Ex Parte Rhode et al

Patent Trial and Appeal BoardFeb 1, 2019

14482604 (P.T.A.B. Feb. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/482,604 09/10/2014 28415 7590 02/05/2019 PRICE HENEVELD LLP FORD GLOBAL TECHNOLOGIES, LLC 695 KENMOOR S.E. P. 0. BOX 2567 GRAND RAPIDS, MI 49501-2567 FIRST NAMED INVENTOR Douglas Scott Rhode 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 83460812 6453 EXAMINER MANCHO, RONNIE M ART UNIT PAPER NUMBER 3664 NOTIFICATION DATE DELIVERY MODE 02/05/2019 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): ptomail@priceheneveld.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DOUGLAS SCOTT RHODE, DAVID DEAN SMIT, ERICK MICHAEL LAVOIE, MARTIN FITZPATRICK FREY, THOMAS EDWARD PILUTTI, TAEHYUN SHIM, MATTY. RUPP, and ROGER ARNOLD TROMBLEY Appeal2017-009628 Application 14/482,604 Technology Center 3600 Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from a final rejection of claims 1-17 and 19-21. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. Appeal2017-009628 Application 14/482,604 CLAIMED SUBJECT MATTER The claims are directed to a trailer backup assist control system. Claims 1, 9, and 17 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A trailer backup assist system for a vehicle backing a trailer, compnsmg: a steering input apparatus providing a desired curvature of a path of travel for the trailer, wherein the desired curvature is relative to a zero curvature commanding position that defines backward movement of the trailer along a substantially straight path defined by a longitudinal centerline axis of the trailer; a control module generating a steering command for the vehicle to guide the trailer on the desired curvature based on a hitch angle and a kinematic relationship determined between the vehicle and the trailer, wherein the kinematic relationship is based on at least length of the trailer, wheel base of the vehicle and steering angle of the vehicle; and a power-steering system for steering the vehicle based on the steering command. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Vassallo Shepard Headley US 7,038,667 Bl US 7,715,953 B2 US 2012/0185131 Al REJECTIONS May 2, 2006 May 11, 2010 July 19, 2012 Claims 12 and 21 are rejected under 35 U.S.C. Â§ 112 first paragraph as failing to comply with the written description requirement. Claims 1, 17, 19, and 21 are rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Headley and Shepard. 2 Appeal2017-009628 Application 14/482,604 Claims 2-8 and 20 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Headley, Shepard, and Vassallo. Claims 9-16 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Headley, Vassallo, and Shepard. OPINION 35 us.c. Â§ 112 The Examiner rejects claims 12 and 21 as lacking written description support for the phrase "continuous backup of the trailer that is below a theoretical jackknife point." Final Act. 2. Appellants argue that the phrase in question finds support from paragraphs 50-52 and Figures 3-5 and 7 in the Specification. Appeal Br. 22. Appellants explain that "[t]he curvature commands a curvature path of the trailer that allows continuous backup of the trailer that is below a theoretical jackknife point as seen in FIG. 3. The backup is continuous and jackknife point shown in FIGS. 5 and 7 is not exceeded." Id. Other than stating that "[ n Jo where in sections 0050 to 0052 is there a suggestion or disclosure of the limitation," the Examiner does not provide a substantive response to Appellants' contentions. Ans. 18. Though the Specification does not use the exact phrase "continuous backup of the trailer that is below a theoretical jackknife point," such word for word disclosure is not required. See Purdue Pharma L.P. v. Paulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) ("In order to satisfy the written description requirement, the disclosure as originally filed does not have to provide in haec verba support for the claimed subject matter at issue."). 3 Appeal2017-009628 Application 14/482,604 Nonetheless, the disclosure must convey with reasonable clarity to those skilled in the art that the inventor was in possession of the invention. See id. The Specification discloses limiting the hitch angle in order to prevent the trailer and vehicle from jackknifing. Spec. ,r,r 50-52. In particular, the Specification discusses "limiting the potential for a vehicle/trailer system attaining a jackknife angle." Id. ,r 52. We understand the "jackknife angle" to correspond to the claimed "theoretical jackknife point." For this reason, we do not agree with the Examiner that the phrase "continuous backup of the trailer that is below a theoretical jackknife point" lacks written description support. Accordingly, we reverse the Examiner's rejection of claims 12 and 21 under 35 U.S.C. Â§ 112. 35 USCÂ§ 103(a)- Claims 1, 6-8 The Examiner finds that Headley's trailer backup assist system teaches most of the features of claim 1. Final Act. 3-5. The Examiner finds that Shepard "teaches of a kinematic relationship between a vehicle and a trailer, ... based on at least length of the trailer, wheel base of the vehicle, and steering angle of the vehicle." Id. at 5. The Examiner determines that it would have been obvious for "one of ordinary skill [to] tum to the teachings of Shepherd to modify Headley." Id. at 6. This is because: Id. It would have been additionally obvious to one of ordinary skill in the art to follow Shepherd's teachings especially for a programmer who needs information to program a processor that will compute a backup angle at which the trailer will be controlled to be backed up. As compared to Headley, such vital information is not provided. 4 Appeal2017-009628 Application 14/482,604 Appellants argue that "Headley fails to teach or even suggest generating a steering command for the vehicle to guide the trailer on a curvature path based on a kinematic relationship between the vehicle and trailer." Appeal Br. 10. Appellants further argue that Headley doesn't teach "a kinematic relationship between the vehicle and trailer as recited in Appellant's claimed invention." Id. at 11. Independent of whether Headley teaches generating a steering command based on a kinematic relationship, the Examiner ultimately relies on the combination of Headley and Shepard for teaching this limitation. Thus, Appellants' arguments addressed at Headley individually cannot show nonobviousness where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted) ( explaining that obviousness must be considered in light of "what the combined teachings of the references would have suggested to those of ordinary skill in the art"). Similarly, Appellants argue that "Shepard [ does not] generate a steering command for the vehicle to guide the trailer on the desired curvature based on the kinematic relationship based on at least length of the trailer, wheelbase of the vehicle, and steering angle of the vehicle." Appeal Br. 13-14. But nowhere do Appellants discuss the combination of Headley and Shepard or their combined teachings, which is what the Examiner relies on for these elements of the claim. Thus, we are not informed of error in the Examiner's rejection. Appellants also argue that "[t]he hitch angle control approach of Headley is significantly different than ... claim 1 ... which include[ s] a steering input apparatus providing a desired curvature of a path of travel for 5 Appeal2017-009628 Application 14/482,604 the trailer that is relative to a zero curvature commanding position." Id. at 11. However, Appellants' argument in this regard is not commensurate in scope to the claims. Claim 1 is an apparatus claim and includes a "steering input apparatus" which the claims and Specification explain can include a knob, steering wheel, or human machine interface. See e.g., Spec. ,r,r 23, 26, Fig. 2. Though the claim goes on to describe features of a "desired curvature," such features are not positively claimed or required. Even if these features were claimed, the steering input apparatus would only need to be capable of providing the desired curvature. Although "[a] patent applicant is free to recite features of an apparatus either structurally or functionally ... , choosing to define an element functionally ... carries with it a risk." In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). This risk is that Appellants bear the burden to prove that the prior art does not possess the functional characteristic, once the Examiner has shown a sound basis for believing the claimed structure to be the same as the prior art structure. See In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). In view of the Examiner's findings, we determine that the Examiner has provided a sound basis for believing that the claimed structure is the same as that identified by the Examiner in the cited prior art. Thus, we are not informed of error in the rejection of claim 1. Appellants argue that dependent claims 6-8 are allowable based on their dependency from claim 1. Appeal Br. 18. Thus, claims 6-8 fall for the same reasons discussed above. 6 Appeal2017-009628 Application 14/482,604 35 USCÂ§ 103(a)- Claims 17, 21 Appellants argue the rejection of claims 17 and 21 together. In accordance with 37 C.F.R. Â§ 4I.37(c)(l)(iv), we select independent claim 17 as representative. Similar to claim 1, the Examiner finds that Headley's trailer backup assist system teaches most of the features of claim 17. Final Act. 6-7. The Examiner also similarly finds that Shepard "teaches of a kinematic relationship between a vehicle and a trailer, ... based on at least length of the trailer, wheel base of the vehicle, and steering angle of the vehicle." Id. at 7. Appellants' arguments are substantially similar to those presented with respect to claim 1, again focusing on Headley and Shepard individually, rather than considering the combination of Headley and Shepard or their combined teachings. Appeal Br. 14--16. Thus we are not informed of error in the Examiner's rejection of claims 17 and 21. 35 USCÂ§ 103(a)- Claims 19 and 20 Claim 19 depends from claim 1 7 and includes "wherein commanding the path includes providing a desired curvature of the path of the trailer relative to a longitudinal centerline axis of the trailer." The Examiner finds that the added limitations of claim 19 are taught by Headley. Final Act. 7 ( citing Headley ,r,r 25-28, 37 without explanation). In response to Appellants' arguments that the limitations are not taught by Headley (Appeal Br. 16 1), the Examiner also finds that the limitations are taught by 1 Arguing that Headley teaches "provid[ing] a command responsive to a sensed hitch angle." 7 Appeal2017-009628 Application 14/482,604 Shepard, citing Figure 5 and all of column 6, without further explanation. Ans. 10. Appellants further argue that Shepard does not teach the limitations of claim 19 stating: Shepherd provides a command responsive to a sensed hitch angle of the trailer articulating about the vehicle which includes calculating an incremental backing displacement L'iX that results from a curved path. Nowhere does Shepherd provide a desired curvature of a path of travel of the trailer as required by the claims. Reply Br. 2. Reviewing Headley paragraphs 25-28, 37 and Shepard column 6 and Figure 5, it is not clear how the Examiner is interpreting the prior art as teaching "wherein commanding the path includes providing a desired curvature of the path of the trailer relative to a longitudinal centerline axis of the trailer." For example, column 6 of Shepard focuses on the path of travel of the vehicle and the hitch angle without reference to the centerline axis of the trailer. Thus, we do not sustain the rejection of claim 19 or claim 20 which depends therefrom. 35 USCÂ§ 103(a)- Claims 2-5, 9-11 Appellants argue the rejection of claims 9-11 together. We select independent claim 9 as representative. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). Claim 9 includes the limitation "a rotatable steering input apparatus commanding a path of the trailer, wherein the rotatable steering input apparatus is separate from a steering wheel." The Examiner finds that Headley's camera based trailer backup assist system teaches most of the features of claim 9, including a "steering input 206 apparatus [] separate 8 Appeal2017-009628 Application 14/482,604 from a steering wheel" for "commanding a path of the trailer." Final Act. 12. The Examiner finds that Vassallo teaches a rotatable knob for controlling vehicle functions and that it would be obvious to use Vassallo' s rotatable knob with the system of Headley in order to command a path of the trailer. Id. at 12-13 (the knob would provide an "efficient manner of selecting vehicle functions with ease including force feedback"). Appellants state that "Vassallo is a general purpose control input that has nothing to do with commanding the path of a trailer." Appeal Br. 20. Appellants then argue that "[ o ]ne of ordinary skill in the art would not have found it obvious to use a general purpose knob of Vassallo in a trailer backup assist system as contemplated by the Examiner using impermissible hindsight." Id. Appellants do not explain why the Examiner's reasoning is based on impermissible hindsight. Thus, we find Appellants' bald assertion of hindsight unconvincing. Appellants' arguments further fail as they do not identify error in the reason to combine provided by the Examiner, i.e. the knob would provide an "efficient manner of selecting vehicle functions [in the system of Headley] with ease including force feedback." Final Act. 12- 13. Appellants advance similar arguments with respect to dependent claims 2-5. Id. at 17-18. We sustain the Examiner's rejection of claims 2-5 for the same reasons discussed above with respect to claim 9. Claim 9 also requires a control module generating a steering command for guiding the trailer on the path based on the hitch angle and a kinematic relationship between the vehicle and the trailer, wherein the 9 Appeal2017-009628 Application 14/482,604 kinematic relationship is based on at least a length of the trailer, a wheel base of the vehicle and a steering angle of the vehicle. The Examiner finds that this element is suggested by the combined teachings of Headley and Shepard. Final Act. 12-13. Appellants argue that Headley does not appear to disclose any such kinematic relationship between the vehicle and the trailer that is based on a length of the trailer, wheel base of the vehicle and steering angle of the vehicle and does not use such a kinematic relationship for generating a steering command to guide the trailer on a path. Appeal Br. 20. Thus, Appellants conclude, "Headley combined with Vassallo and Shepard fails to render claim 9 obvious." Id. Appellants' arguments addressed at Headley individually cannot show nonobviousness where the rejection is based on a combination of references. Thus, we are not informed of error in the Examiner's rejection of claim 9. For the reasons discussed above, we sustain the rejection of claims 2- 5 and 9-11. 35 US. C. Â§ 103 (a) - Claims 12-16 Appellants argue that Headley, Vassallo, and Shepard do not teach or suggest features of dependent claims 12-16. Appeal Br. 21-22. In support of this argument, Appellants recite the language of claim 12 and claim 14. Id. Merely reciting the language of a claim and asserting that the cited prior art references do not disclose that limitation is insufficient. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.3 7 to require more substantive arguments in an appeal 10 Appeal2017-009628 Application 14/482,604 brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). For these reasons, we are not apprised of error in the Examiner's rejection of claims 12-16. DECISION The Examiner's rejection of claims 12 and 21 under 35 U.S.C. Â§ 112 is reversed. The Examiner's rejections of claims 1-17 and 21 under 35 U.S.C. Â§ 103 are affirmed. The Examiner's rejections of claims 19 and 20 under 35 U.S.C. Â§ 103 are reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 11