14814677 - (D) (P.T.A.B. Aug. 20, 2019)

Kenneth James. Miller et al.

Patent Trials and Appeals BoardAug 20, 2019

14814677 - (D) (P.T.A.B. Aug. 20, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/814,677 07/31/2015 Kenneth James MILLER 83547947 6211 28395 7590 08/20/2019 BROOKS KUSHMAN P.C./FGTL 1000 TOWN CENTER 22ND FLOOR SOUTHFIELD, MI 48075-1238 EXAMINER ANTONUCCI, ANNE MARIE ART UNIT PAPER NUMBER 3667 NOTIFICATION DATE DELIVERY MODE 08/20/2019 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KENNETH JAMES MILLER, DOUGLAS RAYMOND MARTIN, and WILLIAM PAUL PERKINS1 ____________________ Appeal 2017-011376 Application 14/814,677 Technology Center 3600 ____________________ Before LINDA E. HORNER, MICHELLE R. OSINSKI, and ERIC C. JESCHKE, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, and 4–17.2 We have jurisdiction under 35 U.S.C. § 6(b). 1 Ford Global Technologies, LLC (“Appellant”) is the Applicant as provided in 37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 1. 2 Claim 3 is cancelled. Appeal Br. Claims App’x 1. Appeal 2017-011376 Application 14/814,677 2 We AFFIRM and designate our affirmance of the rejection of claims 1, 2, and 4–17 under 35 U.S.C. § 101 as a NEW GROUND OF REJECTION pursuant to our authority under 37 C.F.R. § 41.50(b). THE CLAIMED SUBJECT MATTER Claims 1, 9, and 13 are independent and are reproduced below. 1. A vehicle display system comprising: an interface configured to present selectable icons; and a controller programmed to receive data indicating a roughness of a driving surface, to assign a relevancy level to at least one of the icons associated with a vehicle feature based on the data, and to select a display form for the at least one of the icons based on the relevancy level, wherein the relevancy level increases as the roughness increases. 9. A vehicle having a vehicle display system, comprising: an interface configured to present a collision-avoidance icon; and a controller programmed to receive vehicle position data indicative of a followed vehicle position, to assign a relevancy level to the icon based on the followed vehicle position, and to select a display form for the icon based on the relevancy level. 13. A vehicle display system comprising: an interface configured to present an icon that permits control of vehicle speaker volume; and a controller programmed to alter a display form of the icon based on an assigned relevancy level that changes as received data indicative of an emergency situation changes. Appeal 2017-011376 Application 14/814,677 3 EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: THE REJECTIONS I. Claims 1, 2, and 4–17 stand rejected under 35 U.S.C. § 101 as directed to patent ineligible subject matter. Final Act. 12–16. II. Claims 1, 2, and 4–6 stand rejected under 35 U.S.C. § 103 as unpatentable over Small and Official Notice. Id. at 16–21. III. Claims 7–17 stand rejected under 35 U.S.C. § 103 as unpatentable over Small and Izdepski. Id. at 21–25. OPINION Appellant argues claims 1, 2, and 4–17 as a group. Appeal Br. 3–5. We select claim 1 as the representative claim, and claims 2 and 4–17 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2016). The patent laws provide that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. However, “this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (citation omitted). Mayo Collaborative Services established a framework to distinguish patents that claim laws of nature, natural phenomena, and abstract ideas Small Izdepski US 2011/0082620 A1 US 8,542,108 B1 Apr. 07, 2011 Sept. 24, 2013 Appeal 2017-011376 Application 14/814,677 4 from those that claim patent-eligible applications of those concepts. Alice, 573 U.S. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66, 77 (2012)). First, we determine whether the claims are directed to a patent-ineligible concept. Id. If so, we next consider the claim elements individually and as an ordered combination to determine whether additional elements transform the claims into a patent-eligible application. Id. This search for an inventive concept seeks an element or combination of elements “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. at 217–18. Recently, the PTO published guidance for evaluating subject matter eligibility. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (USPTO Jan. 7, 2019) (“Revised Guidance”). Under Step One, a determination is made whether the claims are in a statutory category of patentable subject matter, i.e., do they recite a process, machine, manufacture, or a composition of matter, identified in 35 U.S.C. § 101. Revised Guidance, 84 Fed. Reg. at 50, 53–54; see Alice, 573 U.S. at 216; Mayo, 566 U.S. at 70. Next, at Revised Step 2A, Prong One, an evaluation is made whether a claim recites a judicial exception, i.e., an abstract idea set forth in Section I of the Revised Guidance, a law of nature, or a natural phenomenon. Revised Guidance, 84 Fed. Reg. at 54. To determine if a claim recites an abstract idea, specific limitations that recite an abstract idea must be identified (individually or in combination), and a determination made whether the limitation(s) falls within one or more of the subject matter groupings in Section I of the Revised Guidance. Id. (A. Revised Step 2A). The three groupings are (1) mathematical concepts, relationships, formulas, or Appeal 2017-011376 Application 14/814,677 5 calculations, (2) certain methods of organizing human activity, including fundamental economic principles and practices, commercial interactions, managing personal behavior, relationships, or interactions and (3) mental processes and concepts formed in the human mind. Id. at 52. If a claim recites a judicial exception, Prong Two of Revised Step 2A requires a determination to be made whether the claim as a whole integrates the judicial exception into a practical application. Id. “A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Id. at 53. If a judicial exception is integrated, the claim is patent eligible. See id. at 54–55. If a claim does not “integrate” a recited judicial exception, the claim is directed to the judicial exception and further analysis is required under Step 2B to determine whether the claim contains additional elements, considered individually or in combination, that provide an inventive concept, such that the additional elements amount to significantly more than the exception itself. Id. at 56. Step One: Does Claim 1 Fall within a Statutory Category of § 101? The Examiner determines claim 1 is directed to one of the statutory classes under 35 U.S.C. § 101. See Final Act. 13 (stating claim 1 is “drawn to a vehicle display system . . . having an interface (display) and a controller”). Appellant does not dispute this determination and, claim 1 clearly recites “[a] vehicle display system.” Appeal Br. Claims App’x 1. Claim 1 recites a machine and, thus, falls within the statutory categories of 35 U.S.C. § 101. See Final Act. 13. Appeal 2017-011376 Application 14/814,677 6 Step 2A, Prong One: Does Claim 1 Recite a Judicial Exception? The Examiner determines that the subject matter of claim 1 is directed to a “judicial exception” in that the claims do not require “real world structures and constraints[] necessary to relate the abstract idea[] to the real world in a meaningful way,” such that the subject matter of claim 1 is directed to an idea itself. Final Act. 13. Appellant argues that “[t]he Examiner has failed to make a prima facie case under Section 101” because “[t]he Examiner has failed to explain why specific recitations and elements within the claims fall into a judicial exception, failed to analyze any additional elements recited in the claims, and failed to explain the reasons that these additional elements [d]o not result in significantly more.” Appeal Br. 3. More particularly, Appellant argues that the Examiner has “ignored” the recitations of claim 1, “which specifically claim a display form, relevancy level, and roughness of a driving s[urfa]ce.” Id. at 4. The claimed subject matter describes a controller capable of performing the steps of: (i) receiving certain data indicating a roughness of a driving surface, (ii) analyzing the received data so as to determine an appropriate relevancy level, wherein the relevancy level increases as the roughness increases, (iii) assigning the relevancy level to an icon presented on an interface, and (iv) selecting a display form for the icon based on the relevancy level. Appeal Br. Claims App’x 1. But for the recitation of a controller, each of these steps encompasses activities that may be performed by a human in the mind or with pen and paper. For example, receiving data indicating a roughness of a driving surface can be performed by observation of the driving surface by an individual. See, e.g., Spec. ¶ 50 (describing that Appeal 2017-011376 Application 14/814,677 7 off-road terrain that provides a bumpy driving surface can be determined to be a rougher driving surface than a newly paved road). In addition, analyzing the data so as to determine an appropriate relevancy level is an evaluation, judgment, or opinion that can be performed mentally by the individual. See, e.g., Spec. ¶ 51 (describing that the relevancy level may include a ranking on a scale of 1‒10 or be based on a status such as low, medium, or high). Next, assigning the relevancy level to an icon presented on an interface encompasses the individual mentally deciding that the evaluated relevancy level is pertinent to at least one icon on a vehicle display system. See, e.g., Spec. ¶ 52 (“The determined relevancy level may be used to determine the display form for certain icons, or selectable options”). Finally, selecting a display form for the icon based on the relevancy level encompasses the individual mentally deciding that one of a small, medium, or large size may be desirable for the icon on the vehicle display system based on the evaluated relevancy level (see, e.g., Spec. ¶ 52). Cf. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) (determining that a claim step was so broadly worded that it encompassed “even logical reasoning that can be performed entirely in the human mind”). Considered as a whole, the steps (i)–(iv) discussed above recite a process that people can perform mentally or by hand. It is thus similar to other processes that courts have determined are mental processes. See, e.g., id. at 1372 (determining that a claim whose “steps can be performed in the human mind, or by a human using pen and paper” is directed to an unpatentable mental process). This is true even though claim 1 recites that it is a controller that is programmed to perform these steps. Id. (holding a Appeal 2017-011376 Application 14/814,677 8 method for verifying the validity of a credit card transaction over the Internet as an abstract idea capable of being performed in the human mind or by a human using pen and paper); see also id. at 1375 (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.”). “Courts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind.” Versata Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015); see also Revised Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation, covers performance in the mind but for the recitation of generic computer components, then it is still in the mental processes category unless the claim cannot practically be performed in the mind.”). We therefore determine that claim 1 recites a mental process as identified in the Revised Guidance, and thus, an abstract idea. Step 2A, Prong Two: Is There Integration into a Practical Application? Following our Office guidance, having found that claim 1 recites a judicial exception, namely, a mental process including the concepts of observation, evaluation, judgment, and opinion, we are instructed next to determine whether the claim recites “additional elements that integrate the exception into a practical application” (see MPEP §§ 2106.05(a)–(c), (e)– (h)). See Revised Guidance, 84 Fed. Reg. at 54. Claim 1 recites “[a] vehicle display system comprising: an interface configured to present selectable icons” and “a controller programmed to” perform steps (i)–(iv) recited above. Appeal Br. Claims App’x 1. The interface is recited at a high level of generality, i.e., as a generic interface Appeal 2017-011376 Application 14/814,677 9 performing a generic interface function of being able to receive input via presentation of selectable icons. The controller is also recited at a high level of generality, i.e., as a generic controller capable of performing the functions of receiving data, determining an appropriate relevancy level based on the data, assigning the relevancy level to an icon presented on the interface, and selecting a display form for the icon based on the relevancy level. The recitation of an interface configured to present selectable icons and the recitation of a controller programmed to, among other things, select a display form for at least one of the icons, does not integrate the abstract idea into a practical application. More particularly, the claim stops at the selection of the display form, and does not recite that the selected display form is then utilized in the interface. Thus, the additional elements of the interface and the controller do not actually recite a specific manner of utilizing the selected display form in a vehicle display system that provides a specific improvement over prior vehicle display systems, resulting in an improved user interface for vehicle display systems. Instead, the generic “interface” limitation and generic “controller” limitation are no more than instructions to apply the judicial exception (i.e., a mental process) using generic computer elements. The generic “interface” limitation and generic “controller” limitation do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. See MPEP § 2106.05(f) (“Use of a computer or other machinery in its ordinary capacity for . . . tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea . . . does not provide significantly more.”). Appeal 2017-011376 Application 14/814,677 10 In short, the additional elements of an interface configured to present selectable icons and a controller programmed to, among other things, select a display form for at least one of the icons (1) do not improve the functioning of a computer or other technology, (2) are not applied with any particular machine, (3) do not effect a transformation of a particular article to a different state, and (4) are not applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. See MPEP §§ 2106.05(a)–(c), (e)–(h). Consequently, the claimed invention does not integrate the abstract idea into a “practical application,” as that phrase is used in the Revised Guidance. Step 2B: Does Claim 1 Recite an Inventive Concept? We next consider whether claim 1 recites any elements, individually or as an ordered combination, that transform the abstract idea into a patent- eligible application, e.g., by providing an inventive concept. Alice, 573 U.S. at 217–18. The Examiner determines that: [t]he additional element(s) or combination of elements in the claims other than the abstract idea per se (e.g., the interface/display, the controller/processor) merely use a generic computer (a display and a processor are generic computer components) to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry. Viewed as a whole the additional claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Final Act. 15. We agree with the Examiner. The interface and controller of claim 1 are invoked as conventional tools. The interface is recited for its generic function of presenting selectable icons to receive input. The controller is Appeal 2017-011376 Application 14/814,677 11 similarly recited for its generic function of executing program instructions and operations. Apart from being instructed to perform the abstract idea discussed above, the controller only serves to perform well-understood functions (e.g., receiving and analyzing data). See FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (“[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter”). In our view, claim 1 fails to add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field, but instead “simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.” See Revised Guidance, 84 Fed. Reg. at 56. That is, Appellant has not persuaded us that claim 1 is directed to a specific application designed to achieve an improved technological result, as opposed to being directed to merely ordinary functionality of an interface and controller to apply an abstract idea. The invocation of an “interface” and a “controller” is insufficient to transform the abstract idea into a patent- eligible application. For the reasons discussed above, we find no element or combination of elements recited in claim 1 that contains any “inventive concept” or adds anything “significantly more” to transform the abstract concept into a patent-eligible application. Alice, 573 U.S. at 221. Accordingly, we sustain the Examiner’s decision rejecting claim 1, and claims 2 and 4–17 falling therewith, under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Because our reasoning expands upon that given by the Examiner, we designate our affirmance of the Appeal 2017-011376 Application 14/814,677 12 rejection of claims 1, 2, and 4–17 under 35 U.S.C. § 101 as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Rejection II The Examiner finds that Small teaches a vehicle display system comprising an interface configured to present selectable icons and a controller programmed to receive data indicative of driving surface conditions (e.g., weather conditions, road conditions (including “road bumpiness,” and vehicle speed), to assign a relevancy level to the icons based on the data (e.g., levels 1, 2, 3, or 4), and to select a display form for the icons based on the relevancy level (e.g., optimal or non-optimal configuration in one embodiment or a variety of adaptations in another embodiment). Final Act. 17 (citing Small Abstr., ¶¶ 7, 33–34, 36–40, 59– 66). The Examiner acknowledges that “Small does not specifically teach that as a roughness associated with the driving surface conditions increases, the relevancy level increases.” Id. The Examiner determines, however, that “[t]he same logic [of changing the relevancy level (and adapting the display interface accordingly) based on increased vehicle speed and/or precipitation negatively affecting driving conditions] could be applied to driving surface conditions and would function in the same manner as the example explicitly taught by Small.” Id. at 17–18. The Examiner concludes that it would have been obvious to use Small’s adaptable interface display for “controlling the display based on the road surface conditions as the invention would function in the same manner[,] but would just use a different input variable and would prioritize different (and more appropriate) icons for the input variable.” Id. at 18. Appeal 2017-011376 Application 14/814,677 13 Appellant argues that the Examiner’s rejection suggests that “any retrieval of data disclosed in a reference would render claim 1 obvious.” Appeal Br. 5. Appellant maintains that the Examiner “has not supplied a reference teaching such ‘roughness of a driving surface,’ let alone where ‘the[] relevancy level increases as the roughness increases.’” Id. In short, Appellant argues that the Examiner’s rejection is conclusory. Reply Br. 3. We do not agree with Appellant that Small fails to discuss the roughness of a driving surface or that the Examiner’s reasoning would result in a reference disclosing the retrieval of any data rendering obvious the retrieval of driving surface roughness. In the particular paragraphs of Small identified by the Examiner, Small explicitly discloses that (i) “road conditions (e.g., incline, road bumpiness, etc.) may be monitored” (Small ¶ 36), (ii) “when the user is distracted due to road conditions, or the road conditions are poor (e.g., bumpy road), the user may find it difficult to accurately touch a small region of the screen” (id. ¶ 59), and (iii) a non- optimal configuration for a user interface may be useful “when the driver/passenger may be distracted due to road conditions, weather conditions, etc.” (id. ¶ 39). We note that Small discloses that “driving conditions” may include, for example, “paved road, gravel road, bumpy road, windy road, etc.” Id. ¶ 30. The Examiner adequately explains that a bumpy road condition is a poor road condition that may benefit from a non- optimal configuration for a user interface, so as to suggest the desirability of assigning a higher relevancy level when surface roughness increases. Accordingly, the Examiner has provided “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR Appeal 2017-011376 Application 14/814,677 14 Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). That is, the Examiner has adequately explained the logical benefit to utilizing road condition information relating to road surface roughness (e.g., paved road, gravel road, bumpy road) when adapting a user interface for drivers distracted by poor road conditions. Providing a non-optimal configuration for the vehicle display based on road conditions (e.g., bumpiness), with a higher relevancy as bumpiness increases, addresses the problem of driver distraction and allows for accurate touching of the display. As to Appellant’s arguments regarding the impropriety of the Examiner’s Official Notice (Appeal Br. 6–7), we note that the Examiner has appeared to use Official Notice only (i) to support that the claims extend to “the retrieval of data [by a controller] from a stored source” (and not only to the controller receiving directly sensed data) because the claims do not recite how data is received by the controller (Final Act. 8–9) and (ii) to use “additional teachings of the same reference . . . to teach that such a feature [i.e., that as roughness associated with driving surface conditions increase, the relevancy level increases] would be obvious” (Ans. 10–11). In our view, the Examiner need not use Official Notice for either of these purposes, and we do not find any arguments based on the improper taking of Official Notice persuasive to compel reversal of the rejection. For the foregoing reasons, Appellant does not show error by the Examiner in concluding that the subject matter of claim 1 is rendered obvious by Small. We sustain the rejection of claim 1, and claims 2 and 4–6 which depend therefrom and for which Appellant relies on the same arguments and reasoning (Appeal Br. 10), under 35 U.S.C. § 103 as unpatentable over Small. Appeal 2017-011376 Application 14/814,677 15 Rejection III Dependent Claims 7 and 8 Dependent claims 7 and 8 depend from independent claim 1 directly or indirectly. Appellant relies on the same arguments and reasoning we found unpersuasive in connection with independent claim 1 as the basis for seeking reversal of the rejection of dependent claims 7 and 8. Appeal Br. 10. For the same reasons discussed above in connection with the rejection of claim 1, we also sustain the rejection of claims 7 and 8 under 35 U.S.C. § 103 as unpatentable over Small and Izdepski. Claim 9 and its Dependent Claims With respect to independent claim 9, the Examiner finds that Small teaches a vehicle having a vehicle display system comprising an interface configured to present icons and a controller programmed to receive vehicle position data (e.g., proximity to preset geographic locations (claim 4 of Small)), to assign a relevancy level to an icon based on the vehicle position, and to select a display form for the icons based on the relevancy level. Final Act. 21–22 (citing Small Abstr., ¶¶ 7, 33–34, 36–40); see also Small ¶ 82 (describing adaptation of the vehicle display interface based on proximity to a preset geographic location). The Examiner acknowledges that Small “do[es] not specifically teach that the icon is a collision-avoidance icon and that the controller [is] programmed to receive vehicle position data indicative of a followed vehicle position.” Id. at 22. The Examiner finds that “such matter is taught by Izdepski.” Id. (citing Izdepski Abstr., 5:25– 6:42, 7:35–8:48). More specifically, the Examiner finds that “[i]n Izdepski, the specific conditions put forth include information related to driving . . . such as Appeal 2017-011376 Application 14/814,677 16 vehicle speed condition, anti-lock brake condition, etc.” and “[i]t would not be outside the level of ordinary skill in the art to infer the position of a following vehicle from the list of conditions specifically taught by Izdepski.” Id. at. The Examiner further finds that “the information being used/gathered by Izdepski is not only of the current vehicle[,] but also of the vehicle surroundings and from the surrounding vehicles.” Ans. 15. The Examiner concludes that it would have been obvious “to include the distance to a following vehicle as the data being received” (id. at 16) and “to combine the adaptive display of Small . . . with the dynamic display of Izdepski . . . as both systems concern in vehicle display systems that adapt based on the conditions of or surround[ing] the vehicle” (Final Act. 22). Appellant argues that “Izdepski fails to teach or suggest . . . any condition relating to ‘a followed vehicle position,’ let alone assigning ‘a relevancy level to the icon based on the followed vehicle position.’” Appeal Br. 8. Appellant further argues that “[t]he Examiner has not explained how one would infer to assign a relevancy level based on the followed vehicle position in view of Izdepski, only that one could.” Id. Izdepski describes that a processor in a first vehicle can receive information “from other vehicles within a proximity,” such as whether “the anti-lock brake system, a traction control system, or an airbag system is activated in another vehicle or multiple vehicles in an area” and “make an inference based on the information that a hazardous driving environment currently exists, and . . . may command the dashboard display to indicate hazardous road conditions or an accident in the vicinity.” Izdepski 4:5–9, 21–28. Izdepski also describes that “[t]he indication may [be] a graphical representation—for example[,] an icon of a car crash . . . [and/or] a textual Appeal 2017-011376 Application 14/814,677 17 representation of the condition, such as a recommendation to slow down.” Id. at 4:28–32. Moreover, as illustrated in Figure 3 of Izdepski, the information received by the controller (and displayed to the user) already includes the distance to another vehicle when relaying information regarding the other vehicle. Id. at 8:39–48, Fig. 3 (displaying the textual information that “Antilock brakes activated .02 mi ahead”). Thus, Izdepski already utilizes “vehicle position data indicative of a followed vehicle position” as recited in independent claim 9. Izdepski also describes its system using the activation of anti-lock brakes in another vehicle (at a certain distance) for determining whether a hazardous driving condition exists. Id. at 4:21–26, Fig. 3. Izdepski also describes a dashboard displaying changes in driving conditions. Id. at 5:37–40. We find the Examiner to be on solid ground in explaining that Izdepski supports that there is a logical benefit to utilizing the distance of one vehicle to another vehicle in determining the relevancy of another vehicle’s information. When this explanation is combined with the Examiner’s explanation of Small’s teachings of assigning levels to received data and adapting an interface depending on the level, the Examiner has explained adequately why one of ordinary skill in the art would have been led to receive vehicle position data indicative of a followed vehicle position, to assign a relevancy level to an icon based on the data indicative of a followed vehicle position, and to select a display form for the icon based on the relevancy level. For the foregoing reasons, Appellant does not show error by the Examiner in concluding that the subject matter of claim 9 is rendered obvious by Small and Izdepski. We sustain the rejection of claim 9, and claims 10–12, which depend therefrom and for which Appellant relies on the Appeal 2017-011376 Application 14/814,677 18 same arguments and reasoning (Appeal Br. 10), under 35 U.S.C. § 103 as unpatentable over Small and Izdepski. Independent Claim 13 and its Dependent Claims With respect to independent claim 13, the Examiner finds that Small teaches a vehicle display system comprising “an interface configured to present an icon that permits control of vehicle speaker volume” and “a controller programmed to alter a display form of the icon based on an assigned relevancy level that changes as received data changes.” Final Act. 24 (citing Small Abstr., ¶¶ 7, 33–34, 36–40, and 48–55). The Examiner acknowledges that Small “do[es] not specifically teach that the received data is indicative of an emergency situation,” but finds that “such matter is taught by Izdepski.” Id. (citing Izdepski 4:21–63). The Examiner concludes that it would have been obvious “to combine the adaptive display of Small . . . with the dynamic display of Izdepski . . . as both systems concern in vehicle display systems that adapt based on the conditions of or surround[ing] the vehicle.” Id. The Examiner also determines that “[t]he specific icon displayed and what information is used to determine the icon[] displayed, would be within the level of ordinary skill in the art to infer based on the specific teachings of Izdepski.” Id. Appellant argues that Izdepski “fails to disclose altering ‘a display form of’ ‘an icon that permits control of vehicle speaker volume’ ‘based on . . . an emergency situation change,’ as recited in claim [13].” Appeal Br. 9. Appellant continues that “[e]ven if Izdepski could be interpreted as altering ‘a display form of the icon’ in response to a ‘hazardous road condition,’ such icon in Izdepski is a ‘graphical representation’ relating to ‘the condition,’ Appeal 2017-011376 Application 14/814,677 19 and is not an icon relating to another feature or ‘an icon that permits control of the vehicle speaker volume,’ as recited in claim [13].” Id. The Examiner responds that the rejection relies on Small for teaching “an interface configured to present an icon that permits control of vehicle speaker volume” and “a controller programmed to alter a display form of the icon based on an assigned relevancy level that changes as received data changes.” Ans. 17–18. The Examiner further responds that “Izdepski is being merely used to teach that the data being received is indicative of an emergency situation.” Id. at 18 (citing Izdepski 5:1–24). The Examiner has explained adequately how Small teaches altering a display form of an icon that permits control of vehicle speaker volume. See Small ¶ 60 (“[U]ser interface soft buttons, including slider controls such as the volume control, adapt to the vehicle conditions as detected by sensors 105.”) The Examiner also has explained adequately the logical benefit to utilizing received data indicative of an emergency situation. See Izdepski, Fig. 3, 4:24–32. With the discussion of combining Small’s teachings (i.e., having the assigned relevancy level of the received data change as the received data changes and specifically adapting volume control to ensure adequate touching during distracting road conditions) with Izdepski’s teachings (i.e., using information related to emergencies (e.g., traffic accidents in the vicinity)), the Examiner has explained adequately how the modified system of Small would change, in particular, the display form of the icon that permits control of vehicle speaker volume based on received emergency information. The Examiner has explained adequately why one of ordinary skill in the art would have been led to utilize data indicative of an emergency situation, assign a relevancy level to it, and use that assigned Appeal 2017-011376 Application 14/814,677 20 relevancy level in altering a display form of the icon that, in particular, permits control of vehicle speaker volume. For the foregoing reasons, Appellant does not show error by the Examiner in concluding that the subject matter of claim 13 is rendered obvious by Small and Izdepski. We sustain the rejection of claim 13, and claims 14–17, which depend therefrom and for which Appellant relies on the same arguments and reasoning (Appeal Br. 10), under 35 U.S.C. § 103 as unpatentable over Small and Izdepski. DECISION The Examiner’s decision to reject claims 1, 2, and 4–17 under 35 U.S.C. § 101 as being directed to patent ineligible subject matter is affirmed, and we designate our affirmance of the rejection of these claims as a NEW GROUND OF REJECTION. The Examiner’s decision to reject claims 1, 2, and 4–6 under 35 U.S.C. § 103 as unpatentable over Small is affirmed. The Examiner’s decision to reject claims 7–12 under 35 U.S.C. § 103 as unpatentable over Small and Izdepski is affirmed. The Examiner’s decision to reject claims 13–17 under 35 U.S.C. § 103 as unpatentable over Small and Izdepski is affirmed. This decision contains a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b). Section 41.50(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 Appeal 2017-011376 Application 14/814,677 21 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 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. 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)(1)(iv). AFFIRMED; 37 C.F.R. § 41.50(b)