N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
MOBILEYE VISION TECH NOLOGIES LTD., Appellant

v.

IONROAD, LTD., Appellee

______________________

2017

- 1984

______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 95/002,012.

______________________
Decided: June 12, 2018

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D ARREN M. J IRON , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Reston, VA, argued for appe llant. Also represented by A NTHONY J. L OMBARDI , D ANIEL C. T UCKER

.

P AUL M ICHAEL S CHOENHARD , McDermott, Will & Emery LLP, Washington, DC, argued for appellee. Also represented by I AN B ARNETT B ROOKS , N ICOLE J ANTZI

.

______________________
Before L OURIE , C LEVENGER , and R EYNA , Circuit Judges.MOBILEYE VISION TECH NOLOGIES v. IONROAD , LTD

. 2

L OURIE , Circuit Judge

. Mobileye Vision Technologies Ltd. (“Mobileye”) a pp eals from the final written decision of the United States Patent and Trademark Office Patent Trial and Appeal Board (“the Board”) in an inter partes reexamination affirming the examiner’s rejection of claims 1

– 7 of U.S. Patent 7,113,867 (“the ’867 patent”) as obvious. See iOnRoad, Ltd. v . Mobileye Techs. Ltd. , No. 2015

- 7925, 2016 WL 949027, at *8 (P.T.A.B. Mar. 11, 2016) (“ Dec ision ”). On appeal, Mobileye only challenges the Board’s decision with respect to claim 6. Because the Board did not err in its de cision, we affirm

. B ACKGROUND Mobileye owns the ’867 patent directed to a system for estimating a time

- to

- contact between a moving vehicle and an obstacle. See ’867 patent Abstract

. The system accomplishes this by recording successive images and analyzing “t he rate at which the separation between the vehicle and obstacle” is changing. Id. col. 7 l l. 37

– 46

. For example, Figure 2B depicts a series of images starting at the top with three obstacles “  ,” “  ,” and “+” in the left, center, and right l anes of a roadway , respectively. See i d. fig. 2B. T he obstacle “  ” in the center lane will collide with the vehicle located at the origin “0 ,” but obstacles

“  ” and “+” in the left and right lanes will not. See id. col. 8 ll. 5

– 27 , fig. 2B

.MOBILEYE VISION TECHNOLOGIES v. IONROAD , LTD

. 3

Id. fig. 2B.
Notably, the lateral displacement , which is the di stance between the obstacle and the origin along the X

coordinate, of the obstacles in the left and right lanes will decrease initially

, “ but at some point the separations between” the vehicle “ and the obstacles in the left and right lanes ” will “ again increase .” Id. col. 8 ll. 1 2–16 , fig. 2B

. For the obstacle in the center lane, however, the lateral displacement will “ uniformly approach zero, ” where zero is the origin, indicating that the vehicle and obstacle will collide. Id. col. 8 ll. 16– 21 , fig. 2B

. Claim 6 and the claims from which it depends read as follows:MOBILEYE VISION TECH NOLOGIES v. IONROAD , LTD

. 4

1. A time

- to

- contact estimate determination sy stem for generating an estimate as to the time

to

- contact of a vehicle moving a long a roadway with an obstacle comprising:

A. an image receiver configured to receive im age information relating to a series of at least two images as the vehicle moves along a roadway; and characte rized by

B. a processor configured to determine a

sca l ing fact or that defines a ratio b etween a d i mension length associated with two features of the obstacle in a first one of the at least two images and the same length between the same two features of the obstacle in a second one of the at least two images and uses the ratio to generate a time

- to

- contact e stimate of the vehicle with the obstacle.

4. A system according to claim 1 wherein the at least two images comprises more than two i mages.
5. A system according to claim 4 wherein the pr oce s sor processes the image informa tion to d etermine a lateral displacement of the object relative to a pos i tion of the vehicle.

6. A system according to claim 5 wherein the pr oce s sor determines a likelihood of collision r esponsive to whether or not the lateral displacement su b stantially unifo rmly approac h es zero

. Id. col. 10 ll. 8

– 21, 30

– 39 (emphasis added). iOnRoad, Ltd. (“iOnRoad”) filed a request for inter partes reexamination of the ’867 patent arguing, interMOBILEYE VISION TECHNOLOGIES v. IONROAD , LTD

. 5

alia , that claim 6 would have been obvious over (1) Neil D. Matthews, Visual Collision Avoidance , Advanced Systems Research Group, Dept. of Elecs. & Comput. Sci., Univ. of Southampton (1994) (“Matthews”), (2) David N. Lee et al., A theory of visual control of braking based on information about time

- to collision , 5 Perception 437 (1 976) (“Lee”), and (3) U.S. Patent 4,257,703 (“Goodrich”). Mobileye only challenges the Board’s findings with r espect to Goodrich

. Goodrich teaches a collision avoidance system that uses the “lateral translation of the block” to predict “whether or not at its current lateral velocity, the block will clear or intersect [with] the vehicle.” Goodrich col. 5 ll. 4

– 9. The examiner rejected claim 6 as obvious over Ma tthews, Lee, and Goodrich. Mobileye appealed to the Board

, and the Board affirmed the examine r’s rejection

. See Decision , 2016 WL 949027, at *7. It determined that the combination of Matthews and Lee taught all of the limitations in claims 1, 4, and 5, and that Goodrich taught the “ substantially uniformly approaches zero ” limitation in claim 6

. See id. at * 5–7. It found that Goodrich used the lateral translation of an obstacle at a current lateral velocity to determine the point of intersection, which it reasoned was equivalent to determining when the lateral displacement “substantially uniformly approaches zero.” Id. at *7. Accordingly, the Board determined that the combination of Matthews, Lee, and Goodrich rendered claim 6 obvious. Id. Mobileye timely appealed the rejection of claim 6 to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).

D ISCUSSION We review the Board’s legal determinations de novo

, In re Elsner , 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside , 203 F.3d 1305,MOBILEYE VISION TECH NOLOGIES v. IONROAD , LTD

. 6

1316 (Fed. Cir. 2000). A finding is supported by substa ntial evidence if a reasonable mind might accept the ev idence to support the finding. Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). Obviousness is a que stion of law based on underlying factual findings, including “the scope and content of the prior art, difference s between the prior art and the claims at issue, the level of ordinary skill in the pertinent art, and any objective indicia of non

- obviousness.” Randall Mfg. v. Rea , 733 F.3d 1355, 1362 (Fed. Cir. 2013) (citing KSR Int’ l Co. v. Teleflex Inc. , 550 U.S. 398, 406 (2007)). Only claim 6 is before us. Mobileye argues that the Board’s claim construction of the “substantially uniformly approaches zero” limitation to “ merely mean[] that the obstacle is closing in on the vehicle, and that they will intersect, ” s ee Decision , 2016 WL 949027, at *7 (internal quotation marks omitted)

, reads out the “substantiall y uniformly” part of the limitation. It further contends that
t he “substantially uniformly” language in the claim describes how the lateral displacement approaches zero

, not just whether it approaches zero. Goodrich, as M obileye characterizes it , does no t base its collision determ ination on how the lateral dis placement changes, because it assumes a constant velocity

. Mobileye argues that i t therefore does not teach the “ substantially uniformly ” limitation in clai m 6. Mobileye does not challenge the Board’s findings with respect to the other prior art refe rences. iOnRoad responds that the Board expressly dete rmined that Goodrich’s disclosure of a “lateral translation of the block . . . whether or not at its current la teral velocity, the block will clear or intersect [with] the veh icle” satisfies the “ substantially uniformly approaches

zero ” limitation. This disclosure comes directly from Goodrich’s specification, s ee Goodrich col. 5 ll. 4 –9
, which

, iOnRoad argues, is substantial evidence to support the Board’s finding. iOnRoad also counters that MobileyeMOBILEYE VISION TECHNOLOGIES v. IONROAD , LTD

. 7

waived its claim construction argument because it raised the issue for the first time in its rebuttal brief before the Board

. We agree with iOnRoad that the Board’s f inding that Goodrich teaches the “ substantially uniform ly approaches

zero ” limitation is supported by substantial evidence

. Mobileye ’s arguments depend on distinguishing c laim 6 of the ’867 patent , which teaches estimating a time to coll ision using a lateral displacement

, from Goodrich , which teaches collision avoidance based on a lateral velocity

. Compare ’867 patent col. 8 ll. 12

– 21
, col. 10 ll. 36

– 39, with Goodrich col. 5 ll. 4

– 9. However, that is a dis tinction without a difference. A n object wh ose lateral displac ement over time is substantially uniform means that at each t ime interval, it moves approximately the same lateral distance

. See ’8 67 patent fig. 2B. An object that moves the same lateral distance per time interval is moving at a constant lateral velocity

. Cf. Oral Arg. at 11:4 5– 53
, Mobileye Vision Techs., Ltd. v. iOnRoad, Ltd.

, No. 2017

- 1984 (Fed. Cir. May 2, 2018), http:// oralarguments. cafc.uscourts. gov/ default.aspx? fl= 2017

- 1984

. mp3 (stating that there is general famili arity with the concept that “distance equals rate times time”)

. W hen the lateral distance between the obstacle and the vehicle “approach [es] zero, ” it will collide or intersect with the vehicle. S ee ’867 patent col. 8 ll. 18

– 21, fig. 2B ; see also Decision , 2016 WL 949027, at *7.

Goodrich discloses this very situation: when monito ring a “ lateral translation” of an obstacle at “its current lateral velocity,” the system can determine whether the obstacle “will clear or intersect [with] the vehicle.” See Goodrich col. 5 ll. 4

– 9. Thus, substantial evidence su pports the Board ’s finding that “Goodrich expressly teac hes” the limitation in claim 6. See Decision , 2016 WL 949027, at *7.MOBILEYE VISION TECH NOLOGIES v. IONROAD , LTD

. 8

At oral argument, Mobileye argued tha t a key feature of the ’8 67 patent is that it exclusively relies on the la teral displacement to estimate the time of contact, which is not directly related to the velocity of the obstacle. See Oral Arg. at 11:55

– 12:33

. This feature makes a diffe rence, Mobileye contended, because an object could be moving at a constant velocity, but the changes in its lateral displacement with respect to the vehicle could still decrease or increase in a non

- constant manner

. See i d. ;

s ee also ’867 patent fig. 2B

. But Goodrich ’s collision avoidance system does not depend on a con stant velocity; it depends on a constant “ lateral veloci ty. ” Goodrich col. 5 l

. 6 (emphasis added). Therefore, t he record does not support Mobileye’s attempt to distinguish the prior art

. Accordingly, the Board’s finding that Goodrich di scloses the “ substantially uniformly approaches zero ” limitation is supported by substantial evidence

, and the Board properly concluded that claim 6 would have been obvious over Matthews, Lee, and Goodrich

. We have considered Mobileye’s remaining arguments, but find them unpersuasive.

C ONCLUSION For the foregoing reasons, we affirm the decision of the Board.

AFFIRMED