Waymo LLC

Patent Trials and Appeals Board

Nov 4, 2020

2020005727 (P.T.A.B. Nov. 4, 2020)

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.
15/847,390 12/19/2017 Jiajun Zhu XSDV 3.0-460
CONCON RE II
5238
146033 7590 11/04/2020
WAYMO LLC
BOTOS CHURCHILL IP LAW
430 Mountain Ave
Suite 401
New Providence, NJ 07974
EXAMINER
LILLIS, EILEEN DUNN
ART UNIT PAPER NUMBER
3993
NOTIFICATION DATE DELIVERY MODE
11/04/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pto@bciplaw.com
waymo@bciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIAJUN ZHU, DAVID I. FERGUSON, and
DMITRI A. DOLGOV
____________

Appeal 2020-005727
Application 15/847,390
Patent US 9,216,737 B1
Technology Center 3900
____________

Before MICHELLE R. OSINSKI, JILL D. HILL, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
The above-identified application seeks reissue of US 9,216,737 B1.
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision
rejecting claims 21–37 in this reissue application.2 We have jurisdiction

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Waymo LLC.
Appeal Br. 2.
2 Claims 1–20 are cancelled. Appeal Br. 47 (Claims App.).
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over the appeal under 35 U.S.C. § 6(b). A telephonic oral hearing was held
on September 30, 2020.3
We AFFIRM.

THE CLAIMED SUBJECT MATTER
Claims 21 and 32 are independent and are reproduced below.
21. A method comprising:
receiving by one or more computing devices, a request to
navigate a vehicle autonomously;
in response to the request, autonomously navigating, by
the one or more computing devices, the vehicle along a path
between a first location and a second location in accordance with
a control strategy;
detecting a presence of another vehicle;
accessing, by the one or more computing devices,
behavior data identifying one or more potential actions of the
other vehicle that are to result in a change in the control strategy;
determining, by the one or more computing devices, that
the other vehicle has performed an action identified in the
behavior data; and
based on the determination, altering the control strategy by
the one or more computing devices to change at least one of a
position, heading, and speed of the vehicle while the vehicle is
travelling along the path.

32. A method comprising:
receiving, by one or more computing devices, a request to
navigate a vehicle autonomously;
in response to the request, autonomously navigating, by
the one or more computing devices, the vehicle along a path
between a first location and a second location in accordance with
a control strategy;

3 The record includes a transcript of the oral hearing.
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filtering received sensor data to identify actions of interest
of another vehicle:
determining, by the one or more computing devices,
whether the vehicle cannot currently operate in a fully
autonomous mode based on the identified actions of interest: and
upon determining by the one or more computing devices
that the vehicle cannot currently operate in the fully autonomous
mode, altering the control strategy.
Appeal Br. 47–49 (Claims App.) (underlining omitted)
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Dieterle US 7,317,973 B2 Jan. 8, 2008
Svendsen US 7,499,804 B2 Mar. 3, 2009
Trepagnier US 8,126,642 B2 Feb. 28, 2012
Foessel US 8,364,366 B2 Jan. 29, 2013

THE REJECTIONS4
I. Claims 21–37 stand rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement. Final
Act. 3–5.
II. Claims 22, 29, and 32–37 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite. Id. at 5–6.
III. Claims 21–26, 30, and 31 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Trepagnier. Id. at 7–8.

4 Rejections of various claims on the grounds of nonstatutory double
patenting (Final Act. 16–19) have been withdrawn (Ans. 3) and are not
before us on appeal.
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IV. Claims 21–26 and 30–34 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Trepagnier and Dieterle. Id. at 11–13.
V. Claims 27–29 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Trepagnier and Foessel. Id. at 13–15.
VI. Claims 32–37 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Trepagnier and Svendsen. Id. at 15–16.
VII. Claims 32–37 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Svendsen. Id. at 8–10.

OPINION
Rejection I
First Asserted Basis for Claims 21–37
The Examiner finds that because there is no algorithm or flow of logic
in the Specification to guide one of ordinary skill in the art as to how to
program a computer to perform at least the steps of “accessing . . . [by one or
more computing devices] behavior data” and “filtering received sensor
data,” as recited in independent claims 21 and 32, respectively, the
Specification does not include written description support for this subject
matter. Final Act. 3–4.
More particularly, with respect to “accessing . . . [by one or more
computing devices] behavior data,” as claimed, the Examiner explains:
The . . . [S]pecification does indicate that “database 138 may
include a set of actions or behaviors of interest”. Response at 6–
7, citing to column 7, lines 41–48. However, missing here is an
explanation as to how the computer achieves the desired result[]
of accessing behavior data . . . . In the [E]xaminer’s opinion, the
suggestion in [the Specification] that “instructions 132 may
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allow for computer system 110 to identify when a detected
vehicle has performed one or more of the behaviors of interest”
([i]d[.]), is insufficient to describe or teach how the computer
achieves the result[] of accessing behavior data . . . . Given both
the database 136 that includes a road graph, and the database 137
that includes the detected position and movement associated with
a vehicle, simply “combining both sets of data" ([i]d[.]) would
not appear to inherently result in the access of “behavior data”
associated with that detected vehicle. In this regard, the detected
vehicle data is local (i.e. relative to vehicle 101: cols. 7–8, ll. 51–
2), but the map data would appear to be global. [The
Specification] does not describe or teach how the local/global
data would be reconciled with “a set of actions or behaviors of
interest” that may be contained in database 138.
Final Act. 23–24.
More particularly, with respect to “filtering received sensor data to
identify actions of interest of another vehicle,” as claimed, the Examiner
explains:
The . . . [S]pecification states: Vehicle 101 may also filter
the data collected for vehicle 510. Response at 5, citing to
column 8, lines 18–30 (apparently additionally relying upon Fig.
6). . . . However, [the Specification] does not then explain or
teach one how the computer achieves the desired result of
filtering. In the [E]xaminer's opinion, simply stating in the
[S]pecification that the autonomous vehicle (i.e. computer) “may
also filter the data”, is insufficient to describe or explain how the
instructions 132 (Fig. 1) cause the computer to achieve the
desired result of “filtering”, especially as being related to the
“behavior of interest” of the detected vehicle, discussed above.
Final Act. 24–25.
Whether a specification complies with the written description
requirement of 35 U.S.C. § 112, first paragraph, is a question of fact and is
assessed on a case-by-case basis. See, e.g., Purdue Pharma L.P. v.
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Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) (citing Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1561 (Fed. Cir. 1991)). The disclosure, as
originally filed, need not literally describe the claimed subject matter (i.e.,
using the same terms or in haec verba) in order to satisfy the written
description requirement. The specification, however, must convey with
reasonable clarity to those skilled in the art that, as of the filing date,
Appellant was in possession of the claimed invention. See id. When
examining computer-implemented functional claims, such as claims 21 and
32, the Examiner should determine whether Appellant’s Specification
discloses the computer and the algorithm (e.g., the necessary steps and/or
flowcharts) that perform the claimed function in sufficient detail such that
one of ordinary skill in the art can reasonably conclude that the inventor
possessed the claimed subject matter at the time of filing. It is not enough
that one skilled in the art could write a program to achieve the claimed
function because a specification must explain how the inventor intends to
achieve the claimed function to satisfy the written description requirement.
See, e.g., Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671,
681-683 (Fed. Cir. 2015). “The written description requirement is not met if
the specification merely describes a ‘desired result.’” Id.
The Office provides guidance (“2019 § 112 Guidance”) for addressing
whether a claim meets the requirements of 35 U.S.C. § 112 “where
functional language is used to claim [a] computer-implemented invention.”
(Computer-Implemented Functional Claim Limitations for Compliance With
35 U.S.C. 112, 84 Fed. Reg. 57 (Jan. 7, 2019)). The 2019 §112 Guidance
incorporates Federal Circuit precedent pertaining specifically to computer-
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implemented inventions, such as Vasudevan, and particularly addresses
written-description issues “related to the examination of computer-
implemented inventions that recite only the idea of a solution or outcome to
a problem but fail to recite details of how the solution or outcome is
accomplished.” 2019 § 112 Guidance, 84 Fed. Reg. at 61.
The 2019 § 112 Guidance tells examiners that, “[w]hen examining
computer implemented, software-related claims,” they “should determine
whether the specification discloses the computer and the algorithm(s) that
achieve the claimed function in sufficient detail that one of ordinary skill in
the art can reasonably conclude that the inventor possessed the claimed
subject matter at the time of filing.” 2019 § 112 Guidance, 84 Fed. Reg. at
61. An algorithm can be expressed in “any understandable terms,” such as
“in prose” or “as a flow chart.” Id. at 62. It is not sufficient, however, “that
one skilled in the art could theoretically write a program to achieve the
claimed function, rather the specification itself must explain how the
claimed function is achieved to demonstrate that the applicant had
possession of it.” Id.; see also Vasudevan, 782 F.3d at 682–83.
The 2019 § 112 Guidance tells examiners that “[t]he level of detail
required to satisfy the written description requirement varies depending on
the nature and scope of the claims and on the complexity and predictability
of the relevant technology,” and “[i]nformation that is well known in the art
need not be described in detail in the specification.” 2019 § 112 Guidance,
84 Fed. Reg. at 61. Here, for example, a recital of actual “computer code”
and/or details about “electrical signals” (see Appeal Br. 13) would not be
necessary to satisfy the written description requirement. On the other hand,
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“sufficient information must be provided to show that the inventor had
possession of the invention as claimed.” 2019 § 112 Guidance, 84 Fed. Reg.
at 61. Here, this “sufficient information” would be details about how
disclosed computer 110 is programmed to achieve the desired functions of
accessing behavior data and filtering received sensor data to identify actions
of interest of another vehicle.
The 2019 § 112 Guidance tells examiners “to compare the scope of
the claim with the scope of the description to determine whether applicant
has demonstrated possession of the claimed invention.” 2019 § 112
Guidance, 84 Fed. Reg. at 61. This is not to say that written-description
support for a claim extends only to details expressly set forth in the
specification. See id. However, details set forth in the specification must
convey the possession of the full scope of the claimed invention. Here, the
details set forth in Appellant’s Specification must convey possession of
programming the computer 110 to achieve the claimed functions of
classifying objects and accessing behavior data.
Accessing Behavior Data
Claims 21–31 require the computer 110 to access “behavior data” that
identifies “potential actions of the other vehicle that are to result in a change
in the control strategy.” Appeal Br. (Claims App.). When a human driver is
driving a vehicle on a multi-lane roadway, he/she is aware of the lane
arrangement of the roadway, his/her vehicle’s position in this lane
arrangement, and other nearby vehicles’ positions in this lane arrangement.
The human driver also knows, due to his/her driving experience, that a
nearby vehicle could behave in certain ways, including changing lanes on
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the roadway. The human driver also knows that if a nearby vehicle changes
lanes, it might be necessary to alter the position, heading, speed, and
acceleration of his/her vehicle. Thus, the human driver is on the lookout for
this excepted behavior by a nearby vehicle so that, when it occurs, he/she
can respond appropriately.
The “behavior data” recited in claims 21–31, “without the computer,
amount[s] to normal human perception/judgement” that would be employed
when a human driver is driving a non-autonomous vehicle. Ans. 17 n.2.
The Specification may convey possession of the Appellant’s idea of the
computer 110 storing a human driver’s knowledge about potential behaviors
of nearby objects for later access, but the Specification does not convey
possession of the necessary steps of a program to store and access such
potential behaviors of nearby objects.
The functional diagram depicted in Figure 1 shows, schematically, a
database 138 containing “[b]ehaviors of interest.” The flow chart depicted
in Figure 7 does not mention a database of behaviors of interest, but instead
only includes a block 740 labeled as “Has a detected vehicle performed a
behavior of interest?”. The Specification describes the database 138 as
including “a set of actions or behaviors of interest such as [a detected]
vehicle changing lanes or routes,” so that the computer 110 can “identify
when a detected vehicle has performed one or more behaviors of interest.”
Spec. 7:41–43. Inasmuch as “behaviors of interest” are described elsewhere
in the Specification, they are only described in the context of a detected
vehicle traveling along a multi-lane highway (see id. 7:20–8:2); following a
path 630 (see id. 8:10–16), or coming to stop for a period of time (see id.
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8:51–54). The Specification does not describe an algorithm or flow of logic
causing the computer 110 to access behavior data for a vehicle, as opposed
to behavior data for a pedestrian or bicycle.
Filtering
Claims 32–37 require the computer 110 to “filter[] received sensor
data to identify actions of interest of another vehicle.” Appeal Br. (Claims
App.). The functional diagram depicted in Figure 1 shows, schematically,
instructions 132 labeled as “object behavior filter” and a database 138
containing “[b]ehaviors of interest.” The flow chart depicted in Figure 7
does not mention instructions 132, nor a database of behaviors of interest,
but instead only includes a block 740 labeled as “Has a detected vehicle
performed a behavior of interest?”. The Specification describes the
database 138 as including “a set of actions or behaviors of interest such as [a
detected] vehicle changing lanes or routes,” and instructions 132 that “may
allow for computer system 110 to identify when a detected vehicle has
performed one or more behaviors of interest.” Spec. 7:41–43. The
Specification describes that “[i]n particular, computer system 110 may
access the recorded position and movement stored in database 137, as well
as a road graph of the environment stored in database 136” and “[b]y
combining both sets of data, computer system 110, may then determine
when one or more of the key behaviors have occurred.” Id. at 7:45–50.
We agree with the Examiner that “box 132 of Fig. 1 cannot
reasonably be relied upon to provide an adequate written description for the
claim 32 action: ‘filtering received sensor data to identify actions of interest
of another vehicle.’” Ans. 24. We also agree with the Examiner that
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the summary text stat[ing] that: “the autonomous vehicle may
filter data collected regarding the position and movement of
nearby vehicles”; “the data may be filtered to only include
instances where a nearby vehicle has performed an action of
interest’; and, ‘this determination is made by comparing data for
the nearby vehicle with map data accessed by the autonomous
vehicle”
raises a question as to “how a sensor data filter would be used for comparing
two sets of data that are based on different coordinate systems.” Ans. 26–27
(citing Spec. 8:9–17). More particularly, Appellant’s Specification describes
no algorithm or flow of logic explaining how the computer 110 is
programmed to access (e.g., from the database 136 or elsewhere) not only
map data, but map data that corresponds with the location of the vehicle 101
detected thereby, and it is the combining of map data with sensed data that is
described as the key to filtering.5
The Examiner’s findings and determinations reflect that the § 112
rejection of claims 21–37 was formulated by following the 2019 § 112
guidance. See Final Act. 3–4; Ans. 3–5, 16–31. We agree with the
Examiner that, per this Guidance, and thus per the controlling case law that
the Guidance assimilates, claims 21–37 do not satisfy the written-description
requirement in that Appellant’s Specification describes “an outline of
desired results that the computer is expected to achieve,” but “missing” from
the Specification is “the algorithm or logic flow or ‘instructions’” which
would convey possession of the computer being programmed to do so.
Ans. 17. In sum, we agree with the Examiner’s determination that there is

5 As stated by the Examiner, “claim 32 broadly recites ‘filtering’, but does
not recite ‘map data.’” Ans. 27.
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no algorithm or flow of logic described in Appellant’s Specification
sufficient to guide one of ordinary skill in the art to program a computer to
perform at least the steps of, (ii) accessing, by one or more computing
devices, behavior data as recited in independent claim 21, and (ii) filtering
received sensor data to identify actions of interest of another vehicle as
recited in independent claim 32 We sustain the rejection of claims 21–37
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
Additional Asserted Basis for Claims 23 and 24
Claim 23 recites that “when it is determined that there are one or more
obstacles or objects external to the vehicle that prohibit or reduce the ability
of the vehicle to avoid a collision, the method further includes entering into
a partial autonomous mode.” Appeal Br. 47 (Claims App.). Claim 24
depends from claim 23 and recites “further comprising transitioning from
the partial autonomous mode to autonomously navigating the vehicle in a
full autonomous mode.” Id. at 48 (Claims App.). The Examiner takes the
position that the Specification does not describe this subject matter in such a
way as to reasonably convey that the inventor had possession of the claimed
invention, because the description in the Specification “indicates that the
user/driver can cause the computer to enter/transition to an autonomous
mode,” rather than describing that the partial/full autonomous modes are
“initiated by the ‘one or more computing devices’.” (Final Act. 5 (citing
Spec. 9:52–56, 10:14–22, 50–52, 66–67)).
As an initial matter, Appellant responds that the claims do not require
the computer to “initiate” partial or full autonomy. Appeal Br. 22.
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Appellant further responds that “the application makes clear that partial
autonomy includes the onboard computer system controlling less than all of
the driving operations, such as when a driver retains control of steering,
acceleration, braking, or emergency braking.” Id. We agree with Appellant
that the claim does not require the computer in particular to initiate entrance
into a partial autonomous mode (claim 23) or transition from a partial
autonomous mode to full autonomous mode (claim 24). The Examiner has
not explained adequately why the disclosure in Appellant’s Specification
that “the user may activate the computer” when “the driver is ready to
relinquish some level of control to the autonomous driving computer,” but
that “[r]ather than taking control immediately, the computer may scan the
surroundings and determine whether there are any obstacles or objects in the
immediate vicinity which may prohibit or reduce the ability of the vehicle to
avoid a collision” and “the computer may require that the driver continue
controlling the vehicle manually or with some level of control (such as the
steering or acceleration) before entering into a fully autonomous mode”
(Spec. 9:62–66) is not sufficient disclosure to show possession of “entering
into a partial autonomous mode” “when it is determined that there are one or
more obstacles or objects external to the vehicle that prohibit or reduce the
ability of the vehicle to avoid a collision” and “transitioning from the partial
autonomous mode to autonomously navigating the vehicle in a full
autonomous mode,” as claimed.
For this reason, we do not sustain the rejection of claims 23 and 24 as
failing to comply with the written description requirement on this additional
basis identified by the Examiner.
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Additional Asserted Basis for Claims 27–29
Claim 27 recites that “the one or more computing devices select a
driving style for the control strategy upon a determination of whether the
vehicle is transporting cargo.” Appeal Br. 48 (Claims App.). The Examiner
takes the position that Appellant’s Specification does not describe this
subject matter in such a way as to reasonably convey that the inventor had
possession of the claimed invention, because the description in the
Specification “indicates . . . that the driver may select various control
features,” rather than describing that driving style is “initiated by the ‘one or
more computing devices’.” Final Act. 5 (citing Spec. 9:52–56, 10:14–22,
50–52, 66–67). The Examiner also determines that “there is no apparent
description . . . that the ‘one or more computing devices’ determines a
‘driving style’ (cl. 27) based upon ‘transporting cargo,’” but rather “simply
indicates that ‘aggressiveness settings’ may be modified.” Id. (citing Spec.
10:40–49).
Appellant argues that its Specification discloses that
[a]ggressiveness settings may also be modified to reflect the type
of vehicle and its passengers and cargo. For example, if an
autonomous truck is transporting dangerous cargo (e.g.,
chemicals or flammable liquids), its aggressiveness settings may
be less aggressive than a car carrying a single driver—even if the
aggressive dials of both such truck and car are set to “high.”
Appeal Br. 25 (emphasis omitted). We agree with Appellant that such
disclosure supports the computing device selecting a driving style for the
control strategy based upon a determination of whether the vehicle is
transporting cargo. In particular, the passage describes that even if a user
has selected a particular setting on a dial that controls the level of risk or
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aggressiveness that a driver would like the computer to use when controlling
the vehicle, the actual aggressiveness settings may be less aggressive if
dangerous cargo is being transported. Thus, the user has limited control via
the dial to affect aggressiveness settings when dangerous cargo is involved,
such that it is not merely the user that selects aggressiveness settings in those
circumstances when it is determined that the vehicle is transporting
dangerous cargo. We also agree with Appellant that an “aggressiveness
setting” is a “driving style.” Appeal Br. 26; see also Spec. 10:18–22 (“The
vehicle may also have one or more user interfaces that allow the driver to
reflect the driver driving . . . style. For example, the vehicle may include a
dial which controls the level of risk or aggressiveness with which a driver
would like the computer to use when controlling the vehicle.”).
For these reasons, we do not sustain the rejection of claims 27–29 as
failing to comply with the written description requirement on these
additional bases identified by the Examiner.
Additional Asserted Basis for Claims 33–37
Claim 33 recites “wherein altering the control strategy includes
changing from the fully autonomous mode to a partial autonomous mode.”
Id. at 49 (Claims App.). Claim 34 recites “the partial autonomous mode
cedes control of one or more of steering, acceleration, braking and
emergency braking to a driver of the vehicle.” Id. (Claims App.). Claim 35
recites that “altering the control strategy includes ceding control of the
vehicle to a remote operator.” Id. (Claims App.). Claim 36 recites “control
of the vehicle is ceded to a remote operator during an emergency situation or
a stuck situation.” Id. (Claims App.). Claim 37 recites “wherein altering the
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control strategy further includes sending a request to the remote operator to
take control of the vehicle during an emergency situation or the stuck
situation.” Id. (Claims App.). .).
The Examiner takes the position that the Specification does not
describe this subject matter in such a way as to reasonably convey that the
inventor had possession of the claimed invention, because the description in
the Specification “indicates that the user/driver can cause the computer to
enter/transition to an autonomous mode . . . or that the driver may select
various control features,” rather than describing that the “partial/full
autonomous modes, driving style, ceding control and sending a request” are
“initiated by the ‘one or more computing devices’.” Final Act. 5 (citing
Spec. 9:52–56, 10:14–22, 50–52, 66–67). With respect to claim 37, the
Examiner also determines that “there is no apparent description . . . that the
‘one or more computing devices’ initiates ‘sending a request,’” but rather,
the Specification “simply indicates that ‘if the driver is asleep, the sensor
data may be sent to a third party so that the vehicle may continue to have a
responsive operator.’” Final Act. 5 (citing Spec. 11:40–43).
As an initial matter, Appellant responds that the claims do not require
the computer to “initiate” partial or full autonomy. Appeal Br. 26.
Appellant further responds that “the application clearly discloses changing
from full to partial autonomy as claimed.” Id. We agree with Appellant that
the claim does not require the computer in particular to initiate change from
a fully autonomous mode to a partial autonomous mode. A disclosure that
“[o]nce the vehicle is able to maneuver safely without the assistance of the
driver, the vehicle may become fully autonomous and continue to the
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destination” and further that “[t]he driver may continue to assist the vehicle
by controlling, for example, steering or whether the vehicle changes lanes,
or the driver may take control of the vehicle immediately in the event of an
emergency” (id. at 27 (citing Spec. 9:52–10:3) (emphasis omitted)) is
sufficient disclosure to show possession of “changing from the fully
autonomous mode to a partial autonomous mode,” as claimed. This same
disclosure is also sufficient disclosure to show possession of “the partial
autonomous mode ced[ing] control of one or more of steering, acceleration,
braking and emergency braking to a driver of the vehicle” (claim 34), as
claimed. See also Spec. 10:14–17 (“The vehicle may be only partially
autonomous. For example, the driver may select to control one or more of
the following: steering, acceleration, braking, and emergency braking.”).
Appellant also points to a disclosure in which “[a]utonomous vehicles
may also be controlled remotely.” Appeal Br. 27 (quoting Spec. 11:40–49)
(emphasis omitted). The disclosure that “[t]he vehicle may send data and
images to a central office and allow a third party to remotely drive the
vehicle for a short period until the emergency has passed or the vehicle is no
longer stuck” (Spec. 11:45–49) is sufficient disclosure to show possession of
“ceding control of the vehicle to a remote operator” (claim 35), as claimed,
and “ced[ing] to a remote operator during an emergency situation or a stuck
situation” (claim 36), as claimed. Although the disclosure does not use the
word “request,” we understand the disclosure of “send[ing] data and images
to a central office and allow[ing] a third party to remotely drive the vehicle”
to reasonably encompass a “request . . . to take control” (claim 37) in that
the disclosure uses the permissive language “allow,” accompanied by the
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provision of relevant information that may support passing to remote
control.
For these above reasons, we do not sustain the rejection of claims 33–
37 as failing to comply with the written description requirement on these
additional bases identified by the Examiner.
Rejection II
Claim 22
The Examiner states that dependent claim 22 recites “prior to
autonomously navigating, determining whether there are any obstacles or
objects external to the vehicle,” but independent claim 21, from which it
depends, recites “autonomously navigating.” Final Act. 6. The Examiner
takes the position that “[i]t would appear that the obstacle determination of
claim 22 would be encompassed by the ‘autonomously navigating’ step of
claim 21” and “[t]he scope of claim 22 is unclear.” Id.
Appellant responds that the claim is clear regarding the steps,
requiring the obstacle determination step to occur prior to the autonomously
navigating step. Appeal Br. 28. Appellant points to a description in the
Specification where, upon receiving a request to navigate a vehicle
autonomously, the computer system may first scan the surroundings and
determine whether there are any obstacles and/or objects in the immediate
vicinity that may prohibit or reduce the ability of the vehicle to avoid a
collision and only allow autonomous driving if the vehicle is able to
maneuver safely without the assistance of the driver. Id. at 28–29 (citing
Spec. 9:52–66).
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The Examiner replies that “the passages of column 9 suggest that the
context of: ‘relinquish some level of control to the autonomous driving
computer’, amounts to the vehicle already moving under driver control” and
“[t]his presents confusion because the only vehicle movement required in
claim 21 is ‘autonomously navigating.’” Ans. 37–38.
We do not agree with the Examiner that there is confusion regarding
what the “autonomously navigating” step encompasses as it pertains to the
obstacle determination step. Claim 22 is clear regarding the inclusion of a
separate step of determining whether there are any obstacles or objects
external to the vehicle that would prohibit or reduce an ability of a vehicle to
avoid collision prior to the computing device autonomously navigating the
vehicle in response to a request. Thus, we do not agree with the Examiner
that the claim fails to define the metes and bounds of the invention with
reasonable clarity. We, therefore, do not sustain the rejection of claim 22 as
indefinite on this basis.
Claim 29
Claim 29 recites that a driving style for a control strategy is “selected
according to a distance between the first location and the second location.”
Appeal Br. 48 (Claims App.). The Examiner states that dependent claim 29
recites “a distance between the first location and the second location,” but
“this requirement is a term of degree” and the Specification “does not appear
to provide delineation or a standard for measuring the degree.” Final Act. 6
(citing MPEP § 2173.05(b)(I)). The Examiner states that the Specification
“does not appear to provide an example or teaching relative to either ‘long
distances’ or ‘reduce the likelihood of a collision or other incident’” and
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“the[] descriptions [in the Specification] are open-ended and subject to
widely varying degrees of interpretation.” Id. at 30.
Appellant points to an example in the Specification that “trucks
traveling across long distances over narrow, unpaved, rugged or icy terrain
or vehicles may be placed in a more conservative mode in order [to] reduce
the likelihood of a collision or other incident.” Appeal Br. 31 (quoting Spec.
10:46–49). Appellant points out that “[n]othing in the claim requires a
particular length.” Id. We agree that information regarding the particular
length (i.e., the so-called long distance that would trigger a conservative
mode) is immaterial with respect to the definiteness of the claim, where the
claim is merely requiring that a distance between the first and second
location, whatever it is, be taken into account in selecting a driving style for
a control strategy.
Thus, we do not agree with the Examiner that the claim fails to define
the metes and bounds of the invention with reasonable clarity. We do not
sustain the rejection of claim 29 as indefinite on this basis.
Claim 32
The Examiner states that independent “[c]laim 32 lacks sufficient
antecedent basis for ‘received sensor data.’” Final Act. 6. The Examiner
also states that “[c]laim 32 is unclear as to the relationship between the ‘fully
autonomous mode’ on line 9, and the ‘autonomously navigating’
requirement on line 4.” Id. The Examiner explains further that
[t]he “determining” step on line 8 of the claim specifically refers
to “whether the vehicle cannot currently operate in a fully
autonomous mode” (underlining added). But, the antecedent
basis in the claim for “autonomous” vehicle operation was
previously defined as “autonomous navigating” on line 4. Thus,
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the claim is considered to lack a reasonably defined relationship
for the two occurrences of the “autonomous” claim terminology.
Id. at 31.
As a first matter, despite any purported lack of express antecedent
basis for “received sensor data,” we determine that one of ordinary skill in
the art would understand what the received sensor data is when read in light
of Appellant’s Specification. As explained in the Reply Brief, “[t]he sensor
data may come from onboard sensor elements of the vehicle or from external
sensors that transmit information to the vehicle” and “[t]he [S]pecification
makes this unambiguously clear.” Reply Br. 17 (citing Spec. 1:39–45,
11:27–32). We do not sustain the rejection of claim 32, and claims 33–37
depending therefrom, as indefinite on this basis.
With respect to the purported lack of a relationship between the two
occurrences of the “autonomous” claim terminology, Appellant responds
that “‘a request to navigate a vehicle autonomously’ can include vehicle
control of various functions of the vehicle, which would therefore result in
partial or fully autonomous driving” and “‘determining . . . whether the
vehicle cannot currently operate in a fully autonomous mode . . . ’ indicates
that the vehicle may be in either a partly autonomous or manual mode prior
to entering a fully autonomous mode.” Appeal Br. 37. In our view, the two
occurrences of the “autonomous” claim terminology do not render the metes
and bounds of the claim unclear at least in that the claim encompasses a
change in control strategy from a fully autonomous mode to a partial
autonomous mode or manual mode depending on identified actions of
interest of another vehicle that have been detected. Thus, we do not sustain
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the rejection of claim 32, and claims 33–37 depending therefrom, as
indefinite on this basis.
Rejection III
Claims 21, 25, 26, 30, and 31
The Examiner finds that Trepagnier discloses all of the limitations of
independent claim 21. Final Act. 7–8. With respect to the claimed steps of
(i) accessing behavior data identifying one or more potential actions of
another vehicle and (ii) determining that the other vehicle has performed an
action identified in the behavior data, the Examiner points out that
Trepagnier’s processor or computing device identifies moving obstacles that
“can include another vehicle, and the movement can be tracked and
predicted.” Id. at 7 (citing Trepagnier 6:39–43). The Examiner explains that
“[t]he other vehicle tracking is effected by a Variable Structure Observer
(‘VSO’).” Id. at 8 (citing Trepagnier 15:9–16:30). The Examiner takes the
position that “the VSO satisfies the ‘behavior data’ requirement.” Id. (citing
Trepagnier 16:38–67). The Examiner explains further that
In Trepagnier, the VSO algorithm functions “to provide
information integration and prediction of coordinates and
trajectories for all of the stationary and moving obstacles in the
autonomous vehicle’s nearby environment” (col. 15, ll. 9–15).
The obstacles are detected (col. 9, ll. 29-36) and tracked (Id.),
and a moving obstacle can be another vehicle (col. 15, ll. 24–30).
The VSO algorithm uses sensor information (Id.), and
determines the position, geometry and velocity vector associated
with the detected vehicle. In this regard, the VSO creates an
“identifier” to represent the detected vehicle, and a mathematical
model of motion for that vehicle “identifier” (col. 15, ll. 53–58).
Considering the above, and returning to the column 16
passages that are cited in the Response, it is clear that using the
VSO for the path-planning of an autonomously-controlled
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vehicle necessarily results in “accessing ... behavior data” (i.e.
the detected vehicle “identifier”) and “determining that the other
(detected) vehicle has performed an action” (i.e. the
mathematical model of motion), as recited in claim 21. With
respect to path-planning, and as explained in Trepagnier at
column 16, lines 60-62: “After an initial path is created that
follows the center of the corridor, the path is checked against the
obstacle repository to determine if it is a safe path.” Here, the
“obstacle repository” is populated with the detected vehicle
information (i.e. the detected vehicle “identifier” and the
mathematical model of motion). Thus, the broad claim language
reciting “accessing” and “determining”, is clearly satisfied. It is
also clear in Trepagnier that the disclosed path-planning
necessarily results in the broad language of claim 21: “altering
the control strategy ... of the (autonomous) vehicle”. As further
explained in Trepagnier at column 16, lines 62-66: “If the path is
not safe, a simple algorithm generates and adjusts control points
on the problem spots of the curve until the spline avoids all
known obstacles while still containing valid maximum
curvature.” In light of the foregoing, Trepagnier anticipates the
subject matter of claim 21, and Applicant’s argument to the
contrary is unpersuasive.
Final Act. 32–33.
Appellant argues that the Examiner does not explain adequately what
is the disclosure in Trepagnier that sufficiently discloses “‘behavior data’ in
the manner claimed.” Appeal Br. 38. Appellant further argues that
the rejection does not show how the “identifier” or anything else
in Trepagnier corresponds to “behavior data identifying one
more potential actions of the other vehicle,” how the references
provides “determining, by the one or more computing devices,
that the other vehicle has performed an action identified in the
behavior data” or “based on the determination, altering the
control strategy by the one more computing devices to change at
least one of a position, heading, and speed of the vehicle while
the vehicle is travelling along the path” as claimed.
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Id. at 39.
In light of the Examiner’s explanation of how Trepagnier’s processor
uses its VSO behavior data and algorithm to perform the claimed functions
(Final Act. 7–8, 32–33), Appellant does not respond with sufficient
particularity to the Examiner’s findings, nor offer any persuasive technical
reasoning or any evidence that identifies an error in the Examiner’s stated
position. Thus, Appellant does not apprise us of error in the rejection. See
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the Board
had reasonably interpreted the same language in the prior rule under 37
C.F.R. § 41.37(c)(1)(vii) as requiring ‘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”).
The Examiner has explained that Trepagnier must access behavior
data that identifies a potential action of an obstacle that is to result in a
change in the control strategy of a vehicle in that Trepagnier describes
creating an “identifier” and mathematical model of motion for an obstacle
that is then used to predict the obstacle’s position and velocity (if the
obstacle’s sensor data is interrupted) in order to enable the vehicle to safely
stop or avoid obstacles until sensor data for the obstacle is reacquired.
Trepagnier 15:56–67. The Examiner has also explained that Trepagnier
must determine that the obstacle has performed an action identified in the
behavior data in that the VSO predicts future positions of the obstacle for the
purpose of path-planning, and if a path is obstructed by an obstacle, the path
planning system will determine a path around the obstacle. Id. at 16:1–4,
46–48. The Examiner has explained that Trepagnier must alter the control
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strategy based on the determination that the obstacle has performed an action
identified in the behavior data in that
[a]fter an initial path is created that follows the center of the
corridor, the path is checked against the obstacle repository to
determine if it is a safe path. If the path is not safe, a simple
algorithm generates and adjusts the control points on the problem
spots of the curve until the spline avoids all known obstacles
while still containing valid maximum curvature.
Id. at 16:60–66.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s finding that Trepagnier discloses all of the limitations of
independent claim 21. Accordingly, we sustain the rejection of claim 21,
and claims 25, 26, 30, and 31 for which Appellant relies on the same
arguments and reasoning (Appeal Br. 39), under 35 U.S.C. § 102(b) as
anticipated by Trepagnier.
Claims 22–24
Dependent claim 22 recites the additional step of “upon receipt of the
request to navigate the vehicle autonomously and prior to autonomously
navigating, determining whether there are any obstacles or objects external
to the vehicle that prohibit or reduce an ability of the vehicle to avoid
collision.” Appeal Br. 47 (Claims App.). The Examiner finds that “[r]e
claim 22, Trepagnier discloses avoiding obstacles, as noted above.” Final
Act. 8 (citing Trepagnier 9:29–36).
Appellant argues that the Examiner has failed to show that the
reference teaches the claim limitation. Appeal Br. 40. The Examiner
responds that
[c]onsidering an interpretation of the “prior to autonomously
navigating” terminology of claim 22, wherein the autonomous
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navigation “between a first location and a second location”
(claim 21) has not been completed, Trepagnier is considered to
satisfy the claimed subject matter as explained in the formal
rejection statement. In Trepagnier, the identification of
stationary and moving obstacles, and a responsive correction to
the travel path, occurs before the autonomous vehicle completes
the travel path between the two locations. Appellant’s arguments
do not acknowledge the breadth of the claim terminology.
Ans. 41. In other words, the Examiner takes the position that Trepagnier
must determine whether there are any obstacles external to the vehicle that
prohibit or reduce an ability of the vehicle to avoid a collision by virtue of
the fact that Trepagnier is identifying stationary and moving obstacles along
the travel path and correcting the travel path to avoid such obstacles.
Appellant does not respond with sufficient particularity to the findings
in the Answer, nor offer any persuasive technical reasoning or any evidence
that identifies an error in the Examiner’s position set forth in the Answer.
Thus, Appellant does not apprise us of error in the rejection. Accordingly,
we sustain the rejection of claim 22, and claims 23 and 24 for which
Appellant relies on the same arguments and reasoning (Appeal Br. 39–40)
under 35 U.S.C. § 102(b) as anticipated by Trepagnier.
Rejection IV
Claims 21–26, 30, and 31
With respect to independent claim 21, the Examiner relies on the same
findings and reasoning based on Trepagnier’s VSO to “satisf[y] the
‘behavior data’ requirement” as set forth in connection with Rejection III.
Final Act. 11.6 Appellant argues that “the rejection fails to explain how [the

6 The Examiner alternatively relies on Trepagnier’s “Mission Manager
module” to satisfy the requirements of claim 21. Final Act. 11 (citing
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identified passages of Trepagnier] relate to the ‘behavior data identifying
one or more potential actions of the other vehicle that are to result in a
change in the control strategy’ as claimed.” Appeal Br. 42 (boldface
omitted). We disagree because the Examiner has explained that
Trepagnier’s teaching of “using the VSO for the path-planning of an
autonomously-controlled vehicle necessarily results in ‘accessing . . .
behavior data’ (i.e.[,] the detected vehicle ‘identifier’) and ‘determining that
the other (detected) vehicle has performed an action’ (i.e.[,] the
mathematical model of motion).” Final Act. 32. That is, Trepagnier
accesses behavior data that identifies a potential action of an obstacle
because it creates an identifier and mathematical model of motion for the
obstacle that is used to predict the obstacle’s position and velocity—the
obstacle’s future position and velocity being potential actions of the vehicle.
We have also considered Appellant’s arguments regarding Dieterle (i.e., that
“there is no mention of what Dieterle is used for or how it overcomes the

Trepagnier 26:20–31). In particular, the Examiner finds that “[t]he Mission
Manager module can monitor the autonomous control of the vehicle,
specifically including the execution of the travel path that utilizes data stored
in a Route Network Definition File [(RDNF)].” Id. (citing Trepagnier
26:32–64). The Examiner further finds that “[t]he RDNF file includes a
logical map that can be determined utilizing existing map information to
define the environment in which the autonomous vehicle travels, and to
predict possible vehicle movement at intersections, for example.” Id. (citing
Trepagnier 13:49–14:28). The Examiner concludes that it would have been
obvious “to apply the logical map data to the moving obstacles (if not
already), in order to determine the behavior thereof and facilitation the
prediction of movement” such that Trepagnier “render[s] obvious the
‘accessing . . . behavior data . . . of the other vehicle’ claim recitation.” Id.;
see also Ans. 46 (also citing Trepagnier 15:59–16:20).
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deficiencies of Trepagnier”) (Appeal Br. 42)), but do not find such argument
persuasive where the Examiner is not relying on Dieterle to overcome any
deficiencies of Trepagnier in connection with independent claim 21.7
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s determination that Trepagnier and Dieterle render obvious
the subject matter of independent claim 21. Accordingly, we sustain the
rejection of claim 21, and claims 22–26, 30, and 31 for which Appellant
relies on the same arguments and reasoning (Appeal Br. 42), under
35 U.S.C. § 103(a) as unpatentable over Trepagnier and Dieterle.
Claims 32–34
With respect to independent claim 32, the Examiner finds that
“Trepagnier discloses at column 16, lines 32–37, the newly-recited
‘filtering’ subject matter” and “[n]ote also, Trepagnier at column 5, lines 37–
48.” Final Act. 12; see also Trepagnier 16:32–37 (“By including a
mathematical model of vehicle motion in its calculations, the VSO
automatically filters out fluctuations that can occur in sensor data.”) and id.
at 5:37–48 (“In one embodiment of the invention, a Kalman filter
(commercially integrated) sorts through all data inputs to processor 24. . . .
In this instance, the Kalman filter is able to much more accurately estimate
vehicle position by taking into account the type of noise inherent in each
type of sensor and then constructing an optical estimate of the actual
position.”).

7 We note that in affirming a multiple reference rejection under 35 U.S.C.
§ 103, the Board may rely on fewer than all of the references relied on by the
Examiner in an obviousness rationale. In re Bush, 296 F.2d 491, 496
(CCPA 1966).
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The Examiner also cites to Dieterle as “teach[ing] an autonomous
vehicle control system similar to Trepagnier, and which utilizes
current/existing map information to facilitate vehicle navigation.” Final
Act. 12 (citing Dieterle 6:9–27). The Examiner states that “[i]n Dieterle, if
the current/existing map information is unavailable, the lateral guidance
system for the vehicle is switched off.” Id. (citing Dieterle 6:28–34). The
Examiner concludes that it would have been obvious “to apply the absence
of map information teaching in Dieterle to the Trepagnier autonomous
vehicle control system, in order to increase safety when a new construction
site is encountered by the vehicle.” Id. The Examiner thus takes the
position that “Trepagnier and Dieterle would render obvious the claim
recitation: ‘determining . . . whether the vehicle cannot currently operate in a
fully autonomous mode.’” Id. at 13.
Appellant first argues that “Dieterle fails to teach or suggest, ‘filtering
received sensor data to identify actions of interest of another vehicle.’”
Appeal Br. 42. We do not find such an argument persuasive in that it fails to
address the rejection articulated by the Examiner in which the Examiner is
expressly relying on Trepagnier for the filtering limitation. See Ans. 46
(“With respect to claim 32, Trepagnier teaches that ‘the VSO automatically
filters out fluctuations that can occur in sensor data.’ Thus, Trepagnier
teaches the claimed subject matter being reflected by: ‘filtering received
sensor data to identify actions of interest of another vehicle.’.”).
Appellant next argues that Dieterle fails to teach or suggest
“determining . . . whether the vehicle cannot currently operate in a fully
autonomous mode based on the identified actions of interest.” Appeal
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Br. 42. More particularly, Appellant argues that “the claims at issue make
no mention of a map (or absence thereof)” and “[t]hus, [the Examiner’s]
purported motivation to combine has nothing to do with the technology at
issue.” Id. at 43. Appellant states “there is no prima facie case for
obviousness regarding claim 32.” Id.
The Examiner responds that “[t]he identified teachings in Dieterle
(i.e.[,] absence of map information [that results in the switching off of
autonomous control of vehicle] relate to the disclosure in Trepagnier such
that the requirements of claim 32 would have been obvious.” Ans. 46. We
agree with the Examiner that a rationale having rational technical
underpinnings has been articulated. Dieterle relates to “a method for
automatic vehicle guidance, in which infrastructure data is wirelessly
transmitted to the vehicle and vehicle guidance commands are calculated on
the basis of the infrastructure data.” Dieterle 1:6–9. Dieterle describes a
framework in which “[i]f no current data is available in the server, . . . then
the . . . lateral guidance system is switched off” and “[a]t the same time, the
driver is requested to take over the lateral guidance of the vehicle
himself/herself.” Id. at 6:28–34. The Examiner has explained adequately
that one of ordinary skill in the art would have been led to utilize Dieterle’s
teachings in connection with Trepagnier’s autonomous vehicle control
system in order to increase safety when encountering an area in which no
current data is available in the system. Final Act. 12. Appellant does not
persuasively refute the Examiner’s sound reasoning regarding how a skilled
artisan would apply Deiterle’s “switching off” in response to a lack of data
to Trepagnier’s data driven system.
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For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s determination that Trepagnier and Dieterle render obvious
the subject matter of independent claim 32. Accordingly, we sustain the
rejection of claim 32, and claims 33 and 34 for which Appellant relies on the
same arguments and reasoning (Appeal Br. 43), under 35 U.S.C. § 103(a) as
unpatentable over Trepagnier and Dieterle.
Rejection V
Claim 27
Dependent claim 27 recites that “the one or more computing devices
select a driving style for the control strategy upon a determination of
whether the vehicle is transporting cargo.” Appeal Br. 48 (Claims App.).
The Examiner finds that Foessel “teaches an autonomous vehicle control
system which includes a motion monitoring module that determines a
reaction distance and a deceleration distance associated with the vehicle for
establishing a safety zone to facilitate collision avoidance.” Final Act. 13–
14 (citing Foessel 1:24–35). The Examiner further finds that “[t]he reaction
distance is based on a reaction time,” and “[t]he reaction time may equal the
sum of a driver reaction time and a vehicle reaction time.” Id. at 14 (citing
Foessel 4:61–5:2). The Examiner even further finds that “[t]he vehicle
reaction time may consider the weight of the vehicle, which includes its
payload and passengers.” Id. (citing Foessel 5:2–21). The Examiner
concludes that it would have been obvious “to include the vehicle weight
when determining, for example, how aggressively to apply the vehicle
braking system in Trepagnier to effect a desired reaction time,” thereby
“render[ing] obvious the ‘select a driving style’ claim recitation, because the
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braking system would be controlled according to the vehicle cargo (e.g.[,]
payload and passengers) while establishing a safety zone that facilitates
collision avoidance.” Id.
Appellant argues that Foessel’s mention of payload “does not explain
‘whether the vehicle is transporting cargo’ [being] used to ‘select a driving
style for the control strategy’.” Appeal Br. 43. Appellant further argues that
“the Examiner has failed to provide any basis for th[e] assertion” that “the
braking system would be controlled according to the vehicle cargo (e.g.
payload and passengers) while establishing a safety zone that facilitates
collision avoidance.” Id. at 43–44.
Even if the Examiner has explained how Foessel teaches
consideration of a vehicle’s weight in the selection of a driving style for a
control strategy (i.e., a selection of a vehicle’s braking system’s
characteristics so as to effect a certain reaction distance/time), the Examiner
has not explained adequately how the record supports a finding that whether
the vehicle is transporting cargo specifically is considered in such a
selection.
For the foregoing reasons, Appellant apprises us of error in the
Examiner’s determination that Trepagnier and Foessel render obvious the
subject matter of dependent claim 27. Accordingly, we do not sustain the
rejection of claim 27 under 35 U.S.C. § 103(a) as unpatentable over
Trepagnier and Foessel.
Claim 28
Dependent claim 28 recites “the driving style is selected according to
a type of the cargo.” Appeal Br. 48 (Claims App.). The Examiner finds that
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“in Foessel the passengers are a type of cargo.” Final Act. 14. Appellant
argues that this “is a clear misstatement of fact.” Appeal Br. 44. More
particularly, Appellant asserts that “[t]he express teaching of Foessel is that
passengers are not the same as the payload” and that “the Examiner appears
to create his own definition of ‘cargo’ –without any basis in the record—to
support a hindsight rejection.” Id. Appellant further argues that “even it if
were reasonable to define a passenger as being cargo (which it is not), none
of the references to passengers in Foessel disclose ‘wherein the driving style
is selected according to a type of the’ passengers.” Reply Br. 25 (citing
Foessel 5:14–15, 9:50–55, 10:12–15).
We agree with Appellant that even if “[a] vehicle passenger can be
reasonably characterized as ‘cargo’” (Ans. 47), the Examiner has not
explained adequately how the record supports a finding that Foessel teaches
a driving style being selected according to a type of its cargo. Rather,
without additional explanation from the Examiner, the driving style (i.e., a
vehicle’s braking system’s characteristics so as to effect a certain reaction
distance/time) appears to be related to mass or weight of the vehicle, not the
type of cargo. Foessel 5:13–14.
For the foregoing reasons, Appellant apprises us of error in the
Examiner’s determination that Trepagnier and Foessel render obvious the
subject matter of dependent claim 28. Accordingly, we do not sustain the
rejection of claim 28 under 35 U.S.C. § 103(a) as unpatentable over
Trepagnier and Foessel.
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Claim 29
Dependent claim 29 recites that “the driving style is further selected
according to a distance between the first location and the second location.”
Appeal Br. 48 (Claims App.). The Examiner finds that:
Foessel further teaches that the deceleration distance
determination may consider the integrity of the vehicle tires
(col. 5, ll. 21–24). In one scenario, if the vehicle tires were of
marginal condition at the outset of a lengthy travel path, it would
be logical to consider that the tires may deteriorate during that
lengthy travel. And, a deteriorated tire condition would require
compensation in the vehicle deceleration distance, as indicated
in Foessel. Thus, Foessel would broadly teach one of ordinary
skill in the autonomous vehicle control art to select a driving
style “according to a distance between the first location and the
second location.”
Final Act. 14–15. The Examiner concludes that it would have been obvious
“to include a tire integrity consideration as suggested in Foessel, with the
Trepagnier autonomously controlled vehicle, in order to facilitate collision
avoidance.” Id. at 15.
Appellant “objects to the Examiner’s reinvention of Foessel so that it
‘would broadly teach’ the claimed features” and “submits that there is no
proper prima facie case for obviousness regarding claim 29.” Appeal Br. 45.
We agree with Appellant that the Examiner has not explained adequately
how Foessel teaches a driving style selected according to a distance between
the first location and the second location. Although the Examiner has
purported to set forth a correlation between tire deterioration (i.e., the factor
taken into account in Foessel as part of achieving a certain reaction
distance/time) and distance between a first location and a second location,
the Examiner has not shown adequately how the record supports that tire
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deterioration over the distance between a first location and second location
would be significant enough to affect reaction distance/time so as to be a
factor in selecting a driving style (i.e., a vehicle’s braking system’s
characteristics so as to effect a certain reaction distance/time). In other
words, the driving style in Foessel is arguably related to “bald or w[o]rn
tires” (Foessel 5:24), not a distance between the first location and the second
location.
For the foregoing reasons, Appellant apprises us of error in the
Examiner’s determination that Trepagnier and Foessel render obvious the
subject matter of dependent claim 29. Accordingly, we do not sustain the
rejection of claim 29 under 35 U.S.C. § 103(a) as unpatentable over
Trepagnier and Foessel.
Rejection VI
Regarding independent claim 32, the Examiner relies on the same
findings of Trepagnier relied on in connection with independent claim 21,
and finds that “Svendsen teaches an autonomous vehicle control method
(Fig. 7) in which the control can modify the vehicle navigation (col. 17, ll.
39–44)” and “[t]he modification can include switching to manual operation
(col. 17, ll. 44–61).” Final Act. 15. The Examiner concludes that “it would
have been obvious . . . to include the control modification teaching in
Svendsen with the Trepagnier control method, because the vehicle
navigation may be tailored to ensure safety for a particular travel path
situation.” Id. The Examiner determines that “[t]hus, Trepagnier and
Svendsen would render obvious the claim recitation: ‘cannot currently
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36
operate in a fully autonomous mode’, because the vehicle could be switched
to manual operation (for example).” Id.
Appellant argues that “Svendsen does not teach or suggest at least
‘filtering received sensor data to identify actions of interest of another
vehicle’ and ‘determining, by the one or more computing devices, whether
the vehicle cannot currently operate in a fully autonomous mode based on
the identified actions of interest’” and that “Trepagnier does not overcome
the deficiencies of Svendsen as it also does not disclose such features.”
Appeal Br. 45.
As to Svendsen’s purported failure to teach the “filtering” step, the
Examiner takes the position that “Trepagnier clearly discloses sensor data
filtering.” Ans. 49 (citing Trepagnier 5:37–48, 16:32–37); see also Final
Act. 12; Trepagnier 16:32–37 (“By including a mathematical model of
vehicle motion in its calculations, the VSO automatically filters out
fluctuations that can occur in sensor data.”) and id. at 5:37–48 (“In one
embodiment of the invention, a Kalman filter (commercially integrated)
sorts through all data inputs to processor 24. . . . In this instance, the Kalman
filter is able to much more accurately estimate vehicle position by taking
into account the type of noise inherent in each type of sensor and then
constructing an optical estimate of the actual position.”). Although
Appellant asserts that “Trepagnier does not overcome the deficiencies of
Svendsen” (Appeal Br. 45), Appellant does not respond with sufficient
particularity to the Examiner’s findings to identify an error in the
Examiner’s position, instead merely stating that the recited claim element is
not found in Trepagnier.
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As to Svendsen’s purported failure to teach the step of “determining
. . . whether the vehicle cannot currently operate in a fully autonomous mode
based on the identified actions of interest,” the Examiner has pointed to
Svendsen’s teaching that “the control can modify the vehicle navigation”
and “[t]he modification can include switching to manual operation.” Final
Act. 15 (citing Svendsen 17:39–61). In other words, “the Trepagnier
computing device functions to control the autonomous vehicle based upon
actions of interest that are associated with the detected vehicle.” Id. at 12–
13 (citing Trepagnier 16:62–68) (“If the path is not safe, a simple algorithm
generates and adjusts control points on the problem spots of the curve until
the spline avoids all known obstacles while still containing valid maximum
curvature.”)). The Examiner explains that, in order “to ensure safety for a
particular travel path situation,” Trepagnier’s control method could utilize
Svendsen’s teaching of switching to manual operation (e.g., giving control to
the operator to avoid obstacles). Final Act. 15. Although Appellant asserts
that Svendsen does not teach or suggest the “determining” step (Appeal Br.
45), Appellant does not respond with sufficient particularity to the
Examiner’s findings to identify an error in the Examiner’s position, instead
merely stating that the recited claim element is not found in Svendsen.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s determination that Trepagnier and Svendsen render obvious
the subject matter of claim 32. Accordingly, we sustain the rejection of
claim 32, and claims 33–37 for which Appellant relies on the same
arguments and reasoning (Appeal Br. 45), under 35 U.S.C. § 103(a) as
unpatentable over Trepagnier and Svendsen.
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Rejection VII
Because our affirmance of rejections IV and VI is dispositive as to
claims 32–37, we do not reach this additional rejection of claims 32–37
under 35 U.S.C. § 102(b) as anticipated by Svendsen.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21–37 112, first
paragraph
Written Description 21–37
22, 29,
32–37
112, second
paragraph
Indefiniteness 22, 29,
32–37
21–26, 30,
31
102(b) Trepagnier 21–26, 30,
31

21–26,
30–34
103(a) Trepagnier, Dieterle 21–26, 30–
34

27–29 103(a) Trepagnier, Foessel 27–29
32–37 103(a) Trepagnier,
Svendsen
32–37
32–37 102(b) Svendsen8
Overall
Outcome
21–37

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

8 As explained above, we do not reach this rejection.