Ex Parte Randler

Patent Trial and Appeal Board

Sep 30, 2013

10574647 (P.T.A.B. Sep. 30, 2013)

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.
10/574,647 08/04/2008 Martin Randler 10191/4183 5483
26646 7590 09/30/2013
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
ANYIKIRE, CHIKAODILI E
ART UNIT PAPER NUMBER
2487
MAIL DATE DELIVERY MODE
09/30/2013 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 MARTIN RANDLER
____________________

Appeal 2012-006937
Application 10/574,6471
Technology Center 2400
____________________

Before THU A. DANG, JAMES R. HUGHES, and
JEFFREY S. SMITH, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed August 4 2008, claiming benefit of PCT/EP2004/052124,
filed September 10, 2004 and DE 103 49 631.9, filed October 24, 2003.
The real party in interest is Robert Bosch GmbH.
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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 12-27. Claims 1-11 were canceled. (App. Br.
3.)2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s Invention
The invention at issue on appeal concerns driver assistance devices,
systems, and methods which obtain lane information that may include
preceding or following vehicle position, lane boundary information, barrier
position information and road edge structure position information. (Spec.
1:2-4; 2:15-29; Abstract.)
Representative Claim
Independent claim 12, reproduced below, with disputed limitations
italicized, further illustrates the invention:
12. A method for providing driving assistance to a driver
of a vehicle, comprising:
obtaining composite lane information regarding a road
lane in which the vehicle is traveling, wherein the composite
lane information is derived from at least two characterizing
information items regarding the road lane; and
triggering at least one of an output of driver-assistance
information and a vehicle control action based on the composite
lane information;

2 We refer to Appellant’s Specification (“Spec.”); Appeal Brief (“App. Br.”)
filed October 31, 2011; and Reply Brief (“Reply Br.”) filed February 7,
2012. We also refer to the Examiner’s Answer (“Ans.”) mailed December 7,
2011.
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wherein the composite lane information is derived at
least partially based on at least one of the following: a
preceding vehicle or an oncoming vehicle, tracks of a preceding
vehicle, a lane boundary, a barrier or a guardrail, and a curb
or other road edge structure.
Rejection on Appeal
The Examiner rejects claims 12-27 under 35 U.S.C. § 102(b) as being
anticipated by U.S. Patent. App. Pub. No. 2003/0060936 A1, published Mar.
27, 2003 (“Yamamura”).

ISSUE
Based on our review of the administrative record, Appellant’s
contentions, and the Examiner’s findings and conclusions, the pivotal issue
before us follows:
Does the Examiner err in finding that Yamamura discloses “obtaining
composite lane information . . . derived from at least two characterizing
information items regarding the road lane” and “wherein the composite lane
information is derived at least partially based on at least one of the
following: a preceding vehicle or an oncoming vehicle, tracks of a preceding
vehicle, a lane boundary, a barrier or a guardrail, and a curb or other road
edge structure” within the meaning of claim 12 and the commensurate
limitations of claims 21, 24, and 26?

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action mailed June 3, 2011 as our own, except as to those findings that we
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expressly overturn or set aside in the Analysis that follows.

ANALYSIS
Based on Appellant’s arguments (App. Br. 6-8), we select
independent claim 12 as representative of Appellant’s arguments and
groupings with respect to claims 12-27. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 12
Appellant contends that Yamamura does not disclose the disputed
features recited in claim 12. (App. Br. 6-7; Reply Br. 2-3.) Specifically,
Appellant contends that:
the cited portions of Yamamura merely concern a driving assist
system 40 that includes a data acquisition system 42 for
acquiring information on environment around the vehicle.
Even if Yamamura may state that the information on
environment may include lane markings (in terms of lateral
displacement of the present subject vehicle 14), it does not
identically disclose (or suggest) that the lane marking is derived
from at least two characterizing information items regarding
the road lane or the composite lane information is derived at
least partially based on at least one of the following: a
preceding vehicle or an oncoming vehicle, tracks of a
preceding vehicle, a lane boundary, a barrier or a guardrail,
and a curb or other road edge structure, as provided for in the
context of claim 12.
(App. Br. 7.)
The Examiner sets forth a detailed explanation of the anticipation
rejection in the Examiner’s Answer with respect to each of the claims (Ans.
4-9) and, in particular, the rejection of claim 12 (Ans. 4-5, 7-8).
Specifically, the Examiner provides a detailed explanation with respect to
Yamamura’s disclosure of a data acquisition system that acquires data from
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multiple sources including lane markings (boundaries) and the position of
other vehicles in the area of the vehicle with the data acquisition system.
(Ans. 4-5, 7-8 (citing Yamamura, ¶¶ [0089], [0090]; Fig. 1).) From these
findings, the Examiner finds that Yamamura anticipates Appellant’s claim
12. (Ans. 4-5, 7-8.) We adopt these findings and this reasoning as our own.
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence on this
record supports the Examiner’s findings that Yamamura discloses the
disputed features of claim 12. Accordingly, we sustain the Examiner’s
rejection of claim 12 for the reasons set forth in the Answer, which we
incorporate herein by reference. (Ans. 4-9.) Our additional analysis will be
limited to the following points of emphasis.
We initially note that the argued limitations fail to distinguish the
claimed invention from the prior art either structurally or functionally.
Specifically, the recited feature argued by Appellant – “composite lane
information” which is “derived” from “at least two characterizing
information items” and “a preceding vehicle or an oncoming vehicle, tracks
of a preceding vehicle, a lane boundary, a barrier or a guardrail, and a curb
or other road edge structure” (claim 12) – essentially consist of non-
functional descriptive material – i.e., data. Appellant does not affirmatively
recite deriving composite lane information (nor is the procedure or algorithm
for the derivation affirmatively recited). Rather, Appellant attempts to
distinguish the claim by the content of the measured data (preceding vehicle,
oncoming vehicle, tracks of a preceding vehicle, lane boundary, barrier,
guardrail, and curb or other road edge structure) and the content of the
composite data. However, the content of the various data – composite lane
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information and the data from which it is “derived” – does not change the
functionality of the claimed process (method). The recited functionality of
the claim elements – “providing” assistance, “obtaining” data (composite
lane information), and “triggering” output of information to assist the driver
remain the same regardless of what the data constitutes, how the data may be
named, or the relationship among the data and do not further limit the
claimed invention either functionally or structurally.
The informational content of the data thus represents non-functional
descriptive material, which “does not lend patentability to an otherwise
unpatentable computer-implemented product or process.” Ex parte Nehls,
88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex parte Curry, 84
USPQ2d 1272, 1274 (BPAI 2005) (informative) (Fed. Cir. Appeal No.
2006-1003), aff’d, (Rule 36) (June 12, 2006) (“wellness-related” data in
databases and communicated on distributed network did not functionally
change either the data storage system or the communication system used in
the claimed method). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir.
2004); Nehls, 88 USPQ2d at 1887-90 (discussing non-functional descriptive
material).
Even if we arguendo ascribe some patentable weight to the
limitations, as explained by the Examiner (Ans. 4-5, 7-8), Yamamura
describes a data acquisition system that continuously acquires data on the
environment around a vehicle and a driver assist system that generates a
predicted environment and a response plan using at least two types of the
acquired data – vehicle position information and lane markings, both of
which are recited in Appellant’s claim. (See Yamamura, ¶¶ [0089], [0090].)
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Further, Appellant argues features not recited in the disputed
limitations. Appellant asserts that the lane marking itself is comprised of
two distinct data types – “the lane marking is derived from at least two
characterizing information items regarding the road lane” (App. Br. 7
(emphasis omitted)). However, nothing in Appellant’s Specification
supports such an interpretation. Rather, the “lane information” (see Spec.
2:15-29), which is “characterizing information items regarding the road
lane” (claim 12), includes the items recited in the claim. Appellant does not
explicitly define “composite lane information,” “characterizing information
items,” or “regarding the road lane” in the Specification, and the Examiner’s
broad but reasonable interpretation thereof –Yamamura’s predicted
environment and generated response plan (Ans. 8) – is consistent with
Appellant’s disclosure of estimated lane information (Spec. 2:15-29).
We broadly but reasonably construe the disputed limitations as
requiring that the composite lane information is derived from two or more
items (distinct data types) and that at least one of these include the position
of another vehicle, a lane boundary, a barrier, and a road edge structure.
(See claim 12; Spec. 2:15-29.) We also interpret “characterizing information
items regarding the road lane” (claim 12) as information utilized for “lane
identification” which forms “lane information,” i.e., “lane data” (Spec. 2:15-
29) as explained in Appellant’s Specification.
Thus, Appellant does not persuade us of error in the Examiner’s
anticipation rejection of representative independent claim 12, independent
claim 21, or dependent claims 13-20, 22, and 23 not separately argued with
particularity (App. Br. 7.) Accordingly, we affirm the Examiner’s
anticipation rejection of claims 12-23.
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Claim 24
Appellant makes nominal arguments with respect to claim 24 (App.
Br. 7-8), but these arguments merely repeat the claim language and state that
“it is believed and respectfully submitted that . . . Yamamura . . . does not
disclose the features of the first track data and the additional track data as
provided for in the context of claim 24” (App. Br. 7). This form of
argument (simply reiterating the claim limitations) does not amount to a
separate patentability argument and is unpersuasive of error in the
Examiner’s rejection. See 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.”); Ex parte Belinne, No. 2009-004693, 2009 WL
2477843 at *3-4 (BPAI Aug. 10, 2009) (informative); 37 C.F.R.
§ 41.37(c)(1)(iv). Appellant’s argument “do[es] not . . . explain why the
Examiner’s explicit fact finding is in error.” Belinne, 2009 WL 2477843 at
*4.
Therefore, we find Appellant does not separately argue the rejection
of independent claim 24 or independent claim 25 and dependent claims 25
and 27 not separately argued with particularity (App. Br. 8) under 35 U.S.C.
§ 102(b). Thus, for the same reasons set forth with respect to claim 12
(supra), Appellant does not persuade us of error in the Examiner’s
anticipation rejection of claims 24-27 and we affirm the Examiner’s
rejection of these claims.

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CONCLUSION OF LAW
Appellant has not shown that the Examiner erred in rejecting claims
12-27 under 35 U.S.C. § 102(b).

DECISION
We affirm the Examiner’s rejections of claims 12-27.
No time 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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