Ex Parte Kühne

Patent Trial and Appeal Board

Jan 31, 2018

15036709 (P.T.A.B. Jan. 31, 2018)

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.
15/036,709 05/13/2016 Marcus KUHNE 2319.1185 2299
21171 7590 02/02/2018
STA AS fr HAT SFY T T P
EXAMINER
SUITE 700 ISMAIL, MAHMOUD S
1201 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005 ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
02/02/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptomail @ s-n-h.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARCUS KUHNE
Appeal 2018-000099
Application 15/03 6,7091
Technology Center 3600
Before JILL D. HILL, NATHAN A. ENGELS, and
ERIC C. JESCHKE, Administrative Patent Judges.
ENGELS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 11-22. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Audi AG as the real party in interest. Appeal Br. 1.
Appeal 2018-000099
Application 15/036,709
STATEMENT OF THE CASE
Claim 11, reproduced below, is illustrative of the claimed subject
matter:
11. A method for operating a driver assistance system of a motor
vehicle having an autonomous driving mode in which the driver
assistance system independently performs vehicle guidance
including both longitudinal guidance and lateral guidance of the
motor vehicle, comprising:
detecting driver data based on a posture of at least part of
a driver by a sensor device of the motor vehicle;
receiving a change signal, at the driver assistance system,
designating initiation of a change from the autonomous driving
mode into a predetermined driving mode in which a driver of the
motor vehicle is intended to perform at least part of the vehicle
guidance;
checking, when the change signal is received, whether the
driver data satisfy a predetermined safety condition;
changing into the predetermined driving mode only when
the predetermined safety condition is satisfied; and
outputting, when the predetermined safety condition is not
satisfied, from the driver assistance system, a message to the
driver via an output device, the message at least one of specifying
which part of the predetermined safety condition is not satisfied
and providing an action instruction as to how the posture is to be
changed to satisfy the predetermined safety condition
completely.
THE REJECTIONS
Claims 11 and 19-22 stand rejected under 35 U.S.C. § 102(a)(2) as
being anticipated by Hillenbrand et al. (DE 10 2011 085 167 Al; Apr. 25,
2013) (“Hillenbrand”)2.
2 Hillenbrand is a German-language reference that identifies Stefan
Hillenbrand and Lutz Buerkle as inventors. In both the Final Office Action
and the Examiner’s Answer, the Examiner refers to a machine translation of
the reference as “Buerkle.” Appellant’s Appeal Brief and Reply Brief refer
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Claims 12-18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of Hillenbrand and Limbacher (EP 2 371 649 Al; Feb.
19, 2011) (“Limbacher”).
ANALYSIS
In rejecting claim 11 as anticipated by Hillenbrand, the Examiner cites
the warning described in Hillenbrand’s paragraph 34 as a disclosure of the
“outputting” limitation. The machine translation of Hillenbrand’s paragraph
34, as reproduced in Appellant’s Appeal Brief, describes the warning as
follows:
[djuring automatic vehicle guidance, according to position 24
continuously checks whether the congestion assistance system
operates within the specified system limits. Is achieved for
example by failure of a sensor or due to environmental
conditions such as dense fog or icy roads a system limit, then
according to position 26 warned the driver and asked to
immediately return to take control of the vehicle. In
Position 28 it is checked whether the driver has taken over
control of the vehicle and in position 30 he goes back even his
motor vehicle. The driver has not taken control of the vehicle,
to the reference as “Hillenbrand et al.” and to the machine translation of
record as “Buerkle by Google.” Appellant states that “although the Office
Action and Advisory action use only English, German-language references
were cited as disclosing the prior art” and “discussion of what those
references disclose to someone who can read German is not new evidence
that is not of record.” Appeal Br. 8. Appellant recognizes that there is
“translation error” in the machine translation of “Buerkle by Google” (Reply
Br. 4), but Appellant did not request a human translation or otherwise argue
that it was prejudiced by the use of the machine translation (see MPEP
§ 706.02 (noting that applicants can request that an examiner obtain a human
translation)). For the purposes of this Decision, we find the machine
translation provides sufficient evidence of the reference’s disclosure, and
this Decision refers to the reference as “Hillenbrand,” citing the machine
translation of record as evidence of the reference’s disclosure.
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Application 15/036,709
then in accordance position 29 automatic braking to a standstill
and thus in a safe operating condition.
Appeal Br. 3 (quoting Hillenbrand ^ 34) (emphasis added).
Appellant argues that Hillenbrand does not describe “[w]hat
information would be included in this warning” (Appeal Br. 4), and that
nothing in Hillenbrand describes “the output of a ‘message at least one of
specifying which part of the safety condition is not satisfied and providing
an action instruction as to how the posture is to be changed to satisfy the
safety condition completely’” as claimed (Appeal Br. 7 (quoting claim 11)).
More specifically, Appellant argues “merely being ‘asked to immediately
return to take over control of the vehicle’ ... is not equivalent to either of
‘specifying which part of the predetermined safety condition is not satisfied
and providing an action instruction as to how the posture is to be changed.’”
Appeal Br. 8 (quoting claim 11); accord Appeal Br. 4 (“[w]hat information
would be included in [Hillenbrand’s] warning is conjecture, not ‘complete
detail as is contained in the . . . claim’”); Reply Br. 2 (“[T]he warning
described in Hillenbrand et al. does not ‘provid[e] an action instruction as to
how the posture is to be changed to satisfy the predetermined safety
condition completely.”)
We disagree with Appellant. Hillenbrand describes a warning that
asks the driver to “to immediately take over control of the vehicle again.”
Hillenbrand ^ 34. Hillenbrand describes a user taking control of the vehicle
in terms of a driver’s physical movements, including “operating the steering,
and/or other control element.” Hillenbrand ^ 32; cf Hillenbrand 30-31
(explaining that automatic vehicle guidance can be “activated by the driver
tak[ing] his hands off the steering wheel”). Similarly, after asking the driver
to take control of the vehicle, Hillenbrand describes determining whether the
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Application 15/036,709
driver has taken control (Hillenbrand ^ 34), which can include sensing
whether the driver is pressing a pedal or touching the steering wheel, among
other actions (Hillenbrand ^ 46). Notably, Appellant’s Specification
includes similar examples of driver postures intended to reflect a driver’s
readiness to assume control of the vehicle (see Spec. ^ 36), but, contrary to
Appellant’s arguments, neither the plain language of claim 11 nor anything
in Appellant’s Specification limits claim 11 to instructions more specific
than Hillenbrand’s instructions to immediately return to take control of the
vehicle. Cf. Appeal Br. 13 (Claims App’x (claim 12 limiting the
predetermined safety condition to “one of one hand and both hands of the
driver on the steering wheel”)). Reading the plain language of claim 11 in
light of Appellant’s Specification, we agree with the Examiner that
Hillenbrand’s warning to the driver to retake control of the vehicle satisfies
the claimed message providing an action instruction as required in the
“outputting” step.
Accordingly, having considered each of Appellant’s arguments and
the evidence of record, we disagree with Appellant’s arguments and affirm
the Examiner’s rejection of claim 11, as well as the Examiner’s rejection of
claims 19-22, which Appellant does not argue separately. Likewise,
Appellant does not separately identify purported errors in the Examiner’s
rejection of claims 19-22 as obvious in view of Hillenbrand and Eimbacher
(see Appeal Br. 10-12), and we affirm the Examiner’s rejection for the same
reasons.
DECISION
For the above reasons, we affirm the Examiner’s rejections of claims
11-22.
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No time period for taking any subsequent action in connection with
this appeal may be extended. 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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