Ex Parte 6,942,248 et al

Board of Patent Appeals and Interferences

Sep 28, 2010

95001012 (B.P.A.I. Sep. 28, 2010)

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.
95/001,012 10/11/2007 6,942,248 ATI-233 IP REEX 5467
22846 7590 09/28/2010
BRIAN ROFFE, ESQ
8170 McCormick Boulevard, Suite 223
Skokie, IL 60076-2914
EXAMINER
KAUFMAN, JOSEPH A
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/28/2010 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
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.
90/008,351 11/27/2006 6942248 ATI-233 RE 5110
22846 7590 09/28/2010
BRIAN ROFFE, ESQ
8170 McCormick Boulevard, Suite 223
Skokie, IL 60076-2914
EXAMINER
KAUFMAN, JOSEPH A
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/28/2010 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)
1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

ELESYS NORTH AMERICA, INC.
Requester, Respondent
v.
AUTOMOTIVE TECHNOLOGIES INTERNATIONAL, INC.1
Patent Owner, Appellant
____________________

Appeal 2010-008462
Reexamination Control 95/001,012 and 90/008,3512
Patent US 6,942,248 B23
Technology Center 3900
____________________

Before SALLY C. MEDLEY, KARL EASTHOM and DANIEL S. SONG,
Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL4

1 Automotive Technologies International, Inc. is the real party in interest
(App. Br. 3).
2 These reexamination proceedings were merged by Decision, Sua Sponte, to
Merge Reexamination Proceedings, mailed February 20, 2008.
3 Issued September 13, 2005 to Breed et al. (hereinafter "'248 patent").
4 The one-month time period for filing a request for rehearing, as recited in
37 C.F.R. § 41.79, and the two-month time period for filing an appeal, as
recited in 37 C.F.R. § 1.304 (see 37 C.F.R. § 1.983(b)(1)), both begin to run
from the “MAIL DATE” shown on the PTOL-90A cover letter attached to
this decision.
The Patent Owner (hereinafter "Appellant") appeals under 35 U.S.C.
§§ 134 and 315 (2002) from a Final Rejection of claims 1-8, 11-16, 19, 24,
32, 37, 44, 46 and 48-71. Claims 9, 10, 17, 18, 20-23, 25-31, 33-36, 38-43,
45 and 47 are not subject to reexamination (RAN 2). Claims 48-71 were
added during the reexamination proceeding (App. Br. 5). We have
jurisdiction under 35 U.S.C. §§ 134 and 315 (2002).
The '248 patent is presently involved in the following infringement
litigation proceedings (App. Br. 4):
1. Automotive Technologies International, Inc. v. American
Honda Motor Co., Inc. et al., Civil Action No. 06-187-GMS (D. Del.); and
2. Automotive Technologies International, Inc. v. Hyundai Motor
America, Inc. et al., Civil Action No. 06-391-GMS (D. Del.).
The Appellant also directs us to the following prior Board decisions
(App. Br. 4):
1. U.S. patent application Ser. No. 09/437,535, Appeal Number
2002-0029, decided February 26, 2003; and
2. U.S. patent application Ser. No. 09/639,303, Appeal Number
2004-1433, decided November 30, 2004.
In addition to the Appeal Brief, the Appellant relies on the Declaration
under 37 C.F.R. § 1.132 of inventor Mr. David Breed, and a compilation of
letters submitted as "Exhibit A" (App. Br., Evidence App'x).
The Requester (hereinafter "Respondent) has filed a Respondent Brief
in support of the Examiner's rejections. The Respondent also relies on
Declarations of Mr. Thomas G. Livernois and the NHTSA article of record
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in support of the Examiner's rejection of the reexamined claims presently on
appeal (Respondent Br., Evidence App'x).

THE INVENTION
The claimed invention is directed to method and a control system for
controlling the deployment of a restraint device such as an air bag.
Representative independent claims 1 and 11 read as follows (App. Br.,
Claims App'x.):
1. In a motor vehicle having an interior passenger
compartment including a seat on which a child seat may be
placed, a control system for controlling an occupant restraint
device effective for protection of an occupant of the seat,
comprising:
receiving means arranged in the vehicle for obtaining
information about contents of the seat and generating a
signal based on any contents of the seat, said receiving
means being structured and arranged to generate a different
signal for different contents of the seat when such contents
are present on the seat;
analyzing means coupled to said receiving means for
analyzing the signal in order to determine at least one of
whether the contents of the seat include a child seat, whether
the contents of the seat include a child seat in a particular
orientation and whether the contents of the seat include a
child seat in a particular position; and
deployment means coupled to said analyzing means
for controlling deployment of the occupant restraint device
based on the determination by said analyzing means.

11. In a motor vehicle having an interior passenger
compartment including a seat on which a child seat may be
placed, a method for detecting the presence of a child seat
on the seat, comprising the steps of:
obtaining information about contents of the seat;
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generating a signal based on the information about the
contents of the seat, a different signal being generated for
different contents of the seat when such contents are present
on the seat;
analyzing the signal in order to determine at least one
of whether the contents of the seat include a child seat,
whether the contents of the seat include a child seat in a
particular orientation and whether the contents of the seat
include a child seat in a particular position; and
controlling deployment of the occupant restraint
device based on the analysis of the signal.

Independent claim 19 specifically recites "at least one resonator
arranged in association with the object" where energy signal at an excitation
frequency is received, but does not specify that the object is a child seat.
Independent claim 32 recites a system similar to that of claim 19 except that
instead of a resonator, the system includes a "reflector arranged in
association with the object." Independent claim 44 recites a system similar
to that of claim 19 while independent claim 46 recites a system similar to
independent claim 32, claims 44 and 46 further requiring the deployment
means to be arranged to adjust the rate/time of inflation/deflation.

THE REJECTIONS
The evidence relied upon by the Examiner in rejecting the claims
follows:
Ishikawa 4,625,329 Nov. 25, 1986
Watanabe 5,031,154 Jul. 9, 1991
Fujita 5,074,583 Dec. 24, 1991
Kaji 5,222,761 Jun. 29, 1993
Krogmann 5,247,584 Sep. 21, 1993
Gentry 5,330,226 Jul. 19, 1994
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Corrado 5,482,314 Jan. 9, 1996
Takahashi 5,702,123 Dec. 30, 1997
Blackburn 5,605,348 Feb. 25, 1997

Thomas Turbell, Are Air Bags Compatible with Child Restraint Systems and
Roadside Safety Features, in The Thirteenth International Technical
Conference on Experimental Safety 1095 (Nov. 4-7, 1994).

The Examiner rejected the reexamined claims as anticipated under 35
U.S.C. §102(b), or as unpatentable under 35 U.S.C. §103(a), based on the
references as follows:
1. Claims 1-6 and 11-14 as anticipated by Corrado;
2. Claims 7 and 15 as unpatentable over Takahashi and Watanabe;
3. Claim 15 as unpatentable over Gentry and Turbell;
4. Claim 15 as unpatentable over Gentry and Blackburn;
5. Claims 7 and 15 as unpatentable over Gentry in view of Turbell
and Krogmann, or Blackburn and Krogmann;
6. Claims 7 and 15 as unpatentable over Ishikawa in view of
Turbell and Krogmann, or Blackburn and Krogmann;
7. Claims 8 and 16 as unpatentable over Corrado and Kaji;
8. Claims 19, 24, 32 and 37 as unpatentable over Blackburn and
Kaji;
9. Claims 48 and 49 as unpatentable over Blackburn, Kaji and
Fujita;
10. Claims 44, 46, 50 and 51 as unpatentable over Blackburn and
Fujita;
11. Claims 52-61 as unpatentable over Blackburn and Kaji; and
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12. Claims 62-71 as unpatentable over Blackburn and Fujita.

We AFFIRM-IN-PART.

ISSUES
1. Whether U.S. patent application Ser. No. 08/239,978 filed May
9, 1994 provides descriptive support for a child seat being in a particular
position as claimed by the '248 patent.
2. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejections 3 and 5 principally based on the
combination of Gentry and Turbell.
3. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejections 4 and 5 principally based on the
combination of Gentry and Blackburn.
4. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejection 6 based on the combination of
Ishikawa in view of Turbell or Blackburn, and in further view of Krogmann.
5. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejections 8 and 11 based on the combination of
Blackburn and Kaji.
6. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejection 9 based on the combination of
Blackburn, Kaji and Fujita.
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7. Whether the Examiner erred in finding various claims
unpatentable as set forth in Rejections 10 and 12 based on the combination
of Blackburn and Fujita.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. The U.S. patent application Ser. No. 08/239,978 filed May 9, 1994
(hereinafter "'978 application") to which the '248 patent claims priority
states:
A. Inflators now exist which will adjust the amount of gas
flowing to the airbag to account for the size and position of the
occupant and for the severity of the accident. The vehicle
identification and monitoring system of this invention will control
such inflators based on the presence and position of vehicle
occupants or of a rear facing child seat.
('978 Specification, Pg. 2, ll. 18-21).

B. Transducer 132 transmits ultrasonic energy toward the front
passenger seat which is reflected, in this case by a rear facing child
seat 110, and the reflected waves are received by the transducers
131 and 133. The signal received by transducers 131 and 133
varies with time depending on the shape of the object occupying
the passenger seat, in this case a rear facing child seat 110. Each
object will reflect back a signal having a different pattern. Also,
the pattern received by transducer 131 will differ slightly from the
pattern received by transducer 133. Through the use of two
transducers a sort of stereographic image is received by the two
transducers and recorded for analysis by processor 101. This image
will differ for each object which is placed on the vehicle seat and it
will also change for each position of a particular object and for
each position of the vehicle seat.
('978 Specification, Pg. 13, l. 23-pg. 14, l. 8).
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C. The system used for the determination of the presence of a
rear facing child seat, of an occupant or of an empty seat was the
artificial neural network. In this case the network operates on the
two returned signals as sensed by transducers 131 and 133.
Through a training session the system is taught to differentiate
between the three cases. This is done by conducting a large number
of experiments where all possible child seats are placed in all
possible orientations on the front passenger seat. Similarly a
sufficiently large number of experiments are run with human
occupants and with boxes, bags of groceries and other objects. As
many as 1000 such experiments are run before the neural network
is sufficiently trained so that it can differentiate among the three
cases and output the correct decision with a very high probability.
('978 Specification, Pg. 15, ll. 5-14).

D. In other[][implementations], such as the determination of the
presence of a rear facing child seat or of an occupant, artificial
neural networks are used to determine the rules. One such set of
neural network software for determining the pattern recognition
rules is available from the NeuralWare Corporation of Pittsburgh,
Pennsylvania.
('978 Specification, Pg. 14, l. 25-pg. 15, l. 4).

2. A. Gentry describes a method and apparatus for sensing the
presence and position of the occupant on a vehicle seat, and preventing
deployment of an air bag restraint system if the occupant is too close to the
air bag storage location (col. 2, ll. 20-43).
B. The apparatus of Gentry utilizes sensors 60, 70 that detect
reflected signals to determine the position of the occupant 34 (col. 5, l. 56-
col. 6, l. 22). A controller 50 calculates the distance between the air bag and
the occupant, and controls whether the air bag is deployed and the amount or
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degree of inflation based on the determined distance (col. 5, ll. 50-55 and
64-68).
C. The apparatus of Gentry also distinguishes whether there is an
object present on the seat, whether the object is an inanimate or an animate
object, and prevents deployment of an airbag if there is no object or the
object is inanimate (col. 7, ll. 16-25).

3. A. Turbell describes problems in using rearward facing child
restraints with passenger airbags, and the desirability of warning car owners
not to use rearward facing child seats in passenger seats with airbags (pg.
1095-96).
B. Turbell also states that "[p]roximity sensors or switches might
disconnect the air bag when a child restraint is installed." (Pg. 1097).

4. A. Blackburn describes a method and apparatus for sensing a
rearward facing child seat, and for preventing actuation of an air bag if a
child seat is sensed (col. 1, ll. 41-64).
B. The apparatus of Blackburn includes a controller 22 and a
driver/receiver circuit 24 which is operatively connected to an antenna coil
26 for detecting the presence of an identification tag 60 on a child restraining
seat by monitoring a returning electromagnetic field signal (col. 2, l. 62-col.
3, l. 2; col. 3, ll. 19-23).
C. The controller of Blackburn includes a discriminating circuitry
210 with a comparator 250 which determines whether the tag is present
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within a predetermined distance, is not present or is not within a
predetermined distance (col. 5, ll. 26-28; col. 6, ll. 42-53).
D. The apparatus of Blackburn determines whether a child seat is
secured in a forward facing direction or rearward facing direction, prevents
deployment of the air bag if a rearward facing child seat is detected, or if any
child seat is detected (col. 7, l. 65-col. 8, l. 16).
E. The apparatus of Blackburn further provides different outputs
(HIGH or LOW) based on the output of the discriminating circuitry (col. 6,
ll. 48-53).
F. Blackburn also states that "[o]ther types of sensors may also be
used such as RF transponder tag, Hall effect sensors, polarized optical
sensors, and light reflectors." (Col. 8, ll. 39-42).

5. A. Krogmann describes a signal processing unit for classifying
objects using a neural network based on signals from a plurality of sensors
(Col. 1, ll. 7-15; Abst.).
B. Krogmann describes neural network advantages as follows:
Neural networks are used which avoid the problems of the classical
computers having memory and processor. Better efficiency data of
detection, identification and classification with regard to the
confidence intervals and operative ranges (distances) result by
superposition of the sensor data on a low level. The complexity
and the delay times of the signal processing are reduced by using
neural networks already in the sensor signal processing.
(Col. 2, ll. 60-68).

6. A. Ishikawa describes a position analyzer for analyzing the
position of a vehicle driver so as to allow automatic adjustment of vehicle
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accessories such as the rear view mirrors, the steering wheel, the head rest
and air conditioning vents (col. 1, ll. 35-64).
B. To analyze the position of a vehicle driver, the position
analyzer of Ishikawa includes an infrared strobe 5, and infrared detectors 9a,
9b that receives reflected infrared light from the driver's face, and a
microcomputer 20 which performs the recognition and analysis of image
data (col. 2, ll. 45-55; Abst.).

7. Kaji describes an airbag restraint system which includes side air bags
(col. 2, ll. 23-31).

8. A. Fujita describes an air bag system which takes into
consideration the position of the passenger and/or the seat to control the
timing of airbag deployment and gas pressure of deployment in order to
optimize contact with the passenger's breast and the shock absorbing effect
of the airbag (col. 2, ll. 17-40; col. 8, ll. 34-46; col. 10, ll. 36-39).
B. In this regard, Fujita includes a position sensor 20, a reclining
angle sensor 30 for determining the position and angle of the seat, and a
control unit 70 which controls the airbag inflators 17 based on the position
and angle of the seat (col. 8, ll. 34-59).

PRINCIPLES OF LAW
35 U.S.C. §§ 112 and 120
A claim for priority, or "benefit", of an earlier filed patent application
is governed by 35 U.S.C. § 120. Under § 120, an application is entitled to
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the filing date of a previous application when the claimed invention is
"disclosed in the [previously filed application in a] manner provided by the
first paragraph of section 112." 35 U.S.C. § 120.
35 U.S.C. § 112 states "[t]he specification shall contain a written
description of the invention . . . ." The "test for sufficiency [under § 112] is
whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharm., Inc. v. Eli Lilly and Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010)(en banc). The "test requires an
objective inquiry into the four corners of the specification from the
perspective of a person of ordinary skill in the art. Based on that inquiry, the
specification must describe an invention understandable to that skilled
artisan and show that the inventor actually invented the invention claimed."
Id. "[I]t is the specification itself that must demonstrate possession. And
while the description requirement does not demand any particular form of
disclosure, … or that the specification recite the claimed invention in haec
verba, a description that merely renders the invention obvious does not
satisfy the requirement." Id. at 1352 (citations omitted).
In addition, it is the Examiner's "initial burden [to] present [ ]
evidence or reasons why persons skilled in the art would not recognize in the
disclosure a description of the invention defined by the claims." In re
Wertheim, 541 F.2d 257, 263 (CCPA 1976). Compliance with the written
description requirement is a question of fact which must be resolved on a
case-by-case basis. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563
(Fed. Cir. 1991).
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35 U.S.C. § 103
"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). In KSR, the Court stated that "[o]ften, it will be necessary for a court
to look to interrelated teachings of multiple patents; the effects of demands
known to the design community or present in the marketplace; and the
background knowledge possessed by a person having ordinary skill in the
art, all in order to determine whether there was an apparent reason to
combine the known elements in the fashion claimed by the patent at issue."
Id. at 418. In addition, the Court also stated "any need or problem known in
the field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining the elements in the manner claimed." Id. at
420.
The Court also noted that "[t]o facilitate review, this analysis should
be made explicit." KSR, 550 U.S. at 418, (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness")). However, "the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
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person of ordinary skill in the art would employ." KSR, 550 U.S. at 418. In
this regard, "[a] person of ordinary skill is also a person of ordinary
creativity, not an automaton." Id. at 421.

ANALYSIS
Issue 1: Priority (Rejections 1, 2 and 7)
In Rejections 1, 2 and 7, the Examiner relies on Corrado or Takahashi
to reject claims 1-8 and 11-16 as being anticipated or obvious (Ans. 5-7, 12-
13). The Appellant contends that the rejected claims are entitled to the
benefit of the filing date of the '978 application (see FF1), and as such,
Corrado is not a prior art reference under 35 U.S.C. §102(b) as asserted by
the Examiner (App. Br. 13, 23-24), and Takahashi is unavailable for
rejection under 35 U.S.C. §103 (App. Br. 19-20). In this regard, the
Appellant refers to various text within the '978 application in support of
priority (App. Br. 13-19, 23-24).
The Examiner contends that the rejected claims are not entitled to
priority because there is no descriptive support for the child seat being in a
particular position as recited in these claims (Ans. 20-25; see also Resp. Br.
3-8). In particular, the Examiner contends that the statement "[t]he vehicle
identification and monitoring system of this invention will control such
inflators based on the presence and position of the vehicle occupants or of a
rear facing child seat[]" (FF 1A) in the '978 application is insufficient to
establish support because the "presence and position" therein does not
modify the "rear facing child seat." (Ans. 21; see also Resp. Br. 5).
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We disagree with the Examiner. The structure of this sentence and
the text "or of" therein makes it clear that "the presence and position"
modifies both the "vehicle occupants" and "a rear facing child seat." In our
view, the Examiner's understanding of the pertinent text is strained and
ignores its plain meaning. We further disagree with the Examiner's
contention that the disclosure points away from such an interpretation (see,
e.g., FF 1B and 1C). Hence, in our view, the '978 Specification reasonably
conveys to those skilled in the art that the inventor had possession of the
subject matter now claimed.
While the Respondent relies on the Declaration of Mr. Livernois in
support of the Examiner's positions, we observe that the Declaration merely
sets forth Mr. Livernois' conclusion (Decl. of Livernois, July, 8, 2008, ¶ 6),
without explanation or detail, that one of ordinary skill in the art would not
understand the above noted passages in the '978 application (FF 1A-1C) as
describing a child seat in a particular orientation or position.
We further note that the Examiner's rejection is not entirely clear as to
whether the Examiner agrees with the Respondent's further contention that
the claimed invention is not enabled because undue experimentation would
be required to apply a neural network (Ans. 20-21; see also Resp. Br. 8-9,
citing Declaration of Livernois, March 9, 2009). The test for enablement is
whether one skilled in the art would have to resort to undue experimentation
in order to practice the invention. In re Angstadt, 537 F.2d 498, 503 (CCPA
1976). Undue experimentation analysis may include consideration of: (1)
the quantity of experimentation necessary, (2) the amount of direction or
guidance presented, (3) the presence or absence of working examples, (4)
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the nature of the invention, (5) the state of the prior art, (6) the relative skill
of those in the art, (7) the predictability or unpredictability of the art, and (8)
the breadth of the claims. In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
In the present rejection set forth, we do not find material consideration
of these Wands factors, and thus, conclude that the initial burden of the
Examiner has not been met. The Respondent relies on the Declaration of
Mr. Livernois to contend nonenablement, Mr. Livernois declaring that the
'978 application is vague as to certain terms, lacking in detail as to specific
implementation, and the high number of experiments required (Decl. of
Livernois, March 9, 2009, ¶ 12). However, there is lack of objective
evidence that one of ordinary skill in the art would find the disclosure of the
'978 application insufficient to practice the invention claimed. For instance,
we are not persuaded through evidence that a person of ordinary skill at the
time of the '978 application would not have appreciated the fact that
passenger seats in vehicles were adjustable with respect to position so that
the position of a child seat secured thereon were also adjustable. Moreover,
objections to discerning whether the amplitude of a return signal is the result
of an object close by does not address why one of ordinary skill would not
understand that such objects can be differentiated.
In addition, we also observe that "[e]nablement is not precluded by
the necessity for some experimentation . . .. However, experimentation
needed to practice the invention must not be undue experimentation. The
key word is 'undue,' not 'experimentation.'" In re Wands, 858 F.2d at 736-
737. As noted by Mr. Livernois, the '978 application states that "[a]s many
as 1000 []experiments are run before the neural network is sufficiently
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trained . . ." (FF 1C). However, this does not convince us that such
experimentation is "undue" in view of the nature of neural networks which
require training for proper function. Indeed, the '978 application states that
neural network software for determining the pattern recognition rules was
commercially available at the time of the '978 application (FF 1D), the
application further describing various possible implementations.
Therefore, in view of the above, we do not sustain the Examiner's
Rejections 1, 2 and 7 which are based on Corrado and Takahashi.

Issue 2: Rejections based on combination of Gentry and Turbell
(Rejections 3 and 5)
Method claim 15 ultimately depends from independent claim 11
reproduced above, but further requires "the step of categorizing said signal
to thereby obtain an identification of the contents of the seat." (Claims
App'x.). The Examiner rejects claim 15 stating that while Gentry lacks
detecting a child seat, the apparatus of Gentry "identifies the object and
categorizes it into a set of classes" as an animate object, inanimate object,
and out-of-position occupant (Ans. 25; Resp. Br. 15; FF 2A, 2C). The
Examiner states that the
Turbell Paper discusses the safety concerns regarding deploying
airbags when a child seat is present throughout the paper. It
would have been obvious to one of ordinary skill in the art to
consider the safety of a child in a child seat when deploying an
airbag as taught by the Turbell Paper on the device of Gentry et
al. in order to prevent injuries to children in the passenger seat
of the vehicle.
(Ans. 8).
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The Appellant argues that the combination of Gentry and Turbell does
not disclose categorizing a signal generated based on information about the
contents of the seat to thereby "obtain an identification of the contents of the
seat," including identification of the object as a child seat. (App. Br. 25-26).
We agree with the Appellant.
Claim 15 requires that processing of reflected waves include
categorizing a signal to obtain identification of contents of the seat so as to
determine whether the contents include one of a child seat, child seat in a
particular orientation or position as recited in claim 11. Whereas Turbell
does discuss the safety issues in deploying airbags when a child seat is
present, and concludes that proximity sensors or switches may be used to
disconnect the airbag (FF 3A-3B), it is speculative to find that the system of
Gentry for determining the position of the driver teaches or suggests
"obtain[ing] an identification of the contents of the seat" to determine if the
contents include a child seat as required by claim 15. Therefore, we do not
sustain the Examiner's rejection of claim 15 based on the combination of
Gentry and Turbell.
Furthermore, the Examiner rejected claim 7, which ultimately depends
from independent claim 1 reproduced above, as unpatentable over Gentry
and Turbell in further view of Krogmann (Ans. 9-10). Claim 7 requires the
analyzing means to have a categorization means which has a recognition
means for identifying the contents of the seat, the recognition means
comprising a trained neural network. The Examiner relies on Krogmann for
teaching the use of neural networks to categorize objects (FF 5A-5B) to
conclude that it would have been obvious to employ a neural network as the
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categorizing means as taught by Krogmann (Ans. 10). However, the
Examiner's application of Krogmann does not address the deficiency with
respect to the combination of Gentry and Turbell as discussed supra.
Correspondingly, we also do not sustain the Examiner's rejection of claim 7.

Issue 3: Rejections based on combination of Gentry and Blackburn
(Rejections 4 and 5)
The Examiner also rejected method claim 15 as unpatentable over the
combination of Gentry and Blackburn (Ans. 8). The Examiner contends that
while Gentry lacks detecting a child seat,
Blackburn et al. discusses the safety concerns regarding
deploying airbags when a child seat is present as clearly noted
in the Abstract. It would have been obvious to one of ordinary
skill in the art to consider the safety of a child in a child seat
when deploying an airbag as taught by Blackburn et al. on the
device of Gentry et al. in order to prevent injuries to children in
the passenger seat of the vehicle.
(Ans. 8-9).
The Examiner further contends that the combination of Gentry and
Blackburn "show all of the claimed features." (Ans. 25-26).
Like the rejection based on Gentry and Turbell, the Appellant
contends that the combination of Gentry and Blackburn do not disclose
categorizing a signal generated based on information about the contents of
the seat to thereby obtain an identification of the contents of the seat,
including identification of the object as a child seat. (App. Br. 25-26).
However, in contrast to Turbell, Blackburn teaches a system and
method for preventing actuation of an air bag in which the child seat is
positively identified (FF 4A-4B). Therefore, the Examiner's contention that
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the combination of Gentry and Blackburn disclose all of the recited method
steps appears to be well taken. Furthermore, the Examiner's articulated
reason for combining these references, that is, to prevent injuries to children
in the passenger seat, is rational and supported by the disclosure of
Blackburn itself. Therefore, we sustain the Examiner's rejection of method
claim 15 as unpatentable over the combination of Gentry and Blackburn.
The Examiner also rejected claim 7 discussed supra as unpatentable
over Gentry and Blackburn in further view of Krogmann (Ans. 9-10). As
applied to the combination of Gentry and Blackburn, we find no reversible
error in the Examiner's rejection of claim 7 further based on Krogmann
which describes the desirability of using of neural networks to categorize
objects (FF 5A).
The Appellant contends that "at the time the invention was made, in
the automotive or vehicular field, it was not obvious to employ neural
networks for occupant identification[,]" and that "there is no known
application of neural networks to the identification of objects or occupants in
a vehicular passenger compartment prior to the inventors' own work." (App.
Br. 21-22). In this regard, the Appellant relies on the Declaration of Mr.
Breed, dated June 6, 2008 to support these arguments (App. Br. 22).
However, the Examiner articulated a rational reason for employing a neural
network as the categorizing means as taught by Krogmann, that is, "in order
to more accurately classify the object in the passenger seat which would
better determine airbag deployment and thus improve safety." (Ans. 10).
See KSR, 550 U.S. at 417-18. In this regard, contrary to the Appellant's
assertion, Gentry clearly teaches categorizing the object in the seat (as an
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animate/inanimate object (FF 2C)), and the desirability of applying a neural
network for categorizing objects is set forth in the disclosure of Krogmann
itself (FF 5B). Furthermore, we find persuasive, the Respondent's argument
as to immateriality of the fact that neural networks were previously not used
in automobiles in the manner claimed (Resp. Br. 12). See KSR, 550 U.S. at
420 ("any need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed.").
Correspondingly, we sustain the Examiner's rejection of claim 7 based
on the combination of Gentry and Blackburn in further view of Krogmann.

Issue 4: Rejection based on combination of Ishikawa, Turbell or
Blackburn, and Krogmann (Rejection 6)
The Examiner also rejected claims 7 and 15 as unpatentable over
Ishikawa in view of Turbell and Krogmann, or Blackburn and Krogmann
(Ans. 11-12). The Appellant mentions this rejection in conjunction with the
Examiner's Rejection 5 based on the combination of Gentry, Turbell or
Blackburn, and Krogmann discussed supra (App. Br. 21). In particular, the
Appellant's arguments are generally directed to neural networks, but do not
address Ishikawa with any level of specificity (App. Br. 21-23).
Correspondingly, for substantially the same reasons already discussed supra
relative to the Examiner's Rejections 3 and 5, we do not sustain the
Examiner's rejection of claims 7 and 15 based on the combination of
Ishikawa, Turbell and Krogmann. However, for substantially the same
reasons already discussed supra relative to the Examiner's Rejections 4 and
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5, we sustain the Examiner's rejection of claims 7 and 15 based on the
combination of Ishikawa, Blackburn and Krogmann.

Issue 5: Rejections based on combination of Blackburn and Kaji
(Rejections 8 and 11)
The Examiner rejected claims 19, 24, 32, 37, and 52-61 as
unpatentable over the combination of Blackburn and Kaji (Ans. 13-14, 16-
17). Claims 19 and 32 are independent claims, and the remaining claims
depend from one of these claims (Claims App'x). The Examiner contends
that Blackburn teaches all of the limitations except for the use of a side
airbag, and that "[i]t would have been obvious to one of ordinary skill in the
art at the time the invention was made to modify the device of Blackburn et
al. to include side air bags as suggested by Kaji et al. for the advantage of
protecting a passenger in a side impact collision." (Ans. 13-14, 17).
The Appellant contends that the Examiner's rejections based on the
combination of Blackburn and Kaji should be reversed because in
Blackburn, the processor does not conduct an analysis of the energy signal
as required by independent claims 19 and 32 (App. Br. 28). In particular the
Appellant contends that because Blackburn merely detects whether EMF
signal is received or not received, "there is no property of this energy signal
that is analyzed to obtain information about the object. . . . Rather,
Blackburn relies on the setting of the driver/receiver circuit 24 to
differentiate between tags more than or less than a predetermined distance
from the coil 26 (see, e.g., col. 6, lines 59-65)." (App. Br. 29).
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The Examiner disagrees and contends that "[t]he detection or absence
of a signal is indeed an analysis of the signal and gives information
regarding the object, i.e. whether it is present or not." (Ans. 27). We discern
no error in the Examiner's position that the detection of the presence or
absence of a signal in Blackburn satisfies the recitation requiring "analysis."
In this regard, the system of Blackburn determines whether the tag is present
within a predetermined distance, is not present, or is not within a
predetermined distance (FF 4B-4D).
The Appellant's contention that "there is no consideration of the
magnitude of the energy signal by the driver/receiver circuit[]" (App. Br. 29)
is not persuasive. Firstly, the rejected claims do not recite "consideration of
the magnitude of the energy signal." In re Self, 671 F.2d 1344, 1348 (CCPA
1982)("appellant's arguments fail from the outset because, . . . they are not
based on limitations appearing in the claims . . . ."). Secondly, the
distinction between a signal that is present or is absent as detected by the
apparatus of Blackburn is that of magnitude, a signal that is present having a
magnitude while a signal that is absent having a zero magnitude.
The Appellant also appears to argue that the output analyzed in
Blackburn is not the energy signal of the resonator (i.e., the tag) (App. Br.
29-30). However, we are not persuaded because the energy signal of the
resonator is in fact analyzed by the detector and used to provide different
outputs (FF 4B-4E) which are used to control airbag deployment. In other
words, claims 19 and 32 do not specify whether “a processor coupled to said
detector means for obtaining information about the object upon analysis of
the energy signal detected by the detector means” requires analysis of the
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energy signal solely by the detector, the processor, or both. Alternatively, it
is not clear how the claimed processor analyzes the same energy input to
(i.e., detected by) the detector – that is, the claims do not preclude an energy
transformation to an information signal which the processor then analyzes,
contrary to Appellant’s implied arguments.
The Appellant also argues that it would not have been obvious to
modify the device of Blackburn to include side air bags, or to suppress
deployment of such side air bags based on the presence or orientation of a
child seat (App. Br. 31). However, we agree with the Examiner that in view
of the fact that suppression of front airbag deployment when a rear-facing
child seat was installed, it would have been obvious to one of ordinary skill
in the art to suppress the deployment of the side airbag as well in view of the
safety considerations (Ans. 28). A person of ordinary skill in the art is not
an automaton. KSR, 550 U.S. at 421.

Claim 32
The Appellant further argues that with respect to claim 32 which
specifically recites "at least one reflector . . . arranged to reflect an energy
signal," Blackburn is not available as prior art because it "does not enable
one skilled in the art to make and use the system disclosed therein with a
light reflector . . .." (App. 32). In this regard, the Appellant asserts that
"Blackburn does not teach how to obtain information about an object, which
the light reflector is arranged in association with, upon analysis of the energy
signal reflected by the light reflector and detected by the detector means."
(App. 33). We are not persuaded by the Appellant's arguments.
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Blackburn clearly teaches the use of other types of sensors such as RF
transponder tag, Hall effect sensors, polarized optical sensors, and light
reflectors (FF 4F). Hence, a person of ordinary skill in the art would
understand Blackburn as teaching an alternative embodiment in which a
light reflector is used instead of an electromagnetic resonator to determine
presence of an object (such as a child seat) by detection of presence or
absence of a reflected signal. In this regard, there is a presumption that
"both the claimed and unclaimed disclosures in a prior art patent are
enabled." Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1355
(Fed. Cir. 2003). Furthermore, the burden of rebutting the presumption of
enablement of the cited prior art by a preponderance of the evidence falls on
the party asserting non-enablement. In re Sasse, 629 F.2d 675, 681 (CCPA
1980). The Appellant has not set forth persuasive factual evidence to satisfy
its burden.

Claims 52 and 57
Claims 52 and 57 specifically recite "a frame defining a passenger
compartment, the object being a vehicular component arranged in or
defining part of said passenger compartment and having a plurality of
positions relative to said frame." (Claims App'x). The Examiner rejected
these claims contending that Blackburn discloses the recited frame and a
vehicular component (Ans. 16-17, 29), and relies on Kaji for disclosing side
air bags (Ans. 29).
The Appellant contends that it would not have been obvious "to
arrange a tag designed to detect the presence or orientation of an object as
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taught by Blackburn in association with a vehicular component that has a
plurality of positions relative to a frame, and whose presence is assumed and
orientation is invariable." (App. Br. 33). In this regard, the Appellant refers
to arguments submitted with respect claims 50 and 51 in response to the
Examiner's Rejection 10 discussed in detail infra, and states "a distinction
being drawn being between vehicular components as understood by those
skilled in the art as being parts of a vehicle that are always present, and a
child seat that is optional." (App. Br. 33-34).
However, we decline to rely on distinctions merely made in argument,
but not recited in the claims or substantiated by objective, factual evidence.
Moreover, as discussed in detail infra, we do not find the Appellant's
arguments submitted with respect claims 50 and 51 persuasive. Hence, we
find no reversible error in the Examiner's position that a child seat of the
type described in Blackburn satisfies the recited limitation because such
seats are intended for use in a vehicle (i.e., is a vehicular component) and
have a plurality of positions (i.e., forward and rearward facing positions)
relative to the frame (Ans. 17).

Claims 53 and 58
Claims 53 and 58 depend from claims 19 and 32, respectively, and
further recite that the object is a child seat and the processor is arranged to
obtain an indication of the position of the child seat (Claims App'x). In
addition to relying on unpersuasive arguments discussed supra with respect
to claims 52 and 57, the Appellant argues that it would not have been
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obvious to one of ordinary skill in the art to "obtain an indication of the
position of the child seat" and no such ability is disclosed (App. Br. 34).
The Examiner contends that Blackburn satisfies this limitation
because the device of Blackburn determines the orientation of the child seat,
that is, as forward facing or rear facing (Ans. 29). Indeed, Blackburn
discloses that the apparatus determines whether the child seat is in a forward
facing position, or a rear facing position (FF 4D). Hence, we do not discern
any error in the Examiner's rejection.

Claims 54-56 and 59-61
The Appellant refers to, and relies upon the unpersuasive argument
that Blackburn merely detects the presence or absence of an energy signal
which we have already discussed supra (App. Br. 34). Correspondingly, we
discern no error in the Examiner's rejection for the reasons already
discussed.
In view of the above, we sustain the Examiner's rejection of claims 19,
24, 32, 37, and 52-61 as unpatentable over the combination of Blackburn
and Kaji.

Issue 6: Rejection based on the combination of Blackburn, Kaji and
Fujita (Rejection 9)
Claims 48 and 49 which depend from independent claims 19 and 32,
respectively, require a frame defining a passenger compartment and the
object to be "a vehicular component movably attached directly to said
frame." (Claims App'x). The Examiner contends that while the combination
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of Blackburn and Kaji does not teach the object being a vehicle component
movably attached directly to the frame, Fujita teaches detection of the seat
condition which is movably attached directly to the frame, and that detection
of the passenger as determined by the seat condition would have been
desirable for assisting the control of the airbag system so as to improve
safety for the passenger (Ans. 14-15, 34-35).
The Appellant initially relies on dependency on claims 19 and 32, as
well as arguments submitted thereto, for patentability of claims 48 and 49
(App. Br. 42). However, because we found no error in the Examiner's
rejection of claims 19 and 32 as discussed supra, we are not persuaded. The
Appellant also contends that modifying Blackburn so as to locate the
resonator tag on a vehicle seat would not be obvious and any modification to
the placement of the tag "must be limited to objects having different
orientations and for which deployment of an airbag would be varied
depending on the orientation (the example being a child seat) and objects
which are optionally present in the vehicle for which deployment of an
airbag would be varied depending on the present or absence of the object
(again, the example being a child seat)." (App. Br. 43).
However, the Appellant's arguments are not persuasive because the
Examiner is not suggesting relocating the resonator tag to be on the vehicle
seat (Ans. 34). As the Examiner observes, the rejected claims merely
require the resonator to be "arranged in association" with the object, and
does not require the resonator to be arranged on any specific component
(Ans. 34). We understand the Examiner's rejection to be premised on the
fact that when a child seat is secured to the passenger seat, "information"
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about the passenger seat is also obtained, and the desirability of considering
position of the passenger seat in airbag deployment is established by Fujita
(Ans. 34-35; FF 8A-8B). Hence, the Appellant's arguments do not persuade
us of Examiner error.

Issue 7: Rejections based on the combination of Blackburn and Fujita
(Rejections 10 and 12)
Independent claims 44 and 46 require adjusting the airbag deployment
by adjusting rate or time of inflation/deflation (Claims App'x). Claims 50,
51 and 62-71 ultimately depend from either claim 44 or 46. The Examiner
rejected all of these claims stating that Blackburn discloses all the limitation
except for adjusting deployment rate/time of inflation/deflation, and the
object being movably attached to a frame as recited in the various dependent
claims (Ans. 15-19). The Examiner finds that both features are shown in
Fujita and contends that it would have been obvious to modify the device of
Blackburn "to include gas generation control to adjust the time and speed of
inflation of an airbag as suggested" by Fujita "for the advantage of optimal
airbag contact with the passenger." (Ans. 19).

Claims 44 and 46
With respect to the independent claims 44 and 46 the Appellant
contends that there is no "analysis of the energy signal" in the suggested
combination (App. Br. 35-36). However, we do not find this argument
persuasive for the same reasons already discussed supra relative to
Examiner's Rejections 8 and 11 based on Blackburn and Kaji.
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The Appellant also argues that because Blackburn, which is directed
to child seats, merely suppresses or allows deployment without possibility of
intermediate deployment, there is no reason to combine the references
together so as to provide the device of Blackburn with a gas generational
control as suggested by Fujita (App. Br. 37-38). The Appellant's argument is
not persuasive.
The Examiner's articulated reason for combining Blackburn and Fujita
comes from the fact that the passenger seat is also commonly used by a
passenger, and not exclusively used for securing a child seat. Hence, we
find no error in the Examiner's position that it would have been obvious to a
person of ordinary skill in the art to vary deployment as taught by Fujita for
the passenger's benefit (not the child seat's benefit) (Ans. 19; see also FF
8A-8B). In this regard, "any need or problem known in the field of endeavor
at the time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed." KSR, 550 U.S. at 420.

Claims 50 and 51
As to dependent claims 50 and 51, the Appellant relies on their
dependency on claims 19 and 32, as well as on arguments submitted thereto
(App. Br. 36-37). However, because we find no error in the Examiner's
rejection of claims 19 and 32 as discussed supra, we likewise find no error
in the Examiner's rejection of claims 50 and 51. The Appellant further
submits arguments that it would not have been obvious to locate the tag on a
seat of the vehicle (App. Br. 39-40). However, these arguments are
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unpersuasive for the reasons also discussed supra relative to the Examiner's
rejection of claims 48 and 49.
In view of the above, we sustain the Examiner's rejection of claims 19,
24, 32 and 37 based on the combination of Blackburn and Kaji.

CONCLUSIONS
1. The parent '978 application provides descriptive support for a
child seat being in a particular position.
2. The Examiner erred in finding various claims unpatentable as
set forth in Rejections 3 and 5 principally based on the combination of
Gentry and Turbell.
3. The Examiner did not err in finding various claims unpatentable
as set forth in Rejections 4 and 5 principally based on the combination of
Gentry and Blackburn.
4. A. The Examiner erred in finding various claims
unpatentable as set forth in Rejection 6 based on the combination of
Ishikawa, Turbell and Krogmann.
B. The Examiner did not err in finding various claims
unpatentable as set forth in Rejection 6 based on the combination of
Ishikawa, Blackburn and Krogmann.
5. The Examiner did not err in finding various claims unpatentable
as set forth in Rejections 8 and 11 based on the combination of Blackburn
and Kaji.
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6. The Examiner did not err in finding various claims unpatentable
as set forth in Rejection 9 based on the combination of Blackburn, Kaji and
Fujita.
7. The Examiner did not err in finding various claims unpatentable
as set forth in Rejections 10 and 12 based on the combination of Blackburn
and Fujita.

ORDER
The Examiner's rejections are decided as follows:
1. Rejection of claims 1-6 and 11-14 as anticipated by Corrado is
REVERSED;
2. Rejection of claims 7 and 15 as unpatentable over the
combination of Takahashi and Watanabe is REVERSED;
3. Rejection of claim 15 as unpatentable over the combination of
Gentry and Turbell is REVERSED;
4. Rejection of claim 15 as unpatentable over the combination of
Gentry and Blackburn is AFFIRMED;
5. A. Rejection of claims 7 and 15 as unpatentable over the
combination of Gentry in view of Turbell and Krogmann is
REVERSED;
B. Rejection of claims 7 and 15 as unpatentable over the
combination of Gentry in view of Blackburn and Krogmann is
AFFIRMED;
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6. A. Rejection of claims 7 and 15 as unpatentable over the
combination of Ishikawa in view of Turbell and Krogmann is
REVERSED;
B. Rejection of claims 7 and 15 as unpatentable over the
combination of Ishikawa in view of Blackburn and Krogmann is
AFFIRMED;
7. Rejection of claims 8 and 16 as unpatentable over the
combination of Corrado and Kaji is REVERSED;
8. Rejection of claims 19, 24, 32 and 37 as unpatentable over the
combination of Blackburn and Kaji is AFFIRMED;
9. Rejection of claims 48 and 49 as unpatentable over the
combination of Blackburn, Kaji and Fujita is AFFIRMED;
10. Rejection of claims 44, 46, 50 and 51 as unpatentable over the
combination of Blackburn and Fujita is AFFIRMED;
11. Rejection of claims 52-61 as unpatentable over the combination
of Blackburn and Kaji is AFFIRMED; and
12. Rejection of claims 62-71 as unpatentable over the combination
of Blackburn and Fujita is AFFIRMED.

SUMMARY
1. At least one rejection of claims 7, 15, 19, 24, 32, 37, 44, 46 and
48-71 is AFFIRMED.
2. Rejections of claims 1-6, 8, 11-14 and 16 are REVERSED.

AFFIRMED-IN-PART
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Requests for extensions of time in this merged reexamination
proceeding are governed by 37 C.F.R. §§ 1.550(c) and 1.956. See 37 C.F.R.
§§ 41.50(f) and 41.77(g).

ack

cc:
Patent Owner:
BRIAN ROFFE, ESQ
75 Wood Lane
Woodsburgh, NY 11598

Third Party Requester:
BRINKS, HOFER, GILSON, & LIONE
P.O. Box 10395
Chicago, IL, 60610