Ex Parte Chundrlik et al

Patent Trial and Appeal Board

Feb 6, 2019

14663502 (P.T.A.B. Feb. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/663,502 03/20/2015 William J. Chundrlik JR.
153508 7590 02/08/2019
Honigman LLP/Magna
650 Trade Centre Way
Suite 200
KALAMAZOO, MI 49002-0402
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.
MAG04-P2478-423822 9097
EXAMINER
SECHSER, JILL D
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
02/08/2019 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):
patent@honigman.com
tflory@honigman.com
asytsma@honigman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM J. CHUNDRLIK JR. and
MARC WIMMERSHOFF
Appeal2018-006773
Application 14/663,502
Technology Center 2400
Before PHILLIP J. KAUFFMAN, JENNIFER S. BISK, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
DIRBA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § 134(a) of the
Examiner's rejection of claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b ). We reverse.
1 Our decision relies upon Appellants' Appeal Brief, filed Jan. 8, 2018
("App. Br."); Appellants' Reply Brief, filed Jun. 19, 2018 ("Reply Br.");
Examiner's Answer, mailed Apr. 20, 2018 ("Ans."); Final Office Action,
mailed Aug. 8, 2017 ("Final Act."); and the original Specification, filed Mar.
20, 2015 ("Spec.").
2 Appellants identify the real party in interest as Magna Electronics Inc.
App. Br. 2.
Appeal2018-006773
Application 14/663,502
STATEMENT OF THE CASE
Appellants' disclosed embodiments and claimed invention relate to a
vehicle vision system that utilizes a camera image and a digital map to
estimate road curvature. Spec. ,r 4.
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. A vision system of a vehicle, said vision system comprising:
a camera disposed at a vehicle equipped with said vision
system, wherein said camera has a field of view forward
of the equipped vehicle and is operable to capture image
data;
a vehicle-based GPS system operable to determine a
geographical location of the equipped vehicle;
a control including an image processor;
wherein said image processor processes image data captured by
said camera;
wherein, responsive at least in part to processing of captured
image data, said control is operable to determine (i) left
lane markings along a left side of a lane in which the
equipped vehicle is traveling on a road and (ii) right lane
markings along a right side of the lane in which the
equipped vehicle is traveling on the road;
wherein, responsive at least in part to said GPS system
determining the geographic location of the equipped
vehicle, a map-based road curvature is generated for the
road ahead of the equipped vehicle;
wherein, responsive at least in part to processing of captured
image data by said image processor, said control
determines a particular lane in which the equipped
vehicle is traveling from a plurality of lanes of the road
and generates a camera-based road curvature for the road
ahead of the equipped vehicle;
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wherein, responsive to fusing of the map-based road curvature
and the camera-based road curvature, said control is
operable to estimate an actual road curvature of the road
ahead of the equipped vehicle; and
wherein, in fusing of map-based road curvature and camera-
based road curvature, weight of the camera-based road
curvature is diminished when reliability level is below a
threshold level for at least one of (i) the determined left
lane markings and (ii) the determined right lane
markings; and
wherein, in fusing of map-based road curvature and camera-
based road curvature, weight of the map-based road
curvature is diminished when reliability level is below a
threshold level for the map data.
App. Br. 32 (Claims Appendix).
THE REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 103 as being obvious
over Zeng (US 2010/0191461 Al, published Jul. 29, 2010) and Mori et al.
(US 2009/0118994 Al, published May 7, 2009) ("Mori"). Final Act. 4--16.
ANALYSIS
Appellants argue that the Examiner erred in rejecting claim 1. In
particular, Appellants argue that the combination of Zeng and Mori fails to
teach or suggest "said control determines a particular lane in which the
equipped vehicle is traveling from a plurality of lanes of the road," as
required by claim 1. App. Br. 15-16; Reply Br. 2-3. We agree that the
Examiner did not sufficiently explain how this limitation is rendered obvious
by the cited references.
In the Final Action, the Examiner relied upon Mori for the following
limitation of claim 1:
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Application 14/663,502
wherein, responsive at least in part to processing of captured
image data by said image processor, said control determines a
particular lane in which the equipped vehicle is traveling from
a plurality of lanes of the road and generates a camera-based
road curvature for the road ahead of the equipped vehicle
Final Act. 5 ( emphasis added). For this limitation, the Examiner explained
that Mori estimates lane information using image processing and map data.
Id. (citing Mori ,r,r 13, 82, 89 & Fig. 8).
Appellants argue Mori fails to disclose or suggest "how to estimate
which lane the vehicle is traveling in among a plurality of lanes, as
claimed." App. Br. 15. Appellants explain that the cited portions of Mori
"estimate the boundaries of the lane that the vehicle is traveling in," but
disclose only a single lane, not a plurality of lanes. Id. In response, the
Examiner states that "Figures 6 and 9 of Zeng and Figure 8 of Mori show
that the vehicle is traveling on a road with a plurality of lanes ( at least two
lanes.)." Ans. 2-3. Appellants explain that Mori discloses only one lane
and that, even if the references show a plurality of lanes, neither reference
teaches or suggests determining a particular lane in which the vehicle is
traveling. Reply. Br. 2-3.
We agree with Appellants that the Examiner has not provided
sufficient explanation of the findings relating to this limitation to present a
primafacie case of obviousness as to claim 1. Notably, the Answer does not
appear to squarely address Appellants' argument. See Ans. 2-3. In
particular, the Examiner states that the references disclose a road with a
plurality of lanes, but does not respond to Appellants' arguments that the
references fail to determine a particular lane from the plurality of lanes. Id.
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Moreover, we see nothing in the cited portions of the references
themselves that teaches or suggests this claim language. The cited portions
of Mori do not teach a plurality of lanes. Mori detects a lane's shape by
comparing estimates created from two different sources of information-a
camera image is used to create "first lane information," and map data is used
to create "second lane information." E.g., Mori ,r,r 8, 13, 82, 85. Mori
compares the first and second lane information to determine the similarity
between the two estimates and to derive "an actual lane." Mori ,r,r 105-13.
Figure 8 of Mori also depicts a single lane. Mori ,r 102 (identifying "W" as
the lane width and correlating equations F5 and F6 with AO and Al,
respectively); id. at ,r 87 (defining AO as the left side and Al as right side of
the lane). Moreover, although Zeng appears to disclose a plurality of lanes
in Figure 9, we find no disclosure or suggestion in Zeng of determining a
particular lane from a plurality of lanes of a road. Zeng, Fig. 6, 9, ,r,r 43, 48.
In sum, we find that the Examiner has not adequately explained ( and
it is unclear from our review) how the relied-upon combination teaches or
suggests "said control determines a particular lane in which the equipped
vehicle is traveling from a plurality of lanes of the road." Therefore, on this
record, we are persuaded of error in the Examiner's reliance on the cited
prior art combination to teach or suggest all limitations of claim 1.
Accordingly, we do not sustain the Examiner's obviousness rejection of
independent claim 1, or independent claims 11 and 19, which recite the
disputed limitation in commensurate form. The pending dependent claims-
claims 2-10, 12-18, and 20--fall with their respective independent claims.
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NEW GROUND OF REJECTION
35 US.C. § 112(b)-JNDEFINITENESS
During the Office's evaluation, a proposed "claim is indefinite when it
contains words or phrases whose meaning is unclear," i.e., "ambiguous,
vague, incoherent, opaque, or otherwise unclear in describing and defining
the claimed invention." In re Packard, 751 F.3d 1307, 1310-11 (Fed. Cir.
2014) (per curiam); see also In re McAward, No. 2015-006416, 2017 WL
3669566, at *3 (PTAB Aug. 25, 2017) (precedential).
We enter a new ground of rejection that claim 1 is indefinite because
(1) it contains method steps in a system claim and (2) the "fusing" limitation
is ambiguous in defining the claimed invention.
Indefinite: System Claim Includes Method Steps
Independent claim 1 is a system claim-it includes a camera, vehicle-
based GPS system, and a "control"3 including an image processor.
However, claim 1 also recites method elements:
• "a map-based road curvature is generated for the road ahead of
the equipped vehicle;"
• "weight of the camera-based road curvature is diminished when
reliability level is below a threshold level for at least one of (i)
the determined left lane markings and (ii) the determined right
lane markings;" and
• "weight of the map-based road curvature is diminished when
reliability level is below a threshold level for the map data."
3 We need not, and do not, provide an opinion regarding the proper meaning
of the term "control." In particular, we do not decide whether the term
should be construed under 35 U.S.C. § 112(f).
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The inclusion of these method steps in the system of claim 1 renders the
claim indefinite under 35 U.S.C. § 112(b). See MPEP § 2173.05(p) (9th ed.
2018) ("A single claim which claims both an apparatus and the method steps
of using the apparatus is indefinite.")
Indeed, in the context of an issued patent, the Federal Circuit has held
that "reciting both an apparatus and a method of using that apparatus renders
a claim indefinite." IPXL Holdings, LLC v. Amazon.com, Inc., 430 F.3d
1377, 1384 (Fed. Cir. 2005). The Federal Circuit explained that such a
claim is indefinite because it is unclear when infringement occurs. Id.
Likewise, pending claim 1 is indefinite because it is not clear whether the
claim would be infringed by a system itself, or whether the claimed system
would first need to perform the method steps recited. 4
Indefinite: Fusing Limitation is Ambiguous
Claim 1 also recites "wherein, responsive to fusing of the map-based
road curvature and the camera-based road curvature, said control is operable
to estimate an actual road curvature of the road ahead of the equipped
vehicle." Appellants contend that claim 1 requires the step of "fusing of the
map-based road curvature and the camera-based road curvature" (referred to
in this Decision as the "fusing limitation"). App. Br. 14--15. Specifically,
4 Claim 1 also includes functional language. For example, the claim recites
that "said image processor processes image data captured by said camera."
We construe this limitation to be a recitation of the capability of the image
processor, i.e., that the image processor is operable to process the image
data. For other similar limitations (i.e., those tied to a structure), we
similarly interpret them as functional recitations of what the structure is
operable to do. See Mastermine Software, Inc. v. Microsoft Corp., 874 F.3d
1307, 1315-16 (Fed. Cir. 2017) (distinguishing between an apparatus with
functional language and a mixed apparatus and method claim).
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Appellants state that the fusing limitation "requires the generation of a map-
based curvature and a camera-based curvature prior to fusion, not merely
fusing inputs from the GPS and camera system." Id.; see Reply Br. 2.
However, the broadest reasonable interpretation of the claim's language
would not normally require that the system be operable to perform the fusing
limitation; rather, the claim language itself only requires the claimed control
be operable to estimate road curvature responsive to any such fusing.
Appellants' arguments have injected ambiguity into the claim. In
particular, Appellants' arguments are part of the prosecution history, and it is
unclear whether ( and to what degree) these arguments have added a
requirement to claim 1 that the system be operable to perform the fusing
limitation. See Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir.
2016) (In the context of an inter partes review proceeding, the Federal
Circuit held: "Under a broadest reasonable interpretation, words of the claim
must be given their plain meaning, unless such meaning is inconsistent with
the specification and prosecution history."). In the context of a pending
patent application, such ambiguity is cause for an indefiniteness rejection.
See Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BP AI 2008) (precedential)
("[I]f a claim is amenable to two or more plausible claim constructions, the
US PTO is justified in requiring the applicant to more precisely define the
metes and bounds of the claimed invention by holding the claim
unpatentable under 35 U.S.C. § 112, second paragraph, as indefinite."); see
In re Zietz, 893 F.2d 319, 322 (Fed. Cir. 1989) ("[D]uring patent prosecution
when claims can be amended, ambiguities should be recognized, scope and
breadth of language explored, and clarification imposed.").
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Thus, we enter a new ground of rejection that claim 1 is indefinite
because ( 1) it contains several phrases whose meaning is unclear because the
phrases are method steps recited in a system claim and (2) the "fusing"
limitation is ambiguous in defining the claimed invention. The problematic
limitations appear in independent claims 1, 11, and 19. Therefore, we enter
a new ground of rejection of independent claims 1, 11, and 19-along with
dependent claims 2-10, 12-18, and 20-under 35 U.S.C. § 112(b), for
failure to particularly point out and distinctly claim the subject matter
regarded as the invention.
DECISION
We reverse the Examiner's decision rejecting claims 1-20. We enter
a NEW GROUND OF REJECTION for claims 1-20 under 35 U.S.C.
§ 112(b).
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 4I.50(b). Section 4I.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
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opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be found in
the Manual of Patent Examining Procedure § 1214.01.
REVERSED; 37 C.F.R. § 4I.50(b).
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