Ex Parte Morishita

Board of Patent Appeals and Interferences

Aug 28, 2008

11070279 (B.P.A.I. Aug. 28, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MASAHIKO MORISHITA
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Appeal 2008-2291
Application 11/070,279
Technology Center 2800
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Decided: August 28, 2008
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Before KENNETH W. HAIRSTON, JOHN A. JEFFERY, and KEVIN F.
TURNER, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1, 2, and 4-16. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.

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Application 11/070,279

THE INVENTION
Appellant invented an apparatus for automatically adjusting the light
axis of a vehicle headlight. Specifically, the apparatus has a control unit that
calculates a light-axis value on the basis of a steered angle of the steering
wheel, the speed of the vehicle, and at least one physical quantity concerning
the age of the driver. An actuator then moves the headlight in response to
the calculated light-axis value and adjusts the axis of the headlight to satisfy
the driver’s visual performance regardless of the driver’s age.1 Independent
claim 1 is illustrative:
1. An apparatus for automatically adjusting a light axis of a headlight
of a vehicle comprising:
a steered angle sensor detecting a steered angle of a steering
wheel of said vehicle;
a vehicle speed sensor detecting a speed of said vehicle;
a visual performance input device for inputting driver
information concerning an age of a driver of said vehicle to said
apparatus;
a control unit calculating a light-axis control value on the basis
of said steered angle of said steering wheel detected by said steered
angle sensor, said speed of said vehicle detected by said vehicle speed
sensor, and at least one physical quantity related to said driver
information; and
an actuator swiveling said light axis of said headlight in
accordance with said light-axis control value calculated by said
control unit.

1 See generally Spec. 3:8-10, 5:6 – 6:19, 8:4-11, and 13:13 – 15:12.
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Application 11/070,279

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejection:
Gotoh US 5,931,572 Aug. 3, 1999
Berstis US 6,198,996 B1 Mar. 6, 2001
Haile-mariam US 2001/0000300 A1 Apr. 19, 2001
Horii US 6,778,892 B2 Aug. 17, 2004
Kominami US 6,785,595 B2 Aug. 31, 2004

1. Claims 1, 2, 4, and 11 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Horii, Gotoh, and Haile-mariam.
2. Claims 5, 6, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Horii, Gotoh, Haile-mariam, and Berstis.
3. Claims 5, 7-10, and 13-16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Horii, Gotoh, Haile-mariam, and Kominami.
Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Brief2 and the Answer3 for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant could have made but did not make
in the Brief have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

2 We refer to the Appeal Brief filed September 6, 2007, throughout this
opinion.
3 We refer to the Examiner’s Answer mailed December 20, 2007, throughout
this opinion.
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Application 11/070,279

ISSUE
The issue is whether Appellant has shown that the Examiner erred in
finding that the combination of Horii, Gotah, and Haile-mariam teaches a
visual performance input device for inputting driver information concerning
an age of a driver of a vehicle and a control unit that calculates a light-axis
control value based, in part, on a physical quantity related to the driver
information.

FINIDINGS OF FACT
1. Horii discloses a vehicle headlamp control system that adjusts the
light axis of a vehicle’s headlight through an actuator. Horii has a
control unit that collects information related to the steering angle
of the steering wheel and the speed of the vehicle and, from this
information, calculates a light-axis control value. The actuator
uses the light-axis control value to swivel the light axis of a
vehicle’s headlight (Horii, col. 2, ll. 39-65; Fig. 1).
2. Gotoh teaches a system for adjusting the light region of a vehicle
head lamp. Gotoh discloses a visual performance input device that
captures the amount of eye movement through a picture processing
apparatus and correlates this movement to eye strain. (Gotoh, col.
2, ll. 1-6, col. 4, ll. 12-20, and col. 5, ll. 17-21; Fig. 3).
3. Gotoh teaches that eye strain information is inputted into a control
unit and the control unit calculates a control value based, at least in
part, on one physical quantity related to the driver information or
eye strain. Gotoh teaches the control unit decides on the amount of
change of the lighting region and signals the motor to adjust the
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vehicle’s head lamp (Gotoh, col. 1, ll. 50-67, col. 3, ll. 47-60, col.
4, ll. 8-33; Figs. 1-4).
4. Gotoh teaches that eye strain information is used when calculating
the light region to provide a sense of congruity and to meet the
driver’s sense and intention (Gotoh, col. 1, ll. 32-67 and col. 5, ll.
47-58).
5. As people age, their reaction time, reflexes, and physical
movements begin to slow. As such, a younger driver generally has
quicker reaction time, reflexes and physical movements.

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727
(2007), explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. AG
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black
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Rock[, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative—a court must ask whether the improvement is more
than the predictable use of prior art elements according to their
established functions.
KSR, 127 S. Ct. at 1740. If the claimed subject matter cannot be fairly
characterized as involving the simple substitution of one known element for
another or the mere application of a known technique to a piece of prior art
ready for the improvement, a holding of obviousness can be based on a
showing that “there was an apparent reason to combine the known elements
in the fashion claimed.” Id. at 1741. Such a showing requires,
‘some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness’ . . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ. Id. at 1741 (quoting
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).

ANALYSIS
Obviousness Rejection over Horii, Gotoh, and Haile-mariam
We first turn the rejection of claims 1, 2, 4, and 11 under 35 U.S.C. §
103(a) as being unpatentable over Horii, Gotoh, and Haile-mariam.
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Regarding representative independent claim 1,4 the Examiner finds that the
combination of Horii, Gotoh, and Haile-mariam teaches all the recited
elements (Ans. 4-5). Appellant argues that: (1) neither Gotoh nor
Haile-mariam teaches a visual performance input device for inputting driver
information concerning the age of the driver of the vehicle and a control unit
that calculates a light-axis control value on the basis of at least one physical
quantity related to said driver information; (2) one skilled in the art would
not look to Haile-mariam and its teachings regarding eyestrain; and (3)
Haile-mariam is nonanalogous art (Br. 5-10).
Appellant contends that Gotoh does not teach a visual performance
input device for inputting driver information concerning the age of the driver
of the vehicle. Specifically, Appellant argues that Gotoh discloses a control
unit that determines the amount of the lighting region or lighting angle based
on the moving speed of an eye and the steering angle and not on age of the
driver as recited in claim 1 (Br. 5-6). Gotoh teaches a picture processing
apparatus that detects the amount of eye movement, which then is correlated
to eye strain, and uses this information and the steering angle to adjust the
light region of the head lamp (FF2, FF3). Gotoh thus teaches a visual
performance input device that inputs driver information and a control unit
that calculates a light region value based on at least one physical quantity or
the degree of eye movement related to the driver (FF2, FF3).

4 Apart from stating “[i]ndependent clam 11 will be discussed jointly with
claim 1” (Br. 4), claim 11 has not been argued with any particularity.
Appellant thus argues claims 1, 2, 4, and 11 as a group (Br. 4-10), and we
select representative independent claim 1 to decide the appeal. 37 C.F.R. §
41.37(c)(1)(vii).
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We also take notice that, as one gets older, reaction times, reflexes,
and physical movements, including eye movements, begin to slow. See In re
Ahlert, 424 F.2d 1088, 1091 (CCPA 1970) (explaining that “the Patent
Office appellate tribunals, where it is found necessary, may take notice of
facts beyond the record which, while not generally notorious, are capable of
such instant and unquestionable demonstration to defy dispute.”) In
contrast, a younger driver generally has quicker reaction times, reflexes, and
physical movements. Thus, while Gotoh does not explicitly state the visual
performance input device is used to input driver information concerning the
age of the driver, Gotoh does teach a visual performance input device that
tracks the speed of the eye or physical movements of a driver. Moreover,
based on the above discussion, this eye speed information does concern the
age of the driver. Gotoh further teaches the control unit uses a physical
quantity related to the driver information (i.e., eye strain) to calculate a value
for adjusting a headlight (FF2, FF3).
Additionally,
[a] suggestion, teaching, or motivation to combine the relevant prior
art teachings does not have to be found explicitly in the prior art, as
‘the teaching, motivation, or suggestion may be implicit from the prior
art as a whole, rather than expressly stated in the references . . . The
test for an implicit showing is what the combined teachings,
knowledge of one of ordinary skill in the art, and the nature of the
problem to be solved as a whole would have suggested to those of
ordinary skill in the art. In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir.
2006) (quoting In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000)).

One skilled in the art would have recognized that the discussion in Gotoh of
gathering information concerning the speed of the driver’s eye movement
also concerns tracking the speed of a driver’s reaction time and physical
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movements. Thus, whether the driver is young or old, Gotoh suggests or
implicitly teaches using a visual performance input device that inputs driver
information concerning the age of the driver of a vehicle. Such a teaching
would also improve the Horii vehicle headlight control system in the same
manner of adjusting the headlight not only based on steering angle and speed
of the vehicle (FF1) but also based on the speed that the driver’s eyes move.
One skilled in the art would have further recognized that providing this
information taught by Gotoh to the control unit of Horii would calculate an
optical axis value with sensitivity to the driver’s eye movements and provide
a sense of congruity to meet the driver’s sense and intention (FF4). We,
therefore, find that Gotoh provides ample reason to be combined with Horii
to teach a visual performance input device for inputting driver information
concerning the driver’s age and a control unit that calculates a light-axis
control value based on a physical quantity related to the driver information
such that the illuminated region is sensitive to the driver’s eye movement
and provides a sense of congruity.
With respect to the arguments concerning combining Gotoh with
Haile-mariam, Haile-mariam failing to teach a visual performance input
device inputting driver information concerning the age of the driver, and
Haile-mariam being non-analogous art, we find the evidentiary reliance on
Haile-mariam to teach the visual performance input device for inputting
driver information concerning an age of a driver of a vehicle cumulative to
Horii and Gotoh for the above-stated reasons.
For the foregoing reasons, Appellant has not shown error in the
obviousness rejection of claim 1 based on the collective teachings of Horii,
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Gotoh, and Haile-mariam. Accordingly, we sustain the rejection of claim 1
and claims 2, 4, and 11 which fall with claim 1.

Obviousness Rejection over Horii, Gotoh, Haile-mariam, and Berstis
We next turn to the rejection of claims 5, 6, and 12 under 35 U.S.C. §
103(a) as being unpatentable over Horii, Gotoh, Haile-mariam, and Berstis.
Regarding representative claim 5,5 the Examiner finds that the combination
of Horii, Gotoh, Haile-mariam, and Berstis teaches all recited elements
(Ans. 5). Appellant refers back to the previous arguments made with respect
to claims 1, 2, 4, and 11 (Br. 10). We are not persuaded by these arguments,
however, for the reasons previously discussed.
For the above reasons, Appellant has not shown error in the
obviousness rejection of claim 5 based on the collective teachings of Horri,
Gotoh, Haile-mariam, and Berstis. Accordingly, we sustain the rejection of
claim 5 and claims 6 and 12 which fall with claim 5.

Obviousness Rejection over Horii, Gotoh, Haile-mariam, and Kominami
We lastly turn to the rejection of claims 5, 7-10, and 13-16 under 35
U.S.C. § 103(a) as being unpatentable over Horii, Gotoh, Haile-mariam, and
Kominami. Regarding representative claim 5,6 the Examiner finds that the

5 Appellant argues claims 5, 6, and 12 as a group (Br. 10). Accordingly, we
select representative claim 5 to decide the appeal. 37 C.F.R.
§ 41.37(c)(1)(vii).
6 Appellant argues claims 5, 7-10, and 13-16 as a group (Br. 10).
Accordingly, we select representative claim 5 to decide the appeal. 37
C.F.R. § 41.37(c)(1)(vii).
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combination of Horii, Gotoh, Haile-mariam, and Kominami teaches all
recited elements (Ans. 6). Appellant refers back to the previous arguments
made with respect to claims 1, 2, 4, and 11 (Br. 10). We are not persuaded
by these arguments, however, for the reasons previously discussed.
For the above reasons, Appellant has not shown error in the
obviousness rejection of claim 5 based on the collective teachings of Horri,
Gotoh, Haile-mariam, and Kominami. Accordingly, we sustain the rejection
of claim 5 and claims 7-10 and 13-16 which fall with claim 5.

CONCLUSION
For the foregoing reasons, Appellant has not shown error in the
Examiner’s obviousness rejections of claims 1, 2, and 4-16.

DECISION
The decision of the Examiner to reject claims 1, 2, and 4-16 is
affirmed.
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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