Ex Parte Galbas et al

Patent Trial and Appeal Board

Mar 23, 2018

13591395 (P.T.A.B. Mar. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/591,395 08/22/2012
24972 7590 03/27/2018
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
FIRST NAMED INVENTOR
Roland GALBAS
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.P7589US/l 1603136 8645
EXAMINER
GRAMLING, SEAN P
ART UNIT PAPER NUMBER
2875
NOTIFICATION DATE DELIVERY MODE
03/27/2018 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 ROLAND GAB LB AS and FELIX WULF 1
Appeal2017---009273
Application 13/591,395
Technology Center 2800
Before BEYERL YA. FRANKLIN, N. WHITNEY WILSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants request our review under 35 U.S.C. § 134 of the
Examiner's decision rejecting claims 1-5 and 7-16. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
1 Appellants identify the real party in interest as Robert Bosch GmbH.
Appeal2017-009273
Application 13/591,395
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellants' subject matter on appeal and is
set forth below (with text in bold for emphasis):
1. A method for changing a light emission of at least one
headlight of a vehicle, the method comprising:
reading in a position signal which represents a position of a
nonmobile object, the nonmobile object being above a roadway in a
path of the vehicle, wherein the position signal represents a clearance
height of the nonmobile object above the roadway; and
changing the light emission from the at least one headlight of the
vehicle onto the object or into the surroundings of the object, using the
position signal, so that for the change, a changing illumination pattern is
emitted onto the object or into the surroundings of the object to change the
light emission of the at least one headlight of the vehicle;
wherein at least one of:
in the reading in operation, the position signal also includes
information concerning a type or a class of the object, and, in the
changing operation, the changing of the illumination pattern
emitted onto the object or into the surroundings of the object
includes selecting between at least two different illumination
patterns depending on the information concerning the type or the
class of the object;
in the reading in operation, information identifying a
system recognized potential parking space that is present at an
edge of a roadway traversed by the vehicle is read in, and, in the
changing operation, the light emission is changed so that at least a
portion of the illumination pattern illuminates the parking space
or is directed into the parking space; and
in the reading in operation, information is read in that the
vehicle is exiting from a parking space at that moment, and, in
changing operation, the illumination pattern is emitted so that at
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Application 13/591,395
least one sub area of the illumination pattern is emitted onto an
object that is abeam of the headlight.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Ewerhart et al. (Ewerhart) U.S. 2005/0012603 Al
Shimaoka et al. (Shimaoka) U.S. 2008/0175012 Al
THE REJECTIONS
Jan.20,2005
July 24, 2008
1. Claims 1-5, 7-14, and 16 are rejected under 35 U.S.C. § l 12(a) or
35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement.
2. Claims 1-5, 7-14, and 16 are rejected under 35 U.S.C. § l 12(b) or
35 U.S.C. 112 (pre-AIA), second paragraph, as being indefinite.
3. Claims 1-5 and 7-16 are rejected under pre-AIA 35 U.S.C. § 103
(a) as being unpatentable over Shimaoka in view of Ewerhart.
ANALYSIS
To the extent that Appellants have presented substantive arguments
for the separate patentability of any individual claim on appeal, we will
address them separately consistent with 37 C.F.R. § 41.37(c)(l)(vii), and
these claims are identified hereafter.
Upon consideration of the evidence and each of the respective
positions set forth in the record, we find that the preponderance of evidence
supports the Examiner's findings and conclusion that the subject matter of
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Appellants' claims is unpatentable over the applied art with regard to claims
1, 2-5, 7-9, 11, 13, 14, and 15 rejected in Rejection 3. Accordingly, we
sustain the Examiner's determination with regard to these claims, essentially
for the reasons set forth in the Final Office Action and in the Answer.
However, we reverse Rejections 1 and 2. We also reverse Rejection 3 with
regard to claims 10, 12, and 16. We add the following for emphasis.
Rejection 1
It is the Examiner's position that the recitations bolded in claim 1
(supra) do not have written descriptive support because the Examiner
believes that the claim first narrowly recites a reading in a position signal,
but then broadly recites (at 11. 10-24) that the reading can include other
objects, including illumination of them, which the Examiner believes is
unsupported by the Specification. Final Act. 2--4.
However, we agree with Appellants' position in the record.
Appellants argue that the Specification does not limit the position signal to
a specific signal (and corresponding illumination of it). Appeal Br. 6. As
stated by Appellants on page 6 of the Appeal Brief (and reiterated on page
2 of the Reply Brief), the Specification states that "[i]n order to transmit to
the observer, in particular the driver of the vehicle, information
concerning the magnitude of a hazard from the object or for the object,
using the emitted illumination pattern, in the step of the reading in, the
position signal may also include information concerning a type and/or a
class of the object". Spec. pp. 7-8. Thus, the position signal can include
more than one type and/or class of object (along with illumination of it).
In view of the above, we reverse Rejection 1.
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Application 13/591,395
Rejection 2
The Examiner identifies the same recitations as identified with regard
to Rejection 1, supra, as being indefinite. Final Act. 5-7. Ans. 6-7. The
Examiner believes that the claims are indefinite, stating that Appellants
narrowly claim what "the position signal" represents, and then broadly
claim that the position signal represents something different, and therefore
the scope of the claim is vague and indefinite. Final Act. 5---6.
However, we agree with Appellants' stated position in the record as
set forth on page 7 of the Appeal Brief. Therein, the Appellants explain
how the Specification never limits the position signal to a specific signal
and allows for a combination with reference to pages 7-8 of the
Specification (as similarly discussed, supra).
In view of the above, we reverse Rejection 2.
Rejection 3
Claim 1
The Examiner's position for this rejection is set forth on pages 7-15
of the Final Office Action. Therein, the Examiner relies upon Shimaoka for
teaching the claimed subject matter, except for teaching that the object be a
nonmobile object above a roadway in a path of the vehicle such that the
position signal represents a clearance height. Final Act. 7-8. The
Examiner states that reading position signals that represent clearance
heights of nonbmobile objects above a roadway in a path of the vehicle is
common in the art as taught by Ewerhart. Ewerhart, Fig. 3 and i-fi-1 [0003]-
[0009] and [0016]-[0026]. Final Act.8. The Examiner concludes that it
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would have been obvious to have selected the object in Shimaoka as being
nonmobile and above a roadway in a path of the vehicle such that the
position signal represents a clearance height, as taught by Ewerhart, in
order to alert drivers to permanent obstacles within the vehicle path. Id.
Appellants argue that the applied art does not teach any of the three
alternatives concerning the "reading in operation" steps recited in claim 1.
Appeal Br. 7-10.
Appellants begin with the first alternative2, and state that the
Examiner relies upon i-f 57 of Shimaoka for this teaching. Appeal Br. 7.
Appellants argue that this paragraph merely discloses determining whether a
person is stationary or is moving in a direction of danger, and does not
disclose selecting between different types of output light patterns
depending on an object class or type. Appellants argue that Ewerhart does
not cure this deficiency of Shimaoka. Appeal Br. 7-8.
However, in response, the Examiner makes a valid point that
i-f [0073] of Shimoaka specifically teaches "as the degree of danger of the
person estimated by the danger degree estimating section 170 increases",
the control device may output to the lighting driving device "an instruction
to make the shape of the illumination pattern larger, or to make the
flashing period of the flashing state of the illumination pattern shorter or
2 The first alternative being "in the reading in operation, the position signal
also includes information concerning a type or a class of the object, and, in
the changing operation, the changing of the illumination pattern emitted onto
the object or into the surroundings of the object includes selecting between
at least two different illumination patterns depending on the information
concerning the type or the class of the object".
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to make the color of the illumination pattern approach the color red". The
Examiner states that, accordingly, in the changing operation of Shimaoka,
the illumination pattern emitted onto the object or into the surroundings of
the object "includes selecting between at least two different illumination
patterns depending on the information concerning the type or the class of
the object". The Examiner states that therefore a different illumination
pattern is emitted in Shimaoka depending on whether the object (in this
case, a person) is stationary or moving towards danger. The Examiner
concludes that therefore Shimaoka teaches at least the first alternative
recited in independent claim 1 (as well as in independent claims 13 and 14 ).
Ans. 9. We agree. We likewise agree with the Examiner's stated position
made on pages 8-9 of the Final Office Action wherein the Examiner
explains how Ewerhart was relied upon for teaching reading position signals
that represent clearance heights of nonmobile objects above a roadway.
In view of the above, we affirm Rejection 3 with regard to claim 1 (as
well as with regard to claims 2-5, 7-9, 11, 13, and 14 which are grouped
with claim 1).
Claim 10
Claim 10 pertains to the second alternative recited in claim 1, which is
"in the reading in operation, information identifying a system recognized
potential parking space that is present at an edge of a roadway traversed by
the vehicle is read in, and, in the changing operation, the light emission is
changed so that at least a portion of the illumination pattern illuminates the
parking space or is directed into the parking space".
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Appellants argue that the Examiner refers to Figures 6, 7 and 13 of
Shimaoka for suggesting the area at the edge of roadway can be a parking
space, and a portion of the illumination pattern would incidentally
illuminate both the object (person) and the surrounding parking lot.
Appeal Br. 8. Appellants argue that even assuming the veracity of this
statement, the incidental illumination of an area in no way suggests
reading in information identifying a system recognized potential parking
space. Id. Appellants argue that Ewerhart does not cure this deficiency of
Shimaoka. Id. We agree. Notably, the Examiner does not respond to this
point made by Appellants. Ans. 7-10.
In view of the above, we reverse Rejection 3 with regard to claim 10.
Claim 12
Claim 12 pertains to the third alternative recited in claim 1, which is
"in the reading in operation, information is read in that the vehicle is
exiting from a parking space at that moment, and, in the changing
operation, the illumination pattern is emitted so that at least one subarea
of the illumination pattern is emitted onto an object that is abeam of the
headlight."
Appellants argue that the Examiner relies upon i-fi-1 31-123 of
Shimaoka for disclosing this claim feature because emitted light in the
system of Shimaoka can be projected onto an object that is abeam of the
headlight. Appeal Br. 8. Appellants argue that Shimaoka suggests creating
a light pattern in a way that creates a sign in the shape of a "Y", a "T"
or an arrow, which is projected onto the road surface as a warning. Id.
Appellants submit that thus Shimaoka suggests illuminating a road surface
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and does not suggest illuminating the object itself, whereas the claim
refers to changing a pattern so that light is emitted onto a detected object.
Appeal Br. 8. Appellants also argue that Shimaoka does not suggest
reading in any information indicating that the vehicle is exiting from a
parking space, and that Ewerhart does not cure this deficiency of
Shimaoka. We agree. Notably, the Examiner does not respond to this point
made by Appellants. Ans. 7-10.
We thus reverse Rejection 3 with regard to claim 12. Claim 16
depends upon claim 12 and therefore the rejection is reversed with respect to
claim 16 because of its dependency upon claim 12.
Claim 15
Regarding independent claim 15, the claim recites reading in a
position of a nonmobile object, which is positioned above and off the
roadway, and further recites changing a light emission so that a
changing illumination pattern is projected on the object.
Appellants argue that, as explained above with regard to claim 1,
Shimaoka suggests projecting a light pattern to create a sign on the
road; it does not suggest illuminating a detected nonmobile object that is
off the road. Appeal Br. 9. Appellants also argue that Ewerhart suggests
measuring horizontal and vertical clearances, but does not suggest
illuminating a detected object. Id. Appellants submits that the
combination of Shomaoka and Ewerhart therefore does not suggest
illuminating a detected object off the road, the clearance height from
which the object is detected. Appeal Br. 9.
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However, as explained by the Examiner on pages 9-10 of the
Answer in response to Appellants' argument, the Examiner points out that
the Examiner had acknowledged that Shimaoka does not specifically
teach that the object be a nonmobile object above and off a roadway in a
path of the vehicle such that the position signal represents a clearance
height. Ans. 9-10. The Examiner reiterates that position signals that
represent clearance heights of nonbmobile objects above a roadway in a
path of the vehicle are common in the art as taught by Ewerhart. The
Examiner reiterates the conclusion that it would have been obvious to have
specified that the object in Shimaoka be a nonmobile and above and off a
roadway in a path of the vehicle, such that the position signal represents a
clearance height, as taught by Ewerhart, in order to alert drivers to
permanent obstacles within the vehicle path. Ans. 10. Based upon the
Examiner's stated response, Appellants argue the references individually
rather than as applied by the Examiner, and we are unpersuaded by such
argument. The test for obviousness is what the combined teachings of the
references would have suggested to those of ordinary skill in the art; one
cannot show non-obviousness by attacking references individually where
the rejections are based on combinations of references. In re Young, 927
F.2d 588, 591 (Fed. Cir. 1991); In re Merck & Co., Inc., 800 F.2d 1091,
1097-98 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Furthermore, Appellants do not address this response made by the
Examiner in the Reply Brief, other than to repeat the very same argument
presented on pages 9-10 of the Appeal Brief. Reply Br. 4--5.
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For the aforementioned reasons, we affirm Rejection 3 with regard to
claim 15.
DECISION
We reverse Rejections 1 and 2.
We affirm Rejection 3 with regard to claims 1, 2-5, 7-9, 11, 13, 14,
and 15.
We reverse Rejection 3 with regard to claims 10, 12, and 16.
TIME PERIOD
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).
ORDER
AFFIRMED-IN-PART
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