Ex Parte Abele et al

Patent Trial and Appeal Board

May 24, 2018

14404961 (P.T.A.B. May. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/404,961 12/02/2014 TimoAbele
26294 7590 05/29/2018
TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P.
1300EASTNINTH STREET, SUITE 1700
CLEVELAND, OH 44114
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
TRW(REPA)024012-US-PCT 8151
EXAMINER
GOODEN JR, BARRY J
ART UNIT PAPER NUMBER
3616
NOTIFICATION DATE DELIVERY MODE
05/29/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
rkline@tarolli.com
docketing@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMO ABELE, WERBER FRELSLER,
and SVEN OLIVER TAMME
Appeal2017-008344 1
Application 14/404,961 2
Technology Center 3600
Before ANTON W. PETTING, BRUCE T. WIEDER, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
19--36. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Our decision references the Appeal Brief ("Appeal Br.," filed Dec. 29,
2016), Reply Brief ("Reply Br.," filed May 18, 2017), the Examiner's
Answer ("Ans.," mailed Apr. 11, 2017) and the Final Office Action ("Final
Act.," mailed July 15, 2016).
2 According to Appellants, the real party in interest is "TRW
AUTOMOTIVE GMBH." Appeal Br. 2.
Appeal2017-008344
Application 14/404,961
BACKGROUND
According to Appellants, "[t]he invention relates to a knee airbag for a
vehicle occupant restraint device. The invention further relates to a vehicle
occupant restraint device comprising such knee airbag." Spec. 1, 11. 9-11.
ILLUSTRATIVE CLAIM
Claim 19 is the only independent claim on appeal and recites:
19. A knee airbag (10) for a vehicle occupant restraint device
adapted to adopt a deployed position of use between a fixed
vehicle component (12) and legs (14; 16) of a vehicle occupant,
compnsmg:
an airbag sheath (18),
at least one exhaust orifice (20) formed therein, and
a passive control means for selectively releasing the at
least one exhaust orifice (20),
wherein the passive control means is disposed inside the
knee airbag (10) and is arranged so as to release or block the at
least one exhaust orifice (20) in response to an expansion of the
knee airbag (10) in a particular direction of expansion.
Appeal Br. 18.
REJECTIONS
1. The Examiner provisionally rejects claims 19, 20, 27-29, and 34 on the
ground of nonstatutory double patenting as unpatentable over claims 16,
22, and 24 of U.S. Patent Application No. 14/404,713. 3
2. The Examiner rejects claim 36 under 35 U.S.C. § 112, second paragraph,
as indefinite.
3 Issued as U.S. Patent No. 9,650,008 B2 on May 16, 2017.
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3. The Examiner rejects claims 19--22, 24--28, 31-33, and 354 under 35
U.S.C. § I03(a) as unpatentable over Fischer 567 5 in view of Fischer
737. 6
4. The Examiner rejects claim 23 under 35 U.S.C. § I03(a) as unpatentable
over Fischer 567 in view of Fischer 737 and Fischer 910. 7
5. The Examiner rejects claim 29 under 35 U.S.C. § I03(a) as unpatentable
over Fischer 567 in view of Fischer 737 and Acker. 8
6. The Examiner rejects claim 30 under 35 U.S.C. § I03(a) as unpatentable
over Fischer 567 in view of Fischer 737 and Fischer 393. 9
7. The Examiner rejects claim 34 under 35 U.S.C. § I03(a) as unpatentable
over Fischer 567 in view of Fischer 737 and Kishi. 10
DISCUSSION
Double Patenting
Appellants do not address the double patenting rejection in their
briefs. Accordingly, we summarily sustain this rejection.
Indefiniteness
The Examiner determines that claim 3 6 is indefinite based on the
claim recitation
4 We note that the heading for this rejection includes claim 34 and does not
include claim 32. Final Act. 5. However, the body of the rejection
references the specific limitations of claim 32 and not claim 34, and thus, we
find that the body of the rejection makes clear that claim 32 was intended to
be included in this rejection and claim 34 was not. See id. at 8-9.
5 Fischer et al., US 2008/0315567 Al, pub. Dec. 25, 2008.
6 Fischer et al. US 2012/0104737 Al, pub. May 3, 2012.
7 Fischer et al. US 2010/0140910 Al, pub. June 10, 2010.
8 Acker et al., DE 102007053591 Al, pub. May 14, 2009.
9 Fischer et al., US 2012/0235393 Al, pub. Sept. 20, 2012.
1° Kishi et al., US 5,240,283, iss. Aug. 31, 1993.
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Application 14/404,961
wherein a length of a portion of a tether (26) extending between
opposed walls of the knee airbag ( 10) is larger than a minimum
distance x of the fixed vehicle component (12) from the legs
(14) of a short vehicle occupant seated a first distance from the
fixed vehicle component but smaller than a corresponding
distance y from the legs (16) of a normal-sized vehicle occupant
seated a second distance from the fixed vehicle component, the
first distance being less than the second distance.
Final Act. 4. Specifically, the Examiner finds that the claim is indefinite
because "a third set length ( e.g. 'l') cannot be both larger than 'x' and
smaller than 'y' ." Id. at 4. Also,
Examiner notes that the length of the tether itself does not
change rather a tear seam if tom allows for the distance
between the two ends to increase. Examiner further notes that
the dimensions would be reliant on the variable dimensions of
the occupant and chosen seat placement and as such would
further be indefinite (Reference is made to MPEP 2173.0S(b)
II). The terms short and normal-sized are relative terms as the
dimensions are based on variable objects, the claim is
indefinite.
Id. at 5 ( emphasis omitted).
We agree with Appellants that the Examiner does not explain why the
third set length cannot be larger than x and smaller than y. See Appeal Br. 6.
In fact, Appellants' Figures 1 and 2 show this situation, where the total
length of tether 26 is longer than a length x and the total length of tether 26,
after seam 30 is tom, is shorter than lengthy. We also agree with Appellants
that the Specification provides specific definitions of "short vehicle
occupant" and "normal-sized vehicle occupant" with fixed heights and
weights such that they are not based on variable objects as the Examiner
asserts. See Spec. 1, 11. 14--22; see also Appeal Br. 7-8.
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Application 14/404,961
The Examiner responds in the Answer that there may be some
situation in which the distance y may be less than the distance x because, for
example, the chair of the vehicle may be "only one click back between the
two situations, then the 50th percentile dummy could be closer to the
instrument panel than the 5th percentile dummy." Ans. 4. However, we are
not persuaded that this shows the claim limitation is indefinite. Rather, we
agree with Appellants that one of ordinary skill would understand the scope
of the claim in light of the disclosure in the Specification, and one of
ordinary skill in the art would understand that situations in which x and y are
equal or y is less than x are not within the scope of the claim.
Based on the foregoing, we do not sustain the rejection of claim 36.
Obviousness over Fischer 567 and Fischer 737
Here, Appellants provide arguments only with respect to independent
claim 19. Thus, we only discuss claim 19 below, and claims 20-22, 24--28,
31, and 33-35 fall with claim 19.
With respect to claim 19, the Examiner finds that Fischer 567 teaches
an airbag, an airbag sheath, and an active control means disposed inside the
airbag for selectively releasing an exhaust orifice. Final Act. 5---6. The
Examiner acknowledges that Fischer 567 does not disclose that the airbag is
a knee airbag or that the control means is a passive control means. See id. at
6, 8. The Examiner further finds and concludes:
Fischer [737] discloses that it is known to use similar
adaptive techniques in various types of airbags including knee
airbags and to take into account the various factors of a knee
airbag when applying these adaptive techniques, including
specifically the configuration of the vents (Reference is made to
Paragraphs 0006, 0064 and 0067);
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wherein a passive tensile means ( control means)
(202,232,252) is guided through loops (254,256) which, related
to a position of use of the airbag (250), are arranged in a
transverse direction of the vehicle alternately on an airbag wall
facing a fixed vehicle component (3 6) and on an airbag wall
facing a vehicle occupant (Reference is made to Paragraph
0056 and Figures 1, 2 and 5A-8B).
It would have been obvious to one having ordinary skill
in the art at the time the invention was made to modify the
airbag of Fischer et al. ('567) in view of the teachings of Fischer
et al. ('737) to include applying a similar adaptive airbag as a
knee airbag so as to provide adequate knee protection as well as
providing a guided passive tensile means so as to shape the
airbag as desired for deployment and control the venting thereof
in a passive manner that reacts to the impact needs of the
occupant (Reference is made to Paragraphs 0047-0050).
Id. at 8-9. Additionally, the Examiner finds
Fischer [737] which post-dates [Fischer 563] provides
clear motivation to modify the base reference in view of its
teachings as clearly cited in the rejection. At least in Paragraph
0047, "Advantageously, the adaptive shaping and venting
achieved through the adaptive tether 202, guide 204, and vent
210 are controlled passively and respond without the need to
actively monitor the occupant or vehicle and without the need
to actively actuate the tether or vent", the reference clearly
provides motivation for replacing an active system with a
passive one. There are a myriad of reasons in addition to the
explicit teaching for replacing an active system with a passively
controlled one, such as but not limited to reduction in cost and
reducing electronic parts active sensors and/or actuators
(Reference is made to Paragraph 0027). Such reduction in
sensors, which may lead to false positives or negatives, or
reduction in actuators, that may fail or actuate when not
intended, may increase the safety of the system.
Ans. 4--5.
As discussed below, we are not persuaded of error in the rejection of
claim 19 as modified by the Examiner's findings in the Answer.
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Appellants first argue that the proposed modification of Fischer 567's
airbag renders it unsatisfactory for its intended purpose. Appeal Br. 9.
Specifically, Appellants assert that the intended purpose of Fischer 567's
airbag "is to provide an active control means that are arranged to adapt
inflation of the airbag 14a based on several different variables that include
seat position, whether the seatbelt is buckled, tension being exerted on the
seatbelt, the physical size of the occupant, and the weight of the occupant."
Id. We disagree. Fischer 567 discloses that "[t]he present invention also
relates to an apparatus for helping to protect an occupant of a vehicle [and]
includes an inflatable vehicle occupant protection device." Fischer 567 ,r 6.
Fischer 567 repeats the statement that the invention "relates to an apparatus
for helping to protect an occupant of a vehicle" several times and that this is
achieved by providing "an inflatable vehicle occupant protection device."
See id. at ,r,r 7-13. We agree with the Examiner that these statements make
clear that the intended purpose of Fischer 567's invention is to provide
protection of an occupant of a vehicle using an inflatable vehicle occupant
protection device. See Ans. 5. Although Fischer 567 goes on to describe
specific means by which this is accomplished, we do not find that they add
to the overall intended purpose of the device. Thus, we disagree that the
combination proposed, which seeks to add a passive control means to
Fischer 567's inflatable vehicle occupant protection device, renders Fischer
567's device unsatisfactory for its intended purpose.
Second, Appellants argue that the proposed modification changes the
principle of operation of Fischer 567's device. Appeal Br. 12. Specifically,
Appellants assert that, in operation, Fischer 567's device makes a
determination regarding the size of the vehicle occupant based on
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Application 14/404,961
information provided from sensors, makes a determination regarding the
seating position of the occupant, and releases a tether vent by actuating an
actuatable device. Id. at 12-13 (citing Fischer 567 Fig. 16; ,r,r 106, 108).
Appellants also note that Fischer 567 "even uses the term 'principles of
operation' in paragraph [ 0106], which describes tailoring inflation and
deployment of the air bag selectively based on sensed vehicle and occupant
conditions and based on whether the occupant is in a normally seated
position." Id. at 13. Further, Appellants argue that
Id.
The modification proposed by the Examiner would result
in the elimination of at least the sensors 312 and the actuatable
device 300 of Fischer '567 (i.e., changing from active control
means to passive control means). As such, it would no longer
be possible to perform the steps listed at 354, 356, and 370 of
Fischer '567. This clearly changes the principle of operation of
Fischer '567.
We disagree. We agree with the Examiner that the basic principle of
operation of Fischer 567's device is disclosed along with the intended
purpose of the device. See Ans. 5. Specifically, Fischer 567 discloses that
the intended purpose is achieved through the use of an inflatable vehicle
occupant protection device in which
[a] vent has an open condition releasing inflation fluid from the
protection device through the vent. The vent is actuatable to a
closed condition blocking the inflation fluid flow through the
vent. A releasable connection maintains the protection device
in a first condition having a first inflated volume. The
releasable connection is releasable to permit the protection
device to inflate to a second condition having a second inflated
volume greater than the first inflated volume. The releasable
connection is releasable when the vent is in the closed condition
and being maintained when the vent is in the open condition.
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Fischer 567 ,r 6. The Summary of the Invention goes on to provide
descriptions of the devices and methods that describe the operation of the
device without reference to the active control means discussed by
Appellants. See id. at ,r,r 7-14. We also note that at least independent
claim 1 in Fischer 567 does not require active control means to inflate the
inflatable vehicle occupant protection device. See Fischer 567 claim 1.
Thus, we find that the principle of operation of Fischer 567's device relates
to the device being operable to selectively inflate or block inflation of the
device such that either no fluid flows through a vent into the device, fluid
flows only to inflate the device to a first inflated volume, or fluid flows to
inflate the device to a second greater inflated volume. We agree with the
Examiner that this main principle of operation is described without mention
of either active or passive control means. Further, the Examiner finds, and
Appellants do not appear to disagree, that the combination would provide a
device that comports with this principle of operation. Thus, we are not
persuaded that the proposed modification of Fischer 567's device would
change its principle of operation, even to the extent it would eliminate
certain sensors and method steps described in Fischer 567.
Finally, Appellants argue that the rejection is based on the improper
use of hindsight because "the original design of Fischer [567] already
enables the air bag to shape the air bag and control venting thereof," which
is the proposed reasoning for the modification in the rejection. Appeal
Br. 13. Because Fischer 567 already includes this functionality, it can only
be concluded that the rejection is based on the impermissible use of
hindsight. Id. at 13-15. However, we are not persuaded of error by this
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argument because the Examiner provides additional reason for making the
proposed modification in the Answer, as noted above.
In reply, Appellants contend that the additional reasons provided "do
not rise to the required level of articulated reasoning with some rational
underpinning" to support the conclusion of obviousness because "[t]he
Examiner is essentially saying that it would be obvious to replace active
control means of an active system with passive control means in order to
provide a passive system." Reply Br. 7. We disagree with Appellants'
characterization of the additional reasons provided by the Examiner. Rather,
the Examiner concludes that it would have been obvious to use a passive
control means as in Fischer 737 because the use of a passive control means
provides certain advantages over the use of an active control means. See
Ans. 4 (citing Fischer 737 ,r 27). Without further explanation from
Appellants, we are not persuaded of error in this conclusion and we find that
the Examiner has provided the requisite level of articulated reasoning with
rational underpinnings to support the Examiner's conclusion.
Based on the foregoing, we are not persuaded of reversible error in the
rejection of claim 19. Accordingly, we sustain the rejection of claim 19.
We also sustain the rejection of dependent claims 20-22, 24--28, 31-33,
and 35, which fall with claim 19 as noted above.
Remaining Obviousness Rejections
Regarding the remaining rejections, Appellants argue only that the
rejections should not be sustained for the reasons discussed with respect to
claim 19. Having found no deficiency in the rejection of claim 19, we also
sustain the rejections of dependent claims 23, 29, 30, and 34.
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CONCLUSION
We summarily AFFIRM the double patenting rejection of claims 19,
20, 27-29, and 34. We AFFIRM the rejections of claims 19-35 as obvious.
We REVERSE the rejection of claim 36.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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