Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals BoardOct 21, 2020

15275624 - (D) (P.T.A.B. Oct. 21, 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. 15/275,624 09/26/2016 Stefan LINDHUBER 080437.63748C2 6964 23911 7590 10/21/2020 CROWELL & MORING LLP INTELLECTUAL PROPERTY GROUP P.O. BOX 14300 WASHINGTON, DC 20044-4300 EXAMINER TO, TUAN C ART UNIT PAPER NUMBER 3662 NOTIFICATION DATE DELIVERY MODE 10/21/2020 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): edocket@crowell.com mloren@crowell.com tche@crowell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte STEFAN LINDHUBER, CHRISTIAN POPP, and CHRISTOF SCHULZE Appeal 2020-001788 Application 15/275,624 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and ROBERT J. SILVERMAN, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 17–26 and 33–36. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Bayerische Motoren Werke Aktiengesellschaft. Appeal Br. 1. Appeal 2020-001788 Application 15/275,624 2 BACKGROUND The Specification discloses that “[t]he invention relates to a driver assistance system for driver assistance for consumption controlled driving.” Spec. ¶ 3. CLAIMS Claims 17 and 33 are the independent claims on appeal. Claim 17 is illustrative of the appealed claims and recites: 17. A driver assistance system for assisting a driver in optimizing energy consumption, the driver assistance system comprising: an electronic control system that assesses a current energy consumption efficiency of a vehicle; and a display unit that is configured to display the current energy consumption efficiency of the vehicle, wherein a plurality of individually-bound energy consumption efficiency ranges are displayed on the display unit, and the current energy consumption efficiency of the vehicle is displayed with a dynamic marker that moves within one of the individually- bound energy consumption efficiency ranges in response to operational changes in the vehicle that impact the current energy consumption efficiency of the vehicle. Appeal Br. 15. REJECTIONS 1. The Examiner rejects claims 17, 19, 20, 22–26, and 33–36 under 35 U.S.C. § 103(a) as unpatentable over Kim.2 2. The Examiner rejects claims 18 and 21 under 35 U.S.C. § 103(a) as unpatentable over Kim in view of Sato.3 2 Kim et al., US 8,224,561 B2, iss. July 17, 2012. 3 Sato et al., US 2006/0089781 A1, pub. Apr. 27, 2006. Appeal 2020-001788 Application 15/275,624 3 DISCUSSION Claims 17 and 33 With respect to claim 17, the Examiner finds that Kim discloses a control unit and display unit as claimed, except that the Examiner indicates Kim does not expressly disclose: displaying individually-bound energy consumption efficiency ranges, and displaying, on the display, the current energy consumption efficiency of the vehicle with a dynamic marker that moves within one of the individually-bound energy consumption efficiency ranges in response to operational changes in the vehicle that impact the current energy consumption efficiency of the vehicle. See Final Act. 3 (citing Kim col. 3, ll. 32–53). The Examiner finds that Kim suggests this functionality and determines that it would have been obvious to provide this functionality in Kim. Id. The Examiner relies on similar findings and reasoning with respect to claim 33. Id. at 4–5. As discussed below, we are not persuaded of error in the rejection by Appellant’s arguments. Appellant first argues that Kim does not disclose a marker that is displayed “within one of the individually-bound energy consumption efficiency ranges” because Kim’s marker is displayed below the energy efficiency ranges in Kim’s Figure 2. Appeal Br. 4–6. We are not persuaded. First, we are not persuaded that the claim requires that the dynamic marker must be displayed inside the spatial boundary of the energy consumption range depicted on the display. Rather, the claim may be reasonably interpreted to require only that the dynamic marker is displayed such that it points to an efficiency range, i.e., it is displayed showing that the current state of energy consumption is within a specific range. Second, even if we Appeal 2020-001788 Application 15/275,624 4 were to agree with Appellant’s narrower construction of the claim, we agree with the Examiner that Kim depicts a marker on a screen that identifies a current fuel efficiency range. See, e.g., Kim Fig. 2. Further, we agree with the Examiner that it would have been obvious to modify Kim to depict the marker within the spatial boundary of an energy range on the screen. Appellant also argues that Kim does not display “individually-bound energy consumption efficiency ranges” because “Kim’s energy efficiency ranges are collectively bound, via a plurality of individual regions.” Appeal Br. 8. We are not persuaded of error. First, Appellant does not explain adequately why the energy efficiency ranges depicted in Kim cannot themselves be considered individually-bound energy consumption ranges as required by the claim. Next, Appellant argues that the rejection over Kim lacks a sufficient reason with rational underpinning for modifying Kim. Appeal Br. 8. We are not persuaded of error because we agree that Kim at least suggests the specific requirements of the claim. Based on the foregoing, we are not persuaded of error in the rejection of the independent claims. Accordingly, we sustain the rejection of claims 17 and 33. Appellant does not raise separate arguments regarding the rejection of dependent claims 22 and 26. See Appeal Br. 9, 12. Thus, for the reasons discussed, we also sustain the rejection of claims 22 and 26. Claims 19 and 34 Claim 19 depends from claim 17 and further requires that the “efficiency ranges include at least an optimized range, a notification range, and a dynamic range.” Appeal Br. 15. Claim 34 depends from claim 33 and includes a similar requirement. Id. at 17. The Examiner finds that the Appeal 2020-001788 Application 15/275,624 5 low, moderate, and high fuel consumption ranges correspond to the claimed optimized, notification, and dynamic ranges claimed. Ans. 12. We are persuaded of error in the rejection because the Examiner does not explain adequately why one of ordinary skill in the art would have considered Kim’s moderate and high fuel consumption ranges to be notification and dynamic ranges as recited in the claim. See Reply Br. 5. Thus, we do not sustain the rejection of claims 19 and 34. Claim 20 Claim 20 depends from claim 17 and requires that “the current energy consumption efficiency is displayed as a visually highlighted portion of the plurality of individually-bound energy consumption efficiency ranges.” Appeal Br. 15. The Examiner finds that the current energy consumption efficiency is displayed on Kim’s bar graph and is always highlighted. Final Act. 4. We agree with Examiner. Kim teaches a bar graph that highlights low, moderate, and high fuel consumption ranges and a pointer that points to the current state of fuel consumption for the vehicle. Kim Fig. 2. Thus, Kim displays a visually highlighted portion of each efficiency range and further highlights the current fuel consumption range by providing a pointer pointing to a portion of the current range. Accordingly, we sustain the rejection of claim 20. Claim 23 With respect to claim 23, the Examiner finds that “Kim further teaches a consumption range indicator (43) and a fuel cut indicator (44) provided on the display for giving instructions to operate the vehicle so that the current energy consumption efficiency moves [to] a more efficient range.” Final Act. 4 (citing Kim Fig. 2; col. 4, ll. 27–54). Appellant argues Appeal 2020-001788 Application 15/275,624 6 that “Kim merely teaches that when traveling downhill, fuel cut indicator 44 prompts the driver to take the driver’s foot off the gas pedal,” and that this does not disclose or suggest the claimed subject matter “because the alleged plurality of individually-bound energy consumption ranges are range bar 41, not fuel cut indicator 44.” Appeal Br. 10. We are not persuaded of error. As noted by Appellant, cutoff symbol 44 prompts the driver to release the gas pedal, which is akin to the claimed instructions for operating the vehicle.4 Further, Kim teaches that this symbol is indicated in relation to the current fuel consumption level and the current driving state where Kim discloses that the “fuel cut indicator 44 assists the driver to take his/her foot off accelerator pedal when it is helpful for fuel economy,” i.e., the driver is instructed to remove pressure from the pedal when the efficiency could be improved over the current position of the dynamic marker in the current efficiency range. Kim col. 4, ll. 36–38. Accordingly, we sustain the rejection of claim 23. Claim 24 Claim 24 depends from claim 23 and further requires that “the instructions are displayed as at least an indicator in the direction of the more efficient range or symbols and images representing recommended energy optimization actions.” Appeal Br. 16. The Examiner relies on the same findings for both claim 23 and claim 24. Final Act. 4. Appellant argues that Kim does not teach an indicator in the direction of the more efficient range and symbols and images as claimed. Reply Br. 8. We are not persuaded of 4 We note that Appellant argues that a dot that becomes illuminated is not “instructions.” Reply Br. 7. We disagree as the light instructs the user to take his/her foot off the accelerator pedal to improve efficiency. Appeal 2020-001788 Application 15/275,624 7 error. First, we note that the claim does not require both an indicator in the direction of the more efficient ranges and symbols or images. Rather the claim requires “an indicator . . . or symbols and images . . . .” Second, as related to the discussion above, we find that Kim’s fuel cut off light is a symbol representing instructions for a recommended energy optimization action. For these reasons, we sustain the rejection of claim 24. Claims 25 and 35 Claim 25 depends from claim 17 and requires that “the display unit displays a recommendation when the dynamic marker indicates a transition from one of the efficiency ranges to another one.” Appeal Br. 16. Claim 35 recites a similar limitation. Id. at 17. The Examiner finds that “Kim further teaches that the display unit displays a recommendation when the pointer (42) indicates a transition from one of the efficiency ranges to another one (column 4, lines 1-26).” Final Act. 4. In the Answer, the Examiner explains that Kim is absolutely suggesting the cited features because the pointer (42) can be able to move for a transition from the low fuel consumption range to a high fuel consumption range or a transition from the high fuel consumption range back to the low fuel consumption range in accordance [with] the driving state. Ans. 15. We are persuaded of error because we agree with Appellant that the Examiner does not explain adequately how the cited portion of Kim teaches or suggests a recommendation as claimed. The claim requires that a recommendation is displayed when the pointer moves from one range to another, and we fail so see how Kim’s teaching of a pointer that moves back and forth suggests a recommendation as claimed. Thus, we do not sustain the rejection of claims 25 and 35. Claims 36 Appeal 2020-001788 Application 15/275,624 8 Claim 36 depends from claim 33 and further requires that the “size of each of the individually-bound energy consumption efficiency ranges dynamically adjusts in relation to an energy consumption of the vehicle.” Appeal Br. 17. The Examiner finds that Kim teaches that the width of the fuel consumption ranges varies depending on the current driving state. Ans. 15 (citing Kim col. 4, ll. 15–26). Appellant argues that Kim does not teach varying widths of individually-bound ranges because Kim’s efficiency ranges are not “individually bound.” Reply Br. 9. As discussed with respect to claims 17 and 33 above, we are not persuaded by this argument because Appellant does not explain adequately why Kim does not teach the use of individually-bound energy consumption efficiency ranges as claimed. For this reason, we sustain the rejection of claim 36. Obviousness over Kim and Sato Claim 18 depends from claim 17 and requires that “the operational changes correspond directly to angles of an accelerator pedal of the vehicle and to a requested engine torque.” Appeal Br. 15. The Examiner relies on Sato regarding these claim requirements. See Final Act. 5. In relevant part, the Examiner also finds that [i]n Sato, the engine revolution number (RPM) and the engine revolution number change rate are also another factors [sic] for making a change to the driving operation. Sato quite suggests a request engine torque is also a factor for a change to the driving operation because an engine torque is only produced after there is a change to accelerator opening degree and the engine RPM. Ans. 16. Appellant argues that the Examiner’s finding is incorrect because engine torque is not only produced after a change in accelerator opening degree and engine RPM. Reply Br. 9. Rather, Appellant asserts that Appeal 2020-001788 Application 15/275,624 9 an engine produces torque simply by operating (e.g., idling). For instance, an operator can push the start button in a vehicle (without ever touching the accelerator pedal), and the engine will being [sic] to run, from that moment on the engine will be producing torque. The engine can be kept at idle as long as there is fuel in the tank, without ever touching the accelerator pedal, and the engine will continue producing a torque, as long as the engine idles. Sato is silent regarding ‘a requested torque,’ and as noted above, the Examiner’s arguments allegedly justifying his position, have been proven patently false. Id. at 9–10. We are not persuaded of error. Although Appellant may be correct that an engine produces torque once it begins to run, we are not persuaded that the Examiner erred in finding that Sato suggests that operational changes related to energy consumption in an engine correspond to a requested engine torque. Sato discloses that certain engine parameters have a correlation to fuel consumption. Specifically, Sato discloses [f]or example, if the engine revolution number Nsft at the time of shift-up is high, this results in worsening of the fuel consumption. If the accelerator opening degree 8 at the time of revving is large, this results in worsening of the fuel consumption. Further, if the engine revolution number change rate Nv at the time of rapid acceleration is high, this results in worsening of the fuel consumption. Sato ¶ 23. We agree with the Examiner that one of ordinary skill in the art would understand that requested engine torque is related to engine RPM and acceleration, even if the engine produces a certain amount of torque when idling. Accordingly, we are not persuaded of error by Appellant’s argument and we sustain the rejection of claim 18. Regarding claim 21, Appellant does not raise separate arguments regarding the rejection of this claim, which depends from claim 17. See Appeal 2020-001788 Application 15/275,624 10 Appeal Br. 13. Thus, for the reasons discussed above, we also sustain the rejection of claim 21. CONCLUSION We AFFIRM the rejections of claims 17, 18, 20–24, 26, 33, and 36. We REVERSE the rejection of claims 19, 25, 34, and 35. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 17, 19, 20, 22–26, 33– 36 103(a) Kim 17, 20, 22– 24, 26, 33, 36 19, 25, 34, 35 18, 21 103(a) Kim, Soto 18, 21 Overall Outcome 17, 18, 20– 24, 26, 33, 36 19, 25, 34, 35 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)(l)(iv) (2018). AFFIRMED IN PART