DETAILED ACTION
Response to the applicant’s arguments
The amendment filed after a decision by the Patent Trial and Appeal Board is entered because prosecution is now reopened by the applicant and the new ground of rejection by the Board adding a 102 rejection to the claims. The applicant also did not ask for a rehearing. As provided in 37 CFR 1.198, prosecution of the proceeding before the primary examiner will be reopened,
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 11 and 21 are rejected under 35 U.S.C. sec. 102(a)(2) as being anticipated by European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”.
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In regard to claim 1, and 11 and 21, Caldwell discloses and the Board has held “....1. A method, comprising:
receiving, by at least one data processor and from a detection and tracking system of a vehicle, a first position of an object at a first time
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determining, using the at least one data processor, a first trajectory of the object based on at least on the first position of the object at the first time;
receiving, by the at least one data processor and from the detection and tracking system, a second position of the object at a second time; and
generating, using the at least one data processor, a second trajectory of the object, the second trajectory having (i) an initial waypoint corresponding to the second position of the object at the second time, and (11) a final waypoint corresponding to a final waypoint of the first trajectory. “...controlling using the at least one data processor motion of the vehicle based on the first trajectory of the object and the second trajectory of the object”.
The Board has stated “…[w]e enter a new ground of rejection of independent claims 1, 11, and 21 under 35 U.S.C. § 102(a)(1) as anticipated by U.S. Patent Application Publication No. US 2020/0409368 A1 to Caldwell, published December 30, 2020 (Caldwell '368).
We first interpret claims 1, 11, and 21 and then apply the prior art to the claims. Claims 1, 11, and 21 recite "receiving a first position of an object at a first time" and "receiving a second position of an object at a second time," but the claims do not recite that that the "second position of the object at a second time" is different from the "first position of an object at a first time." Appeal Br. 19, 21, 23-24 (Claims App.). Appellant's Specification describes that "[e]ach object 104 is stationary (e.g., located at a fixed location for a period of time) or mobile (e.g., having a velocity and associated with at least one trajectory)." Spec. T 27. As such, under a broadest reasonable interpretation, claims 1, 11, and 21 encompass stationary objects (e.g., a parked vehicle, a pedestrian who is not moving).
In the situation where the object is stationary, the second position of the object at a second time would be the same as the first position of the object at a first time. Thus, the claimed second trajectory of the object would have the same initial waypoint and the same final waypoint as the first trajectory.
Caldwell '368 anticipates this broadest reasonable interpretation of claims 1, 11, and 21. Caldwell '368 describes that ]he vehicle may include an autonomous or semi-autonomous vehicle with a vehicle computing system" and that "[t]he vehicle computing system may receive sensor data" including data on obstacles on the route. Caldwell '368 11 11-12, Fig. 8. Thus, Caldwell '368 discloses "receiving, by at least one data processor [i.e., vehicle computing system 804] and from a detection and tracking system of a vehicle [i.e., vehicle sensor system 806] a first position of an object at a first time," as recited in the independent claims. Caldwell '368 also teaches that the vehicle computer system is able to compute solutions for navigating around obstacles in some situations. Caldwell '368 T 13. For instance, the vehicle computing system may process object trajectories 120 associated with detected objects 118 in environment 100 and may determine whether vehicle 102 and objects 118 may interact. Id. 58; see also id. Fig. 8 (perception component 822 and planning component 824 of vehicle 802). Thus, Caldwell '368 discloses "determining, using the at least one data processor [i.e., vehicle computing system 804] a first trajectory of the object based on at least the first position of the object at the first time," as recited in the independent claims. Specifically, Caldwell '368 describes that "the vehicle computing system may be configured to continuously and/or periodically verify that the vehicle will not violate the safety protocol and/or remote guidance protocol" while traveling from waypoint to waypoint, including by "detect[ing] a pedestrian with a trajectory that appears to intersect with a trajectory associated with the vehicle." Caldwell '368 1 26, 55 (describing, for example, monitoring the surroundings "continuously, periodically (e.g., every 0.1 second, 0.5 second, 1 second, etc.), and/or at random intervals (e.g., at 3 seconds, 5 seconds, etc.)"). Thus, Caldwell '368 discloses "receiving, by the at least one data processor and from the detection and tracking system, a second position of the object at a second time," as recited in the independent claims. Caldwell further describes that the "vehicle computing system may determine one or more predicted object trajectories 120 based on the sensor data [that] may represent any number of potential paths in which the object 118 may travel through the environment 100 from a position associated with a time of perception." Caldwell '368 T 56; see also id. T 57 ("the object trajectories 120 may be determined utilizing one or more machine learning algorithms"). Caldwell '368 also describes that planning component 824 of vehicle 802 "may include a prediction component to generate predicted trajectories of objects (e.g., objects) in an environment [that] may include any number of potential paths in which a detected object may travel from a current position (e.g., at the time of perception) and/or based on a direction of travel." Id. 133, Fig. 8. "[A] prediction component may measure a trace of an object and generate a trajectory for the object based on observed and predicted behavior." Id. Thus, Caldwell '368 discloses "generating, using the at least one data processor, a second trajectory of the object," as recited in the independent claims. Further, when an object is stationary³, the object is at the same position at both a first time and a second time, such that the second trajectory has the same starting position and ending position as the first trajectory. This situation in Caldwell '368 discloses the "generating" element of independent claims 1, 11, and 21 under the broadest reasonable interpretation, because the second trajectory would have "(i) an initial Caldwell '368's vehicle computing system is figured to respond to both static and dynamic objects. Caldwell '368 21 waypoint corresponding to the second position of the object at the second time, and (ii) a final waypoint corresponding to a final waypoint of the first trajectory," as recited in the independent claims. Finally, Caldwell '368 describes that vehicle computing device 804 may include system controllers 826 to control steering, propulsion, braking, safety, emitters, communication, and other systems of vehicle 802. Caldwell '368 ' 134, Fig. 8. Caldwell '368 also discloses that when the vehicle computing system determines a solution for navigating around an obstacle, "the vehicle computing system may control the vehicle according to the solution. Id. ' 13. Thus, Caldwell'368 discloses "controlling, using the at least one data processor, motion of the vehicle based on the first trajectory of the object and the second trajectory of the object."
Based on these findings, Caldwell '368 anticipates independent claims 1, 11, and 21.
Claim 1, 11 and 21 are amended to recite and Caldwell 368 discloses “…the second position being displaced from the first position”.
(the board has already said that this can be dynamic or static objects such as a vehicle where the vehicle position can be tracked and avoided; see FIG. 7 where the vehicle is determined to have a position, velocity and orientation from the vehicle sensors in bloc 702 and then a way point position is determined to be valid and then the vehicle is controlled by the waypoint in block 716)
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(see Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 which can also be in the same or a different position) . (see Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)”.
Claims 2 and 3 and 13 are rejected under 35 U.S.C. sec. 102(a)(2) as being anticipated by European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”.
In regard to claim 2, Caldwell discloses “...2. The method of claim 1, further comprising:
determining, based at least on the second position of the object, a third trajectory; and
determining a first waypoint of the second trajectory by at least determining a weighted combination of a second waypoint of the first trajectory and a third waypoint of the third trajectory. (see paragraph 136 and 77-86 and Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)
Claim 1 recites “...determining using the processor, a first trajectory of the object based on the first position of the object at the first time, and generating using the processor a second trajectory”.
Attempts to claim a process without setting forth any steps involved in the process generally raises an issue of indefiniteness under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. For example, a claim which read: "[a] process for using monoclonal antibodies of claim 4 to isolate and purify human fibroblast interferon" was held to be indefinite because it merely recites a use without any active, positive steps delimiting how this use is actually practiced. Ex parte Erlich, 3 USPQ2d 1011 (Bd. Pat. App. & Inter. 1986).
"Use" claims that do not purport to claim a process, machine, manufacture, or composition of matter fail to comply with 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 709, 129 USPQ 227, 228 (CCPA 1961)("one cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. § 101 "). In Ex parte Dunki, 153 USPQ 678 (Bd. App. 1967), the Board held the following claim to be an improper definition of a process: "The use of a high carbon austenitic iron alloy having a proportion of free carbon as a vehicle brake part subject to stress by sliding friction." In Clinical Products Ltd. v. Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966), the district court held the following claim was definite, but that it was not a proper process claim under 35 U.S.C. 101: "The use of a sustained release therapeutic agent in the body of ephedrine absorbed upon polystyrene sulfonic acid."
Although a claim should be interpreted in light of the specification disclosure, it is generally considered improper to read limitations contained in the specification into the claims. See In re Prater, 415 F.2d 1393, 162 USPQ 541 (CCPA 1969) and In re Winkhaus, 527 F.2d 637, 188 USPQ 129 (CCPA 1975), which discuss the premise that one cannot rely on the specification to impart limitations to the claim that are not recited in the claim.
It appears that much more is going on that mere processing data and that a neural network device is being used using machine learning which is absent. Thus, the use is vague and definite. See paragraph 67.
In regard to claim 3, and 13, Caldwell discloses “..3. The method of claim 2, wherein the weighted combination is determined by applying a first weight to the second waypoint of the first trajectory and a second weight to the third waypoint of the third trajectory. (See paragraph 136 and 77-85)
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 4 and 14 are rejected under 35 U.S.C. sec. 103 as being unpatentable as obvious in view of European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”) and in view of United States Patent No.: US 9098811 B2 to Petre et al. that was filed in 2013.
The primary reference is silent but Petre teaches “...4. The method of claim 3, wherein the first weight increases along a first length of the first trajectory while the second weight decreases along a second length of the third trajectory”. (see col. 2, lines 1-45 where the neural network can increase or decrease weights for an adaptive learning of short term events).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the present disclosure with a reasonable expectation of success to combine the teachings of PETRE with the disclosure of CALDWELL since Petre teaches that the neural network can adapt by different weighting and to provide a more adaptive neural network due to short term events. Some may be important and require a significant weighting while others are not relevant and require a less weighting. See col. 2, lines 1-40 and col 1, lines 1-12.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 5-7 and 15-17 are rejected under 35 U.S.C. sec. 102(a)(2) as being anticipated by European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”.
In regard to claim 5 and 15, Caldwell discloses “...5. The method of any of claims 2, wherein each waypoint of the third trajectory is shifted from a corresponding waypoint of the first trajectory by an amount corresponding to a displacement of the object during a time period between the first time and the second time.” (see paragraph 136 and 77-86 and Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)
In regard to claim 6 and 16, Caldwell discloses “...6. The method of any of claims 2, wherein an initial waypoint of the third trajectory corresponds to the second position of the object at the second time. (see paragraph 136 and 77-86 and Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)
In regard to claim 7 and 17, Caldwell discloses “...7. The method of any of claims 2 , wherein the second waypoint of the first trajectory is associated with a first timestamp, and wherein the first waypoint of the second trajectory is associated with a second timestamp that is shifted from the first timestamp by a quantity corresponding to a quantity of time elapsed between the first time and the second time. (see paragraph 52-53 and 136 and 77-86 and Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8 and 18 are rejected under 35 U.S.C. sec. 103 as being unpatentable as obvious in view of European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”) and in view of Russian Patent Application Pub. No.: RU 2803671 C1 to Yang.
In regard to claim 8 and claim 18, Yan teaches “...8. The method of any of claim 1, wherein the detection and tracking system includes a light detection and ranging (Lidar) semantics network (LSN) detection model”. (see paragraph 1-6 and 1106-1114)
It would have been obvious for one of ordinary skill in the art before the effective filing date of the present disclosure with a reasonable expectation of success to combine the teachings of YAN with the disclosure of CALDWELL since YAN teaches that the neural network can include a semantic network to capture fuzzy values that can provide an improved classification and LIDAR feature vector. See abstract and paragraph 1-6 and 1106-114.
Claims 9 and 19 are rejected under 35 U.S.C. sec. 103 as being unpatentable as obvious in view of European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”) and in view of United States Patent Application Pub. No.: US 20230267712 A1 to Kommrusch that was filed in 2023.
In regard to claim 9 and 19, Kommrusch teaches “...9. The method of any of claims 1, wherein the object is undetected by the detection and tracking system for a duration between the first time and the second time”. (see paragraph 50-53).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the present disclosure with a reasonable expectation of success to combine the teachings of KOMMRUSCH with the disclosure of CALDWELL since KOMMRUSCH teaches that the neural network can detect an error or there is a piece of data that does not include a machine classification identification. Further analysis in the data stream of the output can reveal that this was not an error but a missing object. This can provide an improved classification of LIDAR machine vision elements. See abstract and paragraph 49-53.
Claims 10 and 20 are rejected under 35 U.S.C. sec. 102(a)(2) as being anticipated by European Patent Application Pub. NO.: EP3990999B1 to Caldwell that was filed in 2019 (hereinafter “Caldwell”. In regard to claim 10, and 20, Caldwell discloses “...10. The method of any one of claims 1 further comprising:
generating, using the at least one data processor, a third trajectory of the vehicle based at least on the second trajectory of the object. (see paragraph 136 and 77-86 and Fig. 3 where the vehicle has requested guidance and a way point of the vehicle is determined as element 112(1) and then the vehicle is controlled to a second waypoint and a third 112-2 and 112-3 and the trajectory is shown with the vehicle coming around and passing the second vehicle 108 and see the final trajectory 104 where the vehicle is then released from the remote guidance at block 304)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEAN PAUL CASS whose telephone number is (571)270-1934. The examiner can normally be reached Monday to Friday 7 am to 7 pm; Saturday 10 am to 12 noon.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scott A. Browne can be reached on 571-270-0151. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JEAN PAUL CASS/Primary Examiner, Art Unit 3668
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEAN PAUL CASS whose telephone number is (571)270-1934. The examiner can normally be reached Monday to Friday 7 am to 7 pm; Saturday 10 am to 12 noon.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Scott A. Browne can be reached at 571-270-0151. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JEAN PAUL CASS/Primary Examiner, Art Unit 3666
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