Bayerische Motoren Werke Aktiengesellschaft

Patent Trials and Appeals BoardOct 21, 2020

2020001781 (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. 15/276,096 09/26/2016 Stefan LINDHUBER 080437.63748C1 7734 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 2020-001781 Application 15/276,096 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 1 and 37–52. 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 2020-001781 Application 15/276,096 2 BACKGROUND The Specification discloses that “[t]he invention relates to a driver assistance system for driver assistance for consumption controlled driving.” Spec. ¶ 3. ILLUSTRATIVE CLAIM Claim 1 is the only independent claim on appeal and recites: 1. A driver assistance system for assisting a driver to achieve optimized driving of a vehicle, the driver assistance system comprising: a controller that is configured to suggest an efficiency range to the driver; and a display unit that is configured to display at least one visually highlighted range when an accelerator pedal angle is in the efficiency range suggested by the controller. Appeal Br., Claims App. A-1. REJECTIONS 1. The Examiner rejects claims 1, 37–44, and 46–52 under 35 U.S.C. § 103(a) as unpatentable over Kim.2 2. The Examiner rejects claim 45 under 35 U.S.C. § 103(a) as unpatentable over Kim in view of Blackard.3 DISCUSSION Claim 1 With respect to claim 1, the Examiner finds that Kim teaches a system as claimed including a controller and a display unit, except that the 2 Kim et al., US 8,224,561 B2, iss. July 17, 2012. 3 Blackard et al., US 2011/0043348 A1, pub. Feb. 24, 2011. Appeal 2020-001781 Application 15/276,096 3 Examiner indicates that Kim does not expressly disclose displaying a highlighted range when an accelerator pedal angle is in an efficiency range suggested by the controller. Final Act. 3 (citing Kim Figs. 1, 2; col. 3, ll. 23–27, 32–67). However, the Examiner determines that displaying a highlighted range when an accelerator pedal angle is in the suggested efficiency range would have been obvious based on Kim’s disclosure, which “suggests an accelerator pedal in a fuel consumption range while teaching positi[ve] acceleration/negative acceleration,” and in order to increase efficiency. Id. at 8; see also Ans. 11. We agree with and adopt the Examiner’s findings and determination with respect to the rejection of claim 1. See Final Act. 2–3, 7–8; see also Ans. 9–11. As discussed below, we are not persuaded of error by Appellant’s arguments. Appellant first argues that “no evidence was provided tending to show that Kim discloses or even suggests” a display unit configured to display a highlighted range when an accelerator pedal angle is in the efficiency range suggested by the controller. Appeal Br. 2–3. Appellant further contends that Kim does not mention anything pertaining to an accelerator pedal angle. See id. at 4–5. We disagree. In the rejection, the Examiner explains that Kim teaches a display unit that is configured to display a current fuel consumption level that “allows a driver to know where the current driving state is among” low, moderate, and high fuel consumption ranges, and that Kim teaches that the display pointer will move based on the acceleration or deceleration of the vehicle. Final Act. 3. We agree with the Examiner. See Kim col. 3, l. 23–col. 4, l. 13. Kim discloses a calculation unit that “calculates a current instantaneous fuel Appeal 2020-001781 Application 15/276,096 4 consumption level and a target driving condition for achieving optimal fuel consumption level of the vehicle.” Id. at col. 3, ll. 23–25. Kim discloses that a display control unit “displays the current fuel consumption level and the optimal fuel consumption level on a display such that a driver can compare the current . . . level with the optimal . . . level so as to pursue the target driving condition.” Id. at col. 3, ll. 32–36. Further, Kim discloses displaying low, moderate, and high fuel consumption ranges on a bar graph and also displaying the current fuel consumption as a pointer on the bar graph. Id. at col. 3, l. 56–col. 4, l. 2. Kim discloses that the pointer moves up and down the bar graph depending on the current driving state and that “[t]he driver can, instinctively, discern the current fuel consumption level and adjust the extent to which a brake or accelerator pedal is pressed in order to achieve the optimal fuel consumption level.” Id. at col. 4, ll. 2–13. This disclosure provides evidence that the display unit is configured to display highlighted ranges related to fuel efficiency and discloses that the driver can modify the angle of the brake and accelerator pedals, i.e., the extent to which either pedal is pressed, to achieve a specific efficiency range. Appellant also argues that the Examiner fails to provide a reason why one of ordinary skill would have modified Kim to arrive at the claimed invention. Appeal Br. 3. Appellant further argues that Kim already teaches achieving optimum fuel efficiency without modification. Reply Br. 4. We are not persuaded, and we agree with the Examiner’s reasoning. The Examiner indicates that the reason for providing the proposed modification to the teachings of Kim would be to allow the driver to achieve the desired fuel efficiency. See Final Act. 7. In the Answer, the Examiner determines that “[t]he motivation to modify the Kim reference is to achieve driving with Appeal 2020-001781 Application 15/276,096 5 good fuel economy based upon opening degrees of the accelerator pedal.” Ans. 11. The evidence discussed above at least suggests that one of ordinary skill in the art would modify Kim, to the extent necessary, such that the angle of the accelerator pedal may be changed to achieve a desired fuel efficiency. Appellant further argues that “the claim clearly requires that the ‘controller suggest an accelerator pedal angle.’ And, the controller of Kim does not suggest anything, let alone an accelerator pedal angle.” Appeal Br. 4. Appellant does not explain adequately how the claim requires a controller that suggests an accelerator pedal angle. The claim requires a control that suggests “an efficiency range” and a display unit that displays a highlighted range when the pedal angle is in the efficiency range. As discussed above, we agree with the Examiner that Kim at least suggests a system with this functionality. Kim discloses a controller and display that display low, moderate, and high fuel consumption ranges and that the driver can change the angle of the pedals to achieve a specific range of fuel consumption. See, supra. In the Reply Brief, Appellant notes that the claim requires “an accelerator pedal angle is in the range suggested by the controller,” and Appellant argues that “[t]he Examiner has simply failed to provide any evidence that Kim teaches a controller that suggests an accelerator pedal angle.” Reply Br. 2. Again, Appellant does not explain how the language of the claim requires a suggested accelerator pedal angle. Further, as discussed, Kim discloses that the current state of fuel consumption is shown on a bar graph with low, moderate, and high fuel consumption ranges such that a driver would know the efficiency of the vehicle in the current driving Appeal 2020-001781 Application 15/276,096 6 state, and Kim further discloses that the driver can change the degree to which the pedals are pressed in order to achieve a current state within a specific range of fuel consumption. Finally, Appellant argues acceleration and deceleration may be caused by other factors including operation of the brake pedal or environmental factors such as the slope on which the vehicle is operating. Reply Br. 3. Thus, Appellant argues that even if Kim teaches that acceleration and deceleration are caused by the driver, acceleration and deceleration are not necessarily tied to the accelerator pedal angle. Id. We are not persuaded because, as discussed above, Kim teaches that the desired fuel consumption level can be achieved based on the extent to which the brake or accelerator pedals are pressed, i.e., the desired level can be achieved by pressing the pedals to the desired angle. Based on the foregoing, we are not persuaded of error in the rejection of claim 1 as obvious over Kim, and thus, we sustain the rejection of this claim. Claim 37 With respect to claim 37, Appellant argues that “[t]here is no teaching in Kim of displaying anything associated with ‘a driving style of the driver,’” and that Kim does not disclose a suggested efficiency range. Appeal Br. 5–6. We are not persuaded for the reasons provided by the Examiner. See Ans. 11–12. Specifically, we agree that Kim’s teaching of a low fuel consumption range is akin to a suggested efficiency range and that the display of the current driving state is accurately considered to represent the driving style of the driver. Ans. 11–12. Thus, when the current driving state is in the low fuel consumption range, the display unit displays a Appeal 2020-001781 Application 15/276,096 7 visually highlighted range and a visual cue that the driver’s driving style is in a suggested efficiency range. Accordingly, we sustain the rejection of claim 37. Claim 38 With respect to claim 38, Appellant argues that Kim does not provide a suggested efficiency range and thus, Kim does not teach informing the driving regarding how well the driver is following a suggested fuel efficiency range. Appeal Br. 6–7. We agree with the Examiner that Kim’s pointer representing the current fuel efficiency state of the vehicle in relation to the low, moderate, and high fuel consumption ranges sufficiently discloses the claimed subject matter of claim 38. Thus, we also sustain the rejection of claim 38. Claim 39 With respect to claim 39, Appellant argues that Kim does not disclose the features of this claim because “Kim is silent regarding both a ‘driving style’ and ‘an accelerator pedal angle.’” Appeal Br. 7. Appellant also asserts that Kim never mentions anything regarding resetting a visually highlighting range. Id. We agree with the Examiner that Kim teaches resetting the visually highlighted fuel consumption ranges based on the current driving style of the driver. As discussed previously, Kim suggests that the current fuel consumption state of the vehicle is affected by the angle to which the accelerator and brake pedals are pressed; Kim teaches that the fuel consumption state is depicted as a pointer on a bar graph showing; and that this is indicative of a driving style of the driver. Further, Kim discloses that the highlighted low, moderate, and high fuel consumption ranges on the display are reset based on the current driving style, i.e., the current state of Appeal 2020-001781 Application 15/276,096 8 fuel consumption. See Kim col. 4, ll. 14–26. Kim discloses an example in which a current high acceleration rate will move the pointer 42 to the far end of the bar graph and change the widths of the highlighted fuel consumption ranges, which “allows [for] the driver to perceive the current driving state of the vehicle more clearly and to pursue the optimal target driving condition.” Id. Based on the foregoing, we sustain the rejection of claim 39. Claim 40 Appellant argues that the Examiner relies on the same findings for claims 39 and 40 and that Kim does not disclose the resetting of a highlighted range to display it as a dark light, a gray colored illumination, or a blinking light, as required by claim 40. Appeal Br. 7. We agree. The Examiner finds that Kim discloses green, yellow, and orange colors for the low, moderate, and high fuel consumption ranges displayed. Ans. 13. The Examiner finds that “[t]he color of the high fuel consumption range is visually darker than that of the moderate fuel consumption range when the pointer (42) moves in the direction to the high fuel consumption range.” Id. However, this does not explain how Kim teaches that the visually highlighting range is reset to achieve such coloring. Rather, Kim merely discloses these colors for the low, moderate, and high consumption ranges, but does not appear to disclose that these colors are somehow reset at any time. Accordingly, we do not sustain the rejection of claim 40. Claim 41 Appellant argues that Kim’s pointer only points to a level of current fuel consumption and Kim does not otherwise teach any arrow pointing in an efficient direction as required by claim 41. Appeal Br. 7. We agree. With respect to this claim, the rejection does not include any discussion of Appeal 2020-001781 Application 15/276,096 9 the claim requirement that an arrow pointing toward an efficient direction must be displayed. See Final Act. 4–5. In the Answer, the Examiner explains that Kim’s pointer points to a low fuel consumption range, which the Examiner indicates is sufficient to teach the claim requirement. Ans. 14. We disagree. The claim requires “a recommendation . . . for changing the driving style by displaying an illuminated arrow pointing toward an efficient direction.” Appeal Br., Claims App. A-2. The Examiner does not explain how Kim’s pointer represents a recommendation as required by the claim. Accordingly, we do not sustain the rejection of claim 41. Claim 42 Claim 42 requires display of both a highlighted range “followed by a dynamic range that is not highlighted, if the accelerator pedal angle falls within the dynamic range.” Appeal Br., Claims App. A-2. The Examiner finds: Kim teaches that the moderate fuel consumption range and the high fuel consumption range are displayed as bar graph (41), wherein moderate fuel consumption range and the high fuel consumption range are shown as to include a visually highlighted range that is followed by a range that is not highlighted (column 3, lines 56–67). Final Act. 5. We agree with Appellant that this finding fails to explain how Kim teaches a dynamic range as claimed. See Appeal Br. 8. In the Answer, the Examiner finds that Kim teaches that the moderate fuel consumption range is followed by a high consumption range when the driver accelerates and the pointer moves in the direction of the high consumption range. Ans. 14. Yet, the Examiner still fails to explain how this is a teaching of a dynamic range that is not highlighted when the accelerator angle falls within the dynamic range. Thus, we also do not sustain the rejection of claim 42. Appeal 2020-001781 Application 15/276,096 10 Claim 43 Claim 43 requires that an energy recovery range is highlighted when the accelerator pedal is not depressed. Appeal Br., Claims App. A-2. We agree with Appellant that the Examiner has not established that Kim teaches an energy recovery range. See Appeal Br. 8. In the rejection, the Examiner merely states that the driver can discern the current consumption level and adjust the pedals to achieve optimum fuel consumption. Final Act. 5. In the Answer, the Examiner finds, without explanation, that Kim’s “low fuel consumption range is actually an energy recover range.” Ans. 15. However, we do not see any disclosure of an energy recovery range in the cited portions of Kim provided by the Examiner. Thus, we also do not sustain the rejection of this claim. Claim 44 Claim 44 requires that “the display unit displays an image shown as a symbol or text information conveying a need to reduce the speed to achieve the efficiency range suggested by the controller.” Appeal Br., Claims App. A-2. The Examiner finds that Kim teaches that the display control unit is configured to display the current fuel consumption and optimal fuel consumption such that the driver knows whether the current state is in the optimal fuel consumption range. Final Act. 5. We agree with the Examiner that Kim at least suggests that the pointer conveys information to the driver regarding the need to reduce speed to achieve a suggested efficiency range, as required by claim 44. As discussed previously, based on the location of the pointer, Kim discloses that “[t]he driver can, instinctively, discern the current fuel consumption level and adjust the extent to which a brake or accelerator pedal is pressed in order to achieve the optimal fuel consumption Appeal 2020-001781 Application 15/276,096 11 level.” Kim col. 4, ll. 10–13. Based on the foregoing, we sustain the rejection of claim 44. Claim 46 We agree with Appellant that the Examiner has not pointed to any disclosure in Kim that teaches or suggests that the display “is further configured to display a success display that shows . . . an increased range . . . or an amount of fuel . . . saved,” as required by claim 46. See Appeal Br. 9. In the Answer, the Examiner indicates that the Kim teaches this limitation because “the width of the fuel consumption range can vary depending on the current driving state.” Ans. 16 (citing Kim Fig. 2; col. 16–26). But the Examiner does not explain how this teaches or suggests a display of any increased range or fuel savings and only indicates that the driver can better discern current driving conditions within a specific range. Thus, we also do not sustain the rejection of this claim. Claims 47–52 Claim 47 further requires that “the display unit displays a recommended energy optimization action.” Appeal Br., Claims App. A-3. In the rejection, the Examiner states that “Kim teaches that the display control unit (40) is configured to display a recommended energy optimization action (column 4, lines 14-26).” Final Act. 5. In the Answer, the Examiner explains that Kim teaches an “indication of the current fuel consumption . . . [that] allows the driver to know where the current driving state is among the low fuel consumption range, moderate fuel consumption range, and high fuel consumption range.” Ans. 17. However, we agree with Appellant that the Examiner has only shown that the cited portions of Kim merely show that Kim “teaches allowing the driver to perceive the current Appeal 2020-001781 Application 15/276,096 12 driving state of the vehicle,” but the Examiner fails to explain how this teaches or suggests the claimed display of a recommended energy optimization action. Reply Br. 10. Thus, we are persuaded of error and do not sustain the rejection of claim 47. Claims 48–52 depend from claim 47, and the Examiner does not provide evidence or analysis with respect to these claims that cures the deficiency in the rejection of claim 47. Accordingly, we also do not sustain the rejection of claims 47–52. Obviousness of Claim 45 over Kim and Blackard Claim 45 depends from claim 44 and further requires that “the symbol consolidates multiple functions in order to make it easier for the driver to recognize the symbol and to prevent driver confusion caused by displaying different symbols.” Appeal Br., Claims App. A-2. The Examiner acknowledges that Kim does not teach or suggest the claimed feature and finds: Blackard is directed to a system that provides assistance to drivers with shifting gears of vehicle in which a display is shown to display several symbols that consolidates multiple functions in order to make the driver to identify the symbol among the symbols on the display (Figure 2, Current gear 9, Next gear: 10, Optimum RPM: 1725; Figure 6, Current gear 8, Next gear 7, Optimum RPM 2200). Final Act. 6. The Examiner determines that it would have been obvious to modify Kim based on Blackard “for the advantage of making [it] easier for the driver to recognize symbols and preventing the confusions caused by displaying different symbols.” Id. However, the claim requires a symbol that consolidates multiple functions, whereas the Examiner finds and points to a display with multiple symbols representing different functions. See Blackard Fig. 6. Thus, the Examiner does not adequately explain how Appeal 2020-001781 Application 15/276,096 13 Blackard teaches a symbol that consolidates multiple functions, as claimed. Accordingly, we do not sustain the rejection of claim 45. CONCLUSION We AFFIRM the rejection of claims 1, 37–39, and 44. We REVERSE the rejections of claims 40–43 and 45–52. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 37–44, 46–52 103(a) Kim 1, 37–39, 44 40–43, 46–52 45 103(a) Kim, Blackard 45 Overall Outcome 1, 37–39, 44 40–43, 45–52 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