Janice Nickel et al.

Patent Trials and Appeals Board

Oct 29, 2020

2020006762 (P.T.A.B. Oct. 29, 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.
15/479,276 04/04/2017 Janice H. Nickel TN-102 5977
26901 7590 10/29/2020
Law Office of Hugh Gortler
1884 Redfield Road
Riverside, CA 92507
EXAMINER
CASS, JEAN PAUL
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
10/29/2020 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):
patents.gortler@att.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JANICE H. NICKEL and BRYAN H. NICKEL
____________

Appeal 2020-006762
Application 15/479,276
Technology Center 3600
____________

Before STEFAN STAICOVICI, MICHELLE R. OSINSKI, and
WILLIAM A. CAPP, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the non-final
rejection of claims 5 and 9–25. 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(a).
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THE INVENTION
Appellant’s invention relates to self-driving vehicles. Spec. ¶¶ 2–5.
Claim 5, reproduced below with paragraph indentation added, is illustrative
of the subject matter on appeal.
5. A movable traffic control device comprising:
a road cone; and
an RF device carried by the road cone,
the RF device configured to generate and broadcast a
wireless identification signal encoded with information
identifying the road cone.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Breed US 6,758,089 B2 July 6, 2004
Wheeler US 2008/0228400 A1 Sept. 18, 2008
Peddie US 2009/0256723 A1 Oct. 15, 2009
Ferguson US 8,880,270 B1 Nov. 4, 2014
Tran US 9,043,124 B1 May 26, 2015
Kulkarni US 2016/0066137 A1 Mar. 3, 2016
Kovarik US 2016/0132705 A1 May 12, 2016
Gulash US 2017/0110022 A1 Apr. 20, 2017
JP 909 JP 5,087,909 B2 Dec. 5, 2012
CN 873 CN 203,759,873 U Aug. 6, 2014
Chen, A Passive UHF RFID Tag Antenna for Road Marker
Navigation Application, IEEE, 1752–53 (2015).
The following rejections are before us for review:
1. Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable
over Tran and Breed.
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2. Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable
over Tran, Breed, and CN 873.
3. Claim 10 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, and Tran.
4. Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Gulash, and Tran.
5. Claim 12 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Tran, and Kulkarni.
6. Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Tran, Kulkarni, and Peddie.
7. Claim 14 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Tran, and Peddie.
8. Claim 15 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Tran, Ferguson, and Peddie.
9. Claim 16 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Tran, and Ferguson.
10. Claims 17, 18, and 25 are rejected under 35 U.S.C. § 103 as being
unpatentable over JP 909, Breed, Peddie, Ferguson, and Tran.
11. Claims 19–22 are rejected under 35 U.S.C. § 103 as being
unpatentable over JP 909, Breed, Ferguson, CN 873, and Tran.
12. Claim 23 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Chen, Ferguson, and Kulkarni.
13. Claim 24 is rejected under 35 U.S.C. § 103 as being unpatentable
over JP 909, Breed, Chen, Kovarik, and Tran.
14. Claim 5 is rejected under 35 U.S.C. § 103 as being unpatentable
over Chen and Tran or, alternatively, over Tran and Wheeler.
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OPINION
Unpatentability of Claim 5
Claim 5 – Over Tran and Breed
The Examiner finds that Tran discloses the invention substantially as
claimed. Non-Final Act. 3–5. The Examiner relies on Breed as disclosing
an RF device that generates and broadcasts a wireless identification signal.
Id. at 5–6. The Examiner concludes that it would have been obvious to a
person of ordinary skill in the art at the time of the invention to combine the
teachings of Tran and Breed to achieve the claimed invention. Id. at 6.
According to the Examiner, a person of ordinary skill in the art would have
done this to provide relevant information to the vehicle, and ensure that the
vehicle remains in the appropriate traffic lane. Id.
Appellant concedes that Tran discloses a road cone that communicates
wirelessly with vehicles. Appeal Br. 30. However, Appellant argues that
Tran’s RFID tag does not identify the road cone — “as a road cone.” Id.
Appellant further contends that Breed fails to cure this deficiency. Id.
“Breed is silent about identifying objects along a road.” Id. Finally,
Appellant argues that the Examiner’s proposed combination is not supported
by articulated reasoning with rational underpinning. Id.
With respect to Appellant’s identifying the road cone — “as a road
cone” argument, the Examiner states that the claim is not so limited. Ans. 7.
The Examiner points out that Appellant’s contention that the road cone can
distinguish its identity from, for example, a pavement marker, a traffic pole,
or a fire hydrant is not claimed. Id. at 16. The Examiner takes the position
that the claim merely recites: “broadcast a wireless identification signal
encoded with information identifying the road cone” and that the prior art
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discloses what is actually claimed. Id. at 7–8. The Examiner directs our
attention to element 26 in Figure 3 and column 4, lines 29–35 of Tran as
disclosing cone identification. Id. at 13.
[T]he road cone includes an RF transceiver 58. A central
controller can identify the road cone by the asset ID and then
move the road cone to a location to for example, close a lane.
Further, the road cone can be one of a plurality of road cones.
In FIG. 3 the road cone has an asset ID. See block 26. This is
so you can control the road cone to move around. Tran
discloses that multiple different road cones can provide their
asset ID and the user can move the [cone] around to close a
road on a stadium like mobile robots.
Id. at 14–15. The Examiner further finds that Breed discloses a road marker
that can broadcast a wireless identification signal that: (1) identifies the road
marker; and (2) identifies the position of the road marker. Id. at 16.
In reply, Appellant argues that, even if the Examiner’s position is
correct, namely, that claim 5 merely requires the road cone to identify itself
as being a “thing,” the prior art does not identify it “wirelessly.” Reply
Br. 1–2.
The dispute between Appellant and the Examiner is largely a matter
of claim construction, namely, what is the meaning of “information
identifying the road cone.” During examination of a patent application,
pending claims are given their broadest reasonable construction consistent
with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation
standard, claim terms are given their ordinary and customary meaning as
would be understood by one of ordinary skill in the art in the context of the
entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007).
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Turning to Appellant’s disclosure, paragraph 21 states that: “Encoded
in the wireless identification signals 160 is information that identifies their
associated objects 130 and 150.” Spec. ¶ 21.
For instance, an RF device 140 carried by a fire hydrant
generates and broadcasts a wireless identification signal 160
that is encoded with information that identifies the fire hydrant.
Id. Appellant’s disclosure further teaches that location of road objects may
be included in wireless identification signals. Id. ¶ 30. Using the broadest,
reasonable construction of “information identifying the road cone” any
information that distinguishes one traffic cone from another, such as its asset
ID, or unique location, can be considered identification information.
Moreover, if we were to adopt Appellant’s position so that the road cone
identifies itself “as a road cone,” such would run afoul of the printed matter
doctrine. See Praxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd.,
890 F.3d 1024, 1032 (Fed. Cir. 2018) (explaining that claim limitations
directed to the content of information and lacking a requisite functional
relationship are not entitled to patentable weight because such information is
not patent eligible subject matter under 35 U.S.C. § 101).
Tran discloses a system for controlling vehicles that uses a plurality of
RFID detection tags. Tran Abstract. The RFID tags may be disposed in a
traffic “cone.” Id. col. 5, ll. 24–35, Fig. 4. Vehicles traveling within the
system have RFID devices that receive information from and transmit
information to the RFID tags. Id. col. 2, ll. 21–33. Communication between
the respective RFID units in the cone and a vehicle may be used to transmit
position information of the vehicle to a traffic control unit. Id. col. 7, l. 56 –
col. 8, l. 2.
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Breed discloses a wireless sensing and communication system of
roadways that includes sensors disposed on a vehicle and sensors disposed in
the vicinity of the vehicle/roadway. Breed Abstract. Information is
transmitted to and from a vehicle wirelessly. Id. Breed’s sensors may
incorporate RFID technology. Id. col. 6, ll. 30–42. Breed teaches the use of
triangulation using multiple antennas to determine the location of a vehicle.
Id. col. 21, ll. 44–59.
After considering the Examiner’s and Appellant’s respective
positions, we think that the Examiner states the better case. Appellant’s “as
a road cone” argument is not persuasive. Properly construed, the claim does
not require that the RFID device in the traffic cone communicate a physical
description of what it is (e.g., a traffic cone) and, even if it did, such would
not be entitled to patentable weight. Praxair, 890 F.3d at 1032. It is enough
that it communicates its asset ID and unique position, which allows the
vehicle to navigate in relation thereto. Appellant’s attack on Breed is
considered an attack on an individual reference. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (explaining that non-obviousness cannot
be established by attacking references individually where the rejection is
based upon a combination of references); see also In re Keller, 642
F.2d 413, 425 (CCPA 1981). Here, Tran already teaches RFID devices
communicating from objects disposed in relation to a roadway.
Finally, we are not persuaded by Appellant’s challenge to the
Examiner’s underlying rationale for making the proposed combination.
Tran and Breed relate to communications between RFID devices located
inside of vehicles and RFID devices located outside of vehicles. The
Examiner’s stated reason for combining the references, namely, to improve
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safety and ensure that a vehicle remains in its appropriate lane of travel, is
sufficient to support the rejection. See In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (requiring an obviousness conclusion to be based on explicit
articulated reasoning with rational underpinning) cited with approval in KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) .
The Examiner’s unpatentability rejection of claim 5 over Tran and
Breed is sustained.
Claim 5 over Chen and Tran
In this ground of rejection, Appellant repeats its previous “identify . . .
as a road cone” argument that we found unpersuasive with respect to the
Tran and Breed ground of rejection and find equally unpersuasive here.
Appeal Br. 31. Appellant next argues that the passages of Chen cited by the
Examiner fail to support the Examiner’s finding that Chen describes an RF
device configured to generate and broadcast a wireless identification signal.
Id.
Chen discloses a passive RFID tag antenna for use in “road marker
navigation systems.” Chen Abstract. Chen recognizes that it is known that
RFID technology has been used in the prior art for tracking and
identification such as inventory control and retail checking applications. Id.
p. 1752, col. 1. With respect to use as a road marker, Chen teaches that:
By placing RFID tag with the location information inside a road
marker and installing the RFID reader on the car, the location
information can be read from the road markers while driving on
the road to compensate signal losses from GPS.
Id.
Appellant’s argument that Chen fails to broadcast a “wireless
identification signal” is not understood. Chen clearly teaches transmitting
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“location information” wirelessly from the RFID tag to the car. Id. To the
extent that Appellant intends to convey the notion that the RFID tag does not
transmit “identification” information, we disagree. Persons of ordinary skill
in the art understand that the last two letters of the acronym “RFID” refer to
identification information. Chen facilitates navigation of a car by providing
positional information to compensate for situations where a GPS signal is
lost. Id. The content of such information may properly be considered to be
“identification” information within the meaning of claim 5.
The Examiner’s rejection of claim 5 over Chen and Tran is sustained.
Claim 5 over Tran and Wheeler
In this ground of rejection, Appellant argues that Tran is deficient and
that Wheeler does not cure such deficiency. Appeal Br. 32. Appellant does
not describe or specify the alleged deficiency but, to the extent that
Appellant relies on the same arguments we have considered in other grounds
of rejection of claim 5 over Tran, we disagree that Tran is deficient.
Otherwise, Appellant admits that Wheeler discloses raised pavement
markers that carry RFID devices and that delineate vehicle traffic lane
boundaries. Id. Appellant further admits that Wheeler’s vehicles carry
sensors for receiving RFID signals from the pavement markers. Id.
Appellant further admits that Wheeler’s pavement markers transmit an
“identification” number. Id. See also Wheeler ¶ 26. In short, the
Examiner’s findings that Tran and Wheeler disclose all of the limitations of
claim 5 are supported by a preponderance of the evidence.
Nevertheless, Appellant challenges the Examiner’s reasons for
making the proposed combination. Appeal Br. 33. According to Appellant,
the Examiner’s stated reason is already accomplished by Tran without the
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proposed modification and, therefore, there is no reason to make the
modification. Id. Among other things, the Examiner finds that the proposed
modification would result in “improved safety.” Non-Final Act. 36.
Appellant presents neither evidence nor persuasive technical reasoning that
modifying Tran by the teachings of Wheeler would not result in a level of
safety that is “improved” over using the teachings of Tran alone.
We are, thus, not apprised of error and the Examiner’s rejection of
claim 5 over Tran and Wheeler.
Unpatentability of Claim 9
over Tran, Breed, and CN 873
Claim 9 depends from claim 5 and adds the limitation: “wherein
broadcast range of the RF device is in a 1-100 meter range.” Claims App.
Appellant does not argue for the separate patentability of claim 9. We
sustain the Examiner’s rejection of claim 9. See 37 C.F.R. § 41.37(c)(1)(iv)
(failure to separately argue claims constitutes a waiver of arguments for
separate patentability).
Unpatentability of Claim 10
over JP 909, Tran, and Breed
Claim 10 is an independent claim that is directed to an autonomous
road vehicle. Claims App.
10. An autonomous road vehicle comprising:
means for receiving wireless RF identification signals
during vehicle navigation, reading identifications of nearby
road objects from data encoded in the RF signals, and using the
wireless identification signals to determine relative distances
from the vehicle to sources of the RF identification signals;
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means for creating and updating a data structure containing
the identifications of the nearby road objects and their
corresponding relative distances; and
an autonomous vehicle control system responsive to the
identifications and the relative distances in the data structure for
autonomously controlling the vehicle.
Claims App.
Appellant argues that none of the three prior art references cited by
the Examiner are “remotely related” to object identification. Appeal Br. 6.
Specifically with respect to JP 909, Appellant argues that “the wireless
signals of JP 909 do not identify the objects carrying the markers.” Id. at 7.
However, JP 909 is directed to a system to assist in the navigation of a
vehicle. JP 909 p. 2.2 Figure 1 of JP 909 depicts a vehicle 101, and
markers 102, 103, and 104. Id. Fig. 1. JP 909 teaches that:
[R]adio waves are transmitted from a plurality of markers 102,
103, 104 fixedly installed on a road or the like at the same time
or shifted by a known time, and the position of the vehicle is
obtained from the arrival time difference of radio waves from
each marker to the vehicle 101. This is the same positioning
method as GPS, and it is necessary to directly receive radio
waves from at least three markers within the line of sight in
order to specify the position in two dimensions.
Id. p. 2. A person of ordinary skill in the art would understand that the
position of a vehicle cannot be determined from markers or GPS satellites
without the markers or satellites first communicating some type of
information that forms a positional frame of reference from which to
calculate the position of the vehicle. As previously discussed in connection
with the rejection of claim 5, such information may properly be considered

2 Citations to JP 909 are taken from an English translation published by
Google Patents (https://patents.googlve.com/patent/JP5087909B2).
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as object identification information. We, therefore, disagree with
Appellant’s contention that JP 909 is not “remotely related” to object
identification. The prospect that prior art references do not describe their
inventions using the exact same terminology as used by Appellant in its
invention is of little consequence to our analysis. See In re Gleave, 560
F.3d 1331, 1334 (Fed. Cir. 2009) (explaining that a reference need not
satisfy an ipsissimis verbis test). The prior art clearly discloses the first
recited element of claim 10 (“means for receiving . . .”).
Although Appellant denies that the prior art discloses creating a “data
structure” as claimed, Appellant does not furnish an operational definition as
to the meaning of “data structure.” See generally Appeal Br. With respect
to the limitation directed to creating and updating a data structure,
Appellant’s Specification teaches the following:
The autonomous vehicle control system 440 may include a
processing system programmed to use the relative locations and
the encoded information and any sensor data to spatially locate
the identified objects with respect to the autonomous road
vehicle 100. For instance, the processing system may be
programmed to create a data structure identifying the local
objects and their distances from the autonomous road
vehicle 100. Examples of the data structure include, but are not
limited to, a list, map, an index, and a situational awareness
display.
Spec. ¶ 68.
[T]he RF reader 430 or the vehicle control system 440 (or other
processing system) uses the encoded information and the
relative locations of the objects 130 and 150 to create or update
a data structure. An existing data structure may be updated to
reflect changes in relative positions, to remove road objects 130
that the vehicle 100 has passed, and to add new road
objects 130 that the vehicle 100 encounters.
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Spec. ¶ 72. The Specification further teaches that the “data structure” may
be used for collision avoidance. Id. ¶ 73.
JP 909, Tran, and Breed are all related to vehicle navigation systems.
All three references receive and computationally resolve vehicle position
based on wireless data that is received from a plurality of radio transmitters.
JP 909, Figs. 1, 3; p. 2, (explaining that vehicle position coordinates are
determined based on the distance to at least two markers); Tran, col. 3,
ll. 21–33 (explaining that a plurality of traffic control assets in a system is
used to monitor and control vehicles); Breed, Fig. 15, col. 35, ll. 47–64
(explaining that a vehicle can determine its position by communicating with
a SAW device). A person of ordinary skill in the art would understand that
the functionality described in each of the three references could not be
accomplished without using computer memory and processing facilities that
communicate with roadway transmitting devices. The data that is assembled
and processed using such computer memory and processing facilities
reasonably would be understood as “data structure” within the meaning of
claim 10. With respect to “updating,” a person of ordinary skill in the art
would understand that vehicles move along a roadway and are in
communication with different radio transmitting devices as they travel
along. Thus, they would understand that the “data structure” on-board the
vehicle that is used in connection with vehicle navigation would be updated
as the vehicle travels along.
With respect to the last limitation directed to a vehicle control system,
Appellant argues that JP 909 lacks this limitation. Appeal Br. 9. However,
Appellant mischaracterizes the Examiner’s rejection. The Examiner relies
on Tran as disclosing the claimed autonomous vehicle control. Non-Final
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Act. 9–10. In fact, Tran explicitly teaches that a vehicle on-board controller
controls the vehicle to “steer” it. Tran, col. 8, ll. 60–62.
Finally, Appellant attacks the Examiner’s rationale for making the
proposed combination. Appeal Br. 11. In the non-final rejection under
review, the Examiner finds one of ordinary skill in the art at the time the
invention would have combined the teachings
[T]o use a traffic cone with an RF device that can perform
traffic collection from a number of vehicles and also provide a
traffic control device. The traffic control device can correctly
provide signals to the vehicle to control the vehicle such as the
correct right of way and also the indication of the correct lanes
on the highway. This can provide improved safety and control
for the vehicles using a smart road based device. This provides
improved safety.
Non-Final Act. 10. “Improved safety and control” – constitutes sufficient
articulated reasoning with rational underpinning to support the rejection.
Kahn, 441 F.3d at 988.
We sustain the rejection of claim 10.
Unpatentability of Claims 11–16
over Combinations Based on JP 909, Tran, and Breed
These claims depend from claim 10 and are not separately argued.
We sustain the rejection of claims 11–16. 37 C.F.R. § 41.37(c)(1)(iv).
Unpatentability of Claims 17, 18, and 25
over JP 909, Breed, Peddie, Ferguson, and Tran
Appellant argues claims 17, 18, and 25 as a group. Appeal Br. 12–19.
Claim 17 is representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 17 is an
independent claim that differs in scope from claim 10 in that it recites
computer vision that a vehicle control system uses in identifying and
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locating road objects. Claims App. The Examiner relies on JP 909, Breed,
and Tran for subject matter in claim 17 that overlaps with the subject matter
of claims 5 and 10 discussed above. The Examiner relies on Ferguson as
disclosing computer vision. Non-Final Act. 16.
In traversing the rejection, Appellant raises many of the same
arguments regarding JP 909, Breed, and Tran that we previously considered
and found unpersuasive with respect to claims 5 and/or 10 and we find
equally unpersuasive here. Appeal Br. 12–19. Appellant acknowledges that
Ferguson teaches the use of a computer vision system in connection with
operation of a vehicle. Id., 12. Indeed, Appellant’s Specification
acknowledges that it was known, in the prior art, to use computer vision in
connection with operation of a self-driving vehicle. Spec. ¶ 2. Appellant’s
argument concerning Ferguson is not well understood, but appears to be a
criticism that Ferguson’s mapping service does not assist its computer vision
system. Appeal Br. 13. Appellant does not adequately explain how this
criticism of Ferguson’s mapping system is relevant to the issues before us in
this Appeal. Id.
Ferguson is directed to a location awareness notification system for
autonomous vehicles. Ferguson, Abstract. Among other things, Ferguson
determines a vehicle status, a possible destination for the vehicle, generates a
hint related to a destination, provides the hint to a user, and navigates to the
destination. Ferguson col. 1, ll. 28–43. Ferguson provides computer vision
system 540 as a component of its control system 506. Id. Fig. 5.
The control system 506 can be configured to control operation
of the vehicle 500 and its components. Accordingly, the
control system 506 can include various aspects include steering
unit 532, throttle 534, brake unit 536, a sensor fusion
algorithm 538, a computer vision system 540, a
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navigation/pathing system 542, and an obstacle avoidance
system 544.
Id. col. 9, l. 66 – col. 10, l. 4.
The computer vision system 540 can be any system operable to
process and analyze images captured by camera 530 in order to
identify objects and/or features in the environment of
vehicle 500 that can include traffic signals, road way
boundaries, and obstacles.
Id. col. 10, ll. 31–35. In the rejection, the Examiner concludes that it would
have been obvious to incorporate the teachings of Ferguson into the
proposed combination of JP 909, Breed, and Tran. Non-Final Act. 16.
According to the Examiner, a person of ordinary skill in the art would have
done this to provide course correction hints to a vehicle. Id. The Examiner
also finds that the computer vision system can reduce computation
processing. Id. citing Ferguson col. 6, ll. 1–23.
Appellant argues that the Examiner used claim 17 as a template to
select individual elements in the various prior art references for purposes of
a hindsight recreation of the claim. Appeal Br. 18. This argument is not
persuasive. We have previously determined that the teachings of JP 909,
Breed, and Tran are properly combined to render obvious the subject matter
of claim 10. Here, the Examiner provides a sufficient, non-hindsight reason
(provide course correction hint derived from using computer vision) to
combine the references. See In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed.
Cir. 2016) (explaining that a hindsight argument is of no moment where the
Examiner provides a sufficient, non-hindsight reason to combine the
references).
The Examiner’s findings of fact are supported by a preponderance of
the evidence and the Examiner’s legal conclusion of unpatentability is well-
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founded. In view thereof, we sustain the Examiner’s unpatentability
rejection of claims 17, 18, and 25.
Unpatentability of Claims 19–22
over JP 909, Breed, Ferguson, CN 873, and Tran
Claim 19
Claim 19 depends directly from claim 18 and indirectly from claim 17
and adds the limitation:
wherein if a nearby road object is not found in the data structure
and cannot be identified or located by the computer vision, then
the processing system broadcasts an interrogation signal,
receives a responsive wireless identification signal, determines
identification and relative distance from the received signal, and
adds the identification and the relative distance to the data
structure.
Claims App. The Examiner relies on Ferguson as contemplating that a road
object may not be identified or located by a computer vision system. Non-
Final Act. 22 (citing Ferguson col. 5, ll. 15–36). The Examiner relies on
CN 873 as disclosing broadcasting an interrogation signal and receiving a
response thereto which adds position and identification information to a data
structure. Id.
Appellant argues that CN 873 is silent as to computer vision, machine
learning, neural networks, or another means that can identify objects along a
road during vehicle navigation. Appeal Br. 20. Appellant also repeats
arguments regarding Tran that we previously rejected. Id.
Appellant does not apprise us of Examiner error. As previously
discussed, JP 909, Breed, and Tran relate to a vehicle navigating its way
along a roadway by, among other things, transmitting and receiving
information to, from, and about objects along the roadway. Although not
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identical, ground based navigational aids such as taught by JP 909, Breed,
and Tran are reasonably analogous to vehicle navigation using GPS systems.
A person of ordinary skill in the art understands that vehicle navigation
involves movement, such that a vehicle is located at point A at time X and
later is located at point B at time Y. It is well understood by the skilled
artisan that, as the vehicle navigates from point A to point B, it moves into
communication range with some devices and moves out of communication
range with other devices. The skilled artisan also knows that, even if
point A and point B reside within the range of the same subset of devices,
the vehicle’s navigation system will periodically update its position or, in the
words of the claim, “adds the identification and the relative distance to the
data structure.” Claims App., claim 19. This is essentially what is
contemplated when Tran explains that “detection information is read and
processed by the controller (not shown) of the vehicle 108 and the controller
controls vehicle to steer.” Tran col. 8, ll. 60–62.
The wrinkle that is added to claim 19 is coordinating and integrating
navigation system operation with data that is gained from roadway objects
with information, or lack thereof, from a computer vision system. Ferguson
shows that it was known to integrate a vehicle navigation system with
information from GPS, Inertial Measurement Units, Radar Units, LIDAR
units and a camera. Ferguson Fig. 5. In view of the fact that it was known
in the art to integrate computer vision systems with other navigational
positional systems, we agree with the Examiner that it would have been
obvious to also integrate Ferguson’s computer vision with the roadway
device navigation systems of JP 909, Breed, and Tran.
We sustain the Examiner’s rejection of claim 19.
Appeal 2020-006762
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Claim 20
Claim 20 depends from claim 17 and adds the limitation: “wherein
the identifications and the relative distances determined from the wireless
identification signals are used to update computer learning of the computer
vision.” Claims App. Appellant’s Specification teaches that its computer
vision system may use machine learning, which is a type of artificial
intelligence, which gives a computer the ability to “learn.” Spec. ¶ 77.
Additional disclosure of how machine learning is used in Appellant’s
computer vision feature of the invention is set forth in later paragraphs of the
Specification. Id. ¶¶ 78–79.
In traversing the rejection, Appellant argues that the Examiner’s cited
art does not disclose machine learning capability in conjunction with a
computer vision system. Appeal Br. 22. Ferguson teaches that its system
can learn from the behavior of its passengers to, for example, stop at a
certain restaurant and certain time intervals. Ferguson col. 5, l. 58 – col. 6,
l. 23. Ferguson also discloses that its computer vision system processes and
analyzes images captured by its camera in order to identify objects and/or
features in the environment. Ferguson col. 10, ll. 31–40. What appears to
be missing from Ferguson is a teaching that Ferguson’s system learns to
recognize the particular restaurant by using a machine learning technique.
The Examiner does not direct our attention to any evidence in the
record that, in our opinion, satisfies the machine learning limitation of
claim 20. See Non-Final Act. 23–24 (citing passages from CN 873). The
Examiner’s findings of fact are not supported by a preponderance of the
evidence. Therefore, we do not sustain the rejection of claim 20.
Appeal 2020-006762
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Claim 21
Claim 21 depends from claim 17 and adds the limitation: “The
apparatus of claim 17, wherein when the autonomous road vehicle is
operating in conditions under which the computer vision is not reliable, the
vehicle control uses the identifications and the relative distances from the
wireless identification signals instead of using a response from the computer
vision.” Claims App.
Appellant faults the Examiner for relying on Tran in the rejection.
Appeal Br. 23. However, as previously discussed, Ferguson integrates
computer vision with positional navigational systems like GPS. Ferguson
Fig. 5. Tran discloses navigation based on roadway devices in a system that
does not have and, therefore, does not rely on, computer vision. Tran col. 8,
ll. 60–62.
The proposed combination satisfies the claim language. We are not
apprised of error and, therefore, sustain the rejection of claim 21.
Claim 22
Claim 22 depends from claim 17 and adds the limitation:
wherein the vehicle control uses the computer vision for
purposes other than identifying road objects, and wherein the
identifications and the relative distances determined from the
wireless identification signals are used for vehicle navigation
with respect to the nearby road objects.
Claims App. Appellant argues that Ferguson is the only reference that
mentions computer vision and it does not provide an alternative to computer
vision. Appeal Br. 23.
As discussed, Ferguson integrates computer vision with positional
navigational systems like GPS. Ferguson Fig. 5. Ferguson’s vision system
Appeal 2020-006762
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can be configured to map an environment, track objects, and estimate the
speed of objects. Id. col. 10, ll. 31–40. Thus, Ferguson’s system is used for
purposes other than identifying road objects. Id. Tran discloses navigation
based on roadway devices in a system that does not have and, therefore, does
not rely on computer vision. Tran col. 8, ll. 60–62. The proposed
combination satisfies the claim language.
We are not apprised of error and, therefore, sustain the Examiner’s
unpatentability rejection of claim 22.
Unpatentability of Claim 23
over JP 909, Breed, Chen, Ferguson, and Kulkarni
Claim 23 is an independent claim that is substantially similar in scope
to claim 10, except that is a method, instead of an apparatus claim and
includes a limitation directed toward incorporating computer vision
capability into the vehicle control system. Claims App. In traversing the
rejection, Appellant relies on the same arguments that we have previously
considered in considering other grounds of rejection involving related
subject matter. Appeal Br. 25–29. We previously found such arguments
unpersuasive and find them equally unpersuasive here.
As previously discussed, JP 909, Breed, and Chen, collectively
disclose a vehicle navigation system that uses radio transmissions to and
from road objects to determine the position of a vehicle. Ferguson integrates
computer vision with positional navigational systems like GPS. Ferguson
Fig. 5.
The proposed combination satisfies the claim language. We are not
apprised of error and, therefore, sustain the Examiner’s unpatentability
rejection of claim 23.
Appeal 2020-006762
Application 15/479,276
22

Unpatentability of Claim 24
over JP 909, Breed, Chen, Kovarik, and Tran
Claim 24 depends from claim 18 and adds the limitation:
wherein the processing system is configured to send the data
structure to a mapping service; and wherein the processing
system is configured to receive aggregated data structures from
the mapping service and use the aggregated data structures to
further enhance situational awareness.
Claims App.
Appellant identifies computer applications such as Apple Maps and
Google Maps as examples of “mapping services.” Spec. ¶ 42.
In the rejection, the Examiner finds that Kovarik discloses the
mapping service limitation of claim 24. Non-Final Act. 32 (citing Kovarik
Abstract, ¶¶ 26–31, 74, 75).
We have reviewed the cited passage of Kovarik relied on by the
Examiner and agree with Appellant that they do not provide evidentiary
support for finding that the prior art teaches a processing system that sends
data structures to a mapping service. Appeal Br. 24–25.
In view of the foregoing, we do not sustain the Examiner’s rejection
of claim 24.

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CONCLUSION
Claims
Rejected
§ References Aff’d Rev’d
5 103 Tran, Breed 5
5 103 Chen, Tran 5
5 103 Tran, Wheeler 5
9 103 Tran, Breed, CN 873 9
10 103 JP 909, Breed, Tran 10
11 103 JP 909, Breed, Gulash, Tran 11
12 103 JP 909, Breed, Tran, Kulkarni 12
13 103 JP 909, Breed, Tran, Kulkarni,
Peddie
13
14 103 JP 909, Breed, Tran, Peddie 14
15 103 JP 909, Breed, Tran, Ferguson,
Peddie
15
16 103 JP 909, Breed, Tran, Ferguson 16
17, 18, 25 103 JP 909, Breed, Peddie, Ferguson,
Tran
17, 18, 25
19-22 103 JP 909, Breed, Ferguson, CN873,
Tran
19, 21, 22 20
23 103 JP 909, Breed, Chen, Ferguson,
Kulkarni
23
24 103 JP 909, Breed, Chen, Kovarik,
Tran
24
Overall
Outcome
5, 9-19,
21-23, 25 20, 24
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED IN PART