Ex Parte Dreuw

Patent Trial and Appeal Board

Oct 31, 2018

14532736 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/532,736 11/04/2014
24972 7590 11/02/2018
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
FIRST NAMED INVENTOR
Philippe Dreuw
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.
BOSC.P9129US/1000201924 1894
EXAMINER
TOPGY AL, GELEK W
ART UNIT PAPER NUMBER
2481
NOTIFICATION DATE DELIVERY MODE
11/02/2018 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIPPE DREUW
Appeal2018-004482
Application 14/532,736 1
Technology Center 2400
Before HUNG H. BUI, MICHAEL J. ENGLE, and PHILLIP A. BENNETT,
Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1, 3, 4, 6-11, 13, 14, and 16-20. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 Appellant's Brief ("App. Br.") identifies Robert Bosch GmbH as the real
party in interest. App. Br. 2.
Appeal2018-004482
Application 14/532,736
CLAIMED SUBJECT MATTER
Appellant's claims relate to a driver monitoring system used to detect
reduced alertness or distraction on the part of the driver. The invention is
premised on the belief that from "specified patterns of posture or motion
patterns of the head and/or the lips, one is able to draw conclusions on
speaking activity which, with respect to their scope and their intensity allow
one to conclude that there is distraction, and thus a reduced alertness of the
driver." Spec. 2, 11. 17-20.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A detection system in a vehicle for detecting a
reduced attention of a driver of a vehicle, comprising:
a video recording device for recording a posture of a head
and a movement of lips;
an evaluation device; and
a signal generating device for generating a signal if the
posture of the head and the movement of the lips allow for an
inference of a reduced attention of the driver due to a speaking
activity;
wherein a head posture, head motion and lip movement of
the driver are recorded and evaluated, wherein a reduced
attention of the driver is present if the speaking activity of a
vehicle occupant exceeds a predefined boundary value, and
wherein a reduced attention of the driver is present if, in the case
of at least one vehicle occupant, both of the following are
present:
(i) a specified lip movement pattern and (ii) at least one of
a specified posture of the head and a specified head motion.
App. Br. 13 (Claims App'x).
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Application 14/532,736
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rodriguez Ibanez
Sherony
Abdelaziz
US 2011/0028857 Al Feb. 3, 2011
US 2012/0206252 Al Aug. 16, 2012
JP 2010-204984 A Sept. 16, 2010
REJECTIONS
Claims 1, 3, 4, 11, 13 and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Abdelaziz and Sherony. Final Act. 4--7.
Claims 6-10 and 16-20 stand rejected under 35 U.S.C. §103 as being
unpatentable over Abdelaziz, Sherony, and Rodriguez-Ibanez. Final Act. 7-
9.
DISCUSSION
The Examiner rejects claim 1 as obvious over Abdelaziz and Sherony.
The Examiner relies primarily on Abdelaziz, but acknowledges:
[ A ]lthough Abdelaziz teaches the claimed wherein a reduced
attention of the driver is present in the event of detection of
movement of the mouth/lips, however fails to specifically teach
that its further based due to a speaking activity wherein a reduced
attention of the driver is present if the speaking activity of a
vehicle occupant exceeds a predefined boundary value.
Final Act. 5.
The Examiner addresses Abdelaziz's deficiency with Sherony, finding
that Sherony teaches measuring the speaking activity of an individual in an
operated vehicle in order to ascertain a reduced attention for the individual.
Id. at 5---6. The Examiner explains that Sherony determines an individual
talking on the phone has a reduced attention, and that the determination is
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Application 14/532,736
made from a baseline of normal driving habits, which is a "predefined
boundary value." Id. Based on these teachings, the Examiner concludes
"[i]t would have been obvious to one of ordinary skill in the art at the time
the invention was made to incorporate the teachings of Sherony into the
system of Abdelaziz because said incorporation allows for an improved level
of drowsiness detection (Sherony in paragraphs 5-10)." Final Act. 6.
Appellant presents three arguments in favor or patentability. First,
Appellant argues Abdelaziz does not teach recording or evaluating "a
movement of lips" because Abdelaziz merely describes considering the
shape of the driver's mouth to detect yawning. According to Appellant,
analyzing the shape of the mouth is not the same as "a movement of lips,"
and yawning or drowsiness is not the same as "a reduced attention." App.
Br. 6-7. Second, Appellant argues Sherony fails to teach "wherein a
reduced attention of the driver is present if the speaking activity of a vehicle
occupant exceeds a predefined boundary value." App. Br. 8. Appellant
asserts "Sherony at best may tenuously indicate in its Summary that a driver
is 'too distracted' if they are talking on the phone" but does not teach any
determination if "speaking activity of a vehicle occupant exceeds a
predefined boundary value." Id. Third, Appellant also argues the
combination of Abdelaziz and Sherony is improper and the Examiner has
relied on impermissible hindsight. App. Br. 9-11. We address each
argument in tum.
Appellant's first argument, that Abdelaziz does not teach recording or
evaluating "a movement of lips," is not persuasive. Abdelaziz teaches the
detecting changes in the shape of a driver's mouth using a detection
function. Abdelaziz ,r 22 ("The detection function F2 of a shape change of a
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Application 14/532,736
mouth which detects a motion of a driver's mouth . . . . The feature
detection function F3 to detect a driver's characteristics operation from a
shape change of this mouth."). We agree with the Examiner that "movement
of lips" must be recorded and evaluated in order to detect changes in the
shape of the mouth because it is the movement of the lips that defines the
outer contour of the mouth. We also do not agree with Appellant's
contention that yawning or drowsiness is not the same as "a reduced
attention." App. Br. 7 ("In contrast, the presently claimed subject matter
considers 'attention'-and not naps or even drowsiness."). We note the
Specification does not use the phrase "reduced attention" in describing
Appellant's invention. Instead, the Specification describes the invention as
seeking to determine "a reduced alertness of the driver." See, e.g., Spec. 2,
11. 11, 20, 25 ("reduced alertness of the driver"); see also Spec. 7, 11. 20, 30
("reduced state of alertness"). Based on the description of the Specification,
we conclude the phrase "reduced attention of the driver" recited in the
claims at least encompasses "reduced alertness." We agree with the
Examiner that detecting drowsiness as taught by Abdelaziz is a form of
"reduced alertness" that is encompassed by the scope of the claim because a
person who is drowsy is not as alert as that person would otherwise be in a
fully awakened state.
Appellant's second argument-that Sherony does not teach "wherein
a reduced attention of the driver is present if the speaking activity of a
vehicle occupant exceeds a predefined boundary value"-is also
unpersuasive. Sherony is directed to a lane departure warning system that
warns a driver when their vehicle begins to drift toward lane markers.
Sherony ,r 6. Sherony teaches that the lane departure warning system may
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Application 14/532,736
be used when a driver is impaired in some way. Sherony teaches that
impairment typically refers to intoxication from drugs or alcohol, but also
teaches "the concepts described herein may further be applicable to
determine if a driver's driving habits deviate too much from normal driving
habits, thus suggesting, for example, that the driver is ... too distracted ( e.g.,
talking on the phone ... ) or is otherwise not paying enough attention to
operating the vehicle." Sherony ,r 6. Thus, Sherony teaches determining a
driver is too distracted ( the claimed "a reduced attention of the driver is
present") based on the driver speaking on the phone ("if the speaking
activity of a vehicle occupant") such that it deviates too much ("exceeds")
from normal driving habits ("a predefined boundary value"). Appellant
maintains that Sherony makes only a single reference to talking on the
phone, and "provides no additional discussion whatsoever beyond this vague
reference." App. Br. 8. We disagree. We are aware of no authority that
requires a reference to discuss a pertinent teaching more than once, nor does
Appellant identify any. That Sherony only briefly discusses using speaking
as a factor in determining driver distraction does not detract from its
legitimacy as prior art for all that it teaches. Accordingly, we are not
persuaded the Examiner erred in finding Sherony teaches or suggests
"wherein a reduced attention of the driver is present if the speaking activity
of a vehicle occupant exceeds a predefined boundary value."
Appellant's third argument attacks the rationale provided by the
Examiner for combining Abdelaziz and Sherony. As we noted above, the
Examiner concluded that it would have been obvious to combine the
teachings of Abdelaziz and Sherony because doing so "allows for an
improved level of drowsiness detection." Final Act. 6 ( citing Sherony ,r 5-
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10). Appellant argues the Examiner "offer[ s] no evidence, but only
conclusory hindsight, reconstruction, and speculation" to support the
proposed combination. App. Br. 10. Appellant argues the Examiner has
improperly relied on an "obvious to try" rationale, and that doing so is
contrary to the Federal Circuit's decision in In re Fine, 837 F.2d 1071 (Fed.
Cir. 1988). We are not persuaded by Appellant's arguments.
Under KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398 (2007), a
conclusion of obviousness must be supported by "some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." 550 U.S. at 417-18 (citing In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006)). Here, we find the Examiner has satisfied his burden
because we do not understand the Examiner to be relying on an "obvious to
try" rationale in the proposed combination. Rather, we understand the
Examiner's rationale to be that an ordinarily skilled artisan would have
known from Sherony that speaking activity that deviates from a baseline of
normal speaking activity is useful in determining that a driver is distracted.
An ordinarily skilled artisan would have further understood from Abdelaziz
that mouth movement is useful for assessing conditions and characteristics
of drivers. Possessing this knowledge, an ordinarily skilled artisan would
have appreciated that speaking activity indicative of driver distraction as
taught by Sherony would have improved Abdelaziz, and that the speaking
activity could be detected by tracking mouth movement as taught by
Abdelaziz. Thus, despite Appellant's assertions to the contrary, we conclude
the Examiner has provided an articulated rationale for combining Abdelaziz
and Sherony. Appellant does not address with any specificity the articulated
rationale set forth by the Examiner. Appellant merely argues that the
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Examiner has relied on hindsight and that the combination would not have
been "obvious to try." App. Br. 9--11, Reply Br. 6-7. These arguments are
not sufficient to apprise us of Examiner error. See In re Cree, 818 F .3 d 694,
702 n.3 (Fed. Cir. 2016) (holding an appellant's hindsight argument is of no
moment where the Examiner provides a sufficient, non-hindsight reason to
combine the references). In particular, Appellant has not provided
persuasive evidence or line of reasoning explaining why the Examiner's
stated rationale is erroneous or why a person of ordinary skill in the art
would not have reached the conclusions reached by the Examiner.
DECISION
Because we do not find Appellant's arguments persuasive of
Examiner error, we affirm the Examiner's rejection of claims 1, 3, 4, 6-11,
13, 14, and 16-20.
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)(l )(iv).
AFFIRMED
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