Ex Parte Banas

Board of Patent Appeals and Interferences

Sep 30, 2004

09772274 (B.P.A.I. Sep. 30, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte PATRICK A. BANAS
____________
Appeal No. 2003-1531
Application No. 09/772,274
____________
ON BRIEF
____________
Before STAAB, CRAWFORD, and BARRY, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 19 to
24. Claims 1 to 14 have been canceled. Claims 15 to 18 have been found allowable.

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Application No. 09/772,274
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The appellant's invention relates to a method for alerting a drowsy driver by
lowering the temperature in the vehicle cab or pumping oxygen into the vehicle cab
when it is determined that the driver is drowsy (specification, pages 1 and 4 to 5). A
copy of the claims under appeal is set forth in the appendix to the appellant's brief.
The prior art
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Kawakami et al. (Kawakami) 5,488,353 Jan. 30, 1996
Saitoh et al. (Saitoh) 5,813,989 Sep. 29, 1998
Brownlee 5,910,773 Jun. 8, 1999
The rejections
Claims 19 to 21 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Kawakami in view of Saitoh.
Claims 22 to 24 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Kawakami in view of Brownlee.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the answer
(Paper No. 11, mailed Jul. 30, 2002) for the examiner's complete reasoning in support
of the rejections, and to the brief (Paper No. 10, filed May 21, 2002) and reply brief
(Paper No. 12, filed Aug. 29, 2002) for the appellant's arguments thereagainst.
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Application No. 09/772,274
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OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
We turn first to the examiner’s rejection under 35 U.S.C. § 103 of claims 19 to 21
under 35 U.S.C. § 103 as being unpatentable over Kawakami in view of Saitoh. It is the
examiner’s view that Kawakami discloses an apparatus and method for alerting a
drowsy driver which comprises a tactile warning, a visual warning, and an auditory
warning in connection with a determination that the driver is drowsy. The examiner
finds that Kawakami fails to disclose lowering a temperature in a vehicle cab in
response to an increase in the level of drowsiness. The examiner relies on Saitoh for
the disclosure of a driving mental condition detecting apparatus which includes an air
conditioner system for lowering the temperature in the vehicle cab in response to the
determination of an increase in the level of drowsiness of the driver. The examiner
concludes:
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Application No. 09/772,274
Page 4
[I]t would have been obvious to one of ordinary skill in the art to implement
the technique of Saitoh et al. in the system of Kawakami et al. for lowering
a temperature in the interior space of a vehicle in order to alert the driver
who is determined to be unaware . . . . [Answer at page 3.]
Appellant argues:
Kawakami does not awaken the driver by altering conditions in the
vehicle passenger compartment, but rather only produces a terminable
warning that requires a reaction from the driver. If the cooling system of
Saitho [sic, Saitoh] was employed in Kawakami, the cool air would not
provide a terminable warning that requires a reaction by the driver, but
would rather only cool the passenger compartment to alter vehicle
conditions. The driver would not be alerted of his sleepiness and would
not perform any action to terminate the flow of cool air. [Brief at page 4.]
The goal of the Kawakami invention is to improve the awareness of vehicle
drivers (col. 1, lines 8 to 10). Kawakami discloses that tactile, visual and audible
warnings are generated when it is determined that the driver is drowsy (col. 5, lines 23
to 39) to alert the driver of drowsiness and thereby increase the awareness of the
driver. The drowsiness determination is made by comparing the detected heartbeat
rate of the driver with a reference value (col. 2, lines 30 to 35).
Saitoh discloses that once it is determined that a driver is drowsy, several
methods can be used to improve the awareness of the driver including raising the
volume on the CD player, generating an audible warning, supplying perfume to the
automobile compartment, and decreasing the temperature in the automobile
compartment. The reduction of the temperature is done using an air conditioner which
blows air in the direction of the driver (col. 9, lines 30 to 50).
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Application No. 09/772,274
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Both Kawakami (col. 2, lines 30 to 35) and Saitoh (col. 1, lines 17 to 20; col. 4,
lines 54 to 57) determine the level of drowsiness of the driver, based on a detected
heartbeat rate and take steps to increase the level of awareness of the driver. In our
view, it would have been obvious to lower the temperature in the Kawakami driver
compartment as taught by Saitoh in response to the determination that the driver is
drowsy. In addition, as Saitoh discloses monitoring the level of drowsiness of the driver
and lowering the temperature in the vehicle cab in response to an increase of
drowsiness, Saitoh alone discloses the invention recited in claim 19.
Even if appellants are correct that the warnings used in Kawakami are warnings
that can be terminated by the driver and that therefore the driver would not be alerted to
his sleepiness were the teachings of Kawakami and Saitoh were combined, in our view
it would still have been obvious to utilize the temperature lowering step taught by Saitoh
to provide an additional means of increasing the level of awareness of the driver. In
any case, as Saitoh teaches that the temperature in the driver cab is reduced by
blowing cool air in the direction of the driver, this too may be considered a terminable
warning that requires the action of the driver to adjust the air conditioner so that cool air
is not flowing in his/her direction.
In view of the foregoing, we will sustain this rejection as it is directed to claim 19.
We will also sustain this rejection as it is directed to claims 20 and 21 because the
appellant has not advanced arguments with regard to these claims which is different
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Application No. 09/772,274
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from the argument made for claim 19. Accordingly, we have determined that these
claims must be treated as falling with claim 21. See In re Nielson, 816 F.2d 1567,
1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
We turn next to the examiner’s rejection of claims 22 to 24 under 35 U.S.C.
§ 103 as being unpatentable over Kawakami in view of Brownlee.
Kawakami does not disclose the step of pumping oxygen into a vehicle cab in
response to an increase in the level of drowsiness as is recited in claim 24. The
examiner relies on Brownlee (col. 1, lines 40 to 46) for the teaching the step of pumping
oxygen into the vehicle cab to increase the awareness of the driver.
As Kawakami seeks to increase the awareness of the driver by various methods
and Brownlee teaches that one way of increasing the awareness of the driver is to
pump oxygen into the vehicle cab, it is our view that it would have been obvious to a
person of ordinary skill in the art to pump oxygen into the vehicle cab when it is
determined that the driver is drowsy. Therefore, we will sustain this rejection as it is
directed to claim 22. We will also sustain this rejection as it is directed to claim 24 as
claim 24 stands or falls with claim 22 (brief at page 3).
Appellant argues that were the teachings of Kawakami and Brownlee combined,
the oxygen would not be pumped into the vehicle cab in response to the determination
of drowsiness but in response to the determination that the oxygen in the vehicle cab
had reached a certain level. We do not agree. Kawakami discloses that when it is
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determined that the driver is drowsy, certain steps are taken to increase the awareness
of the driver and Brownlee discloses that increasing the oxygen level in the vehicle cab
increases the awareness of the driver (col. 1, lines 39 to 44). Therefore, it would have
been obvious to pump oxygen into the Kawakami vehicle cab when it was determined
that the driver is drowsy.
In regard to claim 23, we agree with the appellant that there is no teaching or
suggestion for utilizing a climate control system to pump oxygen into the vehicle cab.
The system 20 of Brownlee identified by the examiner as a climate control system is a
system to monitor and control the oxygen level in the vehicle cab not a system to
control the climate in the vehicle cab (col. 2, lines 40 to 50). Therefore, we will not
sustain the rejection of claim 23.
In summary, the examiner’s rejection under 35 U.S.C. § 103 of claims 19 to 22
and 24 is affirmed. The examiner’s rejection under 35 U.S.C. § 103 of claim 24 is
reversed.
CONCLUSION
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Application No. 09/772,274
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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LANCE LEONARD BARRY )
Administrative Patent Judge )
MEC/hh
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Application No. 09/772,274
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LAURA M. SLENZAK
SIEMENS CORP.
186 WOOD AVE. SOUTH
ISELIN, NJ 08830