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.
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Claims 1–20 are rejected on the ground of non-statutory double patenting as being unpatentable over the claims of U.S. Patent No. 9,575,490 (“Ferguson”), alone or in view of the claims of U.S. Patent No. 10,317,906 (“Ferguson2”), as set forth below.
Although the claims at issue are not identical, they are not patentably distinct because the presently claimed subject matter is either encompassed by, or would have been an obvious variation of, the subject matter previously claimed in the Ferguson and Ferguson2 patents.
Regarding claims 1, 10, and 20, which recite corresponding subject matter, all of the claimed subject matter is encompassed by or is an obvious variation of the subject matter of claims 1 and 5 of the Ferguson patent. Claim 1 of the Ferguson patent claims identifying a construction zone, accessing a classification associated with the construction zone, and operating a vehicle having an autonomous driving mode based upon the classification. Claim 5 further claims that the construction-zone classification comprises a time component identifying when work at the construction zone will be performed. Accordingly, identifying a construction zone and its classification, wherein the classification includes a time component, and operating the vehicle based upon the classification and time component is not patentably distinct from the subject matter of claims 1 and 5 of the Ferguson patent.
Regarding claims 2 and 11, all of the claimed subject matter is encompassed by or is an obvious variation of the subject matter of claims 1, 3, and 5 of the Ferguson patent. Claim 3 expressly claims that operating the vehicle based upon the construction-zone classification includes determining whether to drive the vehicle in the autonomous driving mode or a manual driving mode. Accordingly, the additional limitation of claim 2 is not patentably distinct from the previously patented subject matter.
Regarding claims 3 and 12, all of the claimed subject matter is encompassed by or is an obvious variation of claims 1 and 5 of the Ferguson patent. Claim 5 expressly claims that the construction-zone classification comprises a time component identifying when work at the construction zone will be performed. Thus, defining a range of time during which road work is expected to be performed is not patentably distinct from the temporal construction-zone classification previously claimed.
Regarding claims 4 and 13, all of the claimed subject matter is encompassed by or is an obvious variation of claims 1, 3, and 5 of the Ferguson patent. Claim 1 provides vehicle operation based upon the construction-zone classification, claim 3 expressly provides selection between autonomous and manual driving modes, and claim 5 provides the time component identifying when construction work will be performed. It would have been obvious to operate the vehicle in the manual driving mode during the construction-work time period because the patented claims already associate vehicle operating mode with the construction-zone classification and identify when the construction condition applies.
Regarding claims 5 and 14, all of the claimed subject matter is encompassed by the subject matter of claims 1 and 5 of the Ferguson patent, with the exception of expressly requiring that the vehicle be operated in an autonomous mode more cautiously through the construction zone during the defined time range. However, claim 1 of the Ferguson2 patent claims autonomously driving a vehicle more cautiously through a construction zone when the construction zone is classified as active.
It would have been obvious to one of ordinary skill in the art to employ the cautious autonomous operation claimed in the Ferguson2 patent during the temporally defined construction condition claimed in the Ferguson patent because both claimed systems determine vehicle operation according to the identified construction-zone condition, and the combination would predictably provide cautious autonomous operation when the construction condition is active.
Regarding claims 6 and 15, all of the claimed subject matter is encompassed by or is an obvious variation of claim 1 of the Ferguson patent. Claim 1 claims receiving updated detailed map information identifying a construction zone and its classification and thereafter accessing the classification of the construction zone from the detailed map information. Accordingly, retrieving the construction-zone classification from map information stored at the vehicle is not patentably distinct from the map-based construction-zone classification access previously claimed.
Regarding claims 7 and 16, all of the claimed subject matter is encompassed by the subject matter of the relevant claims of the Ferguson patent, with the exception of expressly requiring receipt of the classification from one or more server computing devices. However, claim 12 of the Ferguson2 patent claims communicating a construction-zone classification by sending the classification to a server, which relays the classification to another vehicle.
It would have been obvious to one of ordinary skill in the art to communicate the construction-zone classification of the Ferguson patent through the server architecture claimed in the Ferguson2 patent in order to provide construction-zone classification information to vehicles through a centralized communication mechanism.
Regarding claims 8 and 17, all of the claimed subject matter is encompassed by or is an obvious variation of claims 1 and 2 of the Ferguson patent. Claim 2 expressly claims reclassifying the activity type of the construction zone and updating the classification of the construction zone in the detailed map information based upon the reclassifying. Accordingly, determining whether to reclassify the construction zone to a new classification is not patentably distinct from the reclassification previously claimed.
Regarding claim 18, which depends from claim 10 and further recites that the one or more processors are incorporated into an autonomous driving system of the vehicle, all of the subject matter of claim 10 is encompassed by or is an obvious variation of claims 1 and 5 of the Ferguson patent, as discussed above.
Regarding claims 9 and 19, all of the claimed subject matter is encompassed by or is an obvious variation of claim 1 of the Ferguson patent. Claim 1 claims identifying a construction object at a given location, identifying the construction-zone area corresponding to that location, and accessing the associated construction-zone classification from detailed map information. Accordingly, identifying a construction object and comparing/correlating the construction object with map information stored at the vehicle to identify the corresponding construction-zone information is an obvious variation of the previously patented subject matter.
The Ferguson patent further claims a vehicle having an autonomous driving mode and one or more processors configured to perform the construction-zone identification, classification-access, and vehicle-operation functions. Thus, the processors responsible for the construction-zone processing and vehicle operation are claimed as components of the vehicle system providing autonomous-driving functionality.
Accordingly, incorporating the processors performing the construction-zone identification and classification functions into the autonomous driving system of the vehicle would have been an obvious variation of the previously patented arrangement because the processors already perform the construction-zone processing used to determine operation of the vehicle having the autonomous driving mode.
Therefore, claims 1–20 are not patentably distinct from the claims of the Ferguson patent, alone or in view of the claims of the Ferguson2 patent, and are rejected on the ground of nonstatutory obviousness-type double patenting.
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.
Claims 1-4, and 7, 8, 10-13, 16-18, and 20 are rejected under 35 U.S.C. §103 as being unpatentable over An et al. (US 2013/0211656 A1; “An”) in view of Yoshikawa et al. (US 7,525,451 B2; “Yoshikawa”).
Regarding claims 1, 10, and 20, An discloses a method comprising:
identifying, by one or more processors, a construction zone ([0006]; [0039]; [0050]; [0064]; [0100]; Note: An teaches that road construction may cause the actual road environment to differ from stored map information, thereby affecting whether the autonomous driving can be performed, see paragraphs 0006 and 0100; An further classifies road sections as reliable or unreliable based on whether the conditions necessary for autonomous driving are satisfied, see paragraphs 0039, 0064, thus, a construction-affected section may be classified as reliable or unreliable based on its suitability for autonomous operation;
identifying, by the one or more processors, a classification of the construction zone ([0064]; [0100]; Note: determining whether a road section is reliable or unreliable for autonomous driving based upon autonomous-driving context information, recording a new road link as a reliable section when autonomous driving is possible and recording the link as an unreliable section when autonomous driving is not possible, An teaches identifying a classification of a road section affected by construction as reliable or unreliable for autonomous driving
operating, at the construction zone, a vehicle based on the classification ([0045]: autonomous operation in a reliable section and transferring control to the driver before entering an unreliable section).
However, An does not explicitly state the classification includes a time component.
On the other hand, Yoshikawa teaches the classification includes a time component (Col. 5, Lines 3-10: detailed traffic information concerning restrictions resulting from road work or construction; Col. 5, Lines 18-26: the construction-related information includes the time period during which road work or construction is going to be performed, together with the type of traffic restriction and the time frame of the restriction).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include Yoshikawa's temporally defined construction information in An's road-section classification with a reasonable expectation of success. Determining whether the construction condition affects suitability for autonomous driving exists at the time the vehicle traverses the section, avoids treating a road section as continuously affected by a temporally limited construction condition.
Regarding claims 2 and 11, An discloses operating the vehicle based on the classification includes determining whether to drive the vehicle in an autonomous driving mode or a manual driving mode [0045]; [0051]; [0124]; Fig. 12; Note: the vehicle autonomously drives in a reliable section but hands control to the driver before entering an unreliable section, determining whether the vehicle is presently autonomously driving and, when appropriate, requesting manual driving from the driver).
Regarding claims 3 and 12, An does not explicitly state the time component defines a range of time during which road work is expected to be performed.
On the other hand, Yoshikawa teaches the time component defines a range of time during which road work is expected to be performed (Col. 5, Lines 18-22, lines 21-26: construction-related traffic information including the time period during which road work or construction is going to be performed, together with the time frame of the resulting traffic restriction).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include Yoshikawa's temporally defined construction information in An's road-section classification with a reasonable expectation of success. Determining whether the construction condition affects suitability for autonomous driving exists at the time the vehicle traverses the section, avoids treating a road section as continuously affected by a temporally limited construction condition.
Regarding claims 4 and 13, An discloses operating the vehicle manually ([0045]; [0051]; [0100]).
However, An does not explicitly state the time component defines a range of time during which the vehicle must be operated in a manual driving mode through the construction zone.
On the other hand, Yoshikawa teaches the time component defines a range of time during which the vehicle must be operated in a manual driving mode through the construction zone (Col. 5, Lines 18-26: a construction-related road restriction has a time period during which the road work or construction is going to be performed and a corresponding restriction time frame).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include Yoshikawa's temporally defined construction information in An's road-section classification with a reasonable expectation of success. Determining whether the construction condition affects suitability for autonomous driving exists at the time the vehicle traverses the section, avoids treating a road section as continuously affected by a temporally limited construction condition.
Regarding claims 7 and 16, An discloses, receiving the classification from one or more server computing devices ([0043]; [0053]; [0054]; [0077]-[0082]).
Regarding claims 8 and 17, An discloses determining, by the one or more processors, whether to reclassify the construction zone to a new classification ([0006]; [0100]; Note: classifying road sections as reliable or unreliable based upon whether autonomous driving is possible; when autonomous driving is determined to be possible, the autonomous-driving apparatus records a new link as a reliable section, whereas when autonomous driving is determined not to be possible, the apparatus records the new link as an unreliable section, sharing reliable-section determination data among vehicles and maintaining/updating reliable-section information based upon information collected from vehicles; thus, An teaches reevaluating road-section conditions and assigning a road section a reliable or unreliable classification based upon the current determination of whether autonomous operation is possible).
Regarding claim 18, An discloses the one or more processors are incorporated into an autonomous driving system of the vehicle ([0050]-[0052]).
Claims 6 and 15 are rejected under 35 U.S.C. §103 as being unpatentable over An and Yoshikawa in further in view of Davis (US 5,177,685).
Regarding claims 6 and 15, An does not explicitly state retrieving that classification from classification information stored as an attribute in an onboard map.
On the other hand, Davis teaches retrieving that classification from classification information stored as an attribute in an onboard map (Col. 8, Lines 25-38; Col. 8, Lines 39-46; Note: an automobile navigation system containing a map database in which characteristics/classifications of individual road segments are stored as map attributes, additional attributes associated with road segments include street quality, lane information and speed limit, and teaches representing street quality by a classification, for example from 1 (“super”) to 4 (“bad”), which is used by the route finder and route describer, storing time-dependent legal connectivity and other road/lane restrictions in the map database.
It would have been obvious for someone with ordinary skill in the art before the effective filing date of the current application to store An's existing reliable/unreliable road-section classification as an attribute of the corresponding road section in the vehicle map database, in accordance with the system in Davis with a reasonable expectation of success. Doing so provides retrieving that classification when the vehicle subsequently approaches the corresponding section and thus permits those previously established road characteristics to be used in subsequent vehicle navigation.
Claims 9 and 19 are rejected under 35 U.S.C. §103 as being unpatentable over An and Yoshikawa in further in view of Zhu et al. (US 8,195,394 B1).
Regarding claims 9 and 19, An discloses identifying a construction object ([0110], Fig. 8; Note: detecting a static obstacle because of road construction ahead of the vehicle and recognizes that the obstacle affects subsequent driving through the road-construction section, thus, An teaches identifying a construction-related object).
However, An does not explicitly state comparing the construction object to map information stored at the vehicle.
On the other hand, Zhu teaches comparing the construction object to map information stored at the vehicle (Claim 1 and Claim 12: roadgraph data can be downloaded to the autonomous vehicle and stored in memory for identifying and reacting to detected objects, “comparing, by a processor, the geographic location of the moving object to the roadgraph data” and identifying the type of object based upon whether its geographic location corresponds to a tagged area of the roadgraph; a device comprising memory storing roadgraph data, an object-detection device and a processor configured to detect an object, compare the object's location to the roadgraph data, and identify the object based upon that comparison.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the current application to employ Zhu's map-comparison object-identification technique with An's existing construction-related object with a reasonable expectation of success, thereby comparing the detected construction object's location with stored roadgraph information when identifying the construction object. This permits the autonomous vehicle to appropriately react to the detected object.
Conclusion
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/SHAHIRA BAAJOUR/Examiner, Art Unit 3666
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