ex Parte Ames et al

Patent Trial and Appeal Board

Mar 20, 2013

11106192 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAEL B. AMES and CURTIS L. HAY
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Appeal 2011-000709
Application 11/106,192
Technology Center 3600
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Before: JAMES P. CALVE, WILLIAM A. CAPP, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000709
Application 11/106,192

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
2, 4-7, 17 and 18.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
The claims are directed to system and method for determining vehicle
location using road surface data. Claims 1 and 17 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of determining a location of a vehicle,
the method comprising:
receiving a wheel speed measurement;
receiving a parameter related to road
roughness;
weighting the wheel speed measurement
based on the parameter; and
determining a vehicle location based on the
weighted wheel speed measurement.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Croyle
Seto
Ishigami
US 5,862,511
US 6,292,719 B1
US 6,856,903 B2
Jan. 19, 1999
Sep. 18, 2001
Feb. 15, 2005

REJECTIONS
Appellants seek our review of the following rejections:

1 Claims 3, 8-16 and 19 were previously withdrawn from consideration and
are not part of this appeal.
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Claim 17 and 18 stand rejected under 35 U.S.C §112, second
paragraph.2 Ans. 3.
Claims 1, 4 and 17 stand rejected under 35 U.S.C §102(b) as being
anticipated by Seto. Ans. 10.
Claims 5 and 6 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Seto. Ans. 11.
Claims 7 and 18 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Seto and Croyle. Ans. 12.
Claim 2 stands rejected under 35 U.S.C §103(a) as being unpatentable
over Seto and Ishigami. Ans. 13.

ANALYSIS
Indefiniteness Rejection of Claims 17 and 18
In the New Ground of Rejection, the Examiner found that claims 17
and 18 recite means (or step) plus function limitations and that the
specification does not disclose sufficient structure, material or acts for
performing the claimed function. Ans. 8. Appellants elected not to provide
arguments concerning this new ground of rejection. Rep. Br. 2.
Accordingly, we sustain the Examiner’s rejection of claims 17 and 18 under
35 U.S.C §112, second paragraph, as being indefinite.3

2 Claims 17-18 were rejected under 35 U.S.C. 112, second paragraph, in a
New Ground of Rejection set forth in the Examiner’s Answer to Appeal
Brief dated July 20, 2010. See Ans. 2-3.
3 See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the
Board did not err in sustaining a rejection under 35 U.S.C. § 112, second
paragraph, when the applicant failed to contest the rejection on appeal).

Appeal 2011-000709
Application 11/106,192

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Anticipation Rejection of Claims 1, 4 and 17
Claim 1 defines a method for determining a location of a vehicle by
determining a road roughness factor using wheel speed, determining a
weighted wheel speed based on the road roughness factor and using the
weighted wheel speed to determine the vehicle location.
The Examiner found that Seto discloses a method of determining a
location of a vehicle comprising “receiving a wheel speed measurement (i.e.
communication between controller and wheel speed sensor) (Fig 5 "230,
511-514"; Fig 10 "S201"; col 6, line 61 - col 7,line 10); receiving a
parameter related to road roughness (i.e. communication between controller
and wheel speed sensor) (Fig 5 "230, 511-514"; Fig 10 "S201, S204"; col 7,
line 58 - col 8, line 19); weighting the wheel speed measurement based on
the parameter (Fig 10 "S204"; col 7, line 58 - col 8, line 19); and
determining a vehicle location based on the weighted wheel speed
measurement (i.e. vehicle location is broadly interpreted as vehicle position
in reference to danger) (Fig 10 "S209-S211"; col 5, lines 33-36; col 6, lines
22-39; col 8, line 48 - col 9, line 5).” Ans. 10.
Appellants argue that Seto does not teach the use of road surface
information to determine vehicle location. App. Br. 4. In particular,
Appellants argue that Seto calculates a road condition based on wheel speed
and has nothing to do with weighting the sensed wheel speed itself based on
a parameter related to road roughness. Id. As a result, Appellants contend
Seto does not disclose the step of weighting the sensed wheel speed based on
a parameter related to road roughness or the step of determining a vehicle
location based on the weighted wheel speed measurement. Id.
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The Examiner disagreed with Appellants and noted that Seto discloses
a friction coefficient µ determined by calculating the difference between the
front right and left wheel speeds and the rear right and left wheel speeds,
which reads on a parameter related to road roughness. Ans. 14. The
Examiner further explained that Seto discloses the step of comparing the
friction coefficient µ with different thresholds to determine the road
condition, and reasoned that these teachings broadly read on weighting a
wheel speed measurement based on a parameter related to road roughness.
Id.
While Appellants agree that Seto measures friction, and the friction
measurement may be related to road roughness, Appellants contend that Seto
is missing the critical element of measuring wheel speed and then weighting
the wheel speed measurement based on a road roughness factor. Rep. Br. 2.
Instead, Appellants assert Seto is doing the opposite by taking a wheel speed
measurement and using the wheel speed measurement to determine road
roughness (i.e. friction). Id. According to Appellants, taking a wheel speed
measurement and using the wheel speed measurement to determine road
roughness is not the same as weighting a wheel speed measurement based on
a parameter related to road roughness (i.e. friction). Id. Appellants submit
that “a system that does not weight a wheel speed measurement also cannot
determine a vehicle location based on a weighted wheel speed measurement
as claimed.” Rep. Br. 3. We agree.
The Examiner’s finding that the step of comparing the friction
coefficient with different thresholds to determine the road condition broadly
teaches weighting a wheel speed measurement based on a parameter related
to road roughness, is not supported by a preponderance of evidence. Seto
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clearly teaches the use of wheel speed sensors to estimate a road surface
condition based on the rotational speed of the four tires. Further, Seto
teaches using the sensed wheel speed to calculate a friction coefficient and
based on the magnitude of the friction coefficient, estimates a road surface
condition. If the surface condition represents a “danger point”, then the
location is stored in memory. 4 The Examiner’s interpretation of claim 1 to
cover using the magnitude of the friction coefficient to estimate a road
surface condition that represents a danger point, and the location of the
danger point is stored in memory is inconsistent with the plain language of
claim 1 interpreted in light of Appellants’ specification. The Examiner has
not established that the friction coefficient taught by Seto is used in
determining a weighted wheel speed measurement, or that the vehicle
location is determinable based on a weighted wheel speed measurement.
As such, we do not sustain the rejection of claims 1 and 4. Because
we sustain the rejection of claim 17 as being indefinite, we pro forma
reverse the prior art rejection of claim 17 since such determination is based
on a speculative assumption as to the meaning of that claim.5

Obviousness Rejection of Claims 2, 5, 6, 7, and 18
Claims 2, 5, 6, and 7 each depend from independent claim 1, while
claim 18 depends from independent claim 17. Since the obviousness
rejections of claims 2,5,6 and 7 each rely on the same erroneous findings of

4 See Seto Figs. 5-10; Col. 6, line 62 – Col. 9 line 5.

5 See In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970); In re Steele, 305
F.2d 859, 862-63 (CCPA 1962) (determinations as to obviousness cannot be
made for indefinite claims).
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fact with regard to Seto, and the Examiner does not rely on Croyle or
Ishigami to remedy the deficiencies of Seto as to claim 1, we do not sustain
the rejection of claims 2, 5, 6 and 7 under 35 U.S.C § 103(a). Further, since
we sustained the rejection of claim 17 as being indefinite and pro forma
reversed the prior art rejection of claim 17, we likewise pro forma reverse
the obviousness rejection of claim 18.

DECISION
We sustain the rejection of claims 17 and 18 under 35 U.S.C §112,
second paragraph.
We reverse the rejection of claims 1, 4 and 17 under 35 U.S.C.
§102(b).
We reverse the rejection of claims 2, 5, 6, 7 and 18 under 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)(1)(iv) (2009).

AFFIRMED-IN-PART

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