Ex Parte Baig et alDownload PDFBoard of Patent Appeals and InterferencesOct 22, 201011094006 (B.P.A.I. Oct. 22, 2010) Copy Citation 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. 11/094,006 03/30/2005 Mirza Aref Ahmed Baig 20-LC-5025CON (441) 9229 29391 7590 10/22/2010 BEUSSE WOLTER SANKS MORA & MAIRE, P. A. 390 NORTH ORANGE AVENUE SUITE 2500 ORLANDO, FL 32801 EXAMINER MANCHO, RONNIE M ART UNIT PAPER NUMBER 3664 MAIL DATE DELIVERY MODE 10/22/2010 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 ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte MIRZA AREF AHMED BAIG, RICHARD L. EVANS, SCOTT SEXAUER, CHRISTOPHER E. PALLO, NING ZHANG, STEVEN ANDREW KELLNER, LEONARD HILL, BRUCE M. SWEELEY, and JAMES GLEN CORRY ____________ Appeal 2009-008369 Application 11/094,006 Technology Center 3600 ____________ Before JENNIFER D. BAHR, STEFAN STAICOVICI, and KEN B. BARRETT, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-008369 Application 11/094,006 2 STATEMENT OF THE CASE Mirza Aref Ahmed Baig et al. (Appellants) appeal under 35 U.S.C. § 134 (2002) from the Examiner’s decision rejecting claim 20 under 35 U.S.C. § 102(e) as being anticipated by Stewart (US 6,401,015, iss. Jun. 4, 2002). The Examiner has withdrawn claims 1-19, which are the only other claims pending in the application, from consideration. We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002). The Invention Appellants’ invention is directed to locomotive controllers for selectively limiting tractive effort in locomotives. Spec. 1, para. [002]. Claim 20, reproduced below, is the only claim involved in this appeal. 20. A method for controlling a level of tractive effort in a train having a first locomotive constituting a command locomotive, operable through a range of engine power settings, and a second locomotive positioned in the train at a spaced location from the command locomotive, said second locomotive constituting a command-follower locomotive, operable through a range of engine power settings, with at least one railcar being positioned between the command and command-follower locomotives, a communication link between the command and command- follower locomotives for transmitting and receiving engine power control signals for controlling locomotive engine power settings and tractive effort control signals for controlling the level of tractive effort, and at least one of the locomotives being configured to selectively operate in either of two modes of operation comprising a first mode in which said at least one locomotive generates a different tractive effort than when said at least one locomotive is in a second mode of operation, the method comprising; at the command locomotive selecting between the two modes of operation for producing a level of tractive effort appropriate for conditions as the train moves along a length of track; Appeal 2009-008369 Application 11/094,006 3 transmitting a tractive effort control signal indicative of the selected mode of operation; receiving the tractive effort control signal at another of said locomotives; and controlling the tractive effort generated at said at least one locomotive so as to develop a differential in the tractive effort generated by the command and command-follower locomotives, with the tractive effort generated at the command locomotive being different than that generated at the command- follower locomotive, in one of the two modes of operation, whereby with the command and command-follower locomotives under power to operate in engine power settings to move the train in a given direction of travel, the differential in the tractive effort generated by the command and command- follower locomotives is selected to avoid an occurrence of a derailment condition that otherwise can develop in a railcar between the command and command-follower locomotives. SUMMARY OF DECISION We REVERSE. OPINION Issue Appellants argue that Stewart fails to describe a method comprising the controlling step called for in the last paragraph of claim 20. App. Br. 4- 8. The Examiner found that Stewart describes this controlling step at col. 4, ll. 45-67; col. 6, ll. 43-65; col. 10, ll. 55-67; col. 12, ll. 37-44; col. 21, ll. 55- 67; and col. 22, ll. 1-11. Ans. 5. Accordingly the dispositive issue raised in this appeal is whether the cited portions of Stewart describe the controlling step of claim 20, more particularly, a step of controlling at least one locomotive so as to develop a differential between the tractive effort Appeal 2009-008369 Application 11/094,006 4 generated by the command locomotive and the tractive effort generated by the command-follower locomotive, with the differential in the tractive effort generated by the command and command-follower locomotives being selected to avoid an occurrence of a derailment condition that otherwise can develop in a railcar between the command locomotive and the command- follower locomotive. Discussion We agree with Appellants’ summary (App. Br. 4-8) of the teachings of the portions of Stewart cited by the Examiner as describing the controlling step of claim 20. We cannot find by a preponderance of the evidence, and the Examiner has not cogently demonstrated, that these portions of Stewart describe the controlling step called for in claim 20. The Examiner’s reasoning that a differential is developed between the different locomotives on the train because the two tractive efforts are produced by different locomotives (Ans. 5) is not well founded. The fact that different locomotives on the train have the capability to produce tractive efforts which are different from each other does not satisfy a step of actually controlling those locomotives so as to produce tractive efforts which are different from one another. The Examiner additionally makes reference to tractive efforts of different direction or magnitude in a cut out mode (Ans. 5, 7), but does not specifically identify any portion of Stewart that describes controlling the lead and remote (follower) locomotives so as to generate different tractive efforts in a cut out mode. The Examiner’s explanation (see id.) as to how Stewart satisfies the limitation of claim 20 that the differential is selected to avoid the occurrence of a derailment condition that otherwise can develop is also unconvincing. Appeal 2009-008369 Application 11/094,006 5 The Examiner’s finding that in a cut out mode, the tendency of the train to derail is reduced because the train size has been reduced (id.), even if factually accurate, does not explain how Stewart describes selecting a differential between the tractive efforts of the command and command- follower locomotives to avoid occurrence of a derailment condition. Finally, we do not agree with the Examiner (see id.) that Stewart’s description of running the locomotives in a Run mode, or at a reduced speed of 12 mph, describes a positive step of controlling the locomotives to avoid an occurrence of a derailment condition, as called for in claim 20. For the above reasons, we cannot find by a preponderance of the evidence that the cited portions of Stewart describe the controlling step of claim 20, more particularly, a step of controlling at least one locomotive so as to develop a differential between the tractive effort generated by the command locomotive and the tractive effort generated by the command- follower locomotive, with the differential in the tractive effort generated by the command and command-follower locomotives being selected to avoid an occurrence of a derailment condition that otherwise can develop in a railcar between the command locomotive and the command-follower locomotive. Accordingly, we are constrained to reverse the Examiner’s rejection. DECISION The Examiner’s decision is reversed. REVERSED Appeal 2009-008369 Application 11/094,006 6 mls BEUSSE WOLTER SANKS MORA & MAIRE, P. A. 390 NORTH ORANGE AVENUE SUITE 2500 ORLANDO, FL 32801 Copy with citationCopy as parenthetical citation