Ex Parte Fuehrer

Patent Trial and Appeal Board

Aug 17, 2017

13892972 (P.T.A.B. Aug. 17, 2017)

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.
13/892,972 05/13/2013 Thomas Fuehrer BOSC.P8093US/11603365 6501
24972 7590 08/21/2017
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
HEINLE, COURTNEY D
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
08/21/2017 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS FUEHRER1
Appeal 2015-007949
Application 13/892,972
Technology Center 3600
Before JENNIFER D. BAHR, JAMES P. CALVE, and LEE L. STEPINA,
Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert Bosch GmbH (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellant is the Applicant, Robert Bosch GmbH, which, according to the
Appeal Brief, is the real party in interest. Appeal Br. 2.
Appeal 2015-007949
Application 13/892,972
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below with pertinent limitations italicized for
emphasis, is illustrative of the claimed subject matter.
1. A method for establishing a driving profile, comprising:
recording, by a processing device of a control unit, a value
of an operating characteristic of a motor vehicle ascertained at a
first point in time with the aid of a sensor situated in the motor
vehicle;
linking, by the processing device of the control unit, the
recorded value of the operating characteristic to a piece of
location information indicating a position of the motor vehicle
to obtain a linked piece of information;
transferring, by the processing device of the control unit,
the linked piece of information to a server;
evaluating, by a processing device of the server, a plurality
of linked pieces of information to ascertain a driving profile
which includes location-dependent values of the operating
characteristic;
transferring, by the processing device of the server, the
driving profile to the motor vehicle; and
ascertaining, by the processing device of the control unit,
a deviation between a value of the operating characteristic of the
motor vehicle and a value of the operating
characteristic included in the driving profde at a position of the
motor vehicle at a second point in time.
REJECTION
Appellant requests our review of the Examiner’s rejection of claims
1—20 under 35 U.S.C. § 103(a) as unpatentable over Huang
(US 8,280,560 B2, issued Oct. 2, 2012), Okabe (US 2010/0030434 Al,
published Feb. 4, 2010), and Benedikt (US 2011/0210867 Al, published
Sept. 1,2011).
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Application 13/892,972
DISCUSSION
Claims 1—3, 5—7, and 9—20
The Examiner found that Huang discloses all the limitations of claim
1, with the exception of the two transferring steps. Final Act. 4—6. The
Examiner relied on Okabe and Benedikt for these features. Id. at 5—6.
Appellant argues that Huang does not disclose “ascertaining, by the
processing device of the control unit, a deviation between a value of the
operating characteristic of the motor vehicle and a value of the operating
characteristic included in the driving profile at a position of the motor
vehicle at a second point in time,” as required in claim 1 (Appeal Br. 7
(Claims App.)). Appeal Br. 4—6. More specifically, Appellant contends that
“i) Huang does not describe determining whether or not there is a deviation
based on operating characteristics of a vehicle at different points in time,
and ii) Huang does not actually ascertain a deviation.” Id. at 5.
In addressing the aforementioned “ascertaining ... a deviation”
limitation asserted by Appellant to be lacking in Huang, the Examiner cited,
in pertinent part, Figure 4 and column 8, lines 22—24 of Huang. Final Act. 5.
In construing the term “operating characteristic,” the Examiner looks to
Appellant’s Specification, which defines “[t]he term ‘operating
characteristic’ ... in the context of [the description of the invention as] each
variable and piece of information which characterizes and quantifies an
operating mode, an operation type, or the operation of [the] motor vehicle
. . . in general.” Ans. 3; Spec. 6,11. 6—9. The Examiner maintains that
Huang’s driving style is “a piece of information in the form of a numerical
value ranging from 1 to 5, that quantifies the operation of a motor vehicle in
general (1 for conservative, 5 for sporty)” and, thus, “under Appellant’s own
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Application 13/892,972
broad definition,” is “an operating characteristic” as called for in claim 1.
Ans. 3 (underlining omitted).
Appellant first asserts that the Examiner is applying the broadest
reasonable interpretation of the terminology (“driving style”) of the applied
reference (Huang), and not the broadest reasonable interpretation of
“operating characteristic.” Reply Br. 2. This assertion is not correct. The
Examiner, correctly, applies the explicit definition of “operating
characteristic” set forth in Appellant’s Specification in determining the
broadest reasonable interpretation of “operating characteristic.” Ans. 3; see
In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (stating that an applicant
is permitted to define specific terms used to describe the invention by setting
forth a definition for terms with reasonable clarity, deliberateness and
precision); In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) (instructing
the PTO, in interpreting claim language, to apply the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description).
Appellant next asserts that Huang’s driving style characterizes the
vehicle operator, and not the operation of the motor vehicle. Reply Br. 3.
We disagree with Appellant that Huang’s driving style does not characterize
and quantify the operation of the motor vehicle. Huang’s driving style is
determined from vehicle sensors, such as a hand-wheel angle sensor, a
vehicle speed sensor, wheel speed sensors, longitudinal and lateral
accelerometers, headway distance sensors, forward-looking radar-lidar or a
camera, a throttle opening sensor, and a brake pedal position/force sensor, as
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Appeal 2015-007949
Application 13/892,972
well as traffic/road condition information, during identified characteristic
maneuvers. Huang, col. 6,1. 4—col. 7,1. 27. The rate at which the subject
vehicle is closing in on a preceding vehicle (i.e., the range rate), “the subject
vehicle speed and other relevant signals are used to classify the driver's
driving style based on how fast the subject vehicle closes in on the preceding
vehicle, and the following distance between the subject vehicle and the
preceding vehicle.” Id., col. 2,11. 1—11. Thus, Huang’s driving style, while
indicative of qualities (i.e., driving style or skill level) of the operator,
characterizes or quantifies the operation of the motor vehicle by the
operator. As such, the Examiner correctly determined that Huang’s driving
style value is a piece of information that quantifies the operation of the
motor vehicle in general and, therefore, is “a value of an operating
characteristic of a motor vehicle” as called for in claim 1.
Appellant contends that Huang merely recognizes that there might be
a deviation in the numerical driving style value between the historical driver
profile and the current trip, but “does not actually describe ascertaining this
deviation, or making a comparison” or disclose “how to compute or analyze
such a deviation.” Appeal Br. 6.
The Examiner explains that “Huang explicitly describes using
historical driver style data with driver style data collected during a current
trip to find a deviation.” Ans. 5 (citing Huang, col. 8,11. 22—24). In this
regard, Huang discloses storing the driving style value in style profile trip-
logger 54 for each characteristic maneuver. Huang, col. 7,11. 24—29. Trip-
logger 54 is a simple data array in which each entry array contains a time
index, maneuver identifier, traffic/road information, and the corresponding
characterization result (i.e., driving style value). Id., col. 7,11. 29—34.
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Application 13/892,972
Huang also teaches that “a history separate style profile can be built up for
each driver over multiple trips” and that “a deviation of the style exhibited in
the current trip from that in the profile history may imply a change in driver
state.” Id., col. 8,11. 19-21, 23—24. “For example, a conservative driver
driving aggressively may indicate that he or she is in a hurry or under stress”
and “a sporty driver driving conservatively may indicate that he or she is
tired or drowsy.” Id., col. 8,11. 24—28. Huang also discloses trend analysis
processor 86, which outputs a “Driver Condition Change.” Id., col. 8,11. 13—
14; Fig. 4. Together, these disclosures convey a teaching to identify, or
discover, a deviation of the driving style exhibited in the current trip from
the driving style in the profile history to identify a driver condition change.
Appellant concedes that “[t]he deviation of the style described by
Huang . . . identifies when the style is different than the expected style” and
that “Huang . . . emphasizes identification that the expected driver style is
different than the actual driving style.” Reply Br. 3^4 (citing Huang, col. 8,
11. 22—28). However, Appellant contends that “calculation of a difference
value between the expected and actual driver style values is neither
described by Huang nor meaningful in view of Huang’s disclosure” and that
“Huang does not describe determination of the exact deviation.” Id. at 4.
We agree with Appellant that Huang does not explicitly disclose
calculating a difference value between the driving style value in the current
trip and the driving style value in the profile history (i.e., history separate
style profile). However, claim 1 does not recite calculating a deviation
value. Rather, claim 1 recites “ascertaining ... a deviation between a value
of the operating characteristic of the motor vehicle and a value of the
operating characteristic included in the driving profile ... at a second point
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Application 13/892,972
in time.” Appeal Br. 7 (Claims App.). This recitation is articulated
differently, for example, from the earlier recitation in claim 1 of “a value of
an operating characteristic of a motor vehicle ascertained at a first point in
time with the aid of a sensor.” Id. (emphasis added). Further, Appellant
does not direct our attention to any indication in the Specification of a
special definition of the term “ascertaining” that differs from the
conventional meaning of discovering with certainty. See, e.g., Ascertain
Definition, The American Heritage® Dictionary of the English Language,
http ://www. credoreference. com/entry/hmdictenglang/ascertain (last visited
Aug. 11, 2017) (“1. To discover with certainty, as through examination or
experimentation.”).
Appellant asserts that “[t]he Specification does, in fact, support that
the deviation is a computed value.” Reply Br. 4. Even accepting
Appellant’s assertion, however, “the name of the game is the claim.” In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). We must be careful not
to read a particular embodiment appearing in the written description into the
claim if the claim language is broader than the embodiment. See
SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (“Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim. For example,
a particular embodiment appearing in the written description may not be
read into a claim when the claim language is broader than the
embodiment.”). As noted, claim 1 does not recite computing a deviation
value.
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For the above reasons, Appellant does not apprise us of error in the
Examiner’s rejection of claim 1. Accordingly, we sustain the rejection of
claim 1, as well as claims 2, 3, 5—7, and 9-20, for which Appellant does not
present any separate arguments for patentability, under 35 U.S.C. § 103(a) as
unpatentable over Huang, Okabe, and Benedikt. See Appeal Br. 6.
Claim 4
Claim 4 depends from claim 1, and further recites, “wherein the
operating characteristic is one of a speed, an acceleration, a braking
deceleration of the motor vehicle, a distance between the motor vehicle and
a preceding or a following other motor vehicle, or a selected gear stage of
the motor vehicle.” Appeal Br. 7—8 (Claims App.).
The Examiner specifically addresses claim 4, finding that Huang
“discloses [an] embodiment in which ‘driver style’ depends on one of a
speed, an acceleration, a braking deceleration of the motor vehicle, or a
distance between the motor vehicle and a preceding other vehicle.” Ans. 4
(citing Huang’s disclosure (col. 6,11. 6—12) that sensor suite 42 includes one
or more of an enumerated list of sensors). According to the Examiner, “[i]n
Huang, as for Appellant’s invention, raw sensor signal data is processed to
produce a value that is characteristic of one of speed, or acceleration, or
braking deceleration, etc.” and, “[therefore, Huang discloses the operating
characteristic recited in claim 4.” Id.
Appellant contests the Examiner’s finding that Huang determines
driving style from data from a single sensor. Reply Br. 7. Even accepting
the Examiner’s finding that Huang discloses deriving a driving style using
data from only one sensor, we agree with Appellant that Huang’s driving
style is not one of the particular parameters enumerated in claim 4. See id.',
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Application 13/892,972
Huang, col. 6,1. 18—col. 7,1. 27 (describing broadly the process of detecting
and identifying a characteristic maneuver, recording data from the one or
more sensors of the sensor suite during the maneuver, identifying the end of
the maneuver to stop recording data, and processing the data, along with
traffic and road information, to output a driving style value).
Thus, the Examiner’s finding that Huang discloses that the driving
style depends on one of the parameters recited in claim 4 is not sufficient to
establish by a preponderance of the evidence that Huang’s driving style (on
which the Examiner reads the claimed “operating characteristic,” in which
claim 4, by virtue of its dependence from claim 1, requires a deviation to be
ascertained) is one of the parameters recited in claim 4. Accordingly, we do
not sustain the rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable
over Huang, Okabe, and Benedikt.
Claim 8
Claim 8 depends from claim 1, and further recites, “wherein a value of
the operating characteristic included in the driving profile is an average
value of values of the operating characteristic transmitted to the server.”
Appeal Br. 8 (Claims App.). In the Final Action, the Examiner cited Huang,
column 10, lines 18-45, as disclosing this feature. Final Act. 8. This
passage of Huang refers to “the average speed” of surrounding vehicles and
estimating range variable R as “a weighted average” between the headway
distance and the running average of adjacent lane vehicle gaps. Huang, col.
10,11. 23—24, 43—45. However, this disclosure is unavailing because, as
discussed above, the Examiner reads the “operating characteristic” of claim
1, in which a deviation is ascertained, on Huang’s driving style, not on either
the speed of surrounding vehicles or range variable R.
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Perhaps appreciating this deficiency in the rejection, the Examiner
shifts position in the Answer, finding that “Huang . . . discloses an
embodiment wherein the ‘driver style’ is an average value of the values of
the driver style.” Ans. 3. In making this finding, the Examiner construes
“average” not in accordance “with the more precise mathematical term
‘arithmetic mean,’” but, rather, “as ‘a level that is typical of a group, class,
or series.’” Id. The Examiner states:
As set forth in Huang, a driver style is a value that is typical of a
group of data, including one or more of speed, acceleration,
braking deceleration, and distance between the motor vehicle and
a preceding vehicle. See Huang, 6:6-12. Therefore, Huang
discloses the operating characteristic recited in claim 8.
Id. at 3^4.
The Examiner’s position appears to be that because Huang’s driver
style is derived from a group of data, it is typical of that group of data, and,
thus, is an average of that group of data. This position is untenable. First,
the Examiner’s construction of “average” as meaning something other than
“arithmetic mean” in the context of claim 8 is unreasonable. See Appeal Br.
8 (Claims App., claim 8 reciting “an average value of values”). Moreover,
as discussed above in regard to claim 4, none of the data input into style
characterization processor 52 from sensor suite 42 to derive the driving style
value is itself a driving style value. Thus, even if the driving style value
were to be considered an average value of the values of the input data from
which the driving style value is derived, this value of the operating
characteristic (driving style) would not be an average value of values of the
operating characteristic (driving style), as called for in claim 8.
Accordingly, we do not sustain the rejection of claim 8 under
35 U.S.C. § 103(a) as unpatentable over Huang, Okabe, and Benedikt.
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Application 13/892,972
DECISION
The Examiner’s decision rejecting claims 1—20 is AFFIRMED as to
claims 1—3, 5—7, and 9-20, and is REVERSED as to claims 4 and 8.
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).
AFFIRMED-IN-PART
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