Ex Parte Dellock et alDownload PDFPatent Trials and Appeals BoardMay 23, 201914684496 - (D) (P.T.A.B. May. 23, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/684,496 04/13/2015 121691 7590 05/28/2019 Ford Global Technologies, LLC/ King & Schickli, PLLC 800 CORPORATE DRIVE, SUITE 200 Lexington, KY 40503 FIRST NAMED INVENTOR Paul Kenneth Dellock 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. 83517404 1455 EXAMINER GHULAMALI, QUTBUDDIN ART UNIT PAPER NUMBER 2632 NOTIFICATION DATE DELIVERY MODE 05/28/2019 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): uspto@iplawl.net laura@iplawl.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte PAUL KENNETH DELLOCK, STUART C. SALTER, KEITH A. HOELSCHER, MICHAEL A. MUSLEH, and MARY BETH ANGOTTI Appeal2018-005447 Application 14/684,496 Technology Center 2600 Before CARL W. WHITEHEAD JR., JAMES B. ARPIN, and JOSEPH P. LENTIVECH, Administrative Patent Judges. LENTIVECH, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the Examiner's decision to reject claims 1, 4--9, and 12-17. Claims 2, 3, 10, and 11 have been canceled. See App. Br. 17. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b ). We affirm. 1 According to Appellants, the real party in interest is Ford Global Technologies, LLC. App. Br. 3. Appeal2018-005447 Application 14/684,496 STATEMENT OF THE CASE Appellants 'Invention Appellants' invention generally relates to "warning signals for motor vehicles" and, more particularly, to "an improved tum signal/blind spot indicator for a vehicle rear-vision mirror." Spec. ,r 1. Claim 1, which is illustrative, reads as follows: 1. A warning indicator system for a vehicle, comprising: an indicator for providing visible signals within a reflective surface of a rear-vision mirror, operatively connected to a proximity sensor system and to a tum signal control system of the vehicle; wherein the indicator provides a first visible signal when the tum signal control system is activated and provides a second visible signal when the tum signal control system and the proximity sensor system are activated, wherein the indicator comprises a first printed LED decal for providing the first visible signal and a second printed LED decal for providing the second visible signal, and wherein the first visible signal has a first color and the second visible signal has a second color that is different from the first color. Rejection Claims 1, 4--9, and 12-17 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lynam (US 8,833,987 B2; issued Sept. 16, 2015) and Max et al. (DE 10 2011 106 838 Al; published Jan. 10, 2013) ("Max"). Final Act. 3-8. 2 Appeal2018-005447 Application 14/684,496 ANALYSIS Claim 1 FIRST CONTENTION Appellants contend the combined teachings of Lynam and Max fail to teach or suggest "an indicator for providing visible signals within a reflective surface of a rear-vision mirror, operatively connected to a proximity sensor system and to a tum signal control system of the vehicle," as recited in claim 1. App. Br. 9--12; Reply Br. 1-3. Appellants argue Lynam teaches a first indicator connected to a blind spot detection/LCA [Lane Change Aid] system and a second indicator connected to a tum signal system and not an indicator operatively connected to a proximity sensor system and to a tum signal control system of the vehicle, as recited in claim 1. App. Br. 10 (citing Lynam, Fig. 1, 1:46-63); Reply Br. 2. We do not find Appellants' arguments persuasive. We agree with the Examiner that Lynam describes a mirror assembly including multiple display elements or devices for providing both a blind spot/LCA object indicator and a tum signal indicator. Ans. 2-3 ( citing Lynam, Figs. 1, 6; 6:6-10). We also agree with the Examiner that Lynam teaches the two or more display devices may be incorporated together into a single unitary display module or unit ( and, thus, with a common connector incorporated in the single unitary module and servicing, for example, a commonly housed tum signal indicator element and blind spot indicator element). Ans. 3; see also Lynam 6: 11-16. Appellants fail to explain persuasively why Lynam's common connector does not act to connect each of the tum signal indicator element and the blind spot indicator element operatively to a proximity sensor system and to a tum signal control system of the vehicle. Instead, 3 Appeal2018-005447 Application 14/684,496 Appellants merely argue that "simply being able to incorporate the two different tum signal indicators and blind spot indicator element into the same housing does not qualify as an indicator being operatively connected to a proximity sensor system and to a tum signal control system." Reply Br. 2- 3. Therefore, Appellants' contention is unpersuasive. See 37 CPR § 4I.37(c)(l)(iv) ("The arguments shall explain why the examiner erred as to each ground of rejection contested by [ A Jppellant. . . . [ A ]ny arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.") ( emphasis added). Moreover, arguments not made are deemed waived. See id; cf In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this court to examine the claims in greater detail than argued by an [A]ppellant, looking for nonobvious distinctions over the prior art."). We also are not persuaded by Appellants' arguments that Lynam teaches the use of two separate indicators solely connected to a blind spot detection/LCA system and a tum signal system, respectively. App. Br. 11. Contrary to Appellants' arguments, claim 1 is not limited to a single indicator. "[The Federal Circuit] has repeatedly emphasized that an indefinite article 'a' or 'an' in patent parlance carries the meaning of' one or more' in open-ended claims containing the transitional phrase 'comprising."' . . . That "a" or "an" can mean "one or more" is best described as a rule, rather than merely as a presumption or even a convention. The exceptions to this rule are extremely limited: a patentee must "evince[ ] a clear intent" to limit "a" or "an" to "one." . . . The subsequent use of definite articles "the" or "said" in a claim to refer back to the same claim term does not change the general plural rule, but simply reinvokes that non-singular meaning. An exception to the general rule that "a" or "an" means more than one only arises 4 Appeal2018-005447 Application 14/684,496 where the language of the claims themselves, the specification, or the prosecution history necessitate a departure from the rule. Baldwin Graphic Systems, Inc. v. Siebert, Inc., 512 F.3d 1338, 1342--43 (Fed. Cir. 2008) (citations omitted); see also Harari v. Lee, 656 F.3d 1331, 1341 (Fed. Cir. 2011 ). Appellants do not present arguments persuasive to show that the exception applies here. Further, the use of a single indicator, rather than the multiple indicators taught by Lynam, is insufficient to distinguish the claims over the applied prior art. See In re Larson, 340 F .2d 965, 968 (CCPA 1965) (A claim to a fluid transporting vehicle was rejected as obvious over a prior art reference which differed from the prior art in claiming a brake drum integral with a clamping means, whereas the brake disc and clamp of the prior art comprise several parts rigidly secured together as a single unit. The court affirmed the rejection holding, among other reasons, "that the use of a one piece construction instead of the structure disclosed in [ the prior art] would be merely a matter of obvious engineering choice."). Accordingly, we are not persuaded the Examiner erred in finding Lynam teaches or suggests the disputed limitation. SECOND CONTENTION Appellants contend the combined teachings of Lynam and Max fail to teach or suggest "wherein the indicator provides a first visible signal when the tum signal control system is activated and provides a second visible signal when the tum signal control system and the proximity sensor system are activated ... and wherein the first visible signal has a first color and the second visible signal has a second color that is different from the first color," as recited in claim 1. App. Br. 12; Reply Br. 3. Appellants acknowledge 5 Appeal2018-005447 Application 14/684,496 that Lynam teaches the use of different colors, but fails to teach or suggest that the first visible signal has a first color and the second visible signal has a second, different color, as recited in claim 1. Id. We do not find Appellants' argument persuasive. The Examiner finds "[t]he difference in color for the iconistic display, that is, a first visible signal has a first color and a second visible signal has a second color that is different from the first color, is made obvious by Lynam in view of Max." Ans. 4--5. As noted by Appellants (App. Br. 12), Lynam teaches the use of different colors. Lynam, 25:23-26. Max teaches the use of different colors for representing different degrees of hazard. Max ,r 38. The Examiner relies on the teachings of Max "to show that the limitation of indicator in Lynam may be defined by printed LEDs in a known manner suitably arranged to produce [the] desired result"----e.g., the first visible signal having a first color and the second visible signal having a second color that is different from the first color, as required by claim 1. Ans. 5. Appellants' arguments fail to address the combined teachings of the references persuasively and, therefore, are unpersuasive of error. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). THIRD CONTENTION Appellants contend that combining the teachings of Lynam and Max is improper. App. Br. 12-15; Reply Br. 3--4. Initially, Appellants argue the Specification "expressly disparages prior art mirror-mounted blind spot indicators and tum signals provided as separate elements as in Lynam," and, therefore, Lynam teaches away from the claimed invention. App. Br. 12-13 ( citing Spec. ,r 4). 6 Appeal2018-005447 Application 14/684,496 We do not find Appellants' argument persuasive. A reference teaches away from a claimed invention or a proposed modification if "a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). "A reference that 'merely expresses a general preference for an alternative invention but does not criticize, discredit, or otherwise discourage investigation into' the claimed invention does not teach away." Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017) (quoting Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013)). Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants' arguments fail to show that Lynam criticizes, discredits, or otherwise discourage the recited device and, therefore, are unpersuasive of error. Second, Appellants argue "the Examiner fails to provide any reason based on a rational underpinning for combining the references." App. Br. 13. Appellants argue the Examiner, instead, provides an unsupported conclusion and "this unsupported conclusion does not qualify as an articulated reason with a rational underpinning for combining the references and it does not establish a prima facie case of obviousness because it would not lead a skilled artisan to combine the references and arrive at the claimed invention." App. Br. 14. Appellants further argue "Lynam does not even remotely contemplate utilizing printed LED decals" 7 Appeal2018-005447 Application 14/684,496 and "it appears that the purpose and resulting benefit derived by the currently claimed system is completely absent in the cited references and the only motivation in the record for combining those references in the manner proposed by the Action is found in the present application." App. Br. 14. We do not find Appellants' arguments persuasive. The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006). The Examiner may satisfy this test by showing some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. KSR Int'!. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The conclusion of obviousness may be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, or the background knowledge possessed by a person having ordinary skill in the art. Id. Furthermore, "the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court may take account of the inferences and creative steps that a person of ordinary skill in the art would employ." Id. "[W]hen a patent [application] claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result" in order to be deemed nonobvious. Id. at 416. In this case, the Examiner reasons: It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to adapt the known teaching of Max with the indicator system of Lynam using the known method disclosed by Max, and that in combination, each element merely performs the same function as it does separately and one of ordinary skill in the art would have 8 Appeal2018-005447 Application 14/684,496 recognized that the results of the combination as predictable for the benefit of providing a luminous signal as a warning of a situation which is dangerous for a lane change to the driver of the vehicle. Final Act. 5. The modification proposed by the Examiner is nothing more than the substitution of one well-known illumination or light source ( e.g., Lynam's one or more light emitting diodes (LEDs) or organic light emitting diodes (OLEDs) (Lynam 6:66-7:4)) for another well-known illumination or light source (e.g., Max's LED-band (Max ,r 12)). Thus, the Examiner's conclusion of obviousness is supported by articulated reasoning having some rational underpinning. Third, Appellants argue: [I]ncorporating printed LEDs into Lynam would change the principle of operation and require a substantial redesign and/or reconstruction of the mirror reflective element sub-assembly as it expressly discloses the use of indicator mounting portion 24 so that illumination is viewable through the reflective element, which is not necessary if printed LEDs are used. App. Br. 14--15 (citing MPEP § 2143.01). Appellants further argue "[t]he claimed printed LED decals could not be merely substituted into Lynam to replace the conventional LEDs without significant changes in the overall design of the mirror reflective element sub-assembly." App. Br. 15. We find Appellants' arguments unpersuasive. "The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference." In re Keller, 642 F.2d 413,425 (CCPA 1981). As discussed above, the relevant issue is "what the combined teachings of the references would have suggested to one of ordinary skill in the art." Kahn, 441 F.39 at 987-88. "Combining the teachings of references does not involve an ability to 9 Appeal2018-005447 Application 14/684,496 combine their specific structures." In re Nievelt, 482 F.2d 965, 968 (CCPA 1973); see also In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) ("It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements."). Accordingly, Appellants' arguments based on bodily incorporation do not persuade us that the Examiner erred. For the foregoing reasons, we are not persuaded the Examiner erred in rejecting claim 1; independent claim 9, which recites corresponding limitations and is argued together with claim 1 (see App. Br. 9--15); or dependent claims 4--8, 12, and 14--17, which are not argued separately with particularity (see id.). Claims 5 and 13 Appellants contend the combination of Lynam and Max fails to teach or suggest "wherein the first printed LED decal is at least partially enveloped by the second printed LED decal," as recited in claim 5, and similarly recited in claim 13. App. Br. 15-16; Reply Br. 4. Appellants argue Lynam teaches two separate display areas and, therefore, fails to teach that a first printed LED decal is at least partially enveloped by the second LED decal, as recited in claims 5 and 13. App. Br. 16 (citing Lynam Fig. 1). We do not find Appellants' argument persuasive. With respect to claim 1, the Examiner relies upon Max's teaching regarding the use of a light emitting display device including a lighting strip, such as an LED-band, for teaching the claimed first and second printed LED decals. Final Act. 4--5 (citing Max ,r 4); see also Max ,r 12. Max teaches the LED segments of the LED-band are controlled as a function of the degree of hazard associated with the vehicle changing lanes. Max ,r 1 7. As discussed above, Max 10 Appeal2018-005447 Application 14/684,496 teaches the degree of hazard may be indicated through the use of different colors. Max ,r 38. Figures 6a-6b of Max depict a first indicator, segment 6a, at least partially enveloped by a second indicator, segment 6b. As such, Max teaches or suggests the limitations recited in claim 5, and similarly recited in claim 13. Accordingly, we sustain the Examiner's rejection of claims 5 and 13. DECISION We affirm the Examiner's rejection of claims 1, 4--9, and 12-17 under 35 U.S.C. § 103(a). 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 11 Copy with citationCopy as parenthetical citation