Ex Parte 6397136 et al

Board of Patent Appeals and Interferences

May 13, 2011

95001003 (B.P.A.I. May. 13, 2011)

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.
95/001,003 09/06/2007 6397136 ATI-214 REEX 1940
22846 7590 05/16/2011
BRIAN ROFFE, ESQ
8170 McCormick Boulevard, Suite 223
Skokie, IL 60076-2914
EXAMINER
TIBBITS, PIA FLORENCE
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
05/16/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

ELESYS NORTH AMERICA, INC.
Requestor, Respondent

v.

AUTOMOTIVE TECHNOLOGIES INTERNATIONAL, INC.
Patent Owner, Appellant
____________

Appeal 2011-004206
Reexamination Control 95/001,003
Patent 6,397,136
Technology Center 3900
____________

Before SALLY C. MEDLEY, DANIEL S. SONG and KRISTEN L.
DROESCH, Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2011-004206
Reexamination Control 95/001,003
Patent 6,397,136
2
Appellant, Patent Owner Automotive Technologies International, Inc.
(“ATI”), appeals under 35 U.S.C. §§ 134(c) and 315(b) from the rejections
of claims 1-4, 6-11, 13, 16, 17, 22-38, 42-57 and 66-70 of U.S. Patent
6,397,136 and claims 71-74 added during the reexamination proceedings1.
Br. 5. Third party requester, Elesys North America, Inc. (“Elesys”) is a
party to this appeal under 35 U.S.C. § 315(b) and responds with a Brief. We
AFFIRM-IN-PART.
STATEMENT OF THE CASE
This proceeding arose from a Request for Inter Partes Reexamination
(“Req. Reexam.”) of U.S. Patent 6,397,136 (“‘136 Patent”) filed by Elesys
on August 17, 2007. The ‘136 Patent is the subject of two judicial
proceedings in the U.S. District Court for the District of Delaware styled
Automotive Technologies International, Inc., v. American Honda Motor Co.,
Inc. et al., (Civil Action No. 06-187-GMS) and Automotive Technologies
International, Inc., v. Hyundai Motor America, Inc. et al., (Civil Action No.
06-391-GMS). Br. 4. Both judicial proceedings were stayed pending
reexamination of the following related patents in suit: Patent 6,712,387
(90/008,352; 90/010,035; 90/011,452); Patent 6,484,080 (90/008,346);
Patent 6,325,414 (90/008,348; 95/001,011); Patent 6,757,602 (90/008,350)
and Patent 6,942,248 (90/008,351; 95/001,012). Req. Reexam. 7-8;
Respondent (“Resp.”) Br. 2. Patent 5,901,978 (90/010,025) and Patent
6,422,595 (95/001,002), both under reexamination are also the subject of
both proceedings. Req. Reexam. 7-8; Resp. Br. 2.

1 Claims 5, 12, 14, 15, 18-21, 39-41 and 58-65 were not subject to
reexamination. Req. Reexam. 8; Right of Appeal Notice 2.
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Patent 6,397,136
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The ‘136 Patent
The ‘136 Patent issued with seventy claims. Claims 1, 8, 9, 24, 26,
27, 29, 36, 45, 49, 66, 69 and 70 have been amended. Claims 71-74 have
been added. Claims 1, 29, 49, 66, 69 and 70 are independent claims. The
‘136 Patent discloses, referring to Figure 1 reproduced below [numbers from
Figure 1 inserted], a system for determining the occupancy state of a vehicle
seat [1] utilizing a variety of transducers including weight sensors [6], [7], a
seat reclining angle sensor [9], ultrasonic or optical sensor systems [11], [12]
mounted on the A-Pillar and B-Pillar, and a capacitance sensor [32]. The
measured data and sensor output is input to a neural network [25] which
incorporates an algorithm that is trained to recognize different occupancy
states of the vehicle. Col. 17, l. 21-col. 23, l. 43.
Figure 1 of the ‘136 Patent is below:

Figure 1 depicts the system for determining seat occupancy state.
The subject matter of the appealed claims is illustrated by claim 1
(amendments underlined) which define the invention as:
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Patent 6,397,136
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1. A system for determining the occupancy state of a seat in
a vehicle in combination with the vehicle, the vehicle being one
of a plurality of different vehicle models, the system
comprising:
a plurality of transducers arranged in the vehicle, each of
said transducers providing data relating to the occupancy state
of the seat, at least one of said transducers being arranged in the
seat; and
processor means coupled to said transducers for receiving
the data from said transducers and processing the data to obtain
an output indicative of the current occupancy state of the seat,
said processor means comprising a trained pattern recognition
algorithm created from a plurality of data sets, each of said data
sets representing a different occupancy state of the seat and
being formed from data from said transducers while the seat is
in that occupancy state,
said trained pattern recognition algorithm producing the
output indicative of the current occupancy state of the seat upon
inputting a data set representing the current occupancy state of
the seat and being formed from data from said transducers
said trained pattern recognition algorithm being trained in
consideration of the vehicle model such that said trained pattern
recognition algorithm is specific to the vehicle model.
Prior art
The Examiner relies on the following prior art:
Mattes et al. (“Mattes”) 5,118,134 Jun. 02, 1992
Mathur 5,218,440 Jun. 08, 1993
Krogmann 5,247,584 Sep. 21, 1993
Corrado et al. (“Corrado”) 5,482,314 Jan. 09, 1996
Höwing 5,525,843 Jun. 11, 1996
Gentry et al. (“Gentry”) 5,573,269 Nov. 12, 1996
Lynch et al. (“Lynch”) 5,583,771 Dec. 10, 1996
Cashler 5,732,375 Mar. 24, 1998
Breed et al. (“Breed”) 5,845,000 Dec. 01 1998
Breed et al. (“595 Patent”) 6,422,595 Jul. 23, 2002
Breed et al. (“988 Patent”) 6,445,988 Sep. 03, 2002
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Patent 6,397,136
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Breed et al. (“809 Patent”) 6,529,809 Mar. 04, 2003
Breed et al. (“126 Patent”) 7,415,126 Aug. 19, 2008
Spies et al. (“Spies”) DE 4023109 A1 Jan. 23, 1992
Breed et al. (“WO ‘693”) WO 94/22693 Oct. 13, 1994
Breed et al. (“GB ‘332”) GB 2289332 A Nov. 15, 1995
Artificial Neural Networks,
http://www.learnartificialneuralnetworks.com, 2007-2008. (“ANN”)
SMART TM Airbag System, Bradley W. Smith et al., The Fourteenth Int’l.
Tech. Conference in Enhanced Safety of Vehicles, Paper No. 94, May
23-26, 1994. (“Smith”)
No More Submarining, Barry Fox, New Scientist Issue 2199, 14 August
1999. (“Fox”)
SAE Technical Paper 940527, Feb. 28-Mar. 3 1994. (“SAE”)
Occupant Sensing in Smart Restraint Systems, S. Andrews, 39th Annual
Proceedings for the Advancement of Automotive Medicine Oct. 16-18,
1995. (“Andrews”)
Rejections
Claims 1-4, 6-11, 13, 16, 17, 22-38, 42-57 and 66-74 are rejected
under 35 U.S.C. § 112, 2nd paragraph as indefinite.
Claims 1-4, 6-11, 13, 16, 17, 22-38, 42-57 and 66-74 are rejected as
unpatentable based on nonstatutory obviousness-type double patenting over:
claims 1-58 of the ‘809 Patent in view of ANN;
claims 1-78 of the ‘988 Patent in view of ANN;
claims 1-42 of the ‘595 Patent in view of ANN; and
claims 1-42 of the ‘126 Patent in view of ANN.
The following claims are rejected as unpatentable under
35 U.S.C. § 103(a) over the applied prior art as follows:
claims 1, 2, 22-30, 42-45, 69 and 70 over Smith;
claims 3, 6-9, 31, 32 and 34-36 over Smith, Gentry and Fox;
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claims 10, 37 and 46 over Smith and Mattes;
claims 69, 73 and 74 over Smith and Höwing;
claims 71-74 over Smith and Spies;
claims 1, 2, 11, 16, 17, 22, 24, 25, 27, 29, 30, 38, 44-46 and 48
over GB ‘332;
claims 3, 6-9, 31, 32 and 34-36 over GB '332, Gentry and Fox;
claims 1, 2, 4, 11, 13, 16, 17, 22, 24-28, 30 and 48 over WO ‘693,
SAE and Lynch;
claims 29, 33, 38, 43-47 and 70 over WO ‘693 and SAE;
claims 1-3, 6-9, 25, 29, 31, 32, 34-37, 43, 44 and 46-48 over SAE
and Gentry;
claims 3, 6-9, 31, 32 and 34-36 over WO ‘693, SAE, Lynch,
Gentry and Fox;
claims 1, 2, 10, 22, 24-27, 29, 30, 37, 43-46 and 66-68 over Breed,
SAE and Spies;
claims 1, 2, 10, 22, 24-27, 29, 30, 37, 43-46 and 48-57 over
Cashler and SAE;
claims 1, 6, 10 and 24-28 over Corrado, Mathur and Krogmann;
claims 29, 31-38, 43-57, 66-68 and 70-72 over Corrado and Spies;
claims 69, 73 and 74 over Corrado, Spies and Andrews.
claims 23, 42 and 69 over GB '332 and Höwing;
claims 23, 42, 69, 73 and 74 over SAE, Gentry2 and Höwing;
claims 23, 42 and 69 over WO ‘693, SAE, Lynch and Höwing;

2 The rejection is listed as based on SAE and Höwing, but the rejection is
substantively based on SAE, Gentry and Höwing. See Action Closing
Prosecution (“ACP”) 97.
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claims 66-68 and 71-74 over GB '332 and Spies; and
claims 66-68 over WO ‘693 and Spies.
ISSUES
1. Did the Examiner incorrectly reject all of the claims on appeal under
35 U.S.C. 112, 2nd paragraph as indefinite?
2. Did the Examiner incorrectly determine that all of the claims on
appeal are obvious over the claims of the ‘809 Patent, the ‘988 Patent, the
‘595 Patent and the ‘126 Patent each in view of ANN?
3. Did the Examiner incorrectly find that the applied prior art describes
an algorithm being trained, created or formed in consideration of the vehicle
model such that the algorithm is specific to the vehicle model?
4. Did the Examiner incorrectly find that the applied prior art describes a
transducer arranged in the seat?
5. Did the Examiner incorrectly find that the applied prior art describes a
capacitive or electric field sensor having a part arranged in the seat?
6. Did the Examiner incorrectly find that the applied prior art describes a
wave-receiving transducer arranged on the center of a top of a dashboard?
7. Did the Examiner incorrectly find that the applied prior art describes a
first wave-receiving transducer arranged over a front portion of the seat or in
front of the seat and a second wave-receiving transducer arranged over a rear
portion of the seat or behind the seat?
8. Did the Examiner incorrectly find that the applied prior art describes a
transducer consisting of seat buckle sensors, seatbelt payout sensors or
inductive sensors?
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Patent 6,397,136
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FINDINGS OF FACT (“FF”)
1. A seat is defined as: “a chair, stool, or bench intended to be sat in or
on”. Merriam-Webster Online Dictionary, available at http://www.merriam-
webster.com/dictionary/seat (last visited May 09, 2011).
‘136 Patent
2. The ‘136 Patent discloses a processor coupled to transducers arranged
in the vehicle for receiving data from the transducers and processing the data
to obtain an output indicative of the current occupancy state of the seat. Col.
12, ll. 55-62.
3. The processor comprises a trained pattern recognition or neural
network algorithm created from a plurality of data sets, each representing a
different occupancy state of the seat and being formed from transducer data
while the seat is in the occupancy state. Col. 12, l. 62-col. 13, l. 6.
4. In some embodiments of the invention, the processor is arranged to
accept only a separate stream of data from each transducer that is passed to
the processor without combining with another stream of data. Col. 5, ll. 11-
54; col. 13, ll. 7-11; col. 14, ll. 24-38; col. 23, ll. 28-37.
5. In another embodiment of the invention, the processor is coupled to
two transducers, receives data from the transducers and comprises an
algorithm which produces the output indicative of the current occupancy
state of the seat upon input of a data set formed from data from the
transducers. Col. 14, ll. 46-64.
6. System Adaptation involves determining the hardware configuration
and software algorithms for a particular vehicle. Col. 15, l. 66-col. 16, l. 1.
7. Each vehicle model or platform will most likely have a different
hardware configuration and different algorithms. Col. 16, ll. 1-3.
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8. The process of adapting the system to the vehicle begins with a survey
of the vehicle model and any existing sensors in the vehicle become
immediate candidates for inclusion in the system. Col. 16, ll. 61-64.
9. Input from the vehicle manufacturer will determine the types of
sensors that would be acceptable for the final system. Col. 16, ll. 64-66; col.
18, ll. 46-48.
10. Candidate transducers for a particular vehicle model are selected
based on such considerations as cost, alternate uses of the system, vehicle
interior passenger compartment geometry, desired accuracy and reliability,
vehicle aesthetics, vehicle manufacturer preferences, etc. Col. 41, ll. 44-50.
11. Once a candidate array of sensors is chosen, it is mounted into the
vehicle. Col. 17, ll. 7-9; col. 41, ll. 50-53.
12. The vehicle is subjected to an extensive initial data collection process,
the neural network or pattern recognition algorithm is developed and trained
based on the collected data and an accuracy assessment is made. Col. 17, ll.
21-60; col. 41, ll. 53-65
13. After many training and testing steps, the system is sent to vehicle
manufacturers for use in production vehicles, additional real world
validation data is collected and the system is trained and tested with
situations representative of the manufacturing and installation tolerances that
occur during the production and delivery of the vehicle as well as usage and
deterioration effects. Col. 29, l. 49-col. 31, l. 32.
14. Referring to Figure 9 below [numbers from Figure 9 inserted], in one
embodiment a transducer [110] is arranged on the headliner adjacent to the
dome light, a second transducer [111] is arranged on the center of the top of
the dashboard or instrument panel (i.e., in front of a seating area), and third
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and fourth transducers [112], [113] are arranged on the passenger side A-
pillar (i.e., in front of a seating area) and on the ceiling close to the
passenger side door (i.e., behind a seating area). Col. 23, ll. 44-53; col. 26,
ll. 55-58; col. 27, ll. 1-2.
Figure 9 of the ‘136 Patent is below:

Figure 9 depicts the vehicle transducer arrangement.
15. According to the ‘136 Patent, a transducer will generally mean the
combination of a transmitter and a receiver, but in some cases a transmitter
is not used and in such cases a transducer will mean only a receiver.
Transducers include, for example, capacitive, ultrasonic, electromagnetic
(antenna, CCD, CMOS arrays), weight measuring or sensing devices. Col.
7, ll. 5-13.
Smith
16. Smith describes a SMARTTM airbag system that utilizes inputs on
crash situations, occupant status and the vehicle environment to optimize
airbag performance to an actual crash. P. 570, Abs.
17. The system provides sensing of environmental influences and
occupancy status during a crash situation by measuring: 1) the crash severity
from accelerometer measurements, 2) the inflator temperature; 3) the
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presence of an occupant with a seat occupancy sensor; 4) the belt status of
the occupant with a belt switch; and 5) whether the occupant is out of
position with microwave radar. P. 571, col. 1, ¶ 5; p. 571, col. 1, ¶ 7-p. 572,
col. 1, ¶ 3; Fig. 1.
18. An electronic control unit (“ECU”) makes airbag deployment
decisions by comparing a reference signal computed by the ECU with
thresholds computed based on sensor measurements or generated by fuzzy
logic and sets deployment parameters (i.e., inflation level and delay time)
according to sensor measurements. P. 571, col. 1, ¶ 5; P. 572 col. 1, ¶ 4-p.
573, col. 2, ¶ 2; Table 2.
19. A simulation tool for adapting the airbag deployment parameters to
the sensor signals is used instead of carrying out barrier or sled testing for a
large number of test variations resulting from different crash types and
environmental conditions. P. 574, col. 2, ¶ 1-col. 2, ¶ 3; Fig. 5.
20. Inputs to the simulation tool are based on values that will be sensed in
the vehicle to determine the status at the time of the crash: temperature,
crash pulse from the accelerometer and occupant status (belted/unbelted,
out-of-position) and combined with input parameters that include vehicle
geometry, occupant position, belt usage, and inflator characteristics. P. 575,
col. 1, ¶¶ 1-3.
21. The temperature thresholds proposed for the SMARTTM airbag system
are based on expected frequency of airbag deployment at various
temperatures. P. 575 col. 1, ¶ 4.
22. Smith describes that the relationship of the expected frequency of
deployment at various temperatures varies for different vehicles, but that the
principle of determining the threshold temperatures from vehicle
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temperature versus airbag deployment frequency data is shown in Figure 6
below. P. 575 col. 1, ¶ 4.
Smith’s Figure 6 is below:

Figure 6 depicts airbag frequency of deployment versus temperature data.
23. Smith describes that for experimental validation, -100C and 650C
temperature thresholds are used. P. 575, col. 1 ¶ 4.
24. The SMARTTM airbag system is also experimentally validated for
different crash scenarios using a generic sled test buck representative of a
typical mid-sized car. P. 575, col. 2, ¶ 3-p. 576, col. 1, ¶ 1.
GB ‘332
25. GB ‘332 describes, referring to Figures 1 and 14 below [numbers
from Figures 1 and 14 inserted], training an artificial neural network to
determine the presence of a child seat or an occupant in the seat using
reflected ultrasonic energy detected by transducers [131], [133] or [231],
[232] mounted in the roof support pillar. P. 19, l. 9-p. 23, l. 12.
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Figures 1 and 14 of GB ‘332 are below:

Figures 1 and 14 each depict an arrangement of transducers in a vehicle.
26. Three resonators [641], [642], [643] are placed on the vehicle seat and
in conjunction with ultrasonic transducers [231], [232] are used to determine
the location of the front and back of the seat and the top of the seat back. P.
39, ll. 20-27.
Gentry
27. Gentry describes, referring to Figure 1 below [numbers from Figure 1
inserted], an apparatus [10] including a seat [34] with a weight sensor [60]
mounted on the seat cushion assembly [50] and a seat back assembly incline
sensor [62]. Abs.; col. 3, ll. 21-43; col. 4, ll. 10-15.
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Figure 1 is below:

Figure 1 depicts the sensor arrangement.
28. Controllable seats that move to prevent the vehicle occupant from
submarining may be used with the apparatus [10]. Col. 7, ll. 38-45.
Fox
29. Fox describes that during a car crash, bodies can “submarine” forcing
the pelvis down into the seat where the lap portion of the seat belt can ride
up and injure the abdomen.
WO ‘693
30. WO ‘693 describes, referring to Figures 5 and 6 below [numbers from
Figures 5 and 6 inserted], a seat belt spool out sensor or encoder [501] for
measuring the length of belt material pulled out of the seatbelt retractor and
a seat position sensor or potentiometer [601] positioned along the seat track
[602] below the seat [610]. Abs.; p. 29, l. 2-p. 30, l. 18.
Figures 5 and 6 of WO ‘693 are below:
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Figures 5 and 6 depict the seat belt spool out and seat position sensors.
SAE
31. SAE describes an occupant position sensor (OPS) used for
determining the position and velocity of the occupant and for pattern
recognition to distinguish a rear facing child seat from an occupant. P. 2,
col. 2, ¶ 6; p. 3, col. 1, ¶ 6; p. 3, col. 2, ¶ 6.
32. A library of tests can be formed for the child seat and occupant
presence detectors (CSOPD). P. 3, col. 2, ¶ 6-p. 4, col. 1, ¶ 1.
33. The test library applies to each model vehicle on which the CSOPD is
to be used unless it can be shown that the technology is not influenced by the
vehicle. P. 4, col. 1, ¶ 3.
Cashler
34. Cashler describes a seat occupant sensing system including an
arrangement of sensors on a bottom bucket seat cushion. Col. 2, l. 52- col.
3, l. 8; col. 3, ll. 21-32; Fig. 2.
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Spies
35. Spies describes, referring to Figures 1 and 2 below [numbers from
Figures 1and 2 inserted], a side view of a driver [2] (Fig. 1) and a side view
of a front seat passenger [2] (Fig. 2) in a vehicle that includes a seat [3] with
a seat contact [19] and a dashboard [8] (Fig. 1) and a side view of a front-
seat passenger [2] in a specific seating position. Trans. p. 2, ll. 11-16, 27-35;
p. 3, ll. 18-31.
Figures 1 and 2 are below:

Figures 1 and 2 depict a driver and front seat passenger in a vehicle.
36. The occupancy of a seat is sensed in known fashion by means of the
seat contact [19]. Trans. p. 3, ll. 28-29.
37. Spies describes, referring to Figure 2 above, the side view of front-
passenger [2], and a beam [annotated] sent or received between a transducer
attached to the dashboard [8] and the passenger [2]. Trans. p. 3, ll. 18-28; p.
4, ll. 1-2.
38. Spies depicts, referring to Figure 3 below [numbers from Figure 3
inserted], a top view of a vehicle with four occupants [2], four head rests
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[20] behind each occupant [2], four airbags [annotated] in front of each
occupant [2] and six sensors [18’] located to the right and left of each of the
airbags and in front of the occupants [2].
Figure 3 is below:

Figure 3 shows a top view of the vehicle sensor system.
39. One of the sensors [18’] is located in front of the two front occupants
[2] and centrally located between the two front airbags [annotated] which
enables the sensor [18’] to send and receive beams measuring both of the
front occupants [2], rather than just one occupant.
40. A person of ordinary skill in the art would infer from the disclosure of
Spies that any appropriate central location for one of the sensors [18’] may
be used, such as the center of the top of the dashboard.
41. Referring to Figure 1 above, Spies also describes sensors [17’]
attached to the inside of the roof [6] above the occupant’s [2] head and
behind the occupant’s [2] head to easily register any movement of the
occupant’s [2] head. Trans. p. 3, l. 43-p. 4, l. 1.
42. It is known to utilize restraint systems with belt tighteners to tighten a
passenger in a specific position on the seat. Trans. p. 1, ll. 24-25.
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43. It is also known to use three point belts and restrain systems that can
be activated by back tighteners. Trans. p. 3, ll. 7-10.
Corrado
44. Corrado describes an automotive interior occupant sensor system that
employs sensor-fusion signal processing that combines information provided
by two or more sensors. Col. 5, ll. 50-53.
45. The occupant sensor system includes a plurality of transducers
selected from infrared sensors, ultrasound sensors, weight sensors,
microwave sensors, light sensors, and laser sensors. Col. 25, ll. 61-64.
46. It is known in the art to use a pressure sensor within the seat to sense
the approximate weight of the driver. Col. 2, ll. 46-53, citing White U.S.
Pat. No. 5,071,160.
Andrews
47. Andrews describes an occupant sensor system that includes a weight
sensor in a vehicle seat. P. 554, ¶ 3; Fig. 3.
Höwing
48. Höwing describes a system for detecting an occupant including a seat
provided with a pair of electrodes in the seat and connected to a detection
circuit for detecting a change in capacitance between the electrodes. Abs.;
col. 4, ll. 24-31; col. 5, ll. 1-5, 16-29.
ANALYSIS
I. Drawing objections
ATI appeals the Examiner’s objection to the drawings under 37 CFR
§ 1.83(a). Br. 13-14. We need not and do not address ATI’s arguments in
this regard since drawing objections are not subject to review by the Board
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on appeal; rather they are reviewable upon petition to the Director.
35 U.S.C. § 134(a), 37 C.F.R. §§ 1.113, 1.181.
II. 35 U.S.C. § 112, 2nd paragraph rejections
A. Claims 1-4, 6-11, 13, 16, 17, 22-38, 42-57 and 66-74
Independent claims 1, 29, 49, 69 and 70 have been amended to recite
an algorithm being trained, created or formed “in consideration of the
vehicle model such that said algorithm is specific to the vehicle model.”
The Examiner rejects all of the appealed claims as indefinite on the basis
that the record makes the identification of a “vehicle model” uncertain; does
not identify which algorithm is specific to the “vehicle model” covered by
the claims; and does not explain how the algorithm is differently trained,
formed or created to be specific to the different vehicle models. Action
Closing Prosecution (“ACP”) 7-9, 12. Elesys’ arguments largely adopt the
Examiner’s position. Resp. Br. 4-5.
ATI argues that the identification of a vehicle model is not uncertain
because one skilled in the art understands that “vehicle model” is a term of
art and every vehicle on the market has a “make” and “model”. Br. 14. ATI
explains that one skilled in the art would be able to readily determine
whether one vehicle is of the same or a different vehicle model; e.g. when
one vehicle has a different interior, exterior, equipment including sensors,
etc. Br. 14. ATI also argues that the algorithm that is specific to the vehicle
model is not indefinite because the algorithm specific to the vehicle model is
an algorithm that is created from a plurality of data sets obtained for that
vehicle model. Br. 14-15, citing col. 15, ll. 66-col. 21, l. 4. ATI further
explains that although the training process for the algorithms is the same, the
algorithms produced, created or formed by the training process can differ
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from one vehicle model to another in view of the sensors that differ from
one vehicle model to another in their function, type and/or location. Br. 15.
ATI’s arguments and explanations are reasonable and consistent with
the ‘136 Patent Specification. The ‘136 Patent Specification discloses that:
1) the process of adapting the system to a vehicle starts with a survey of the
vehicle model and any existing sensors in the vehicle become immediate
candidates for inclusion in the system; 2) candidate transducers for a
particular vehicle model are selected based on considerations such as cost,
alternate uses of the system, vehicle interior passenger compartment
geometry, desired accuracy and reliability, vehicle aesthetics, vehicle
manufacturer preferences, etc.; 3) a candidate array of sensors is chosen and
mounted in the vehicle; 4) the vehicle is subjected to an extensive initial data
collection process; and 5) a neural network or pattern recognition algorithm
is trained or developed using the collected data. Col. 15, l. 66-col. 16, l. 3,
col; 16, ll. 61-66; col. 17, ll. 7-13, 21-60; col. 18, ll. 46-48; col. 41, ll. 44-65;
FFs 6-12.
For these reasons, the Examiner does not sufficiently demonstrate that
one with ordinary skill in the art would be unable to determine what
constitutes a “vehicle model”, which algorithm is specific to the “vehicle
model” or how the algorithm is trained, formed or created in consideration
of the vehicle model.
The Examiner also rejects the appealed claims as indefinite on the
basis that it is unclear how the algorithm is trained, created or formed “in
consideration of the vehicle model” and not in consideration of the
occupancy state of the seat. ACP 8-9, 12. Elesys makes similar arguments,
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directing attention to paragraphs 3 and 4 of the Declaration of inventor
David S. Breed. Resp. Br., Ex. 1 Breed Decl. ¶¶ 3-4.
We have considered the arguments and paragraphs 3 and 4 of the
Breed Declaration. The arguments and evidence do not sufficiently
demonstrate that the claims are indefinite. The Examiner’s determinations
and Elesys’ arguments are premised on the algorithm only being created or
trained based on the occupancy state of the seat. The claims do not preclude
the algorithm from being created from data sets representing different
occupancy states of the seat and also being trained in consideration of the
vehicle model. Since the claim language requires the data sets to be formed
from data from transducers that are arranged in a vehicle, it is unclear why
the pattern recognition algorithm could not be trained in consideration of the
specific vehicle model in which the transducers are arranged. Moreover, as
explained above, the ‘136 Patent Specification does not limit training,
creating or forming the algorithm based solely on the occupancy state of the
seat.
For these reasons, we do not sustain the rejection of claims 1-4, 6-11,
13, 16, 17, 22-38, 42-57 and 66-74 as indefinite.
B. Claims 66-68 and 71-74
Independent claim 66 has been amended to recite: “processing the
data from each of said transducers in combination with the data from at least
one other of said transducers . . . .” Newly added claims 71-74, which
ultimately depend from independent claims 29 and 69, recite similar
limitations as claim 66. The Examiner finds that the aforementioned
limitations “are contradictory to and unsupported by the ‘136 Patent
Specification which discloses processor means arranged to process each
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separate stream of data independent of the processing of the other streams of
data. ACP 10-11, citing col. 13, ll. 10-13; col. 14, ll. 43-45. The disclosure
cited by the Examiner is not the only embodiment described. Br. 16, citing
col. 13, ll. 10-13; col. 14, ll. 25-45. Consistent with the claim limitations,
the ‘136 Patent also discloses an embodiment, in which a processor is
coupled to at least two wave–receiving transducers, receives data from the
transducers and includes an algorithm that produces an output upon input of
a data set formed from data from the transducers. Col. 14, ll. 46-64; FF 5.
We have also considered the Examiner’s and Elesys’ arguments that the
processing data limitation is somehow contradicted by remarks made during
prosecution of the ‘136 Patent. ACP 11; Resp. Br. 6; citing Exhibit 2 Patent
Owner’s Amendment filed 19 July 2001, p. 7. However, the remarks made
by the Patent Owner during prosecution were directed to different claims
with different limitations, specifically claim 29 of Patent ‘136 which recites
“processor means coupled to said transducers for receiving only the single
stream of data from each of said transducers such that the stream of data . . .
is passed to said processor means . . . without combining with another
stream of data . . . .” Exhibit 2, pp. 2, 7.
For these additional reasons, we do not sustain the rejection of claims
66-68 and 71-74 as indefinite.
C. Claims 72 and 74
Claims 72 and 74 are dependent on claims 71 and 73 respectively and
each recite: “said second transducer is arranged on the center of a top of a
dashboard or instrument panel”. Claims 71 and 73 each recite: “a second
transducer arranged behind the seating area”. The Examiner finds that the
limitations of claims 72 and 74 are inconsistent with the limitations of
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claims 71 and 73. ACP 12. ATI argues that the claims are not indefinite
explaining that claims 72 and 74 are directed to an embodiment shown in
figure 8 of the ‘136 Patent and further define the general positions of the
transducers of claims 71 and 73. Br. 16.
We are unpersuaded by ATI’s argument. It is unclear how the same
“second transducer” can be arranged behind a seating area as recited in
claims 71 and 73 and also arranged on the center of a top of a dashboard or
instrument panel as recited in claims 72 and 74. See also Resp. Br. 6. The
‘136 Patent discloses more than one transducer at the recited locations. A
first transducer [110] arranged on the headliner adjacent to the dome light, a
second transducer [111] arranged on the center of the top of the dashboard or
instrument panel (i.e., in front of a seating area), and third and fourth
transducers [112], [113] arranged on the passenger side A-pillar (i.e., in front
of a seating area) and on the ceiling close to the passenger side door (i.e.,
behind a seating area). Col. 23, ll. 44-53; col. 26, ll. 55-58; col. 27, ll. 1-2;
FF 14. For these reasons, we sustain the rejection of claims 72 and 74 as
indefinite.
D. Claims 2, 29-48, 52, 67
The Examiner finds the following limitations indefinite: “only the
single stream of data from each of said transducers such that the stream of
data from each of said transducers is passed to said processor means . . .
without combining with another stream of data and processing the stream of
data . . . .” ACP 9-10. Contrary to the Examiner’s position and Elesys’
argument (Resp. Br. 5-6), these limitations were not added to the claims
during reexamination as they are identically found in claims 2, 29-48, 52 and
67 of the issued ‘136 Patent. Although amendments were made to
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independent claim 29 and to the claims upon which claims 2, 52, and 67
depend, the Examiner does not explain how the amendatory matter creates
the issue. We find that it does not. Based on the record before us it is clear
that the Examiner finds the original language indefinite; not based on any
amendatory language. However, during reexamination proceedings
consideration of 35 U.S.C. § 112 issues is limited to the amendatory subject
matter and should not be directed to claim limitations found in the original
patent claims. See MPEP §§ 2258 II, 2268 II, and 2658 II. Since the
disputed limitations are found in the claims of the issued ‘136 Patent, we
need not and will not address whether claims 2, 29-48, 52 and 67 are
indefinite on this basis.
III. Obviousness-type double patenting rejections
The Examiner rejects claims 1-4, 6-11, 13, 16, 17, 22-38, 42-57 and
66-74 over claims 1-59 of the ‘809 Patent, as evidenced by the Artificial
Neural Networks (“ANN”). ACP 12-16. In determining whether a claim is
barred by nonstatutory obviousness-type double patenting, the question is
whether the invention defined in the claim would have been anticipated by
or been an obvious variant of the invention defined in a patent claim. In re
Berg, 140 F.3d 1428, (Fed. Cir. 1998). The Examiner provides the
following comparison of the scope of the claims of the ‘136 Patent under
reexamination and the ‘809 Patent:
Although the conflicting claims are not identical, they are not
patentably distinct from each other because they both describe a
system for determining the occupancy state of a seat in a
vehicle in combination with the vehicle including, inter alia,
processing a pattern recognition algorithm.
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ACP 13. The Examiner points out that the ‘136 Patent claims (i.e.;
independent claims 1, 29, 49, 66, 69 and 70) have been amended to recite an
algorithm that is trained, created or formed “in consideration of the vehicle
model such that said algorithm is specific to the vehicle model” which is not
recited in claims 1-59 of ‘809 Patent. ACP 15. The Examiner finds that the
‘809 Patent Specification, not the claims, discloses that the hardware
configuration and software algorithms are determined for a particular
vehicle. ACP 15. The Examiner relies on ANN as evidence that neural
networks require training. ACP 16. The Examiner concludes that it would
have been obvious to train the algorithm in consideration of the vehicle
model given the industry trend of enhancing vehicle safety via electronics
and would have been a predictable use of prior art elements according to
their established functions. ACP 16. Elesys’ arguments substantially adopt
the Examiner’s position. Resp. Br. 6. The Examiner’s reliance on the
disclosure of the ‘809 Patent Specification for describing an algorithm that is
trained, created or formed in consideration of the vehicle model so that it is
specific to the vehicle model is misplaced. Although a patent disclosure can
be utilized for determining the scope and/or meaning of a claim term, the
patent disclosure can not be used as prior art in analyzing double patenting.
In re Vogel, 422 F.2d 438, 441 (CCPA 1970); Geneva Pharmaceuticals, Inc.
v. GlaxoSmithKline PLC, 349 F.3d 1373, 1385 (Fed. Cir. 2003). The
Examiner does not rely on the ‘809 Patent disclosure to ascertain the scope
or meaning of the claim terms. The Examiner does not otherwise direct us
to, and we can not find, where claims 1-59 of the ‘809 Patent either alone or
in combination with ANN disclose or render obvious a system that includes
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an algorithm being trained, created or formed in consideration of the vehicle
model such that it is specific to the vehicle model.
For these reasons, we do not sustain the rejection of claims 1-4, 6-11,
13, 16, 17 22-38, 42-57 and 66-71 and 73 over claims 1-59 of the ‘809
Patent as evidenced by ANN. The Examiner incorporates by reference its
findings and conclusions addressing the rejection of the ‘136 Patent claims
over the ‘809 Patent to the double patenting rejections over claims 1-78 of
the ‘988 Patent; claims 1-42 of the ‘595 Patent and claims 1-42 of the ‘126
Patent, each evidenced by ANN. ACP 16-19. For the same reasons, we do
not sustain the rejections of claims 1-4, 6-11, 13, 16, 17 22-38 42-57 and 66-
71 and 73 over: 1) claims 1-78 of the ‘988 Patent as evidenced by ANN; 2)
claims 1-42 of the ‘595 Patent as evidenced by ANN; and 3) claims 1-42 of
the ‘126 Patent as evidenced by of ANN. Since the scope of claims 72 and
74 are indefinite, we do not reach the obviousness type double patenting
rejection of claims 72 and 74. See In re Steele, 305 F.2d 859, 862 (CCPA
1962).
IV. Obviousness rejections over the applied prior art
A. Claims 1, 2, 22-30, 42-45, 69 and 70 over Smith; claims 3, 6-9, 31, 32
and 34 over Smith, Gentry and Fox; claims 10, 37 and 46 over Smith and
Mattes; claims 69, 73 and 74 over Smith and Höwing; and claims 71-74 over
Smith and Spies
Independent claims 1, 29, 69 and 70 each recite an algorithm being
trained, created or formed “in consideration of the vehicle model such that
said algorithm is specific to the vehicle model.” The Examiner finds that
Smith teaches or suggests an algorithm using fuzzy logic for an airbag
system that is created, formed or trained in consideration of a wide range of
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vehicle and occupant conditions. ACP 21-22, 28-29. The Examiner bases
the findings on Smith’s description that: 1) the SMARTTM airbag system
utilizes inputs on crash situations, occupant status and the vehicle
environment (p. 570); 2) a wide range of vehicle and occupant conditions
can be accommodated (p. 574); and 3) “vehicle geometry” and
“thresholds . . . based on expected frequency of deployment at various
temperatures” are considered (p. 575). Elesys’ arguments, in essence, adopt
the Examiner’s determinations. Resp. Br. 6-7.
We are persuaded by ATI’s argument that Smith does not describe
that the algorithm is trained, created or formed in consideration of the
vehicle model. Br. 18. The Examiner does not direct us to, and we cannot
find, where Smith describes that the algorithm or fuzzy logic algorithm is
trained, created or formed in consideration of the vehicle model such that it
is specific to the vehicle model. Rather, Smith describes that airbag
deployment decisions are made using an electronic control unit (ECU)
trigger algorithm by comparing a reference signal computed by the ECU
with thresholds computed based on sensor measurements or generated by
fuzzy logic. P. 572 col. 1, ¶ 4-p. 573, col. 2, ¶ 2; Table 2; FF 18. Smith also
describes using a simulation tool for adapting the airbag deployment
parameters to the sensor signals instead of carrying out barrier or sled testing
for a large number of test variations resulting from different crash types and
environmental conditions. P. 574, col. 1, ¶ 1-col. 2, ¶ 3; Fig. 5; FF 19.
Smith describes that the temperature thresholds proposed for the SMARTTM
airbag system are based on expected frequency of airbag deployment at
various temperatures. P. 575 col. 1, ¶ 4; FFs 21. The relationship between
the frequency of airbag deployment at various temperatures varies for
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different vehicles, but the general principle is shown in Figure 6. P. 575 col.
1, ¶ 4; FF 22. However, Smith describes that -100C and 650C temperature
thresholds are used for experimental validation. P. 575 col. 1, ¶ 4; FF 23.
Despite Smith’s general disclosure that the relationship of the expected
frequency of airbag deployment at various temperatures varies for different
vehicles, Smith does not describe that the temperature threshold inputs for
the simulation tool or ECU trigger algorithm varies for different vehicles
since Smith describes using -100C and 650C temperature thresholds. P. 572
col. 1, ¶ 4-p. 573, col. 2, ¶ 2; Table 2; p. 574, col. 2, ¶ 1-p. 575, col. 1, ¶ 4;
FFs 22-23. Thus, it is equally if not more likely that the description that the
relationship of frequency of deployment and temperature varies for different
vehicles is a result and not necessarily a parameter used by the simulation
tool or ECU algorithm.
Moreover, even if the Examiner’s findings are based on Smith’s
description of using vehicle geometry as an input parameter for the
simulation tool (P. 575, col. 1, ¶¶1-3; FF 20), the Examiner does not
sufficiently explain how Smith’s description using vehicle geometry as an
input to the simulation tool meets the limitation of an algorithm being
trained, created, or formed in consideration of the vehicle model. A vehicle
model is a term of art and one with ordinary skill in the art can readily
discern different vehicle models based on the interior, exterior and
equipment including the sensors as explained by ATI and addressed in
Section II A. Moreover, ATI and the ‘136 Patent disclosure emphasize that
vehicle models differ in terms of existing sensors, sensor function, sensor
type and/or sensor location. Br. 14-15; col. 15, l. 66-col. 16, l. 3; col. 16, ll.
61-66; col. 18, ll. 46-48; col. 41, ll. 44-50; FFs 6-10. Smith merely discloses
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“vehicle geometry” but it is unclear what is meant by the term. Smith does
not provide any indication, nor does the Examiner sufficiently explain, that
“vehicle geometry” is related to the existing sensors in a vehicle, the vehicle
interior, exterior or equipment.
For all these reasons, the rejection of claims 1, 2, 22-30, 42-45 and
69-70 as obvious over Smith is not sustained.
Claims 1 and 29 also recite: “at least one of said transducers being
arranged in the seat”. Independent claim 69 similarly recites: “at least one
of said transducers being a capacitive or electric field sensor having a part
arranged in the seat”. The Examiner finds that Smith describes a belt switch
that determines the belt status of a driver and asserts that it is inherent that
the belt switch is arranged in the seat. ACP 23, 31, citing Smith p. 572. In
support of the Examiner’s position, Elesys proffers a broad claim
construction for “in the seat” such that it would mean “in the seat area”.
Resp. Br. 7.
We disagree with Elesys’ proposed claim construction and argument
that Smith’s belt switch is arranged “in the seat area”. Resp. Br. 7-8. The
proposed claim construction renders the limitation “in the seat” moot as it
unduly broadens its scope beyond the seat itself such that it could encompass
other structures adjacent the seat such as the floor, roof or dashboard “in the
seat area”. Instead, we agree with ATI that Smith’s belt switch is not
arranged in the seat. Br. 19. The Examiner does not direct us to, and we
cannot find, where Smith describes that the belt sensor is arranged in the seat
nor does the Examiner sufficiently explain why one of ordinary skill in the
art would have arranged the sensor in the seat. For these additional reasons,
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we do not sustain the rejection of claims 1, 2, 22-30, 42-45 and 69 as
obvious over Smith.
Claims 3, 6-10, 31, 32, 34, 37, 46 and 71-74 ultimately depend from
claims 1, 29 and 69 and recite additional limitations specific to the
transducers. The Examiner does not rely on Höwing, Gentry, Fox, Mattes or
Spies for describing an algorithm being trained, created or formed in
consideration of the vehicle model so that it is specific to the vehicle model.
ACP 57-64, 148-149. For the same reasons explained immediately before
addressing the rejection of claims 1, 2, 22-30, 42-45, and 69-70 as obvious
over Smith, we do not sustain the rejections of: 1) claims 3, 6-9, 31, 32 and
34 as obvious over Smith, Gentry and Fox; 2) claims 10, 37 and 46 as
obvious over Smith and Mattes; 3) claims 69 and 73 as obvious over Smith
and Höwing; and (4) claims 71 and 73 as obvious over Smith and Spies.
Since the scope of claims 72 and 74 is indefinite, we do not reach the
rejection of claims 72 and 74 over the prior art. See In re Steele, 305 F.2d at
862.
B. Claims 1, 2, 11, 16, 17, 22, 24, 25, 27, 29, 30, 38, 44-46 and 48 over
GB ‘332; and claims 3, 6-9, 31, 32 and 34-36 over GB '332, Gentry and Fox
Independent claims 1 and 29 each recite: “at least one of said
transducers being arranged in the seat”. The Examiner finds that GB ‘332
describes the disputed limitations since GB’ 332 describes resonators [641],
[642], [643] placed on the seat. ACP 66-67; p. 19, l. 9-p. 23, l. 12; p. 39, ll.
20-27; FFs 25-26.
ATI argues that GB ‘332 does not describe sensors arranged in the
seat but instead describes that the resonators [641], [642], [643] are arranged
on the seat as shown in Figure 14. Br. 20. In other words, ATI argues that
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“in the seat” carries a narrow meaning that requires the at least one
transducer to be arranged within the interior portions of the seat (i.e., within
the seat cushion and below the seat surface). An inventor is free to be their
own lexicographer, but must set out their definition within the patent
disclosure. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Absent
claim language carrying a narrow meaning, the broadest reasonable meaning
applies and claims should only be limited based on the specification when
the specification expressly disclaims the broader definition. In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004) (citation omitted). The ‘136 Patent
disclosure does not provide an express definition for “in the seat”.
Therefore, the claim terms are given the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997);
see also In re American Academy of Science Tech. Center, 367 F.3d 1359,
1364 (Fed. Cir. 2004). The ordinary meaning of claim terms may be
established by dictionary definitions. CCS Fitness Inc. v. Brunswick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002).
Consistent with the dictionary definition, a “seat” means “a chair,
stool or bench intended to be sat in or on.” FF 1 (emphasis added). One
with ordinary skill in the art would understand that in the context of a seat
and similar sitting surfaces, the prepositions “on” and “in” are used
interchangeably. For example, an object can be placed in a chair, on a
bench, on a sofa, in a pew, or in a seat. In each case, the object is placed on
a surface of the chair, bench, sofa, pew or seat. Therefore, the broadest
reasonable meaning of “in the seat” includes “on the seat” in addition to
ATI’s narrow meaning. For these reasons, we are we are unpersuaded by
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ATI’s argument that GB ‘332 does not describe at least one transducer
arranged in the seat.
ATI also argues that the GB ‘332 resonators [641], [642], [643] are
not used to provide data sets from which the algorithm is created. Br. 20.
ATI’s argument is not commensurate in scope with the claim limitations.
Claims 1 and 29 recite: “a plurality of transducers . . . each of said
transducers providing data relating to the occupancy state of the seat, at least
one of said transducers being arranged in the seat . . .” and an “algorithm
created from a plurality of data sets, each of said data sets representing a
different occupancy state of the seat and being formed from data from said
transducers while the seat is in the occupancy state . . . .” Claims 1 and 29
do not require the algorithm to be created from data sets formed from data
from the transducer arranged in the seat, nor do claims 1 and 29 require the
algorithm to be created from data sets formed from each and every one of
the plurality of transducers. Thus, the algorithm could be created from data
sets formed from data from only some of the plurality of transducers, and
not necessarily including data from the transducer arranged in the seat.
For all these reasons, we sustain the rejections of claims 1, 2, 11, 16,
17, 22, 24, 25, 27, 29, 30, 38, 44-46 and 48 as obvious over GB ‘332.
Claims 3, 6-9, 31, 32 and 34-36 ultimately depend from claims 1 and
29 and recite limitations specific to the transducers. Br. 20-21. The
Examiner finds that Gentry describes a weight sensor [60] arranged in the
seat and a seat incline sensor [62] and the use of controllable seats to prevent
vehicle occupant submarining. ACP 73-75, citing Gentry col. 3, ll. 31-42;
col. 4, ll. 10-15; col. 7, ll. 18-19, 38-46; Fig. 2; FFs 27-28. The Examiner
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directs attention to Fox as evidence that it is well known that submarining
should be avoided. ACP 76; FF 29.
ATI does not argue the limitations of the dependent claims, instead
arguing that the applied prior art does not teach or suggest a transducer
arranged in a seat and used to provide a data set for use in creating an
algorithm. Br. 20. In addition to the arguments already addressed with
respect to GB ‘332, ATI argues that Gentry describes a weight sensor
arranged in a seat and a seat incline sensor not arranged in the seat and Fox
shows that submarining of an occupant during a crash is a recognized
problem. Br. 20. ATI’s arguments are unpersuasive because they attack the
teachings of each of the references separately rather than addressing the
combined teachings of GB ‘332, Gentry and Fox. One cannot show non-
obviousness by attacking the teachings of the references individually when
the rejection is based on the teachings of the combination of references. In
re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Circ. 1986) (citation
omitted).
ATI also argues that a transducer arranged in the seat and used to
provide a data set for use in creating an algorithm is not obvious in view of
the applied prior art because the applied prior art lacks recognition of the
possibility or existence of a predictable result. Br. 20. We are unaware of
any requirement that the applied prior art recognize the possibility or
existence of a predictable result. If this was the case, the applied prior art
would necessarily have to recognize the possibility or the existence of the
combination. It is not necessary to find precise teachings in the prior art
directed to the specific subject matter claimed because inferences and
creative steps that a person of ordinary skill in the art would employ can be
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taken into account. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Rather, the combination of familiar elements according to known methods is
likely to be obvious when it yields no more than predicable results. Id. at
416. Here, the Examiner accounts for all of the claimed features and has set
forth a reasonable basis for combining the prior art. ACP 72-77. In contrast,
ATI does not offer a meaningful explanation, nor direct us to objective
evidence, demonstrating that combining a weight sensor arranged in the seat
and an incline sensor as taught by Gentry with the GB ‘332 system would
not have been obvious to one with ordinary skill in the art and would not
yield a predictable result.
For these reasons, in addition to the reasons addressing the rejection
of claims 1, 2, 11, 16, 17, 22, 24, 25, 27, 29, 30, 38, 44-46 and 48 as obvious
over GB ‘332, we sustain the rejection of claims 3, 6-9, 31, 32 and 34-36 as
obvious over GB ‘332, Gentry and Fox.
C. Claims 1, 2, 4, 11, 13, 16, 17, 22, 24-28, 30 and 48 over WO ‘693,
SAE and Lynch; and claims 29, 33, 38, 43-47 and 70 as obvious over WO
‘693 and SAE
The Examiner finds that WO ‘693 describes at least one transducer
arranged in the seat since WO ‘693 describes a seat position sensor [601]
and a seat belt spool out sensor [501]. ACP 99; 113-114, citing figure 6 and
Abs. The Examiner does not rely on SAE and/or Lynch for describing a
sensor arranged in the seat. ACP 99, 103-104; 115. Elesys’ arguments
substantially adopt the Examiner’s determinations. Resp. Br. 12-13. ATI
argues that WO ‘693 does not describe a transducer arranged in the seat and
directs attention to Figures 5 and 6 pointing out that seat belt spool out
sensor [501] is not arranged in the seat and that sensor [601] is arranged
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below the seat. Br. 23-24. Consistent with ATI’s arguments, Figure 5
describes a seat belt spool out sensor or encoder [501] for measuring the
length of belt material pulled out of the seatbelt retractor and Figure 6 shows
seat position sensor or potentiometer [601] located below the seat [610].
Abs.; p. 29, l. 2-p. 30, l. 18; Figs. 5-6; FF 30. The Examiner does not
otherwise explain that it would have been obvious to one with ordinary skill
in the art to modify the sensor system of WO ‘693, SAE or sensor system of
WO ‘693, SAE and Lynch to include a sensor arranged in the seat or on the
seat.
For these reasons, we do not sustain the rejections of claims 1, 2, 4,
11, 13, 16, 17, 22, 24-28, 30 and 48 over WO’ 693, SAE and Lynch and
claims 29, 33, 38 and 43-47 over WO’ 693 and SAE.
Independent claim 70 does not recite: “at least one of said transducers
being arranged in the seat” and ATI does not separately argue the limitations
of claim 70. Br. 23. Claim 70 instead recites: “at least one of said
transducers being selected from a group consisting of seat belt buckle
sensors, seatbelt payout sensors and inductive sensors. . . .” WO ‘693
describes a seatbelt payout sensor, i.e., seat belt spool out sensor [501].
Abs.; p. 29, l. 2-p. 30, l. 18; Fig. 5; FF 30. For these reasons, we sustain the
rejection of claim 70 over WO’ 693 and SAE.
D. Claims 3, 6-9, 31, 32 and 34-36 over WO ‘693, SAE, Lynch, Gentry
and Fox
Claims 3, 6-9, 31, 32 and 34-36, ultimately depend from claims 1 and
29 and recite additional limitations directed to the transducers. The
Examiner makes identical findings regarding the Gentry and Fox references
as those explained above in Section IV B. Compare ACP 118-119 with
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ACP 73-76. The Examiner determined that it would have been obvious to
one with ordinary skill in the art at the time the invention was made to
include a weight sensor [60] arranged in the seat and an incline sensor [62]
as taught by Gentry in the system of WO ‘693, SAE and Lynch due to the
industry trend of using controllable seats to prevent a vehicle occupant from
submarining. ACP 119.
ATI’s argument that the applied prior art does not teach or suggest
arranging at least one transducer in the seat that provides data sets for use in
creating an algorithm (Br. 25) is unpersuasive because claims 1 and 29 do
not require the algorithm to be created from a data set from data from the
transducer arranged in the seat. ATI’s additional arguments that: 1) WO
‘693 describes a belt spool out sensor [501] that is not arranged in the seat
and a seat position sensor [601] arranged below the seat; and 2) Gentry
describes a weight sensor arranged in a seat and a seat incline sensor not
arranged in the seat (Br. 25) are unpersuasive because they attack the
teachings of the WO ‘693 and Gentry references separately rather than
addressing the combined teachings of WO ‘693, SAE, Lynch Gentry and
Fox.
For the same reasons explained before in Section IV B, ATI’s
argument that it would not have been obvious in view of the applied prior art
to arrange a transducer in the seat and use it to provide a data set for use in
creating an algorithm because the applied prior art lacks recognition of the
possibility or existence of a predictable result (Br. 25) is unpersuasive. The
Examiner accounts for all the claim limitations and sets forth a reasonable
basis for combining the teachings of the prior art. ACP 117-121. ATI does
not offer a meaningful explanation, nor direct us to objective evidence,
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demonstrating that combining a weight sensor [60] arranged in the seat and
an incline sensor [62] as taught by Gentry with the WO ‘693, SAE and
Lynch system would not have been obvious to one with ordinary skill in the
art and would not yield a predictable result.
For all these reasons, the rejection of claims 3, 6-9, 31, 32 and 34-36
as obvious over WO ‘693, SAE, Lynch, Gentry and Fox is sustained.
E. Claims 1-3, 6-9, 25, 29, 31, 32, 34-37, 43, 44 and 46-48 over SAE and
Gentry
The Examiner finds that SAE describes the claim limitations except
for a transducer arranged in a seat. ACP 91-96, citing SAE pp. 3-4; see also
P. 2, col. 2, ¶ 6; p. 3, col. 1, ¶ 6; p. 3, col. 2, ¶ 6-p. 4, col. 1, ¶ 1; p. 4, col. 1, ¶
3; FFs 31-33. The Examiner makes identical findings with respect to the
Gentry reference as explained above in Section IV B. Compare ACP 93-94
with ACP 73-76, 118-119. The Examiner determined that it would have
been obvious to one with ordinary skill in the art at the time the invention
was made to include a weight sensor [60] arranged in the seat and an incline
sensor [62] as taught by Gentry in the SAE system due to the industry trend
of using seats that controllably move to prevent a vehicle occupant from
submarining. ACP 94-95.
ATI’s argument that Gentry shows a weight sensor arranged in a seat,
but does not disclose training of a pattern recognition algorithm (Br. 22) are
unpersuasive since the Examiner relies on SAE for describing this disputed
limitation; not Gentry. ACP 95-96. ATI’s argument is also unpersuasive
because it attacks the teachings of Gentry alone rather than addressing the
combined teachings of SAE and Gentry.
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For the same reasons explained before in section IV B, ATI’s repeated
arguments that: 1) the applied prior art does not teach or suggest arranging in
the seat at least one transducer that provides data sets for use in creating an
algorithm; and 2) it would not have been obvious in view of the applied
prior art to arrange a transducer in the seat and use it to provide a data set for
use in creating an algorithm because the applied prior art lacks recognition
of the possibility or existence of a predictable result (Br. 26-27) are
unpersuasive. The Examiner accounts for all the claim limitations and sets
forth a reasonable basis for combining the teachings of the prior art. ACP
91-96. ATI does not offer a meaningful explanation, nor direct us to
objective evidence, demonstrating that combining Gentry’s weight sensor
[60] arranged in the seat and incline sensor [62] with the SAE system would
not have been obvious to one with ordinary skill in the art and would not
yield a predictable result.
For all these reasons, we sustain the rejection of claims 1-3, 6-9, 25,
31, 32, 34-37, 43, 44 and 46-48 as obvious over SAE and Gentry.
F. Claims 1, 2, 10, 22, 24-27, 29, 30, 37, 43-46 and 48-57 over Cashler
and SAE
The Examiner finds that Cashler describes sensors that are mounted
on a bottom bucket seat cushion. ACP 135; col. 2, l. 52- col. 3, l. 8; col. 3,
ll. 21-32; Fig. 2; FF 34.
ATI’s argument that Cashler does not describe an algorithm that is
trained in consideration of the vehicle model (Br. 26) is unpersuasive
because the Examiner relies on SAE for describing this limitation (ACP 138-
139); not Cashler.
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ATI’s argument that Cashler’s teachings are limited to seats by virtue
of the placement of the sensors in connection with the seat (Br. 26) is
unpersuasive because ATI too narrowly focuses on the specific teachings of
Cashler. The teachings of Cashler are not limited to seats because a
reference is available for all that it teaches by way of technology and is not
limited to the particular invention it is describing. EWP Corp. v. Reliance
Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (emphasis omitted).
We have already considered and find unpersuasive ATI’s repeated
argument that it would not have been obvious in view of the applied prior art
to arrange a transducer in the seat and use it to provide a data set for use in
creating an algorithm because the applied prior art lacks recognition of the
possibility or existence of a predictable result (Br. 26) for the same reasons
as explained in Section IV B. The Examiner accounts for all the claim
limitations and sets forth a reasonable basis for combining the teachings of
the prior art. ACP 132-140. ATI does not offer a meaningful explanation,
nor direct us to objective evidence demonstrating that combining sensors
arranged in the seat as taught by Cashler with the SAE system would not
have been obvious to one with ordinary skill in the art and would not yield a
predictable result.
For all these reasons, we sustain the rejection of claims 1, 2, 10, 22,
24-27, 29, 30, 37, 43-46 and 48 over Cashler and SAE.
Independent claim 49 does not recite “at least one of said transducers
being arranged in the seat” and ATI does not separately argue the limitations
of claims 49-57. Br. 26. For this reason alone, we sustain the rejection of
claims 49-57 over Cashler and SAE.
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G. Claims 1, 2, 10, 22, 24-27, 29, 30, 37, 43-46 and 66-68 over Breed,
SAE and Spies
The Examiner relies on Breed and SAE for describing the claim
limitations except for a transducer being arranged in the seat. ACP 121-131.
The Examiner finds that Spies describes a seat contact sensor [19] arranged
in the seat. ACP 125; Trans. p. 2, ll. 11-16, 27-35; p. 3, ll. 18-31; FFs 35-36.
ATI argues that the Spies translation refers to element [19] as a seat
contact, not a seat contact sensor or a transducer. Br. 25, citing Spies trans.
p. 3, ll. 28-31. ATI’s arguments are misplaced as they focus on form over
substance. Spies describes that the occupancy of a seat is sensed in known
fashion by means of seat contact [19]. Trans. p. 2, ll. 11-16, 27-35; p. 3, ll.
18-31; FFs 35-36; see also Resp. Br. 13-14. It is self-evident that Spies’ seat
contact [19] is a sensor since the occupancy state of the seat is sensed via the
seat contact [19]. To the extent that ATI argues that Spies’ seat contact [19]
utilized for sensing is not a transducer, we are unpersuaded. The ‘136 Patent
provides that a transducer can be only a receiver and provides capacitive,
ultrasonic, electromagnetic (antenna, CCD, CMOS arrays), weight
measuring or sensing devices as examples of transducers. Col. 7, ll. 5-13;
FF 15.
We have already considered and find unpersuasive ATI’s arguments
that: 1) the applied prior art does not teach or suggest arranging in the seat at
least one transducer that provides data sets for use in creating an algorithm;
and 2) it would not have been obvious in view of the applied prior art to
arrange a transducer in the seat and use it to provide a data set for use in
creating an algorithm because the applied prior art lacks recognition of the
possibility or existence of a predictable result (Br. 25-26) for the same
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reasons as explained in Section IV B. The Examiner accounts for all the
claim limitations and sets forth a reasonable basis for combining the
teachings of the prior art. ACP 121-132. ATI does not offer a meaningful
explanation nor direct us to objective evidence demonstrating that it would
not have been obvious to one with ordinary skill in the art to combine a seat
contact [19] sensor as taught by Spies with the system of Breed and SAE
and would not yield a predictable result.
For all these reasons we sustain the rejection of claims 1, 2, 10, 22,
24-27, 29, 30, 37 and 43-46 over Breed, SAE and Spies.
Independent claim 66 does not recite “at least one of said transducers
being arranged in the seat” and ATI does not separately argue the limitations
of claims 66-68. Br. 25-26. For this reason alone, we sustain the rejection
of claims 66-68 over Breed, SAE and Spies.
H. Claims 1, 6, 10 and 24-28 over Corrado, Mathur and Krogmann; and
claims 29, 31-38 and 43-48 over Corrado and Spies
The Examiner finds that Corrado describes at least one transducer
arranged in the seat, directing attention to the description of weight sensors
in Corrado’s claims. ACP 141, citing Corrado col. 25, ll. 61-64; ACP 146,
citing Third Party Requester’s Comments and Claim Charts Appendix filed
May 6, 2009; see also FF 45. The Examiner does not rely on Mathur and
Krogmann for describing a transducer arranged in the seat. ACP 140-146.
The Examiner also finds that Spies describes a seat contact sensor [19].
ACP 146, citing Third Party Requester’s Comments and Claim Charts
Appendix filed May 6, 2009.
ATI asserts that Corrado does not disclose weight sensors arranged in
a seat, arguing that the weight sensors could be arranged below the seat. Br.
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26. We are unpersuaded by ATI’s arguments because Corrado describes
that it is known in the art to use a pressure sensor within the seat to sense the
approximate weight of the driver. Col. 2, ll. 46-53, citing White U.S. Pat.
No. 5,071,160; FF 46.
For the same reasons explained in Section IV B, we are unpersuaded
by ATI’s repeated arguments that: 1) the applied prior art does not teach or
suggest arranging in the seat at least one transducer that provides data sets
for use in creating an algorithm; and 2) it would not have been obvious in
view of the applied prior art to arrange a transducer in the seat and use it to
provide a data set for use in creating an algorithm because the applied prior
art lacks recognition of the possibility or existence of a predictable result.
Br. 26-27. As explained before, ATI’s arguments are: 1) not commensurate
in scope with the claim limitations; and 2) do not sufficiently rebut the
Examiner’s determinations by offering a meaningful explanation, or
directing us to objective evidence, demonstrating that the combination of
Corrado, Mathur and Krogmann and the combination of Corrado and Spies
would not have been obvious to one with ordinary skill in the art and would
not yield a predictable result.
For all these reasons we sustain the rejections of claims 1, 6, 10 and
24-28 over Corrado, Mathur and Krogmann and claims 29, 31-38 and 43-49
over Corrado and Spies.
I. Claims 69, 73 and 74 over Corrado, Spies and Andrews
Independent claim 69 recites: “at least one of said transducers being a
capacitive or electric field sensor having a part arranged in the seat”. The
Examiner finds that 1) Corrado describes an algorithm created from a
plurality of data sets; 2) Spies describes a seat contact sensor [19]; and 3)
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Andrews describes a capacitive sensor having a part arranged in the seat.
ACP 146-147, citing Third Party Requester’s Comments including
Appendix 1 Claim Charts received 06 May 2009.
ATI’s argument that Corrado does not disclose weight sensors in the
seat (Br. 28) are unpersuasive for the same reasons addressed above in
Section IV H. ATI’s argument that Andrews describes a capacitive or
electric field sensor arranged in a seat, but does not disclose using a data set
from the sensor to create an algorithm (Br. 28) is not commensurate in scope
with the claim limitations. Claim 69 recites: “a plurality of transducers . . .
each of said transducers providing data relating to the occupancy state of the
seat, at least one of said transducers being a capacitive or electric field
sensor having a part arranged in the seat” and an “algorithm created from a
plurality of data sets, each of said data sets representing a different
occupancy state of the seat and being formed from data from said
transducers while the seat is in that occupancy state . . . .” Claim 69 does not
require the algorithm to be created from a data set from data from the
capacitive or electric field sensor having a part arranged in the seat. Rather
the algorithm could be created from data sets formed from data from only
some of the plurality of transducers, and does not necessarily require data
from the capacitive or electric field sensor having a part arranged in the seat.
ATI’s argument that Spies does not describe a part of a capacitive or
electric field sensor in the seat (Br. 28) is unpersuasive because the
Examiner relies on Andrews for describing this limitation; not Spies.
We have already considered and find unpersuasive ATI’s repeated
argument that it would not have been obvious in view of the applied prior art
to arrange a transducer in the seat that is used to provide a data set for use in
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creating an algorithm because the applied prior art lacks recognition of the
possibility or existence of a predictable result (Br. 28) as explained in
Section IV B. The Examiner accounts for all the claim limitations and has
set forth a reasonable basis for combining the teachings of the prior art.
ACP 146-147, citing Third Party Requester’s Comments including
Appendix 1 Claim Charts received 06 May 2009. ATI does not offer a
meaningful explanation, nor direct us to objective evidence, demonstrating
that the combination of a capacitive sensor arranged in a seat as taught by
Andrews with the system of Corrado and Spies would not have been obvious
to one with ordinary skill in the art and would not yield a predictable result.
For all these reasons, we sustain the rejection of claims 69 and 73 as
obvious over Corrado, Spies and Andrews. Since the scope of claim 74 is
indefinite, we do not reach the rejection of claim 74 over the prior art. See
In re Steele, 305 F.2d at 862.
J. Claims 23, 42 and 69 over GB ‘332 and Höwing; claims 23, 42, 69, 73
and 74 over SAE, Gentry3 and Höwing; and claims 23, 42 and 69 over WO
‘693, SAE, Lynch and Höwing
Claims 23 and 42 ultimately depend from independent claims 1 and
29 and recite limitations similar to independent claim 69. The Examiner
finds that either GB ‘332 alone; SAE and Gentry; or WO ‘693, SAE and
Lynch describe the claim limitations except for the capacitive or electric
field sensor having a part arranged in the seat. ACP 78-82; 97-98; 115-117.
The Examiner finds that Höwing describes a pair of electrodes with at least
one electrode located in the seat for detecting capacitance changes and

3 See Id.
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identifying the presence of an occupant based on a change in the
capacitance. ACP 78-81; 97-98; 116, citing Höwing Abs.; col. 5, ll. 1-5, 16-
29, 57-67 Fig. 3; FF 48. The Examiner determined that it would have been
obvious to one with ordinary skill in the art at the time the invention was
made to include a vehicle seat provided with a pair of electrodes for
detecting changes in capacitance as taught by Höwing in the systems of
either GB ‘332 alone; SAE and Gentry; or WO ‘693, SAE and Lynch in
order to improve identification and monitoring of vehicle contents or body
parts and detect movement of various parts of the vehicle occupant. ACP
80; 98; 117.
ATI’s argument that the applied prior art does not teach or suggest a
transducer arranged in a seat and used to provide a data set for use in
creating an algorithm (Br. 21, 22, 24) is not commensurate in scope with the
claim limitations. Claims 23, 42 and 69 do not require the algorithm to be
created from a data set from data from the capacitive or electric field sensor
having a part arranged in the seat as explained above in Section IV I.
Also unpersuasive is ATI’s argument that: 1) Höwing describes a
capacitance sensor but does not describe training a pattern recognition
algorithm from data sets; 2) GB ‘332 only describes transducers arranged on
the seat; and 3) the WO ‘693 belt spool out sensor [501] and seat position
sensor [601] are not arranged in the seat. Br. 21, 22, 24. The Examiner does
not rely on Höwing for describing training a pattern recognition algorithm,
but instead relies on GB ‘332 alone (ACP 78), SAE and Gentry (ACP 97); or
WO ‘693, SAE and Lynch (ACP 115-116) for describing the disputed
limitation. Moreover, ATI’s arguments attack the teachings of GB ‘332,
WO ‘693 and Höwing separately instead of addressing the combined
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teachings of GB ‘332 and Höwing, SAE, Gentry and Höwing or WO ‘693,
SAE, Lynch and Höwing.
We have already considered and find unpersuasive ATI’s repeated
“lacks recognition of the possibility or existence of a predictable result”
argument (Br. 21, 22, 24-25) as explained above in Section IV B. The
Examiner accounts for all the claim limitations and has set forth a reasonable
basis for combining the teachings of the prior art. ACP 78-82; 97-98; 115-
117. ATI does not offer a meaningful explanation, nor direct us to objective
evidence, to sufficiently rebut the Examiner’s determinations.
For all these reasons, the obviousness rejections of: 1) claims 23, 42
and 69 over GB ‘332 and Höwing; 2) claims 24, 42 and 69 over WO ‘693,
SAE, Lynch and Höwing; and 3) claims 23, 42, 69 and 73 over SAE, Gentry
and Höwing are sustained. Since the scope of claim 74 is indefinite, we do
not reach the rejection of claim 74 over the prior art. See In re Steele, 305
F.2d at 862.
K. Claims 66-68 and 71-74 over GB '332 and Spies; claims 66-68 over
WO ‘693 and Spies; and claims 66-68 and 71-72 over Corrado and Spies
Independent claim 66 recites: “a first one of the said wave-receiving
transducers being arranged on the center of a top of a dashboard or
instrument panel of a vehicle.” The Examiner does not rely on GB ‘332,
WO ‘693, or Corrado for describing this limitation. ACP 82-90; 105-113,
146-147, citing p. 29 of Third Party Requester’s Comments including
Appendix 1 Claim Charts received 06 May 2009. The Examiner finds that
Spies describes a wave receiving transducer arranged on the center of a top
of a dashboard or instrument panel of a vehicle. ACP 84, 107-108, citing
Figures 1-3. The Examiner determined that it would have been obvious to
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one with ordinary skill in the art at the time the invention was made to
combine the sensor system of either GB ‘332 or WO ‘693 with the sensor
system of Spies in order to determine the optimal location for installing
transducers and provide an improved occupant position system. ACP 84-85,
108. The Examiner also determined that it would have been obvious to one
with ordinary skill in the art at the time the invention was made to combine
the sensor systems of Corrado and Spies in order to install wave-receiving
sensors at various mounting locations. ACP 146-147, citing p. 29 of Third
Party Requester’s Comments including Appendix 1 Claim Charts received
06 May 2009.
ATI argues that the applied prior art shows various arrangements for
transducers in a vehicle but does not show transducers on the center of the
dashboard or instrument panel. Br. 21, 23, 27. ATI argues that GB ‘332,
WO ‘693 and Spies each show the transducer directly in front of the
occupant. Br. 21, 23, 27.
ATI’s arguments are unpersuasive because Spies describes a beam
[broken line] sent or received between a sensor attached to the vehicle
dashboard [8] and the occupant [2] and also discloses a sensor [18’]
centrally located between the driver and front passenger airbags. Trans. p. 3,
ll. 18-28; p. 4, ll. 1-2; Fig. 3; FFs 37, 39. Spies also teaches that it is
desirable to position at least one of the sensors [18’] in the center of the front
of the vehicle. Fig. 3; FF 39. A person of ordinary skill in the art would
infer from the disclosure of Spies that any appropriate central location for
one of the sensors [18’] may be used, such as the center of the top of the
dashboard. Fig. 3; FF40. It would have been obvious to one with ordinary
skill in the art at the time the invention was made to modify the system
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disclosed by GB ‘332 and Spies; WO ‘693 and Spies; or Corrado and Spies
to position at least one sensor on the top of the dashboard centrally between
the driver and passenger airbags and in front of the driver and front
passenger in order to measure both of the front occupants rather than just
one of the two front occupants.
Last, ATI’s argument that it would not have been obvious to one with
ordinary skill in the art to modify GB ‘332, WO ‘693 or Corrado in view of
Spies to arrive at the claimed invention (Br. 21-22, 23, 27) is conclusory and
unsupported by sufficient objective evidence. Argument of counsel cannot
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
For all these reasons, we sustain the rejection of claims 66-68, 71 and,
73 over GB '332 and Spies; the rejection of claims 66-68 over WO ‘693 and
Spies and the rejection of claims 66-68 and 71 over Corrado and Spies.
Since the scope of claims 72 and 74 is indefinite, we do not reach the
rejection of claims 72 and 74 over the prior art. See In re Steele, 305 F.2d at
862.
L. Claims 49 and 70 over Corrado and Spies
Independent claim 49 recites: “at least two wave-receiving transducers
arranged in the vehicle . . . a first one . . . arranged over a front portion of the
seat or in front of the seat and a second one . . . arranged over a rear portion
of the seat or behind the seat . . . .” The Examiner finds that Corrado
describes a plurality of sensors and a sensor fusion algorithm and Spies
describes a first wave-receiving sensor on a dashboard [8] (i.e., in front of
the seat) and a second wave receiving sensor [17’] arranged over a rear
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portion of the seat or behind the seat. ACP 146-147, citing Third Party
Requester’s Comments including Appendix 1 Claim Charts received 06 May
2009; see Claim Chart p. 6-7, which cites to Corrado Abs.; col. 7, ll. 15-37;
col. 16, l. 42-col. 19, l. 52; Figs. 18-21 and Spies Fig. 2; FFs 41, 44.
ATI argues that Corrado and Spies lack a teaching or suggestion to
arrange transducers in the locations specified in these claims and which
provide data for a data set used in creating a trained pattern recognition
algorithm. Br. 27. ATI’s arguments are not commensurate in scope with the
claim limitations since claim 49 does not recite a “trained pattern recognition
algorithm” nor “an algorithm created from a plurality of data sets”. Instead,
Claim 49 recites “an algorithm which produces an output indicative of the
current occupancy state of the seat upon inputting a data set representing the
current occupancy state of the seat and being formed from data from said
transducers . . . .” Moreover, ATI’s arguments are unpersuasive because, as
found by the Examiner, Spies describes a first wave-receiving sensor on a
dashboard [8] (i.e., in front of the seat) and a second wave receiving sensor
[17’] arranged over a rear portion of the seat or behind the seat. Trans. p. 3,
l. 43-p. 4, l. 1; FF 41.
For these reasons, we sustain the rejection of claim 49 over Corrado
and Spies.
Independent claim 70 recites: “at least one of said transducers being
selected from a group consisting of seat buckle sensors, seatbelt payout
sensors and inductive sensors . . . .” The Examiner finds that: 1) Corrado
describes a plurality of sensors and a sensor fusion algorithm; 2) Corrado
describes infrared, microwave, light, weight and laser sensors; and 3) Spies
describes a seat belt system. ACP 146-147, citing Third Party Requester’s
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Comments including Appendix 1 Claim Charts received 06 May 2009; see
Claim Chart p. 12 which cites to Corrado Abs.; col. 7, ll. 15-37; col. 16, l.
42-col. 19, l. 52; col. 25, ll. 60-65 and Figs. 18-21 and cites to Spies
translation p. 1, ll. 24-25; p. 3, ll. 7-16 and Fig. 2; FFs 42, 43.
ATI argues that the applied prior art lacks a teaching or suggestion to
arrange transducers in the locations specified in the claim. Br. 27. We
agree. The Examiner does not meaningfully explain why the sensors
described by Corrado consist of seat buckle sensors, seatbelt payout sensors
or inductive sensors. Likewise, the Examiner does not meaningfully explain
why Spies’ description of a seat belt system is a seat buckle sensor, a seat
belt payout sensor or inductive sensor. Spies merely describes that it is
known to utilize restraint systems with belt tighteners to tighten a passenger
in a specific position on the seat and known to use three point belts and
restraint systems that are activated by back tighteners. Trans. p. 1, ll. 24-25;
Trans. p. 3, ll. 7-10; FFs 42-43. Elesys’ arguments have been considered but
they do not sufficiently address the limitations of claim 70. Resp. Br. 14-15.
For all these reasons, we do not sustain the rejection of claim 70 over
Corrado and Spies.
DECISION
We REVERSE the rejection of claims 1-4, 6-11, 13, 16, 17, 22-38,
42-57, 66-71 and 73 under 35 U.S.C. § 112, 2nd paragraph as indefinite.
We AFFIRM the rejection of claims 72 and 74 under 35 U.S.C. § 112,
2nd paragraph as indefinite.
We REVERSE the rejection of claims 1-4, 6-11, 13, 16, 17, 22-38,
42-57, 66-71 and 73 as unpatentable based on nonstatutory obviousness-type
double patenting over claims 1-58 of the ‘809 Patent in view of ANN.
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We REVERSE the rejection of claims 1-4, 6-11, 13, 16, 17, 22-38,
42-57, 66-71 and 73 as unpatentable based on nonstatutory obviousness-type
double patenting over claims 1-78 of the ‘988 Patent in view of ANN.
We REVERSE the rejection of claims 1-4, 6-11, 13, 16, 17, 22-38,
42-57, 66-71 and 73 as unpatentable based on nonstatutory obviousness-type
double patenting over claims 1-42 of the ‘595 Patent in view of ANN.
We REVERSE the rejection of claims 1-4, 6-11, 13, 16, 17, 22-38,
42-57, 66-71 and 73 as unpatentable based on nonstatutory obviousness-type
double patenting over claims 1-42 of the ‘126 Patent in view of ANN.
We REVERSE the rejection of claims 1, 2, 22-30, 42-45, 69 and 70
under 35 U.S.C. § 103(a) as unpatentable over Smith.
We REVERSE the rejection of claims 3, 6-9, 31, 32 and 34-36 under
35 U.S.C. § 103(a) as unpatentable over Smith, Gentry and Fox.
We REVERSE the rejection of claims 10, 37 and 46 under
35 U.S.C. § 103(a) as unpatentable over Smith and Mattes.
We REVERSE the rejection of claims 69 and 73 under
35 U.S.C. § 103(a) as unpatentable over Smith and Höwing.
We REVERSE the rejection of claims 71 and 73 under
35 U.S.C. § 103(a) as unpatentable over Smith and Spies.
We AFFIRM the rejection of claims 1, 2, 11, 16, 17, 22, 24, 25, 27,
29, 30, 38, 44-46 and 48 under 35 U.S.C. § 103(a) as unpatentable over
GB ‘332.
We AFFIRM the rejection of claims 3, 6-9, 31, 32 and 34-36 under
35 U.S.C. § 103(a) as unpatentable over GB '332, Gentry and Fox.
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We REVERSE the rejection of claims 1, 2, 4, 11, 13, 16, 17, 22, 24-
28, 30 and 48 under 35 U.S.C. § 103(a) as unpatentable over WO ‘693, SAE
and Lynch.
We REVERSE the rejection of claims 29, 33, 38 and 43-47 under
35 U.S.C. § 103(a) as unpatentable over WO ‘693 and SAE.
We AFFIRM the rejection of claim 70 under 35 U.S.C. § 103(a) as
unpatentable over WO ‘693 and SAE.
We AFFIRM the rejection of claims 3, 6-9, 31, 32 and 34-36 under
35 U.S.C. § 103(a) as unpatentable over WO ‘693, SAE, Lynch, Gentry and
Fox.
We AFFIRM the rejection of claims 1-3, 6-9, 25, 29, 31, 32, 34-37,
43, 44 and 46-48 under 35 U.S.C. § 103(a) as unpatentable over SAE and
Gentry.
We AFFIRM the rejection of claims 1, 2, 10, 22, 24-27, 29, 30, 37,
43-46 and 48-57 under 35 U.S.C. § 103(a) as unpatentable over Cashler and
SAE.
We AFFIRM the rejection of claims 1, 2, 10, 22, 24-27, 29, 30, 37,
43-46 and 66-68 under 35 U.S.C. § 103(a) as unpatentable over Breed, SAE
and Spies.
We AFFIRM the rejection of claims 1, 6, 10 and 24-28 under
35 U.S.C. § 103(a) as unpatentable over Corrado, Mathur and Krogmann.
We AFFIRM the rejection of claims 29, 31-38, 43-57, 66-68 and 71
under 35 U.S.C. § 103(a) as unpatentable over Corrado and Spies.
We REVERSE the rejection of claim 70 under 35 U.S.C. § 103(a) as
unpatentable over Corrado and Spies.
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Patent 6,397,136
53
We AFFIRM the rejection of claims 69 and 73 under
35 U.S.C. § 103(a) as unpatentable over Corrado, Spies and Andrews.
We AFFIRM the rejection of claims 23, 42 and 69 under
35 U.S.C. § 103(a) as unpatentable over GB '332 and Höwing.
We AFFIRM the rejection of claims 23, 42 and 69 under
35 U.S.C. § 103(a) as unpatentable over WO ‘693, SAE, Lynch and
Höwing.
We AFFIRM the rejection of claims 23, 42, 69 and 73 under
35 U.S.C. § 103(a) as unpatentable over SAE, Gentry4 and Höwing.
We AFFIRM the rejection of claims 66-68, 71 and 73 under
35 U.S.C. § 103(a) as unpatentable over GB '332 and Spies.
We AFFIRM the rejection of claims 66-68 under 35 U.S.C. § 103(a)
as unpatentable over WO ‘693 and Spies.
ORDER

AFFIRMED-IN-PART

4 See footnote 2.
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Patent 6,397,136
54
Brian Roffe, Esq.
8170 McCormick Boulevard, Suite 223
Skokie, IL 60076-2914

THIRD PARTY REQUESTER:

Rickard K. DeMille
BRINKS, HOFER, GILSON & LIONE
P.O. Box 10395
Chicago, IL 60610