Ex Parte Moshchuk et al

Patent Trials and Appeals Board

Aug 1, 2016

13190111 - (D) (P.T.A.B. Aug. 1, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/190,111 07/25/2011
65798 7590 08/01/2016
MILLER IP GROUP, PLC
GENERAL MOTORS CORPORATION
42690 WOODWARD A VENUE
SUITE 300
BLOOMFIELD HILLS, MI 48304
FIRST NAMED INVENTOR
Nikolai K. Moshchuk
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.
P015738-RD-MJL 1546
EXAMINER
RAMESH, KRISHNAN
ART UNIT PAPER NUMBER
3668
MAILDATE DELIVERY MODE
08/01/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NIKOLAI K. MOSHCHUK, SHIH-KEN CHEN,
JIN-WOO LEE, CHAD T. ZAGORSKI,
and AAMRAP ALI CHATTERJEE
Appeal2014-007585
Application 13/190,111
Technology Center 3600
Before JOHN C. KERINS, WILLIAM A. CAPP, and
AMANDA F. WIEKER, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2014-007585
Application 13/190,111
THE INVENTION
Appellants' invention relates to vehicle collision avoidance systems.
Spec. iJ 1. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for providing collision avoidance in a host
vehicle, said method comprising:
a controller programmed for:
determining that a collision between an object and the
host vehicle is imminent;
determining an optimal path for the host vehicle to travel
along to avoid the object if the collision is imminent;
providing automatic vehicle steering to cause the host
vehicle to follow the optimal path;
determining that the vehicle steering has failed during the
automatic vehicle steering; and
causing the host vehicle to steer along the optimal path
by using differential braking if the vehicle steering has failed.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Pilutti 1
Hae
Pemberton
Choi
Zhang
US 2004/0193374 Al
US 2005/0115753 Al
US 2011/0282549 Al
US 2012/0316730 Al
Sept., 1998
Sept. 30, 2004
June 2, 2005
Nov. 17, 2011
Dec. 13, 2012
The following rejections are before us for review:
1. Claims 1, 10, 12, 17, and 19 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Pilutti, Hae, and Pemberton.
1 Tom Pilutti, et al., Vehicle Steering Intervention Through Differential
Braking, JOURNAL OF DYNAMIC SYSTEMS, MEASUREMENT, AND CONTROL,
vol. 120, pp. 314-321, Sept. 1998.
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2. Claims 2-6, 9, and 18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pilutti, Hae, Pemberton, and Choi.
3. Claims 7, 8, and 20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pilutti, Hae, Pemberton, and Zhang.
4. Claims 11, 13, and 14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pilutti and Hae.
5. Claim 15 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pilutti, Hae, and Choi.
6. Claim 16 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pilutti, Hae, and Zhang.
OPINION
Unpatentability of Claims 1, 10, 12, 17, and 19
over Pilutti, Hae, and Pemberton
Claims 1 and 17
Appellants argue claims 1 and 17 together. Appeal Br. 8-11. We
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
The Examiner finds that Pilutti discloses the claimed invention except
for providing vehicle steering to cause the vehicle to follow an optimal path
to avoid imminent collision and using differential braking to steer upon
failure of the primary steering system. Final Action 4-5. The Examiner
relies on Hae as disclosing determining an optimal path for collision
avoidance and providing automatic steering along the optimal path. Id. at 5.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time of the invention to modify Pilutti to
include optimal path determination and steering as taught by Hae. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to provide redundant safety for automatic collision. Id.
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The Examiner relies on Pemberton as disclosing determining that
vehicle steering has failed during automatic vehicle steering and using an
alternative method of steering upon such failure. Id. at 6. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time the invention was made to modify Pilutti "to include failure of
a steering system and use of an alternative" as taught by Pemberton. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to provide for safe steering in case a primary steering system fails.
Id.
Appellants traverse the Examiner's rejection by arguing that Pilutti
does not determine an optimal path, a point already conceded by the
Examiner. Appeal Br. 9; see also Final Act. 5. Appellants also argue that
Hae fails to disclose determining an optimal path. Appeal Br. 9. Appellants
argue that Hae merely discloses changing lanes. Id. at 9-11. Appellants
accuse the Examiner of relying on an overly broad construction of "optimal
path." Id. at 9-10. Appellants contend that "optimal path" is defined in
paragraph 20 of the Specification as being determined by using an
optimization look-up table, vehicle width, the coefficient of friction of the
wheel surface and other factors. Id. at 10. Appellants contend that Rae's
means of vehicle collision avoidance does not comport with their
construction of "optimal path." Id. Moreover, because Pilutti and Hae do
not determine an optimal path, Appellants contend that they similarly do not
cause the host vehicle to follow the optimal path. Id.
In response to Appellants' arguments concerning the construction of
"determining an optimal path," the Examiner states that the claim language
is not limited to the methodology for determining an optimal path that is
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Application 13/190,111
recited in Appellants' Specification. Id. The Examiner states that a person
of ordinary skill in the art would recognize there are several possible broad,
reasonable interpretations of this term. Id. at 4-5. According to the
Examiner, one of ordinary skill would recognize that determining an optimal
path need not necessarily involve a sophisticated calculation. Id. at 5. The
Examiner states that controlling a vehicle to change lanes involves
determining an optimal path. Id. According to the Examiner:
In this case, the 'optimal path' is simply an area to avoid the
collision (different lane), which is determined by initiating the
control in response to determining that there is an obstacle in
the vehicle path.
Ans. 5 (quoting Final Action. 3).
Appellants' reply dismisses the Examiner's claim construction and
analysis with respect to the meaning of "determining an optimum path" as
mere "speculation." Reply Br. 2.
Thus, Appellants and the Examiner disagree as to the meaning of
"determining an optimal path." During examination of a patent application,
pending claims are given their broadest reasonable construction consistent
with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). When a patent applicant has elected to be a
lexicographer by providing an explicit definition in the specification for a
claim term, such definition controls. Renishaw PLC v. Marposs Societa'
Per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). "Therefore, we look to
the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation." In re ICON Health and Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). However, where claim terms are
not otherwise defined in the specification, they are given their ordinary and
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Application 13/190,111
customary meaning as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Trans logic Tech., Inc., 504
F.3d 1249, 1257 (Fed. Cir. 2007).
Appellants argue that "determining an optimal path" is defined in
paragraph 20 of the Specification. Appeal Br. 10. This paragraph provides
as follows:
U.S. Patent Application Serial No. 12/908,689, titled, Optimal
Acceleration Profile for Enhanced Collision Avoidance, filed
October 20, 2010, assigned to the assignee of this application
and herein incorporated by reference, discloses a method for
determining the optimal path 48 that the host vehicle 40 will
travel along on the roadway 42 to avoid the target vehicle 44
using certain algorithms in the ECA system 46. The '689
method includes providing an optimization look-up table off-
line for storing on the host vehicle 40 that includes an optimal
vehicle braking or longitudinal deceleration and an optimal
distance along the optimal path 48 based on a range of speeds
of the host vehicle 40 and the coefficient of friction µ of the
roadway surface. The method determines the current speed of
the host vehicle 40 and the coefficient of friction µ of the
roadway surface on which the host vehicle 40 is traveling
during the potential collision, and uses the look-up table to
determine the optimal longitudinal deceleration or braking of
the host vehicle 40 for the optimal path 48. The method also
determines an optimal lateral acceleration or steering of the host
vehicle 40 for the optimal path 48 based on a friction ellipse
and the optimal braking.
Spec. iJ 20. We observe that Appellants' chosen collision avoidance path is
determined using "certain algorithms." Id. Paragraph 19 of Appellants'
Specification explains that "the optimal path 48" is determined based on
various factors, such as the width of the vehicle and the coefficient of
friction of the roadway. We have read paragraphs 19-20 of the
Specification and view the disclosure as exemplary in nature. We view it as
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merely disclosing one, but not the exclusive, means of determining an
optimal avoidance path.
Essentially, Appellants are asking us to import a limitation from the
Specification into the claim. Our reviewing court has repeatedly cautioned
lower courts against limiting the claimed invention to preferred
embodiments or specific examples in the specification. Teleflex, Inc. v.
Ficosa North America Corp., 299 F.3d 1313, 1328 (Fed. Cir. 2002).
[T]he line between construing terms and importing limitations
can be discerned with reasonable certainty and predictability if
the court's focus remains on understanding how a person of
ordinary skill in the art would understand the claim terms. For
instance, although the specification often describes very
specific embodiments of the invention, we have repeatedly
warned against confining the claims to those embodiments ...
In particular, we have expressly rejected the contention that if a
patent describes only a single embodiment, the claims of the
patent must be construed as being limited to that embodiment.
Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005). Phillips
counsels us that, upon reading the specification in the context of teaching a
person of ordinary skill in the art to make or use the invention, it will
become clear whether the specification is setting out specific examples of
the invention to accomplish the goal of teaching or whether the specification
and claims, instead, are intended to be coextensive. Id. Based on our review
of the Specification, we are of the opinion that the teaching of paragraphs
19-20 is merely exemplary and not limiting.2
2 Appellants' Specification also states:
The foregoing discussion disclosed and describes merely
exemplary embodiments of the present invention. One skilled
in the art will readily recognize from such discussion and from
the accompanying drawings and claims that various changes,
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Hae discloses a system in which a controller executes a method for
collision avoidance using automated braking and steering. Hae ii 4. Rae's
system determines whether a collision can be avoided by braking only.
Id. ii 5. Rae's system also determines a distance sufficient to avoid collision
by combined braking and steering around the obstacle. Id. Under specified
conditions, a lane change is first permitted and then executed. Id. The
steering control is configured to achieve a maximum lateral acceleration
sufficient to cause lateral displacement without loss of surface adhesion.
Id. ii 8. Contrary to Appellants' characterization of Hae, Hae does not
merely determine and execute a lane change, rather it also optimizes
execution of the lane change taking into account factors such as lateral
acceleration and surface adhesion. In view of the foregoing, the Examiner's
findings that Hae discloses determining an optimal path and causing the host
vehicle to steer along such path are supported by a preponderance of the
evidence.
Next, Appellants argue that Pemberton does not disclose determining
that vehicle steering has failed during automatic vehicle steering. Appeal
Br. 11. Appellants contend that Pemberton merely discloses multiple
steering systems, where a steering system may serve as a back-up. Id.
In response, the Examiner states that Pemberton teaches determining
that vehicle steering has failed during automatic vehicle steering and using
alternate method upon failure. Ans. 6 (quoting Pemberton ii 3). The
modifications and variations can be made therein without
departing from the spirit and scope of the invention as defined
in the following claims.
Spec. ii 33.
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Application 13/190,111
Examiner states that Pemberton discusses that multiple steering systems may
be used, that one system may be used upon failure of another, and the
steering system may be automated. Id.
Pemberton is directed to vehicle route navigation, guidance and
control and is particularly concerned with automated vehicle steering.
Pemberton iJ 1. Aspects of Pemberton are concerned with multiple steering
systems for redundancy and fail-safe backup. Id. iii! 3, 145. It includes
aspects directed to vehicle braking, such as upon steering system failure.
Id. iJ 4. Pemberton' s steering system comprises a route marker disposed
along, or in close proximity to, a prescribed route, that is responsive to
interrogation by a vehicle mounted sensor. Id. iii! 58-62. An independent or
secondary system is disclosed as a fail-safe back-up to a primary steering
system. Id. iJ 55. One steering system is implemented only upon failure of
the other or, in other words, one steering system is treated as primary and the
other as secondary. Id. iJ 95. Upon recognizing a system failure of the
primary steering system, the emergency system intervenes to preserve
directional control through steering action and apply vehicle braking as
deemed necessary. Id. iii! 199-201.
In view of the foregoing disclosures of Pemberton, the Examiner's
findings of fact with respect to Pemberton disclosing automatic vehicle
steering and determining that vehicle steering has failed during automatic
vehicle steering are supported by a preponderance of the evidence. We
similarly determine that the Examiner's legal conclusion of unpatentability
is well-founded. Accordingly, we sustain the Examiner's unpatentability
rejection of claims 1 and 1 7.
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Application 13/190,111
Claims 10, 12, and 19
Appellants do not argue for the separate patentability of claims 10, 12,
and 19 apart from arguments presented with respect to claim 1 which we
have previously considered. Appeal Br. 12, 15. For the same reasons
provided above for claims 1 and 17, we, sustain the rejection of claims 10,
12, and 19,
Claim 2
Unpatentability of Claims 2-6, 9, and 18 over
Pilutti, Hae, Pemberton, and Choi
Claim 2 depends from claim 1 and adds the limitation: "wherein
causing the host vehicle to steer using differential braking includes
determining a braking force command that selectively provides braking to
wheels on one side of the host vehicle or wheels on an opposite side of the
host vehicle." Claims App. The Examiner finds, and Appellants do not
dispute, that Choi discloses this limitation. Final Action 9, Appeal Br. 12.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time the invention was made to modify Pilutti
to include braking on one side of the vehicle as taught by Choi. Id.
According to the Examiner, a person of ordinary skill in the art would have
done this to appropriately steer the vehicle through a desired path. Id.
Appellants do not argue for the separate patentability of claim 2 apart
from arguments presented with respect to claim 1 which we have previously
considered and found unpersuasive. Appeal Br. 12-14. Accordingly, we
sustain the rejection of claim 2. 37 C.F.R. §41.37( c )(1 )(iv)(2015).
Claim 3
Claim 3 depends from claim 2 and adds the limitation: "wherein
determining a braking force command includes calculating the braking force
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command based on linear motion of the vehicle and state space equations."
Claims App. The Examiner relies on Pilutti as disclosing this limitation.
Final Action 9-10.
Appellants traverse the rejection by arguing that Pilutti does not teach
or suggest determining a braking force command that calculates the braking
force command based on linear motion of the vehicle and state space
equations. Appeal Br. 12-13. Appellants argue that Pilutti only mentions a
state space formulation when considering the steering wheel input at a
disturbance. Id. at 12.
The Examiner responds by stating that Figure 1 of Pilutti depicts the
braking force command based on linear motion of the vehicle and state
space equations. Ans. 7. The Examiner clarifies that the following
equations:
x = Ax + Bu and y = Cx + Du
are the state-space representation of the linear motion of the vehicle. Id.;
Pilutti, Fig. 3.
Pilutti discloses the use of differential braking to perform intervention
steering maneuvers. Pilutti, p. 213, col. 2. Appellants provide neither
evidence nor persuasive technical reasoning that tends to show that the
Examiner's findings of fact regarding the equations in Figure 3 of Pilutti
shown above are in error. Accordingly, we sustain the rejection of claim 3.
Claim 4
Claim 4 depends from claim 2 and adds the limitation: "wherein
determining the braking force command includes determining whether the
braking force command will cause wheel slip to occur based on a coefficient
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of friction of road surface and a weight of the host vehicle." Claims App.
The Examiner relies on Pilutti as disclosing this limitation. Final Action 10.
Appellants traverse the rejection, arguing that the passage in Pilutti
relied on by the Examiner contemplates the use of vertical tire load, not
vehicle weight. Appeal Br. 13. In response, the Examiner states that
claim 4 merely recites "a" weight of the host vehicle, which is not
necessarily the entire weight of the host vehicle. Ans. 8. The Examiner
contends that Fz, which is a vertical tire load, is interpreted by those of
ordinary skill in the art as "a weight of the host vehicle." Id.
Appellants do not persuasively explain why "a weight" of the host
vehicle should not be construed as encompassing less than the entire weight
of the host vehicle. Thus, we are not apprised of error and we sustain the
rejection of claim 4.
Claim 9
Claim 9 depends from claim 2 and adds a limitation directed to an
equation for determining the braking force command. Claims App. The
Examiner finds that Pilutti discloses converting a continuous braking force
command into a discrete command using a specified equation involving
weights on control, a weight on tracking error, and matrices A, B, and C that
define the linear discrete motion of the vehicle. Final Action 11.
In traversing the rejection, Appellants argue that Pilutti's equations
cited by the Examiner merely determine the brake steer moment, but do not
teach or suggest converting a continuous braking force command into a
discrete braking force command using Appellants' recited equation. Appeal
Br. 13-14.
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In response, the Examiner finds that conversion from the continuous
domain to the discrete domain is well known in the art. Ans. 8. Appellants
do not challenge the Examiner's position. See In re Chevenard, 139 F.2d
7 09, 713 ( CCP A 194 3) ("In the absence of anything in the record to
contradict the examiner's holding, and in the absence of any demand by
appellant for the examiner to produce authority for his statement, we will not
consider this contention"). Thus, we are not apprised of error and we sustain
the rejection of claim 9.
Claims 5, 6, and 18
Appellants do not argue for the separate patentability of claims 5, 6,
and 18 apart from arguments presented with respect to claim 1 which we
have previously considered and found unpersuasive. Appeal Br. 12-14. We
sustain the rejection of claims 5, 6, and 18. 37 C.F.R. §41.37(c)(l)(iv).
Unpatentability of Claims 7, 8, and 20 over
Pilutti, Hae, Pemberton, and Zhang
Claims 7, 8, and 20 depend, directly or indirectly, from either claim 1
or claim 17. Claims App. In traversing the rejection of these claims,
Appellants rely solely on arguments that we previously considered and
found unpersuasive with respect to claims 1 and 17. Appeal Br. 14.
Appellants merely argue that Zhang does not provide teaching that
Appellants argue is missing from Pilutti, Hae, and Pemberton. Id.
Inasmuch as we disagree with Appellants hereinabove with respect to
the sufficiency of the disclosure of Pilutti, Hae, and Pemberton, we are not
apprised of error and we sustain the rejection of claims 7, 8, and 20.
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Unpatentability of Claims 11, 13, and 14
over Pilutti and H ac
Claim 11 is an independent claim and claims 13 and 14 depend
therefrom. Claims App. In traversing the rejection of these claims,
Appellants rely solely on arguments that we previously considered and
found unpersuasive with respect to claims 1 and 17 and which we find
equally unpersuasive here. Appeal Br. 14-15. We sustain the rejection of
claims 11, 13, and 14.
Unpatentability of Claims 15 and 16
Claims 15 and 16 depend from claim 11. Claims App. Appellants do
not argue for the separate patentability of claims 15 and 16 apart from
arguments presented with respect to claim 1 which we have previously
considered and found unpersuasive. We sustain the rejection of claims 15
and 16. 37 C.F.R. §41.37(c)(l)(iv).
DECISION
The decision of the Examiner to reject claims 1-20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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