Nico Steinhardt

Patent Trials and Appeals Board

Dec 17, 2019

14344342 - (D) (P.T.A.B. Dec. 17, 2019)

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.
14/344,342 08/15/2014 Nico Steinhardt 14423-121 (12777WOUS) 6638
40878 7590 12/17/2019
BGL/Continental Teves Inc.
C/O BRINKS GILSON & LIONE
524 South Main Street
Suite 200
Ann Arbor, MI 48104
EXAMINER
SMITH, AARON C
ART UNIT PAPER NUMBER
3665
MAIL DATE DELIVERY MODE
12/17/2019 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 NICO STEINHARDT
Appeal 2018-001938
Application 14/344,342
Technology Center 3600
Before JOHN C. KERINS, ANNETTE R. REIMERS, and
BEVERLY M. BUNTING, Administrative Patent Judges.
BUNTING, Administrative Patent Judge.
DECISION ON APPEAL1

1 In this Decision, we refer to the Specification filed March 12, 2014
(“Spec.”); Final Office Action dated June 17, 2016 (“Final Act.”); Advisory
Action dated September 26, 2016 (“Advisory Act.”); Appeal Brief filed
November 22, 2016 (“Appeal Br.”); Corrected Appeal Brief filed December
19, 2016 (“Corrected Appeal Br.”); Examiner’s Answer dated November 9,
2017 (“Ans.”); and Appellant’s Reply Brief filed December 15, 2017
(“Reply Br.”).
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Application 14/344,342
2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 2, and 4–9. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a sensor system for a vehicle. Spec.
Abstract. Of the claims on appeal, claim 1 is independent, and claims 2 and
4–9 depend from claim 1. Corrected Appeal Br. Claims App’x. Claim 1,
reproduced below with revised formatting, is illustrative of the subject
matter on appeal:
1. A sensor system for a vehicle, comprising:
a processor;
at least two wheel rotation speed sensor elements being in
communication with the processor,
at least one steering angle sensor element being in
communication with the processor, the processor being
configured to evaluate sensor signals of the sensor
elements,
wherein the processor is configured to calculate from the
sensor signals of the wheel rotation speed sensor elements
and the steering angle sensor element, at least a velocity of
the vehicle along a first defined axis, a velocity of the
vehicle along a second defined axis, and a rotation rate of
the vehicle about a third defined axis,

2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as CONTINENTAL
TEVES AG AND CO OHG. Appeal Br. 2.
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wherein the processor for the velocity of the vehicle along the
first defined axis, the velocity of the vehicle along the
second defined axis, and the rotation rate of the vehicle
about a third defined axis is configured to calculate for
each a variance and provide the variances as an additional
output variable, and
wherein the processor is configured to evaluate the validity of
the velocity of the vehicle along the first defined axis, the
velocity of the vehicle along the second defined axis, and
the rotation rate of the vehicle about a third defined axis
on the basis of the calculated variances,
wherein the processor is configured to utilize the variances of
the velocity along the first and along the second defined
axis and of the rotation rate about the third defined axis in
the evaluation of the validity of output variables,
wherein the processor is further configured to check the
variance of the velocity of the vehicle along the first
defined axis, the velocity of the vehicle along the second
defined axis, and the rotation rate of the vehicle about a
third defined axis with respect to a or in each case one
defined limit value being overshot, and
wherein, in the event of one or more of the variances being
overshot, the processor is further configured to provide no
validity of present output variables.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lu et al.
(Lu)
US 2008/0086248 A1 April 10, 2008
Takahashi et al.
(Takahashi)
US 2010/0250083 A1 September 30, 2010

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REJECTIONS ON APPEAL
The Examiner maintains the following rejections on appeal:3
1. Claims 1, 2, and 4–9 stand rejected under 35 U.S.C. § 101 as
being directed to a judicial exception without significantly
more. Final Act. 6–7.

2. Claim 1 stands rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly
claim the subject matter that Applicant regards as the
invention. Id. at 7–8.

3. Claims 1, 2, and 4–8 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Lu. Id. at 8–14.

4. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lu and Takahashi. Id. at 14–15.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments and determine that Appellant has not identified reversible error in
the Examiner’s rejections of claims 1, 2, and 4–9. Accordingly, we affirm
each of the Examiner’s rejections based on the fact-finding and reasoning set
forth below, and in the Final Action, Advisory Action, and Answer.

3 Because Appellant did not file a terminal disclaimer, the Examiner
maintained the double patenting rejection. Final Act. 2. The Examiner
noted that the Terminal Disclaimer filed on July 15, 2016 was rejected in a
decision filed on August 2, 2016. Ans. 12. Appellant submits that a
terminal disclaimer was subsequently filed on December 7, 2017, rendering
this rejection moot. Reply Br. 1. We agree that this rejection is not before
us for review.
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35 U.S.C. § 101
Appellant argues claims 1, 2, and 4–9 together as a group. Appeal Br.
6–10. Thus, claims 2 and 4–9 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
For the reasons stated below, and based on the findings and analysis
provided by the Examiner in the Final Office Action and the Answer, we
determine that claim 1 is directed to an abstract idea and does not contain an
inventive concept sufficient to transform the claimed abstract idea into a
patent-eligible application. We, therefore, sustain the Examiner’s rejection
under 35 U.S.C. § 101.
1. Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
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elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
2. USPTO § 101 Guidance
The USPTO recently published revised guidance on the application of
§ 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under Step 2A, Prong One of
the Guidance, we determine if the claim recites a judicial exception,
including particular groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activity, or mental processes). Id. at
52–53. If so, we then analyze the claim to determine whether the recited
judicial exception is integrated into a practical application of that exception
under Step 2A, Prong Two of the Guidance. Id. at 53–55; MPEP
§§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018). Only if the
claim fails to integrate the exception and thus is “directed to” the judicial
exception, do we then move to Step 2B of the Guidance and look to whether
the claim adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional activity in the field or whether
the claim simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception. Guidance, 84 Fed. Reg. at 56. Below,
we consider Appellant’s arguments in light of the Guidance.
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3. Analysis
a. Step 1: Does Claim 1 Recite a Statutory Category?
Under step 1 of the Guidance, we consider whether the claimed
subject matter falls within the four statutory categories set forth in § 101. It
is undisputed that claim 1 is directed to a machine, i.e., “[a] sensor system
for a vehicle.” Corr. Appeal Br. Claims App’x. Consequently, we proceed
to the next step of the analysis.
b. Step 2A Prong 1: Does Claim 1 Recite a Judicial Exception?
We next consider whether claim 1 “recites a judicial exception, i.e., an
abstract idea, a law of nature, or a natural phenomenon” under Step 2A
Prong 1 of the Guidance. Guidance, 84 Fed. Reg. at 54; see Alice, 573 U.S.
at 216. In applying the first step of the Alice inquiry, the Examiner finds that
“the claimed invention is directed to a judicial exception (i.e., a law of
nature, a natural phenomenon, or an abstract idea) without significantly
more.” Final Act. 6. Specifically, the Examiner states that claim 1 is
directed to
collecting and comparing information, (i.e., the steps of receiving
and comparing velocity information) to organize information,
which is similar to concepts that have been identified as abstract
by the courts, such as using categories to organize, store and
transmit information in Cyberfone (Cyberfone Systems, LLC v.
CNN Interactive Group, Inc., February 26, 2014, Dyk, T.) or
comparing new and stored information and using rules to identify
options in SmartGene (SmartGene, Inc. v. Advanced Biological
Laboratories, SA (Fed. Cir. 2014). Claim 1 is directed towards
gathering velocity data and angular data and comparing said data
in some way to organize the data into classifications with respect
to “validity”.
Id.
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Appellant responds that the claim 1 is patentable under 35 U.S.C.
§ 101 because it requires “physical objects, such as hardware beyond just a
general-purpose computer.” Appeal Br. 6 (citing Ex parte Schmid, Appeal
No. 2012-002155 (PTAB Dec. 26, 2014)). Appellant argues that the
invention of claim 1 is directed to a machine because it recites hardware-
based elements, e.g., wheel speed sensors and steering wheel angle sensors,
in addition to a processor. Id. at 7, 10 (“the claimed invention includes very
tangible items, including at least two wheel rotation speed sensor, at least
one steering angle sensor element, as well as a processor.”). Appellant
compares the Examiner’s findings to the Enfish decision, in arguing that the
Examiner incorrectly characterized the claimed invention as “directed to
collecting and comparing data.” Appeal Br. 9 (citing Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)).
Specifically, Appellant argues that
claim 1, as a whole, is directed to a sensor system for a vehicle
that provides or enables a relatively high degree of accuracy with
respect to its signal processing. The system includes wheel
rotation speed sensor elements, at least one steering angle sensor
element and a signal processing device which is designed to
evaluate at least part of the sensor signals of the sensor elements
together. The signal processing device comprises a vehicle
model unit which is designed to calculate, from the sensor signals
of the wheel rotation speed sensor elements and the steering
angle sensor elements, at least the speed along a first defined
axis, the speed along a second defined axis and the rotation rate
about a third defined axis.
Id.
Consistent with the Examiner’s analysis, we determine that claim 1
recites a judicial exception, i.e., an abstract idea, in the form of mathematical
concepts, including the use of mathematical calculations, mathematical
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equations/relationships, and/or performing mathematical operations on
collected data. For example, calculating velocity and rotational rate about a
particular axis, as well as calculating the corresponding variance, involves
mathematical equations. See Spec. ¶ 8 (“Preferably, the vehicle model unit
is designed in such a way that it uses a least-squared error method for
solving an overdetermined system of equations for the calculation.”), ¶ 17
(“for each of its three calculated variables, namely the velocity along a first
defined axis, the velocity along a second defined axis, and the rotation rate
about a third defined axis, it calculates information relating to the data
quality and provides this as additional output variable, in particular in each
case a variance.”). Checking the variance of the velocity and rotation rate
against a predefined value and providing an output of “no validity” likewise
involves a mathematical equation/relationship. See Spec. ¶ 25 (“The signal
processing device of the sensor system additionally preferably comprises a
fusion filter. The fusion filter provides a defined fusion data set in the
course of the joint evaluation of at least the sensor signals and/or signals
derived therefrom of the sensor elements, that is to say of the odometry, and
in particular additionally of the output signals of a satellite navigation
system and/or signals derived therefrom. Said fusion data set has in each
case data with respect to defined physical variables, wherein the fusion data
set comprises, with respect to at least one physical variable, a value of said
physical variable and information about the data quality thereof, wherein this
information about the data quality is expressed as variance in accordance
with the example.”).
Although we find that claim 1 recites an abstract idea in the form of
mathematical concepts, we recognize that this does not automatically render
the claim patent-ineligible. Diehr, 450 U.S. at 187 (“[A] claim drawn to
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subject matter otherwise statutory does not become nonstatutory simply
because it uses a mathematical formula.”). Thus, we proceed to the Step 2
of Alice, and as set forth in Step 2A, Prong 2 of the Guidance.
c. Step 2A Prong 2: Whether the Claims Integrate a Judicial Exception
into a Practical Application
Under Step 2A Prong 2 of the guidance, we must “(a) [i]dentify[]
whether there are any additional elements recited in the claim beyond the
judicial exception(s); and (b) evaluat[e] those additional elements
individually and in combination to determine whether they integrate the
exception into a practical application.” Guidance, 84 Fed. Reg. at 54–55.
Additional elements that merely add insignificant extra-solution activity to
an abstract idea fail to integrate the abstract idea into a patent-eligible
practical application. See id. at 55.
Appellant argues that the claimed invention is like Enfish because it is
directed to an improvement in computer technology, and in particular, “a
sensor system for a vehicle that provides or enables a relatively high degree
of accuracy with respect to its signal processing.” Appeal Br. 9.
We are not persuaded by Appellant’s argument. As the Examiner
points out, “[t]he courts found that Enfish was not directed towards an
abstract idea because [it was] directed to a specific implementation of a
solution to a problem in the software arts, wherein the improvement in
computer-related technology was defined by logical structures and
processes, rather than specific physical features.” Ans. 13. We agree that
claim 1 of the subject invention requires hardware in addition to a processor,
yet, as the Examiner correctly recognizes, claim 1 “recites generic hardware
components performing their intended functions.” Id. Namely, claim 1
recites (1) that the sensor elements, i.e., two wheel rotation speed sensor
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elements and at least one steering angle sensor element, are in
communication with the processor; (2) the processor is “configured to
evaluate sensor signals of the sensor elements”; (3) the processor uses the
sensor signals to calculate “at least a velocity of the vehicle along a first
defined axis, a velocity of the vehicle along a second defined axis, and a
rotation rate of the vehicle about a third defined axis”; (4) the processor uses
these velocities “to calculate for each a variance and provide the variances as
an additional output variable”; (5) the processor evaluates the validity of the
calculated velocities and rotation rate using the calculated variances; (6) the
processor utilizes the variances in velocity and rotation rate in evaluating the
validity of output variables; (7) the processor checks the variance of the
velocity and rotation rate against “a or in each case one defined limit[ed]
value being overshot”; and (8) if one or more variances is overshot, the
processor “is further configured to provide no validity of present output
variables.” See Claim 1 supra.
In other words, once the processor receives inputs from the sensor
elements, all calculations to determine the validity of the output variables
take place entirely in the processor. We agree with the Examiner’s
assessment that Appellant “has not provided any meaningful arguments or
citations from the claim language to show that the claimed invention is
performing any significant steps beyond comparing and organizing data.”
Ans. 14. Nor does Appellant identify specific claim limitations that are
directed towards improving computer technology, given that the language of
claim 1 does not require that the claimed system “provides or enables a
relatively high degree of accuracy with respect to its signal processing.” Id.
(emphasis omitted).
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Our determination is not impacted by the recent non-precedential
Federal Circuit decision in Thales Visionix Inc., v. United States, 850 F.3d
1343 (Fed. Cir. 2017), in which the court found that the claims were not
directed to an abstract idea and did not proceed to step two of Alice because
“the invention applied laws of physics to solve this problem, and the mere
presence of a mathematical equation in the solution ‘does not doom the
claims to abstraction.’” Reply Br. 3. In its Reply, Appellant cites to Thales
Visionix, arguing that the claimed invention is “nearly identical to the issue
involved in Thales Visionix” because both use information from sensors to
calculate a physical parameter, which in this case is the claimed “speed
along a first defined axis, the speed along a second defined axis and the
rotation rate about a third defined axis.” Id.
Appellant’s reliance on Thales Visionix is inapposite. In Thales
Visionix, the Federal Circuit analogized the claims as “nearly
indistinguishable” to the claims at issue in Diehr. Thales Visionix, 850 F.3d
at 1348 (“Just as the claims in Diehr reduced the likelihood that the rubber
molding process would result in ‘overcuring’ or ‘undercuring,’ [Diehr] at
187, 101 S.Ct. 1048, the claims here result in a system that reduces errors in
an inertial system that tracks an object on a moving platform.”). The Court
went on to explain that “the claims are directed to systems and methods that
use inertial sensors in a non-conventional manner to reduce errors in
measuring the relative position and orientation of a moving object on a
moving reference frame.” Thales Visionix, 850 F.3d at 1348–49.
Here, Appellant does not argue that the data from the sensor elements,
i.e., two wheel rotation speed sensor elements and at least one steering angle
sensor element, and resultant mathematical equations “are a consequence of
the arrangement of the sensors and the unconventional choice of reference
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frame in order to calculate position and orientation.” Id. at 1349. In other
words, Appellant does not argue that the claimed sensors and/or calculations
are somehow used in a non-conventional manner. As such, we are not
persuaded by Appellant’s argument that the claims here are similar to the
claims challenged in Thales Visionix.
After considering claim 1 as a whole, and for the reasons set forth by
the Examiner, we find that the additional elements recited in claim 1 beyond
the abstract idea, individually and in combination, do not integrate the
abstract idea into a practical application. Alice, 573 U.S. 217–18. As noted
by the Examiner, the processor is recited at a high level of generality, i.e., as
a generic processor performing a generic computer function of processing
data from sensors in determining vehicle velocity. Ans. 15. Accordingly,
this additional element does not integrate the abstract idea into a practical
application because it does not impose any meaningful limits on practicing
the abstract idea.
Having determined that claim 1 recites a judicial exception and the
additional elements recited in the claim do not integrate the judicial
exception into a practical application, i.e., the claim is directed to an abstract
idea, we proceed to step 2B of the Guidance.
d. Step 2B: Whether Claim 1 Provides an Inventive Concept.
Under Step 2B of the Guidance, we determine whether the claim
provides an “inventive concept,” i.e., whether the additional elements
beyond the judicial exception, individually and in combination, amount to
“significantly more” than the judicial exception itself. Guidance, 84 Fed.
Reg. at 56. According to the Guidance, “simply append[ing] well-
understood, routine, conventional activities previously known to the
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industry, specified at a high level of generality,” is indicative that an
inventive concept is absent. Id.
The Examiner finds that:
The additional features recited in the claims, the processor, does
not amount to significantly more than the abstract idea because
these features simply specify, at a high level of generality, well-
understood, routine and conventional activities previously
known to the industry, and append them to the judicial exception,
such as determining the velocity of a vehicle in a specific
direction with respect to the wheel velocity and the steering angle
of a vehicle, and using the determined wheel velocity and
steering angle to estimate a velocity of the vehicle. Therefore,
these additional features as recited in the claim limitations,
whether viewed individually or as an ordered combination,
merely generally link the use of the judicial exception to a
particular technological environment or field of use without
limiting use of the judicial exception in any meaningful way.
Final Act. 7. Appellant, in turn, does not dispute directly the Examiner’s
finding that the elements recited in claim 1 fail to amount to “significantly
more” that the abstract idea itself. Appeal Br. 9 (“because the claimed
invention is an improvement in computer technology as explained above and
cannot be deemed to be abstract because of the mentioned hardware
elements, there is no need to proceed to the second step of the eligibility
analysis, because the claimed invention is not directed to an abstract idea in
the first instance.”).
As discussed above in connection with Step 2A, Prong 2, the
additional elements in claim 1 amount to no more than mere instructions to
apply the exception using a generic computer component in communication
with conventionally known sensors. The same analysis applies here in step
2B, i.e., mere instructions to apply an exception on a generic computer
cannot integrate a judicial exception into a practical application at Step 2A
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or provide an inventive concept in Step 2B. For the same reasons, we find
that the additional elements recited in claim 1 beyond the abstract idea,
individually and as an ordered combination, do not provide an inventive
concept because they do not amount to “significantly more” than the judicial
exception itself. Alice, 573 U.S. 217–18.
As such, we determine claim 1 is directed to patent-ineligible subject
matter.
4. Summary
Accordingly, we affirm the Examiner’s rejection of claims 1, 2, and
4–9 under 35 U.S.C. § 101 as being directed to patent-ineligible subject
matter.
35 U.S.C. § 112(b)
In the Final Action, the Examiner stated that “the excerpt ‘configured
to consider’ is unclear. In particular, it is unclear what processes are related
to ‘considering’ and how the process of ‘considering’ is differentiated from
the process of ‘checking’. For the purposes of examination the Examiner
interprets ‘considering’ to mean that the variances are used in some way by a
processor.” Final Act. 7–8; Ans. 6. Appellant recognized this rejection in
describing the “Status of Amendments,” but did not list this rejection in its
summary of grounds to be reviewed on appeal. Appeal Br. 2, 5. Nor does
Appellant provide arguments in its Appeal Brief directed to this rejection.
See generally Appeal Br. In its Reply, Appellant observes that the Examiner
did not enter the amendment of claim 1 after the Final Office Action that
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would purportedly correct this deficiency. Reply Br. 2. We note that this
statement is consistent with the Advisory Action dated September 26, 2016.4
Because Appellant does not present cogent arguments in its Appeal
Brief addressing this rejection, the Examiner’s rejection of claim 1 under
35 U.S.C. § 112(b) as being indefinite for failing to particularly point out
and distinctly claim the subject matter Appellant regards as the invention is
summarily affirmed for the reasons stated by the Examiner in the Final
Office Action and Answer. See 37 C.F.R. § 41.31(c) (“An appeal, when
taken, is presumed to be taken from the rejection of all claims under
rejection unless cancelled by an amendment filed by the applicant and
entered by the Office.”); Ex parte Frye, Appeal No. 2009-006013, slip op. at
10, 2010 WL 889747 (BPAI Feb. 26, 2010) (precedential) (“Filing a Board
appeal does not, unto itself, entitle an appellant to de novo review of all
aspects of a rejection. If an appellant fails to present arguments on a
particular issue – or, more broadly, on a particular rejection – the Board will
not, as a general matter, unilaterally review those uncontested aspects of the
rejection.”).
OBVIOUSNESS BASED AT LEAST IN PART ON LU
Appellant argues that claims 1, 2, and 4–8 are not obvious based on
Lu (Appeal Br. 10–13), and that claim 9 is not obvious based on Lu and
Takahashi (id. at 13). Because Appellant argues claims 1, 2, and 4–8
together as a group (id. at 10–13), and argues that claim 9 is allowable for
the same reasons as claim 1 (id. at 13), we select claim 1 as representative
and claims 2 and 4–9 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).

4 We do not have the authority to compel the Examiner to enter an
amendment.
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The Examiner finds that Lu directly teaches most of the elements of
claim 1. Final Act. 8–10. For example, the Examiner finds that Lu teaches a
processor (ISS unit 26), two wheel rotation speed sensor elements in
communication with the processor, and at least one steering angle sensor.
Id. at 8–9 (citing Lu Figure 2, Abstract). The Examiner also finds that Lu
teaches calculating the velocity and rotation rate of the vehicle along a first
axis, a second axis, and a third axis. Id. at 9 (citing Lu ¶¶ 47, 58, Abstract).
Lu, according to the Examiner, also teaches determining a variance between
a sensor’s actual value and an estimated output value, and the validity of the
velocity and rotation rate of the vehicle about the defined axis using the
calculated variances. Id. (citing Lu ¶¶ 58, 73, 79–83).
Claim 1 also requires that “the processor is further configured to
check the variance of the velocity of the vehicle along the first defined axis,
the velocity of the vehicle along the second defined axis, and the rotation
rate of the vehicle about a third defined axis with respect to a or in each case
one defined limit value being overshot.” Corr. Appeal Br. Claims App’x.
The Examiner finds that:
Although Lu does not expressly indicate that a limit is overshot,
if a determined variance between a particular sensor's actual
output value and an estimated output value calculated do not
match, the actual output value is considered a value without
plausibility, as seen in para. [0080], which encompasses and
corresponds to determining if a variance has “validity” if a value
is overshot.
Final Act. 10–11. The Examiner reasons that “it would have been prima
facie obvious for one of ordinary skill in the art to modify Lu to use an
overshot value as a mismatch since overshooting a value corresponds to
values not matching.” Id. at 11.
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Claim 1 further requires that “in the event of one or more of the
variances being overshot, the processor is further configured to provide no
validity of present output variables.” Corr. Appeal Br. Claims App’x. The
Examiner finds that the disclosure in Lu regarding “determining a variance
between a particular sensor's actual output value and an estimated output
value” teaches this limitation. Final Act. 11. Noting that Lu does not
expressly teach that a limit is overshot, the Examiner finds that
if a determined variance between a particular sensor's actual
output value and an estimated output value calculated do not
match, the actual output value is considered an value without
plausibility, as seen in para.[0080], which encompasses and
corresponds to determining if a variance has “validity” if a value
is overshot.
Id. The Examiner reasons that “it would have been prima facie obvious for
one of ordinary skill in the art to modify Lu to use an overshot value as a
mismatch since overshooting a value corresponds to values not matching.”
Id.
Initially, Appellant disputes the Examiner’s use of a single reference,
Lu, in an obviousness rejection, arguing that Lu does not “identify a
teaching, suggestion, or motivation to modify the single reference to fall
within the scope of the claim.” Appeal Br. 12. Appellant’s argument in this
regard does not apprise us of Examiner error. It is well settled that “[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.” In re Kahn, 441 F.3d
977, 987 (Fed. Cir. 2006).
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Here, the Examiner identifies the correspondence between the
elements of the claim and the teachings in Lu with respect to determining if
a variance has “validity” if a value is overshot and reasons that one of
ordinary skill in the art would modify Lu to use an overshot value as a
mismatch because “overshooting a value corresponds to values not
matching.” Final Act. 11. Additionally, the Examiner identifies the
disclosure in Lu regarding a value without plausibility as corresponding with
determining if a variance has “validity” if a value is overshot and again
reasons that one of ordinary skill in the art would to modify Lu in the
proposed manner because “overshooting a value corresponds to values not
matching.” Id. Appellant does not dispute the Examiner’s rationale for the
proposed modification.
Next, Appellant argues that the Examiner’s reliance on paragraphs
73–83 of Lu is unavailing because the relied-on passages do not provide the
necessary teaching, suggestion, or motivation for the proposed modification.
Appeal Br. 12. According to Appellant, Lu detects failures of either the
sensor itself or the mounting of the sensor, and considers the data output
from the sensor. Id. This narrow interpretation of Lu is not convincing. Lu
describes how, in step 302, signals from various sensors are received and
that the “quality” of the sensor signal may be evaluated, including
monitoring for sudden changes and out-of-range values. Lu ¶ 78. As the
Examiner explains, Lu determines the plausibility of the sensors, and that “if
a tested sensor’s output does not match an expected value based on the
output values of other sensors, then the tested sensor’s output is considered
‘not plausible.’” Ans. 16 (citing Lu ¶ 79). The Examiner argues
persuasively that “[o]ne of ordinary skill in the art would understand that
two values that do not match would indicate that a first value is lower than a
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second value, or that a first value is higher (overshot) than a second value.”
Id. In response, Appellant does not dispute directly the Examiner’s
argument, but rather repeats its arguments from the Appeal Brief. See Reply
Br. 4 (“these statements still do not provide the necessary teaching,
suggestion, or motivation to modify the single reference to fall within the
scope of the claim. Lu is focused on detecting failures of the sensor - either
the sensor itself or the mounting of the sensor. So long as the sensor is
outputting data, the data will be considered.”).
Appellant also argues that Lu does not check the variance of its output
variables with respect to “an or in each case one defined limit value being
overshot” and if overshot, “no validity of the present output variables of the
vehicle model unit is provided.” Appeal Br. 12. We agree with the
Examiner’s response that this claim element is satisfied by the passage in Lu
describing how
“[i]n step 304, the plausibility of the sensors is determined in
the sensor plausibility check module (SPC)”, wherein the
language “the sensors” encompasses all of the sensors in the
vehicle system, including, but not limited to, the roll rate sensor,
the yaw rate sensor, the lateral acceleration sensor, the vertical
acceleration sensor, a vehicle longitudinal acceleration sensor,
lateral or vertical speed sensor including a wheel-based speed
sensor disclosed in para. [0058] of Lu.
Ans. 16 (citing Lu ¶ 79). Appellant does not dispute the Examiner’s
argument in its reply, but rather repeats its argument from the Appeal Brief.
Reply Br. 4.
Next, Appellant contends that the statement in Lu regarding “[a]
reduced model computation will be conducted and a partial function control
will be determined. The info from the sensor fault processing logic will be
fed to the ISCS unit 44 through the signal flow 309,” suggests that invalid
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data is utilized as the ISCS. Id. at 12–13 (citing Lu ¶ 80). More persuasive
is the Examiner’s evidence that Lu expressly states that a “reduced model
computation will be conducted” in the event a sensor is determined to be
“not plausible.” Ans. 17 (citing Lu ¶ 80). This passage, according to the
Examiner, suggests “that the incorrect data from the ‘not plausible’ sensor is
not used to control the vehicle with respect to the vehicle model.” Id.
(emphasis added). The Examiner contends that Lu describes how the ISCS
receives information from the sensor processing fault logic, and not that
“invalid data” is output by the sensor processing fault logic. Id. We agree
with the Examiner that Appellant does not explain how such invalid data
would be used by the ISCS. Id. Nor does Appellant address the Examiner’s
response in its Reply, instead, Appellant reiterates its arguments from the
Appeal Brief. Reply Br. 4.
Appellant further argues that the technical features of claim 1 result in
“accelerated convergence of the calculation of the fusion data set is possible,
and thus a faster relative accuracy of the output data of the sensor system
can be achieved.” Id. at 5. This argument is not persuasive because it is not
commensurate with the scope of claim 1, which does not require
“accelerated convergence of the calculation of the fusion data set” nor
achievement of “faster relative accuracy of the output data of the sensor
system.”
Appellant does not contest the Examiner’s reasons for modifying Lu,
and the Examiner’s reasons comport with the Federal Circuit’s recognition
of “[t]he normal desire of artisans to improve upon what is already generally
known.” In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017). We find
that the Examiner provides a reasoned basis, supported by a preponderance
of the evidence in the record, explaining why one of ordinary skill would
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have utilized the teachings of Lu to arrive at the claimed invention of claim
1.
Accordingly, we affirm the Examiner’s rejection of claims 1, 2, and
4–8 as obvious over Lu. Because Appellant relies on its arguments in
connection with claim 1 for the rejection of claim 9 as obvious based on Lu
and Takahashi, we, likewise, affirm the Examiner’s rejection of claim 9 as
obvious based on Lu and Takahashi for the same reasons.
CONCLUSION
The Examiner’s rejections of claims 1, 2, and 4–9 are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4–9 101 Eligibility 1, 2, 4–9
1 112(b) Indefiniteness 1
1, 2, 4–8 103(a) Lu 1, 2, 4–8
9 103(a) Lu, Takasashi 9
Overall
Outcome
1, 2, 4–9

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)(1)(iv).
AFFIRMED