Ex Parte Mills

Patent Trial and Appeal Board

Sep 13, 2018

14552456 (P.T.A.B. Sep. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/552,456 11/24/2014
113140 7590 09/17/2018
Bejin Bieneman PLC
Ford Global Technologies, LLC
2000 Town Center
Suite 800
Southfield, MI 48075
FIRST NAMED INVENTOR
Aaron L. Mills
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.
83477737(65080-1424) 5460
EXAMINER
TISSOT, ADAM D
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
09/17/2018 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):
docket@b2iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AARON L. MILLS 1
Appeal2018-000448
Application 14/552,456
Technology Center 3600
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
BAHR, 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 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
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. 3.
Appeal2018-000448
Application 14/552,456
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A system for installation in a vehicle, comprising:
a camera configured to be mounted facing a front of the
vehicle; and
a computer that includes a processor and a memory, and
that is programmed to:
receive first and second images from the camera;
determine a height of an obstacle located to the
front of the vehicle using at least the first and second
images; and
based at least in part on the height of the obstacle,
send an instruction via a communications bus to a
component controller to control a speed of the vehicle.
REJECTIONS
I. Claims 1-5, 7, 9, 11-15, 17, and 19 stand rejected under
35 U.S.C. § I03(a) as unpatentable over Stein (US 2015/0086080
Al, pub. Mar. 26, 2015) and Lucking (US 2013/0116905 Al, pub.
May 9, 2013).
II. Claims 1-9 and 11-19 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Stein, Appellant's Admitted Prior Art (AAPA),
and Lucking.
III. Claims 10 and 20 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Stein, Lucking, and Takeda (US 2002/0191837
Al, pub. Dec. 19, 2002).
IV. Claims 10 and 20 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Stein, Lucking, AAP A, and Takeda.
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DISCUSSION
Rejection I
Appellant groups independent claims 1 and 11 together in contesting
this rejection, and presents separate arguments only for dependent claims 7
and 17. Appeal Br. 7-11. Appellant does not present any separate
arguments for dependent claims 2-5, 9, 12-15, or 19 apart from their
dependency from claim 1 or claim 11. Id. We select claims 1 and 7 for
review, with claims 2-5, 9, 11-15, and 19 standing for falling with claim 1,
and claim 17 standing or falling with claim 7. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
Claims 1-5, 9, 11-15, and 19
In rejecting claim 1, the Examiner found that Stein discloses a system
comprising a camera (image sensor 12), a computer including a processor
and memory and "programmed to: receive first and second images from the
camera [ and] determine a height of an obstacle located to the front of the
vehicle using at least the first and second images." Final Act. 5 ( citing Stein,
Figs. 2, 3; ,r 14). The Examiner found that "Stein does not explicitly
disclose the last limitation" (id.), which we interpret to mean that Stein does
not explicitly disclose, "based at least in part on the height of the obstacle,
send[ing] an instruction via a communications bus to a component controller
to control a speed of the vehicle." See Appeal Br. 13 (Claims App.). In
other words, although the Examiner found that Stein discloses determining a
height of an obstacle using first and second images, the Examiner found that
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Application 14/552,456
Stein does not disclose, based on that height, sending an instruction to
control a speed of the vehicle.
The Examiner found that Lucking teaches sending an instruction via a
communications bus to a controller to control a speed of the vehicle based
on detection of an obstacle. Final Act. 5 ( citing Lucking ,r 1 7). More
specifically, the Examiner found that Lucking teaches applying the brakes
when a risk of collision with an obstacle is detected. Id. at 2. According to
the Examiner, "the fact that Lucking detects an obstacle implicitly discloses
that the height of the obstacle permits detection." Id.
Appellant argues that "once an obstacle is detected, Lucking's control
of braking is the same regardless of the height of Lucking's detected
obstacle," and, thus, Lucking "cannot be read to teach or suggest to 'based at
least in part on the height of the obstacle, send an instruction via a
communications bus to a component controller to control a speed of the
vehicle."' Appeal Br. 8. Appellant also argues that the Examiner's position
that "detecting an obstacle and controlling a vehicle's speed based thereon is
the same as detecting an obstacle and a height of an obstacle and controlling
a vehicle's speed based on the detected height" effectively ignores "the
recitation of 'the height of the obstacle."' Id.
In response, the Examiner clarifies that Lucking is only being relied
on for teaching detecting obstacles and, based on such detection, sending an
instruction to a controller to control the speed of the vehicle. Ans. 3. The
Examiner explains that "[t]he combination yields a system that detects
obstacle height ... (Stein) and automatically controls the speed of a vehicle
in the presence of those obstacles (Lucking)," and characterizes Appellant's
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Application 14/552,456
argument as an attack on Lucking individually, rather than on the
combination. Id.
To the extent that Appellant's argument urges us to construe the claim
limitation "based at least in part on the height of the obstacle, send an
instruction ... to control a speed of the vehicle" as requiring that different
detected heights result in different instructions (effecting different degrees of
speed control) being sent to the controller, we discern no such requirement
in the claim language. Although the last clause of claim 1 could encompass
within its scope such a control scheme, this clause also encompasses within
its scope a control scheme as disclosed in paragraphs 21 and 22 of
Appellant's Specification. As disclosed in Appellant's Specification, the
computer determines whether an obstacle in the viewing area has a height
exceeding a threshold height. Spec. ,r 21. "If the threshold height is
exceeded," the computer sends an instruction to the brake controller to apply
vehicle braking to avoid an impact between the vehicle and the detected
obstacle having a height exceeding the threshold height. Id. ,r,r 21-22.
Appellant does not specifically contest the Examiner's finding that
Stein discloses "determin[ing] a height of an obstacle located to the front of
the vehicle using at least the first and second images" (Final Act. 5). Appeal
Br. passim. In this regard, Stein discloses determining the height of an
obstacle (i.e., "generat[ing] a vertical deviation in contour of the road to
detect a hazard"), including "bumps and/or holes such as speed bumps,
curbs[,] and manhole covers," using at least a first image and a second
image. Stein ,r,r 14, 42; see id., claim 5 (reciting "computing the vertical
deviation in the contour of the road using a road surface model of the road").
Further, Stein discloses detecting "debris or other hazards on the road ... by
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Application 14/552,456
applying a threshold on the residual flow" used to generate the vertical
deviation. Id. ,r,r 14,214.
Stein discloses that the vertical deviation "may be used as an input to
an active/semi-active/adaptive suspension control system of the vehicle." Id.
,r 14; see also id. ,r 15. Stein does not specifically disclose using the vertical
deviation as an input to a controller to control the speed of the vehicle. The
Examiner looks to Lucking for this aspect of the claimed invention. Final
Act. 5-6; Ans. 3.
Lucking teaches a monitoring system that makes it possible to
determine whether a vehicle can pass obstacles without risk of collision by
measuring the passage width and/or passage height at the obstacle using
sensors and comparing it with passage-related vehicle data. Lucking ,r,r 13,
24, 25; id., claims 1, 6. Lucking's system provides "automatic braking of
the vehicle when a risk of collision is detected." Id. ,r 17; see id., claim 6.
The system also makes it possible "to react to current changes in the profile
of the road." Id. f 13.
Lucking does not provide specific technical details as to how the
passage width and/or height at the obstacle is determined. However, one
way to do so would be to determine the height of an obstacle on the road and
to compare this height with the known ground clearance of the vehicle to
determine whether there is a risk of collision when the vehicle reaches the
obstacle. Even assuming that there might be other conceivable ways of
determining passage height of the obstacle, such that Lucking' s reference to
"passage height at the obstacle" does not necessarily, or "unmistakably,"
refer "to a determination of obstacle height," as the Examiner posits (see
Ans. 3--4), one of ordinary skill in the art would have readily envisaged
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Application 14/552,456
determining obstacle height and comparing the obstacle height with ground
clearance of the vehicle as a means of measuring "passage height at the
vehicle ... and [comparing it] with passage-related vehicle data," as taught
by Lucking. See Lucking ,r 13; Ans. 5 (positing that Lucking's obstacle
detection "implicitly discloses that the determined height of the vehicle is
the basis for speed control").
For the above reasons, we discern no error in the Examiner's
determination that it would have been obvious, in view of the combined
teachings of Stein and Lucking, to use the vertical deviation of Stein as an
input to a vehicle control system by, based at least in part on the height of
obstacle (i.e., based on whether the determined vertical deviation meets or
exceeds a predetermined threshold, such as vehicle ground clearance,
thereby indicating a risk of collision), sending an instruction via a
communications bus to a component controller to control a speed of the
vehicle. Accordingly, we sustain the rejection of claim 1, as well as claims
2-5, 9, 11-15, and 19, which fall with claim 1, as unpatentable over Stein
and Lucking.
Claims 7 and 17
Appellant groups claims 7 and 17 together in contesting this rejection.
Appeal Br. 10-11. We select claim 7 for review, and claim 17 stands or
falls with claim 17.
Appellant argues that Lucking discloses that "distance sensors are
activated sooner at greater speeds," and, thus, "plainly discloses at most the
opposite of the recitation of claim 7," which recites making "a determination
'when the vehicle is moving at a speed below a predetermined threshold."'
Id. at 10 ( citing Lucking ,r 15). Appellant's argument does not apprise us of
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Application 14/552,456
error because it is not commensurate with the scope of claim 7. See In re
Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not appearing in the
claims cannot be relied upon for patentability).
Claim 7, which depends from claim 1, further recites, "wherein the
computer is programmed to determine the height of the obstacle when the
vehicle is moving at a speed below a predetermined threshold." Id. at 13
(Claims App.). As the Examiner points out, Appellant's argument that
Lucking teaches the opposite of claim 7 's recitation of a computer
"programmed to determine the height of the obstacle when the vehicle is
moving at a speed below a predetermined threshold" is premised on an
interpretation of claim 7 as reciting that the computer is programmed to
determine the obstacle height only when the vehicle is moving at a speed
below a predetermined threshold. See Ans. 7. Claim 7, however, contains
no such limitation; claim 7 recites that height determination occurs below a
threshold, but is silent as to whether height determination occurs when the
vehicle is moving at a speed above the threshold.
Thus, Appellant does not apprise us of error in the rejection of claim
7. Accordingly, we sustain the rejection of claim 7, as well as claim 17,
which falls with claim 7, as unpatentable over Stein and Lucking.
Rejection II
Claims 1-5, 7-9, 11-15, and 17-19
In contesting the rejection of claims 1-5, 7-9, 11-15, and 17-19 as
unpatentable over Stein, AAP A, and Lucking, Appellant relies on the same
arguments presented against the rejection of these claims as unpatentable
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Application 14/552,456
over Stein and Lucking. 2 See Appeal Br. 7-11. For the reasons discussed
above, these arguments do not apprise us of error and, likewise, fail to
apprise us of error in the rejection of claims 1-5, 7-9, 11-15, and 17-19 as
unpatentable over Stein, AAP A, and Lucking, which we, thus, also sustain.
Claims 6 and 16
Claim 6 depends from claim 1 and recites that "the computer is further
programmed to send the instruction based at least in part on a slope of the
obstacle." Appeal Br. 13 (Claims App.). Claim 16 depends from claim 11
and recites a step of "sending the instruction based at least in part on a slope
of the obstacle." Id. at 14. In addressing these limitations, the Examiner
found that Appellant "admitted that determining slope is well known in the
art," and determined that, therefore, programming the computer "to send the
instruction based at least in part on a slope of the obstacle" would have been
obvious "to improve a monitoring system in a vehicle to spot obstacles and
to improve collision avoidance systems, and, more particularly, to a system
for avoiding vehicle collisions." Final Act. 9.
Appellant does not specifically dispute the Examiner's finding that
Appellant has admitted that determining slope is well known in the art. See
Appeal Br. 9-10; see also Spec. ,r 20 (stating that "a slope can be inferred, as
is known, by measuring respective heights of an obstacle 210 at various
distances ... and then determining a slope based on a change in the
heights"). However, Appellant submits that the Examiner "has engaged in
improper hindsight reasoning." Appeal Br. 9. Appellant also argues that the
2 Appellant does not present any separate arguments for claims 8 and 18
aside from their dependency from claims 1 and 11, respectively. See Appeal
Br. 7-11.
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Application 14/552,456
Examiner's stated reasoning "is irrelevant to the recitation of claim[ s 6 and
16], i.e., adjusting a vehicle speed based at least in part on a slope of the
obstacle does not appear to lend any improvement to 'a monitoring system
in a vehicle to spot obstacles."' Id. at 10.
Appellant's argument is persuasive. The fact that it was known in the
art at the time of Appellant's invention how to determine a slope of an
obstacle does not mean that it would have been obvious to program the
computer of Stein's system to send an instruction to control the speed of the
vehicle based at least in part on a slope of the obstacle. Further, the
Examiner's stated rationale that it would have been obvious to do so to
"improve" a monitoring system for spotting obstacles to avoid a collision
(Final Act. 9) is conclusory, and lacks any explanation as to how or why
sending an instruction based at least in part on a slope of an obstacle would
have improved a monitoring system. Thus, the Examiner has failed to set
forth the requisite "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 Int'! Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007). Accordingly, we do not sustain the rejection of claims
6 and 16 as unpatentable over Stein, AAP A, and Lucking.
Re} ections III and IV
Appellant does not present any arguments specifically directed to the
rejection of claims 10 and 20 as unpatentable over Stein, Lucking, and
Takeda, or the rejection of claims 10 and 20 as unpatentable over Stein,
Lucking, AAP A, and Takeda. See Appeal Br. passim. Rather, Appellant
relies on the arguments advanced against the rejections of claims 1 and 11.
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See id. at 9 ( arguing for reversal of all claims depending from claims 1 and
11 for the reasons presented against the rejection of claims 1 and 11 ). For
the reasons discussed above, Appellant's arguments do not apprise us of
error in the rejections of claims 1 and 11 and, likewise, fail to apprise us of
error in the rejections of claims 10 and 20, which depend from claims 1 and
11, respectively. Accordingly, we sustain the rejection of claims 10 and 20
as unpatentable over Stein, Lucking, and Takeda, and the rejection of claims
10 and 20 as unpatentable over Stein, Lucking, AAPA, and Takeda.
DECISION
The Examiner's decision rejecting claims 1-20 is AFFIRMED as to
claims 1-5, 7-15, and 17-20, and REVERSED as to claims 6 and 16.
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).
AFFIRMED-IN-PART
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