Robert Bosch GmbH

Patent Trials and Appeals Board

Jul 15, 2020

2019002567 (P.T.A.B. Jul. 15, 2020)

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.
15/377,632 12/13/2016 Andreas Voelkel BOSC.P10104US/1000198378 6594
24972 7590 07/15/2020
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
AFRIFA-KYEI, ANTHONY D
ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
07/15/2020 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 ANDREAS VOELKEL
Appeal 2019-002567
Application 15/377,632
Technology Center 2600

Before CARL W. WHITEHEAD JR., ADAM J. PYONIN, and
MICHAEL J. ENGLE, Administrative Patent Judges.

PYONIN, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Robert
Bosch GmbH. Appeal Brief 2.
Appeal 2019-002567
Application 15/377,632

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STATEMENT OF THE CASE
Introduction
The Application is directed to a “driver assistance system for a motor
vehicle” in which “the attentiveness of the driver is monitored.”
Specification 1:19, 2:8–9. Claims 13–18 and 21–30 are pending; claims 13,
23, and 24 are independent. See Response to Notification of Non-Compliant
Appeal Brief filed July 11, 2018 (“Response Brief”) at 2–5.
Claim 13 is reproduced below for reference (emphasis added):
13. A method for operating a driver assistance system for a
motor vehicle, comprising:
determining, by a navigation system, a route for the motor
vehicle to a predetermined destination;
ascertaining a position of the motor vehicle on the
determined route;
determining at least one setpoint value based on the
determined route and the ascertained position of the motor
vehicle on the determined route;
monitoring a viewing direction of a driver of the motor
vehicle;
comparing the viewing direction to the at least one setpoint
value, and an attention value is determined for the driver as a
function of the comparison;
comparing the attention value to a limiting value; and
outputting to the driver, based on a result of the comparing
of the attention value to the limiting value, at least one of acoustic
warning and a visual warning.
Response Brief 2.
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References and Rejections2
The Examiner relies on the following prior art:
Name Reference Date
Smith US 2010/0007479 A1 Jan. 14, 2010
Shikii US 2012/0099170 A1 Apr. 26, 2012
Hackenberg US 2015/0094899 A1 Apr. 2, 2015
Akiva US 2015/0194035 A1 July 9, 2015
Sprigg US 2016/0202700 A1 July 14, 2016
Horwick DE 10 2009 050 404 A1 May 5, 2011

Claims 13, 14, 17, 18, 21–25, and 27–30 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Horwick, Akiva, and Hackenberg. Final
Action 2–7.
Claim 15 is rejected under 35 U.S.C. § 103 as being unpatentable over
Horwick, Akiva, Hackenberg, and Shikii. Final Action 7.
Claim 16 is rejected under 35 U.S.C. § 103 as being unpatentable over
Horwick, Akiva, Hackenberg, and Smith. Final Action 7.
Claim 23 is additionally rejected under 35 U.S.C. § 103 as being
unpatentable over Horwick, Akiva, Hackenberg, and Sprigg. Final Action 8.

2 The Examiner has not provided a substantive rejection of pending claim
26. See Final Action 2–8; Answer 3–9; Appeal Brief 13 (“Although the
Office Action Summary of the Final Office Action, and the Status of Claims
of the Advisory Action indicate that claim 26 is rejected, nowhere in the
Final Office Action (or the Advisory Action) does the Examiner state a
ground or present a rationale for rejecting claim 26.”); Reply Brief 8 (“The
Examiner does not address claim[] . . . 26 in the Examiner’s Answer.”).
Thus, claim 26 is not currently under rejection and is not before us. See
MPEP § 1204.
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Application 15/377,632

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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
Except as indicated below, we disagree with Appellant that the
Examiner erred and adopt as our own the findings and reasons set forth by
the Examiner, to the extent consistent with our analysis below. We add the
following primarily for emphasis.

Independent Claims
Appellant argues the Examiner’s rejection of independent claim 13 is
in error, because “claim 13 recites that the setpoint value is determined
‘based on the determined route [i.e., a route, determined by a navigation
system to a predetermined destination] and the ascertained position of the
motor vehicle on the determined route,’” and “[t]he Examiner does not
address this language of claim 13 in the Final Office Action.” Appeal Brief
5. Appellant contends “Akiva does not teach or suggest this feature” and
“[t]o the extent the determination of [Hackenberg’s] distance could be
considered the ascertained position of the motor vehicle on the determined
route, this distance is not used to determine a setpoint value” as claimed.
Appeal Brief 5, 6.
Appellants’ arguments are unpersuasive of error because they focus
on the individual teachings of the references, without addressing the
Examiner’s findings with respect to the combined teachings of Horwick,
Akiva, and Hackenberg. See Final Action 3 (“It is therefore obvious to one
of ordinary skill in the art to combine Horwick with Akiva . . . [and] with
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Hackenb[e]rg.”) (emphasis omitted); see also In re Keller, 642 F.2d 413,
425 (CCPA 1981) (“The test for obviousness is not . . . that the claimed
invention must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.”).
The Examiner correctly finds “Horwick discloses a method for
operating a driver assistance system,” “Hackenb[e]rg also discloses the alert
means being acoustic and a visual warning (Paragraph 25),” and
“Hackenb[e]rg takes into account the position of the motor vehicle on the
determined route.” Final Action 2, 3 (emphasis omitted); Answer 4; see
Horwick Abstract (“driving condition of the driver . . . is compared with a
respective comparison value, whereby . . . a warning signal and/ or a driver
receiving request is output”); Hackenberg ¶ 8 (“The method involves the
determination of an end of an autopilot route section in a route planned for
the vehicle” and “a distance information between a current position of the
vehicle and the end of the autopilot route section is determined.”); ¶ 25
(“output warning signals or indication signals to a driver of [the] vehicle”).3
Appellant does not show these findings are in error. See Reply Brief 3.
The Examiner further finds Akiva, in combination with the other
references, teaches or suggests the remaining disputed limitations of claim
13. See Final Action 2, 3. We agree. Akiva is directed to “enabl[ing]
vehicle driver inattentive event detection correlating between head
movements of a driver and the direction the vehicle is heading toward.”

3 Separately, we note Akiva similarly teaches acoustic and visual alerts. See
Akiva ¶¶ 17, 18.
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Akiva ¶ 45. Particularly, Akiva discloses the following method for
operating a driver assistance system for a motor vehicle:
Some embodiments . . . enable [a] head mounted display device
worn by the driver to obtain an azimuth value indicating the
gazing direction of the driver’s head, receive a vehicle bearing
value indicating the direction of the vehicle being driven, by a
GPS, mobile phone/Smartphone and/or In-Vehicle Infotainment
(IVI) system, and calculate the angular difference between the
two values. Optionally, the head mounted display device and/or
the glasses with an electronic display, presents an alert to the
driver when the angular difference deviates from an angular
threshold. Optionally, the vehicle bearing value is generated by
a GPS and transmitted by the IVI/mobile device and/or a circuit
coupled to the vehicle.
Id.; see also Akiva ¶ 23; Final Action 2, 3. That is, as required by claim 13,
Akiva compares the viewing direction to the at least one setpoint value (by
comparing the azimuth value of the driver’s gazing direction to a vehicle
bearing value)4 to determine an attention value (the angular difference
between the values), and outputs a warning (the alert to the driver) based on

4 Separately, we note Akiva further teaches or suggests the “determining at
least one setpoint value based on the determined route and the ascertained
position of the motor vehicle on the determined route” claim limitation
because Akiva’s “vehicle bearing value indicating the direction of the
vehicle being driven” will necessarily be determined based on the route and
the position of the vehicle on the route, as Akiva’s vehicle direction will
vary along the route. Akiva ¶ 45. Akiva teaches or suggests the route and
the position on the route are determined/ascertained (as claimed) based on a
“geographical positioning system (GPS),” as one of ordinary skill would
understand a GPS determines route and position information when
generating a vehicle bearing value. Akiva ¶¶ 9 (emphasis added), 45, 46,
61; see also Akiva ¶ 63 (describing identifying nearby establishments to
suggest to the driver); ¶ 71 (“GPS information received indicates the type of
location.”).
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comparing the attention value to a limiting value (when the angular
difference deviates from an angular threshold.).
We find the Examiner’s reliance on Akiva to be reasonable. In
contrast, Appellant’s arguments consist of summarizing Akiva’s disclosure
and attacking Hackenberg for limitations it is not solely relied upon, without
explaining how the combination of their teachings fails to teach or suggest
the disputed limitations. See Appeal Brief 5, 6. Such a response to the
Examiner’s findings is insufficient to persuade us of Examiner error. Cf. In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
Further, Appellant does not challenge the Examiner’s rationale for
combining the teachings of Horwick, Akiva, and Hackenberg. See Appeal
Brief 4–7. Thus, we are not persuaded the Examiner errs in finding one of
ordinary skill would account for the position of the motor vehicle on the
determined route to a predetermined destination, as taught by Hackenberg,
in determining the setpoint value of Horwick in view of Akiva. See Final
Action 3; Hackenberg ¶ 16 (“a state of the driver may be detected, for
example a fatigue of the driver, while the vehicle is automatically guided
along the autopilot route section.”).5

5 In the event of further prosecution, the Examiner may wish to determine
whether the instant application contains sufficient written description
support for the limitation “determining at least one setpoint value based on
the determined route and the ascertained position of the motor vehicle on the
determined route.” Response Brief 2; see also Examining Computer-
Implemented Functional Claim Limitations for Compliance with 35 U.S.C.
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We are not persuaded the Examiner’s rejection of independent claim
13 is in error. Appellant presents similar arguments with respect to
independent claims 23 and 24, and dependent claims 25 and 27–30,6 which
we find similarly unpersuasive. See Appeal Brief 8–11. Accordingly, we
sustain the Examiner’s obviousness rejection of claims 13, 23–25, and 27–
30, as well as the rejection of claims 21 and 22 which are not separately
argued. See Appeal Brief 7.

Dependent Claim 14
Appellant argues “Akiva describes counting the number of times
during a time period that the gazing direction is different from the vehicle
moving direction,” but “Akiva . . . does not describe reducing such a value if
the viewing direction deviates from the respective setpoint value ‘at least
beyond a specifiable period of time,’” as required by claim 14. Appeal Brief
7.

112, 84 Fed. Reg. 57, 62 (Jan. 7, 2019) (“It is not enough that one skilled in
the art could theoretically write a program to achieve the claimed function,
rather the specification itself must explain how the claimed function is
achieved to demonstrate that the applicant had possession of it.”).
6 Appellant further contends “the Examiner has not provided a statutory
basis for rejecting claims 25 and 27-30.” Appeal Brief 11. Although these
claims are not included in the preamble of the rejection (see Final Action 2),
the Examiner clearly rejects claims 25 and 27–30 under 35 U.S.C. § 103 (see
Final Action 6, 7). We find the missing preamble to be harmless error, as
evidenced by Appellant’s arguments with respect to the substantive
rejection. See Appeal Brief 11 (“In the Final Office Action, the Examiner
discusses claims 25 and 27-30.”).

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We are persuaded the Examiner errs in rejecting dependent claim 14.
Claim 14 recites “the attention value is reduced.” Response Brief 2. The
Examiner does not identify a reduction in a value, in any of the cited
references. See, e.g., Answer 5 (mentioning an “incrementing” step, but
silent with respect to reducing). Nor does the Examiner provide a reason to
modify the cited references to reduce the attention value. Accordingly, the
Examiner has not provided a sufficient basis to support the finding of
obviousness. We are constrained, by the record before us, to not sustain the
rejection of claim 14, or claim 15 which depends therefrom.

Dependent Claims 17 and 18
Claim 17 depends from claim 13, and further recites “the position of
the vehicle on the determined route is ascertained with the aid of a driving
environment sensor system of the motor vehicle.” Response Brief 2. Claim
18 also depends from claim 13, and recites “the position of the vehicle on
the determined route is ascertained with the aid of data of a satellite-based
navigation system.” Id.
Appellant argues the Examiner’s rejection of these claims is in error,
because none of the references teaches or suggests the limitations:
Horwick at page 4, paragraph 2, describes an interior
camera to check the head position of the [] driver. The following
paragraph mentions other “sensors,” but does not describe what
these sensors are sensing. In any event, it does not appear that
any of these could be used in ascertaining a position of a vehicle
on a determined route.
Akiva at [0045] and [0046] mentions GPS sensors. But
Akiva only describes using them to determine a direction that a
vehicle is heading. Akiva does not describe using these to
determine “the position of the vehicle on the determined route.”
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Hackenberg at [0016] describes using sensors for
detecting the activity of the driver, and not for ascertaining a
position of the vehicle on the determined route.
Reply Brief 5; see also Appeal Brief 7, 8.
We do not find the Examiner errs. First, Appellant does not challenge
the Examiner’s reliance on the GPS sensor of Horwick in view of Akiva for
teaching the “driving environment sensor” of claim 17. See Answer 6;
Horwick 4; Akiva ¶ 46 (“determines the gazing direction and direction the
vehicle is heading toward alone by receiving and/or acquiring GPS, camera
and/or accelerometer information”); see also Reply Brief 5. Thus, we are
not persuaded the Examiner errs in finding the references teach or suggest
the driving environment sensor system or a satellite-based system of
dependent claims 17 and 18. See Answer 6. Second, Appellant attacks each
reference individually and does not show the Examiner errs in finding the
combination—Horwick and Akiva’s sensors with Hackenberg’s route
position determination and navigation—teaches or suggests the limitations
of dependent claims 17 and 18. See Appeal Brief 7, 8; Final Action 4;
Answer 6, 7. Accordingly, we are not persuaded the Examiner errs in
concluding dependent claims 17 and 18 would have been obvious in view of
the combination of Horwick, Akiva, and Hackenberg.

Dependent Claim 16
Appellant argues the Examiner’s rejection of dependent claim 16 is in
error, because “Smith describes that when an event is detected, a steady-state
time value is set to zero. The timer is used to measure a duration of
continuous non-forward gaze of a driver,” but “Smith does not ascertain an
attention value for predetermined route section or locations on the route, i.e.,
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a route to a predetermined destination determined by a navigation system.”
Appeal Brief 12.
We are persuaded the Examiner errs. Claim 16 depends from claim
13, and further recites “in each case an attention value is ascertained for
predetermined route sections or locations on the route.” Response Brief 2.
The Examiner finds “Smith however, discloses the attention value being
ascertained for a predetermined section/area as to which the driver should be
looking relative to the direction of the vehicle (Paragraph 14).” Final Action
7. The Examiner provides no findings or explanation to show how Smith’s
determination of whether “[a] driver’s eye gaze” is “forward” or “non-
forward” (Smith ¶ 14) relates to the recited predetermined route sections or
locations on the route. Nor does the Examiner respond to Appellant’s
Appeal Brief arguments. See Answer 3–9.
Accordingly, the Examiner has not provided a sufficient basis to
support the conclusion of obviousness. We are constrained, by the record
before us, to not sustain the rejection of claim 16.

Independent Claim 23
In the Final Action, the Examiner additionally rejects claim 23 over
Horwick, Akiva, Hackenberg, and Sprigg. See Final Action 8.
Appellant argues that “Sprigg does not cure the deficiencies of
Horwick, Akiva an[d] Hackenb[e]rg. Nor does the Examiner explain how
Sprigg is applied to claim 23.” Appeal Brief 13.
We find the Examiner errs. In this rejection, the Examiner has not
identified any limitations of claim 23, let alone explain how the differences
between the prior art and the claimed invention would have been obvious to
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one of ordinary skill in the art. See Answer 3–9. Nor does the Examiner
clarify the rejection in the Answer. Id. The Examiner has, therefore, not
presented a prima facie case of obviousness. See MPEP § 2141 (“The prior
art reference (or references when combined) need not teach or suggest all the
claim limitations, however, Office personnel must explain why the
difference(s) between the prior art and the claimed invention would have
been obvious to one of ordinary skill in the art.”). We do not sustain this
additional rejection of independent claim 23.

CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
13, 14, 17, 18,
21–25, 27–30
103 Horwick, Akiva,
Hackenberg
13, 17, 18,
21–25, 27–30
14
15 103 Horwick, Akiva,
Hackenberg, Shikii
15
16 103 Horwick, Akiva,
Hackenberg, Smith
16
23 103 Horwick, Akiva,
Hackenberg, Sprigg
23
Overall
Outcome
13, 17, 18,
21–25, 27–30
14–16

The Examiner’s decision rejecting claim 23 is affirmed because we
have affirmed at least one ground of rejection with respect to this claim. See
37 C.F.R. § 41.50(a)(1).
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TIME PERIOD FOR RESPONSE
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 IN PART