Ex parte Breed

Board of Patent Appeals and Interferences

Nov 10, 1998

08358976 (B.P.A.I. Nov. 10, 1998)

Application for patent filed December 19, 1994. According to appel-1
lant, this application is a continuation of application 08/104,246 filed
August 9, 1993, which is a continuation of application 07/727,756, filed
July 9, 1991.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 54
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte DAVID S. BREED
_____________
Appeal No. 97-1544
Application 08/358,9761
______________
ON BRIEF
_______________
Before MEISTER, FRANKFORT and STAAB, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's refusal
to allow claims 1, 2, 5 through 7, 12, 13 and 20 through 27 as
Appeal No. 97-1544
Application 08/358,976
2
amended subsequent to the final rejection in a paper filed
February 12, 1996 (Paper No. 45) and from the final rejection
of claim 28. Claims 1, 2, 5 through 7, 12, 13 and 20 through
28 are all of the claims remaining in the application. Claims
3, 4, 8 through 11 and 14 through 19 have been canceled.
Appellant's invention is directed to a switch crush
sensor for use in a vehicle to detect whether a crash
involving the vehicle is severe enough to warrant or require
deployment of an occupant restraint system such as an airbag
or seat belt tensioner. Independent claims 21, 23 and 28 are
representative of the subject matter on appeal and a copy of
those claims is attached to this decision.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Koenig 3,694,600 Sep. 26,
1972
Matsui et al. (Matsui) 3,859,482 Jan. 07,
1975
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Application 08/358,976
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Claims 1, 2, 5 through 7, 12, 13, 20 through 23 and 28
stand rejected under 35 U.S.C. § 102(b) as being anticipated
by Matsui.
Claims 24 and 25 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Matsui.
Claims 26 and 27 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Matsui in view of Koenig.

Rather than reiterate the examiner's full statement of
the above-noted rejections and the conflicting viewpoints
advanced by the examiner and appellant regarding those
rejections, we make reference to the examiner's answer (Paper
No. 49, mailed August 1, 1996) for the examiner's reasoning in
support of the rejec-tions, and to appellant's brief (Paper
No. 48, filed May 15, 1996) and reply brief (Paper No. 50,
filed October 2, 1996) for appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant's specification and claims,
Appeal No. 97-1544
Application 08/358,976
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to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we have made the determinations
which follow.
As a preliminary matter, we note appellant’s three
groupings of the claims set forth on page 11 of the brief and
have selected the independent claim (i.e, claim 21, claim 23
and claim 28) of
each respective grouping as being representative. Per
appellant’s groupings, claims 1, 2, 5 through 7, 12, 13, 20
and 22 will stand or fall with claim 21, while claims 24
through 27 will stand or fall with claim 23. Claim 28 will
stand or fall alone.
Turning first to the examiner's rejection of claim 23
under 35 U.S.C. § 102(b) based on Matsui and using the
language of appellant’s claim 23 as a guide, we note that
Matsui discloses a tape switch crash sensor (col. 7, lines 50-
53, e.g., Figs. 15a, 15b) in combination with a vehicle (e.g.,
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Application 08/358,976
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Fig. 21a) for sensing that the vehicle has been in a crash and
has, at least in part, been crushed. The combination in
Matsui comprises: a) a tape switch containing first and second
electrically conductive members (95, 95N), with said switch
having a length dimension at least an order of magnitude
larger than both its width and its thickness (see, e.g., col.
12, lines 19-23, and col. 18, lines 51-54), the first and
second electrically conductive members (95, 95N) being
substantially parallel to said length dimension, and wherein
said switch actuates on bending (i.e., bending of the first
conductive member into contact with the second conductive
member); b) cover means (97, 99) for reducing the sensitivity
of
said tape switch; c) means for mounting said switch in a crush
zone of said vehicle (col. 19, lines 6-9 and Fig. 21a); and d)
mechanical means (133, 133a of Figs. 21a, 22a) for contacting
and applying a bending force to said switch upon portions of
the vehicle being crushed in the crush zone to cause said
first conductive member to be displaced relative to said
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Application 08/358,976
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second conductive member to cause said switch to change from a
noncon-ducting state to a conducting state, and wherein said
switch latches during said crushing due to the plastic
deformation of the metal cover means (99) upon being subjected
to a compressive force from the pressor member (133, 133a)
exceeding a predeter-mined magnitude. Thus, we must conclude
that this combination in Matsui anticipates that set forth in
claim 23 on appeal.
Appellant urges (brief, pages 16-17) that the term
“bending” as used in the application on appeal is
substantially different than the “bending” that the switch of
Matsui will undergo. Giving the language of claim 23 on appeal
its broadest reasonable inter-pretation consistent with
appellant’s specification, we can not agree with appellant’s
more limited assertions regarding the
definition of “bending” as used in claim 23. Like the
embodiment
seen in Figure 5 of the present application, we observe that
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Application 08/358,976
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the switch in Matsui (e.g., Figs. 15a, 15b mounted as in Fig.
21a) will be struck by vehicle structure (e.g., 133, 133a)
displaced by the crushing of a portion of the vehicle in a
crash and be deformed or “bent” as a result of that contact so
that the first conductive member (95) is displaced relative to
said second conductive member (95N) to cause said switch to
change from a nonconducting state to a conducting state.
Appellant’s specifi-cation, at page 11, lines 6-7, in
reference to Figure 5, appears to support this general
understanding of “bending” as it applies to the switch member
seen therein. Stated simply, in contrast to appellant’s
arguments, claim 23 on appeal is clearly not limited to the
mounting arrangement and type of switch “bending” as depicted
in the embodiment of the invention seen in Figure 6 of the
application, but is instead subject to the broader interpre-
tation applied by this panel of the Board supra.
For the above reasons, the examiner‘s rejection of claim
23 under 35 U.S.C. § 102(b) based on Matsui will be sustained.
Given appellant’s above-noted grouping of the claims, claims
24 through 27 will fall with independent claim 23 from which
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Application 08/358,976
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they
depend, and the examiner’s rejections of such claims under 35
U.S.C. § 103 will thus also be sustained.
Looking next at the examiner’s rejection of independent
claim 28 under 35 U.S.C. § 102(b) based on Matsui, we share
the examiner’s view that Matsui (as discussed above) discloses
a switch type crash sensor as set forth in appellant’s claim
28 on appeal. In this instance, we observe that the tape
switch of (Figs. 15a, 15b) mounted directly to and across the
entire extent of the frame member (129) of Figure 21a (as in
col. 23, lines 56-65, of Matsui) comprises an actuating member
as set forth in clause a) of claim 28; a cover means (99, 97)
for reducing the sensitivity of said tape switch such that “at
least a twenty pound force” is required to cause said switch
to bend along its length (see col. 6, lines 15-19), with said
bending causing the first conductive member (95) of the switch
to contact the second conductive member (95N) thereby causing
said switch/sensor to change from a nonconducting state to a
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conducting state. The sensor of Matsui (Fig. 15b, col. 19,
lines 6-9) includes means for mounting the switch “lengthwise
to two portions of the
vehicle which are likely to experience relative motion during
a
crash of sufficient magnitude that airbag deployment would be
required” (note particularly Figure 21a and the disclosure at
col. 23, lines 56-65 and col. 24, lines 7-30). In this
regard, we note that a sensor mounted directly to and across
the entire extent of the frame member (129) of Matsui would be
mounted “lengthwise to two portions of the vehicle which are
likely to experience relative motion,” that is, “lengthwise
to” the bumper (130) and frame member (129), so that upon a
crash of sufficient magnitude, said portions of the vehicle
(130, 129) experience said relative motion and result in the
actuating member being bent, whereupon the conductive members
(95,95N) make contact with each other and the sensor changes
from a nonconducting state to a conducting state enabling
airbag deployment.
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Application 08/358,976
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In response to appellant’s arguments on pages 17-19 of
the brief, we point out that claim 28 on appeal is not limited
to the particular mounting arrangement and specific type of
switch “bending” depicted in the embodiment of the invention
seen in Figure 6 of the application, but is instead subject to
the broader interpretation applied above by this panel of the
Board.
Contrary to appellant’s arguments, this claim does not recite
or require that the sensor bend “as a result of the motion of
one portion of the vehicle to which the sensor is mounted
relative to another portion of the vehicle to which the sensor
is mounted” (brief, pages 17-18).
For the above reasons, the examiner‘s rejection of claim
28 under 35 U.S.C. § 102(b) based on Matsui will be sustained.
The last claim for our consideration with regard to the
examiner’s § 102(b) rejection based on Matsui, is independent
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claim 21. This claim differs from claims 23 and 28 in that it
requires the sensor to be arranged in the crush zone “at a
given position” and “attached to at least one of said vehicle
elements in said crush zone,” with the switch of the sensor
and the at least one of said vehicle elements cooperating
“such that when said at least one of said elements deforms at
said given position upon said impact at at least said
prescribed threshold-value speed, bending of said actuating
member (in said switch) inten-tionally occurs resulting in
actuation of said switch.” As argued by appellant on pages
13-15 of the brief and in the reply
brief, the more specific requirement in claim 21 of the
cooperating relationship between the sensor/switch and the
vehicle element to which it is specifically attached at a
given location to cause bending of the actuating member of the
switch is not found in Matsui. Contrary to the examiner’s
position (answer, pages 7-8), we do not consider that the
recitations in appellant’s claim 21 noted above are merely
intended use, or that the sensor in Matsui (Figs. 15a, 15b)
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Application 08/358,976
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can be fairly said to be capable of inherently actuating upon
being bent in the manner set forth in claim 21 on appeal. We
view the above recitations of claim 21 as providing a
structural relationship which must be capable of cooperating
so as to bend the actuating member of the switch when the at
least one vehicle element to which it is mounted is bent at
said given position. No such arrangement is shown, disclosed
or taught in Matsui. Thus, the examiner’s § 102(b)
rejection of claim 21 and claims 1, 2, 5 through 7, 12, 13, 20
and 22 which depend therefrom will not be sustained.
In summary: the decision of the examiner rejecting claims
1, 2, 5 through 7, 12, 13, 20 through 23 and 28 under 35
U.S.C.
§ 102(b) as being anticipated by Matsui, has been affirmed as
to
claims 23 and 28, but reversed with regard to claims 1, 2, 5
through 7, 12, 13, 20, 21 and 22. The examiner’s decision
rejecting claims 24 and 25 under 35 U.S.C. § 103 as being
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unpatentable over Matsui and claims 26 and 27 under 35 U.S.C.
§ 103 as being unpatentable over Matsui in view of Koenig has
been affirmed. Thus, the decision of the examiner is
affirmed-in-part.
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
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
vsh
Appeal No. 97-1544
Application 08/358,976
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Samuel Shipkovitz
P.O. Box 2961
Arlington, VA 22202