Ford Global Technologies, LLC

Patent Trials and Appeals BoardJun 11, 2021

2020005025 (P.T.A.B. Jun. 11, 2021)

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. 15/600,167 05/19/2017 Michael Schiebahn 83811697 1060 117396 7590 06/11/2021 FGTL/Burgess Law Office, PLLC P.O. Box 214320 Auburn Hills, MI 48321-4320 EXAMINER BOOMER, JEFFREY C ART UNIT PAPER NUMBER 3619 MAIL DATE DELIVERY MODE 06/11/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL SCHIEBAHN, PETER W.A. ZEGELAAR, and HELMUTH BOSCH ____________ Appeal 2020-005025 Application 15/600,167 Technology Center 3600 ____________ Before: STEFAN STAICOVICI, BRETT C. MARTIN, and PATRICK R. SCANLON, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING In response to our Decision on Appeal dated March 24, 2021 (hereinafter “Decision”), affirming the Examiner’s rejections of claims 1– 10, 12, and 13 under 35 U.S.C. § 103, based upon the primary teachings of Ewerhart,1 Appellant filed a Request for Rehearing on May 24, 2021 (hereinafter “Req. Reh’g ”).2 In the Response, Appellant asserts that the “Board misapprehended the disclosure of Ewerhart in concluding” that “[t]he driver is the means by which the trajectory is accomplished” and that 1 Ewerhart et al., US 2007/0299610 A1, published Dec. 27, 2007. 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Ford Global Technologies, LLC, is identified as the real party in interest in Appellant’s Appeal Brief (filed Mar. 2, 2020, hereinafter “Appeal Br.”). Appeal Br. 1. Appeal 2020-005025 Application 15/600,167 2 “taking the actual [avoidance] trajectory requires user intervention.” Response 2 (quoting Decision 8–9). DISCUSSION Appellant contends that “Ewerhart does not disclose the driver is the means by which the trajectory is accomplished, nor does Ewerhart disclose taking the actual trajectory requires user intervention.” Req. Reh’g 4. According to Appellant, neither the Examiner nor the Board has provided sufficient evidence to the contrary. Id. at 3 (“Offering no citation to Ewerhart, the Board relies only on the Examiner’s Answer.”) (citing Examiner’s Answer (dated Apr. 22, 2020, hereinafter “Ans.”) 5, 6). Appellant asserts that “[t]he Board speculates that the driver is the means by which the trajectory is accomplished and that the actual trajectory requires user intervention.” Id. at 4 (emphasis added) (citing Ewerhart, paras. 36– 39). Thus, Appellant concludes that “[t]he Board speculates that the induced or applied steering torque in the form of a haptic signal insignificantly changes vehicle direction,” and, moreover, “[s]uch speculation does not meet the preponderance of the evidence (more likely than not) standard of proof.” Id. at 5 (emphasis added). We do not agree with Appellant’s position that the Board’s Decision is based on speculation. Rather, the Board’s Decision is based on the explicit teachings of Ewerhart and the knowledge of a person of ordinary skill in the art, as discussed infra. The Board noted in the Decision, Ewerhart discloses a vehicle safety system, which in an emergency avoidance situation, suggests to the driver an “optimal avoidance trajectory . . . in the form of an induced or Appeal 2020-005025 Application 15/600,167 3 applied steering torque and/or by a suitable haptic steering assist” that sends a haptic signal in the form of a vibration or an oscillation to “inform the driver.” Decision 8 (citing Ewerhart, paras. 10, 11). In particular, we relied on paragraph 41 of Ewerhart to disclose “that the ‘haptic steering assist . . . suggests to . . . [the driver] an optimal avoidance trajectory.’” Id. We further relied on paragraph 11 of Ewerhart and the knowledge of a skilled artisan to disclose “that a haptic steering assist, which sends a haptic signal in the form of a vibration or an oscillation, is merely a vibration or oscillation that a driver can sense by touch through the steering wheel of the vehicle.” Id. at 8, 9 (citing In re Jacoby, 309 F.2d 513, 516 (CCPA 1962) (explaining that an artisan must be presumed to know something about the art apart from what the reference discloses)). Finally, we relied on paragraphs 36 through 38 to disclose that “the driver can ‘follow the suggested optimal avoidance trajectory’ or can ‘override the suggested optimal avoidance trajectory,’” when informed of an optimal avoidance trajectory. Id. at 8 (emphasis added). Hence, in light of Ewerhart’s specific teachings and the knowledge of a skilled artisan, discussed supra, Ewerhart discloses a haptic steering assist that sends a haptic signal to inform and suggest to a driver an optimal avoidance trajectory, which the driver can either follow or override. In other words, as noted in the Decision, Ewerhart’s haptic steering assist suggests and informs the driver of an optimal avoidance trajectory, but it is the driver, who follows or overrides the suggested optimal avoidance trajectory. See Decision 8–9 (“Ewerhart is clear; the vibration or oscillation of the haptic Appeal 2020-005025 Application 15/600,167 4 signal are the means by which the driver is informed of an optimal avoidance trajectory, but then the driver either follows or overrides the suggested optimal avoidance trajectory.”). Therefore, for the foregoing reasons, the Board’s determination that “Ewerhart discloses ‘an indicative steering torque which insignificantly changes the direction of travel’” is not based on mere speculation, but, rather, is supported by a preponderance of the evidence. See Decision 9. Accordingly, Appellant’s Request for Rehearing is denied. CONCLUSION We have granted Appellant’s Request for Rehearing to the extent that we have considered our Decision in light of the points raised therein, but have denied the Request for Rehearing with respect to any modification to the Decision. Outcome of Decision on Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1, 5, 9 103 Ewerhart 1, 5, 9 2, 3, 6, 7, 10, 12 103 Ewerhart, Moshchuk 2, 3, 6, 7, 10, 12 4, 8, 13 103 Ewerhart, Spero 4, 8, 13 Overall Outcome 1–10, 12, 13 Appeal 2020-005025 Application 15/600,167 5 Final Outcome of Appeal after Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5, 9 112(b) Indefiniteness 1, 5, 9 1, 5, 9 103 Ewerhart 1, 5, 9 2, 3, 6, 7, 10, 12 103 Ewerhart, Moshchuk 2, 3, 6, 7, 10, 12 4, 8, 13 103 Ewerhart, Spero 4, 8, 13 11 103 Ewerhart, Lee 11 Overall Outcome 1–10, 12, 13 11 DENIED