Ex Parte Gussner et al

Patent Trial and Appeal Board

Feb 28, 2019

14403494 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/403,494 11/24/2014
24972 7590 03/04/2019
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
FIRST NAMED INVENTOR
Thomas Gussner
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.P8891 US/11603945 2854
EXAMINER
HILGENDORF, DALE W
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS GUSSNER, THOMAS SCHLENDER, and
LUTZ BUERKLE
Appeal 2017-011579
Application 14/403,494
Technology Center 3600
Before JOSIAH C. COCKS, BENJAMIN D. M. WOOD, and
ALYSSA A. FINAMORE Administrative Patent Judges.
COCKS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-011579
Application 14/403,494
I. STATEMENT OF THE CASE
This is a decision on appeal by Appellants under 35 U.S.C. § I34(a)
from a final rejection of claims 15-18 and 20-28 of Application 14/403,494
(the "'494 application"). We have jurisdiction under 35 U.S.C. § 6(b).
We reverse. 1
A. References Relied on by the Examiner
Usami us 6,138,062 Oct. 24, 2000
Ono US 2008/0097699 Al Apr. 28, 2008
Takagi et al. ("Takagi") US 2009/0228174 Al Sept. 10, 2009
Young et al. ("Young") US 7,734,387 Bl June 8, 2010
Nilsson US 2010/0191421 Al July 29, 2010
B. Rejections on Appeal
The Examiner rejected claim 17 under 35 U.S.C. § 112, second
paragraph, as unpatentable for indefiniteness.
The Examiner rejected claims 15-18, 21 and 24--28 under 35 U.S.C.
§ I03(a) as unpatentable over Takagi in view ofUsami.
The Examiner rejected claim 20 under 35 U.S.C. § I03(a) as
unpatentable over Takagi and Usami in further view of Nilsson.
1 In this opinion, we make reference to Appellants' Appeal Brief filed May
15, 2017 ("App. Br."), the Examiner's Answer mailed July 21, 2017
("Ans."), Appellants' Reply Brief filed September 20, 2017 ("Reply Br."),
the Final Rejection mailed September 14, 2016 ("Final Rej."), and
Appellants' Specification filed November 24, 2014 ("Spec.").
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The Examiner rejected claim 22 under 35 U.S.C. § 103(a) as
unpatentable over Takagi and Usami in further view of Young.
The Examiner rejected claim 23 under 35 U.S.C. § 103(a) as
unpatentable over Takagi and Usami in further view of Ono.
The Examiner rejected claim 27 as unpatentable under§ 103(a) based
on alleged "Applicant Admitted Prior Art,"2 Takagi, and Usami. Ans. 2.
C. The Invention
The Specification of the '494 application summarizes the disclosed
invention as follows:
[A] method for avoiding or mitigating a collision of a vehicle
with an obstacle, [and] a corresponding device and a
corresponding computer program product.
Spec. 1 :2-3.
Claims 15, 17, 27, and 28 are independent. Claim 15 is illustrative
and is reproduced below:
15. A method for one of avoiding and mitigating a collision of
a vehicle with an obstacle in a traffic lane of the vehicle, the
method comprising:
generating, by a computing device, a planned travel
envelope that represents a predetermined corridor having a first
and second side;
after generating the travel envelope:
detecting at least one of a position and a trajectory
of the obstacle, and
2 It is unclear what the Examiner considers to be the "Applicant Admitted
Prior Art." In that regard, the Examiner generally points to "arguments"
made on August 29, 2016, but provides little elucidation as to why or how
those "arguments" are understood reasonably as establishing an admission of
prior art. See Final Rej. 20-21.
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Application 14/403,494
adapting the travel envelope by shifting at least one
of the sides of the predetermined corridor of the travel
envelope with the aid of the at least one of the position and
the trajectory in order to one of avoid and mitigate the
collision, wherein the step of adapting includes adapting
the travel envelope within a traffic space, the traffic space
including a traffic lane and an area that is detected as
drivable in the step of detecting, and which goes beyond a
boundary of the traffic lane that is facing away from the
obstacle; and
automatically controlling the vehicle in accordance
with the adapted travel envelope.
App. Br. Claims App'x 1.
II. ANALYSIS
A. Claim Construction
Claims 15, 18, 27, and 28 are independent, and claims 16, 17, and 20-
26 ultimately depend from one of those independent claims. Having
reviewed Appellants' briefings and the Examiner's Answer, it is apparent
that one particular term/feature of the claimed approach lies at the center of
all challenged claims. We focus on the term "predetermined corridor."
The above-noted claims require that a computer-generated
"predetermined corridor" be created and manipulated to assist in directing
vehicle travel. Appellants contend that, in light of the claims and
Specification, "the claimed corridor is a computer-generated structure that
has computer-adjustable first and second sides." App. Br. 8. In particular,
Appellants are of the view that the claimed "predetermined corridor" is a
"virtual" construct that is "a digitally replicated representation of what is
real," rather than a physical structure. Id. at 4. The Examiner disagrees.
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The Examiner finds that the Specification does not provide a special
definition to the term "corridor," and turns to dictionary definitions to
interpret a "corridor" as meaning "a path, route, traffic lane or road for a
vehicle to be driven." Ans. 5. To that end, it is evident that the Examiner
equates the claimed "corridor" to an actual, physical path that a vehicle is
intended to travel, rather any virtual construct.
In resolving the dispute, we look to the Specification and claims.
There are two uses of "corridor" in the Specification. The first emerges in
the context of a summary of the disclosed invention:
The present invention is based on the realization that there is
frequently still enough room next to an obstacle on the road for
an evasive maneuver and for avoiding a collision with the
obstacle. In this context a driver assistance system can actively
and/or passively influence the lane guidance of a vehicle in order
to steer the vehicle through a corridor along the side of the
obstacle.
Spec. 1: 17-21 ( emphasis added). The use of "corridor" there, however,
sheds little light on the term's meaning.
The second recitation of "corridor," however, is illuminating. The
second mention explains a "corridor" in the context of a "travel envelope"
and "traffic lane," first stating the nature of the "travel envelope" as:
The traffic lane may be the lane in which the vehicle is currently
driving. A travel envelope may be understood to describe a
virtual path which is ascertained for the vehicle guidance and
along which the vehicle is expected to travel in order to stay
within the traffic lane. The travel envelope can be predefined by
a lane keeping system in the vehicle.
Id. at 2:9-13 (emphasis added).
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After illustrating the nature of the travel envelope, the "corridor"
appears in a more specific context, following an explanation of how the
method adapts an "intended travel envelope" for collision avoidance:
The intended travel envelope represents a corridor within which
vehicle 300 is able to follow a course of the traffic lane.
Id. at 7:20-22 (emphasis added).
The virtual nature of the travel envelope, and following that this
virtual construct "represents a corridor," supports Appellants' view that the
"predetermined corridor" of the claims is a virtual path. That view is also
supported by the language of the claims themselves. Independent claim 15
recites:
generating, by a computing device, a planned travel envelope
that represents a predetermined corridor.
App. Br. Claims App'x 1 (emphasis added). Claim 15, thus, ties the nature
of the "predetermined corridor" to a representation of the "travel envelope,"
which is generated by a computing device. Moreover, claims 21-23 depend
from claim 15 and further convey that the claimed corridor has adjustable
first and second sides. In that respect, claims 21-23 recite:
21. The method as recited in claim 15, wherein the step of
adapting includes laterally expanding the area up to an edge of
the roadway.
22. The method as recited in claim 15, wherein the step of
adapting includes expanding the traffic space beyond an edge of
the roadway.
23. The method as recited in claim 15, wherein the step of
adapting includes laterally expanding the area up to at least one
of a further obstacle and a protective device.
App. Br. Claims App'x 2 (emphasis added). These changes to the
"adapting" step of claim 15 are important because that limitation
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contemplates "adapting the travel envelope by shifting at least one of the
sides of the predetermined corridor." Id. at 1 (emphasis added). The
independent claim contemplates the ability for either side of the claimed
corridor to be moved by shifting, and the dependent claims show that this
movement can increase the final area of the corridor. Thus, to result in an
expanded space, it must be possible for the sides to move, or be adjusted,
with respect to one another, to increase the total area of the corridor, i.e.,
adjustable first and second sides. The Specification further provides
explanation that intrinsic to such adjustment is the use of a computing device
that functions to generate the travel envelope and associated corridor. Spec.
6-7; see also Reply Br. 5. Indeed, as discussed above, that a computing
device is necessary in such generation also is explicitly stated in each of the
involved independent claims themselves. See, e.g., claim 15 ("generating,
by a computing device, a planned travel envelope that represents a
predetermined corridor within which the vehicle is to travel" ( emphasis
added)).
Given the record before us, we surmise the following: (1) a
"predetermined corridor" is a virtual construct or path; (2) a "predetermined
corridor" has adjustable first and second sides; and (3) a "predetermined
corridor" is generated and adjusted by a computer. Thus, we construe the
claimed "predetermined corridor," in the context of the Specification and the
claims, as "a computer-generated path having computer-adjustable first and
second sides." We conclude that it unnecessary to make explicit a
construction for any other term. Having resolved the threshold issue of the
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meaning of the term "predetermined corridor," we tum to the Examiner's
rejections.
B. Grounds of Rejection under 35 US. C. § 112, second paragraph
The Examiner determines that claim 17 is unpatentable under 35
U.S.C. § 112, second paragraph. The Examiner argues that the use of "a
side of the corridor" in dependent claim 17, instead of "at least one of the
sides of the corridor," "the first side of the predetermined corridor," or "the
second side of the predetermined corridor," is indefinite for failing to match
the language of independent claim 15. Ans. 3. In particular, the Examiner
states that the use of "a side of the corridor" could be seen as introducing a
new side, "such as a bottom or upper side." Id.
As discussed above, we construe the claimed "predetermined
corridor" as having first and second sides. Those first and second sides are
understood reasonably as residing laterally to one another. In view of the
record at hand, it is clear that a person of ordinary skill in the art would not
regard the "bottom" or "upper" portion of a corridor as constituting one of
the "sides" of the corridor. As such, we conclude that claim 17 's reference
to "a side of the corridor" does not introduce the ambiguity with which the
Examiner was concerned. Accordingly, we do not sustain the Examiner's
rejection of claim 17 for indefiniteness.
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C. Grounds of Rejection Based on Prior Art
1. Rejection of claims 15-18, 21, and 24-28 based on Takagi and
Usami
We evaluate the Examiner's rejection by comparing the claimed
method to Takagi' s disclosure in light of our construction of "corridor."
Takagi and the claimed invention achieve similar goals through different
means. Takagi avoids a collision by sensing, via sensor 5, a "forward
obstacle" and "forward road condition such as road boundaries area ahead of
a vehicle." See e.g., Takagi ,r 28. When a collision is risked, Takagi uses
that sensed data to ascertain the existing free area between the obstacle and
road boundaries on each side of the obstacle. See, e.g., id. ,r,r 62-63. Takagi
then either shifts its vehicle to the larger available space, or (if necessary)
initiates an emergency braking operation. See, e.g., id. ,r,r 123-152; Figs.
16-20. In evaluating whether to shift and brake the vehicle, Takagi
performs forward-looking position calculations; however, those calculations
are only done in the context of where vehicle will be, and whether that future
location risks collision with any object that is within the vehicle's actual
travel path. There is no use of a generated virtual space to facilitate the
collision avoidance maneuver. In that regard, although Takagi may seek to
shift a vehicle's travel within the road boundaries based on a detected
obstacle, Takagi does not contemplate internally creating or adjusting any
virtual "corridor" as a part of that travel path shifting. It is, however, clear
from the record that the Examiner equates the actual road boundaries
disclosed by Takagi with the "predetermined corridor" of the claims. See,
e.g., Final Rej. 10 ("[T]he system of Takagi et al would still determine its
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lane position within the boundaries ( claimed predetermined corridor with
two sides).).
In contrast to Takagi' s approach, the claimed method determines its
avoidance maneuver by generating a virtual path-a travel envelope that
represents a predetermined corridor-and reacting based on the detection of
an object on the predetermined path inside of that construct. The maneuvers
of the claims of the '494 application all depend on the manipulation of this
virtual corridor-relocations and alterations in size-which are performed
by a computer.
We recognize that to an outside observer, under some circumstances,
the maneuver being performed by both the claimed method and Takagi may
appear to be the same. We agree, however, with Appellants that the claims
at hand "cannot be satisfied by how an observer would mentally categorize"
the collision avoidance actions contemplated by Takagi. See App. Br. 4--5.
To that end, the record before us conveys that the methods of the claims and
those of Takagi will achieve that maneuver in fundamentally different ways.
The Examiner seemingly relies on U sami for teachings similar to
those of Takagi. For instance, the Examiner characterizes U sami as
teach[ing] the detection of lane lines or the detection of side wall
distance ... in order to keep the vehicle in the proper lane. The
lane line detection or wall detection is equivalent to the claimed
travel envelope within a predetermined corridor having first and
second sides.
Final Rej. 11.
Based on the record before us, we do not regard the Examiner's
reliance on teachings in U sami pertaining to the detection of lanes lines or
side wall distance as amounting to the required claim features pertaining to a
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"predetermined corridor." Accordingly, we do not sustain the Examiner's
rejections of claims 15-18, 21, and 24--28 based on Takagi and Usami.
2. The Remaining Prior Art Rejections
The Examiner also proposes the following claim rejections: (1) claim
20 as unpatentable over Takagi, Usami, and Nilsson; (2) claim 22 as
unpatentable over Takagi, Usami, and Young; (3) claim 23 as unpatentable
over Takagi, Usami, and Ono; and (4) claim 27 unpatentable over
"Applicant Admitted Prior Art," Takagi, and Usami. See Ans. 2.
Claims 20, 22, and 23 depend from claim 15, and claim 27 is an
independent claim. All of claims 20, 22, 23, and 27, require features
pertaining to the "predetermined corridor." As discussed above, we are not
satisfied on the record before us that the Examiner has accounted adequately
for that feature based on the teachings of Takagi and/or Usami. The
Examiner does not rely on any of Nilsson, Young, Ono, or "Applicant
Admitted Prior Art" to account for that feature. Accordingly, we do not
sustain any of the above-noted rejections of claims 20, 22, 23, and 27.
III. CONCLUSION
We have fully considered the record before us, including the
Appellants' briefings and Examiner's Answer. For the reasons discussed
above, we are persuaded that the Examiner was incorrect in rejecting claim
17 for indefiniteness and claims 15-18 and 20-28 over the prior art.
IV. ORDER
The Examiner's decision to reject claim 17 for indefiniteness, and
claims 15-18 and 20-28 over the prior art is reversed.
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REVERSED
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