DETAILED ACTION
This action is in response to communications filed 7/29/2024:
Claims 1-5 are pending
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of copending Application No. 19053633 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other. For example:
Regarding claim 1, 19053633 teaches a battery electric vehicle (claim 13, a battery electric vehicle) comprising:
an electric motor serving as a driving source (claim 1, electric motor as a dynamic power device for traveling); and
one or more processors configured to generate an artificial sound that changes in response to an operating condition of the battery electric vehicle, and output the artificial sound from a speaker mounted on the battery electric vehicle (claim 13, the processing circuit is configured to execute generating an artificial sound…to output the artificial sound from the speaker), wherein the one or more processors are further configured to:
recognize a traveling condition of another vehicle traveling around the battery electric vehicle (claim 13, a sensor configured to detect information about a peripheral environment of the battery electric vehicle…recognizing a target vehicle based on the information detected by the sensor); and
perform, in response to the traveling condition of the other vehicle, at least either of a first process for changing a sound source of the artificial sound and a second process for generating a harmonic sound harmonized with the artificial sound and outputting the harmonic sound from the speaker by superimposing the harmonic sound on the artificial sound (claim 13, generating an artificial sound related to the target vehicle, to output the artificial sound from the speaker; and changing a characteristic of the artificial sound depending on a relative speed of the target vehicle with respect to the battery electric vehicle).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
The remaining independent and/or dependent claims are similarly rejected using one or more claims of the copending application (whether alone or in combination).
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.
Claim(s) 1 and 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Loh (US20210343268) in further view of Ito et al (US20200189614, hereinafter “Ito”).
Regarding claim 1, Loh teaches a battery electric vehicle (¶3, electric vehicle) comprising:
an electric motor serving as a driving source (¶3, motor is an electric motor in EV); and
one or more processors (¶44, a plurality of processors such as a processor to generate artificial sound (¶2)) configured to generate an artificial sound that changes in response to an operating condition of the battery electric vehicle, and output the artificial sound from a speaker mounted on the battery electric vehicle (¶63, generating artificial sound in response to the vehicle driving parameters),
Loh fails to explicitly teach wherein the one or more processors are further configured to:
recognize a traveling condition of another vehicle traveling around the battery electric vehicle; and
perform, in response to the traveling condition of the other vehicle, at least either of a first process for changing a sound source of the artificial sound and a second process for generating a harmonic sound harmonized with the artificial sound and outputting the harmonic sound from the speaker by superimposing the harmonic sound on the artificial sound.
Ito teaches wherein the one or more processors are further configured to:
recognize a traveling condition of another vehicle traveling around the battery electric vehicle (Fig. 5, recognizing a traveling condition (e.g. W1 is cutting in front of host vehicle)); and
perform, in response to the traveling condition of the other vehicle, at least either of a first process for changing a sound source of the artificial sound (¶61, 96, upon recognition of a traffic change or other possible alert (e.g. pedestrian coming into traffic), the sound output in the vehicle can be adjusted to provide spatial audio notification in view of the traffic change or possible alert) and a second process for generating a harmonic sound harmonized with the artificial sound and outputting the harmonic sound from the speaker by superimposing the harmonic sound on the artificial sound.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the artificial sound generator (as taught by Loh) with the notification alert system (as taught by Ito). The rationale to do so is to combine prior art elements according to known methods to yield the predictable result of increasing driver/passenger attention level when necessary (Ito, ¶122).
Regarding claim 3, Loh in view of Ito teaches wherein:
the one or more processors are configured to perform the second process when the other vehicle includes one or more second target vehicles in a specific positional relationship with the battery electric vehicle (Ito, Fig. 3, W1 or W2 are position in front of the user’s vehicle); and
the harmonic sound includes one or more harmonic sounds associated with the one or more second target vehicles (Ito, ¶61, the generated alert is generated in response to the position of the other vehicle (see Fig. 5); Loh, ¶12, sound mixing is possible for output such that the output in the vehicle can be a mix of the user vehicle’s simulated sound + alert generated in response to W1 cutting off the user’s vehicle (Fig. 5 of Ito)).
Regarding claim 4, Loh in view of Ito teaches wherein the one or more second target vehicles are succeeding vehicles behind the battery electric vehicle (Ito, Fig. 3, ¶42, 61, notification output is in response to a potential alert that is around the host car (the term “around” means 360 degrees); while Fig. 3 shows vehicles W1 and W2 in front of the vehicle, there could be a third vehicle W3 that is behind; ¶61, the generated notification sounds are spatial in nature allowing the user to pinpoint the alert’s direction relative to the user’s/host car’s position).
Regarding claim 5, Loh in view of Ito teaches wherein the artificial sound is a simulated engine sound simulating an engine sound of an engine vehicle (Loh, ¶5, providing simulated engine sounds).
Allowable Subject Matter
Claim 2 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to PTO-892, Notice of References Cited for a listing of analogous art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIN ZHU whose telephone number is (571)270-1304. The examiner can normally be reached on Mon-Fri: 7:30AM-5:00PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duc Nguyen can be reached on (571)272-7503. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/QIN ZHU/Primary Examiner, Art Unit 2691