Ex Parte Eikelenberg et al

Patent Trial and Appeal Board

Sep 30, 2016

13158866 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/158,866 06/13/2011
28395 7590 10/04/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Nicole Leonarda Wilhelmina Eikelenberg
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.
83191135 1316
EXAMINER
LU, SHIRLEY
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICOLE LEONARDA WILHELMINA EIKELENBERG,
ULF KIRCHNER, CHRISTOPH ARNDT, and SERVE PLOUMEN1
Appeal2014-009430
Application 13/158,866
Technology Center 2600
Before DEBRA K. STEPHENS, JASON V. MORGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Invention
Appellants disclose a method of determining a route for efficient
energy consumption, determining braking strategies to be implemented by a
vehicle operator, and outputting the braking strategies. Abstract.
1 Appellants identify Ford Global Technologies, LLC, as the real party in
interest. Br. 2.
Appeal2014-009430
Application 13/158,866
Exemplary Claim
Claim 1, reproduced below with key limitations emphasized, is
exemplary:
1. A system comprising:
a processor configured to:
receive route data;
receive a consumption influencing parameter which
influences vehicle energy consumption along possible
routes;
based on the route data and the consumption
influencing parameter, determine a route which minimizes
vehicle energy consumption;
for the determined route, determine vehicle energy
consumption reduction braking strategies for
implementation at different route portions; and
output the braking strategies in the vehicle as
corresponding route portions are reached.
Rejections
The Examiner rejects claims 1-16 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Final Act. 2-3.
The Examiner rejects claims 1-20 under 35 U.S.C. § 103(a) as being
unpatentable over Murphy (US 5,913,917; issued June 22, 1999) and Lewis
et al. (US 2008/0042489 Al; published Feb. 21, 2008). Final Act. 3-8.
ISSUES
1. Did the Examiner err in finding that claim 1 lacks written
description support?
2. Did the Examiner err in finding the combination of Murphy and
Lewis teaches or suggests a processor configured to "output the braking
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Application 13/158,866
strategies in the vehicle as corresponding route portions are reached," as
recited in claim 1?
3. Did the Examiner err in finding the combination of Murphy and
Lewis teaches or suggests a device configured to "output the one or more
braking strategies in the vehicle," as recited in claim 17?
ANALYSIS
Except with respect to the Examiner's 35 U.S.C. § 103(a) rejection of
claims 1-16, we agree with and adopt as our own the Examiner's findings of
facts and conclusions as set forth in the Examiner's Answer and in the Final
Office Action from which this appeal was taken. We have considered
Appellants' arguments, but do not find them persuasive of error.
3 5 U.S. C. § 112, first paragraph-Cl aims 1-16
In rejecting claim 1 under 35 U.S.C. § 112, first paragraph, the
Examiner finds the claim recitation of a processor configured to "output the
braking strategies in the vehicle as corresponding route portions are
reached" lacks written description support in the Specification. Final Act. 2.
In particular, the Examiner finds the Specification does not disclose "when
to implement the varied strategies (e.g., as a route segment is reached, five
seconds, after encountering a segment, halfway through a segment, etc.)."
Ans. 2.
Appellants contend the Examiner erred because:
it is clear that varied braking strategies may be appropriate for
varied portions of the route. Accordingly, claiming
implementation of the varied braking strategies as the varied
portions of the route are reached is not outside the scope of the
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Application 13/158,866
Br. 9.
disclosure, as it would not require any experimentation (since it
is disclosed), let alone undue experimentation.
Rather than showing that the Specification reasonably apprises an
artisan of ordinary skill that Appellants had possession of the claimed
invention (including when the braking strategies are output), Appellants
direct their arguments to whether the Specification enables the invention as
claimed. However, 35 U.S.C. § 112, first paragraph, "contains a written
description requirement separate from enablement." Ariad Pharm., Inc. v.
Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (emphasis added).
Because Appellants' arguments are directed to the enablement requirement,
rather than the written description requirement relied upon by the Examiner,
Appellants' arguments are unpersuasive.
Accordingly, we sustain the Examiner's 35 U.S.C. § 112, first
paragraph, rejection of claim 1, and claims 2-16, which contain similar
recitations and are not argued separately by Appellants.
35 U.S.C. § 103(a)-Claims 1-16
In rejecting claim 1under35 U.S.C. § 103(a), the Examiner relies on
the teaching in Lewis, of haptic feedback controller's coaching of a driver by
providing feedback, either in response to drive pedal input exceeding a
threshold or in anticipation of imminent dissipative braking, to teach or
suggest outputting the braking strategies in the vehicle as corresponding
route portions are reached. Final Act. 4 (citing Lewis Figs. 1-7, i-fi-f 15--42);
see, in particular, Lewis i-fi-125, 26, 30, 31, and 36.
Appellants contend the Examiner erred because the feedback in Lewis
"is not output 'as a different route portion is reached' . . . . Instead, the
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Application 13/158,866
feedback is output when dissatisfactory behavior is observed." Br. 10 (citing
Lewis i-f 25). We agree that Lewis does not teach outputting braking
strategies as corresponding route portions are reached; rather, Lewis
provides coaching via haptic or other feedback. See Final Act. 4 (citing
Lewis i-fi-115--42, Figs. 1-7). The Examiner has not shown Lewis' feedback
would be output as corresponding route portions is reached. Thus, the
Examiner has not shown Lewis in proper combination with Murphy, teaches
or suggests outputting breaking strategies in the vehicle as corresponding
route portions are reached.
Accordingly, we cannot sustain the Examiner's 35 U.S.C. § 103(a)
rejection of claim 1, and claims 2-16, which contain similar recitations and
are similarly rejected.
35 U.S.C. § 103(a)-Claims 17-20
Claim 1 7 differs from claim 1 in the key respect that claim 1 7' s
device is merely configured to "output the one or more braking strategies in
the vehicle" without any recitations directed to when the output occurs.
Appellants, thus, argue claim 17 separately, submitting that the feedback in
Lewis is merely "a notification of misapplied input or a correction." Br. 12
(citing Lewis ,-r 26). That is, Appellants argue "[n]o 'strategy' is output by
the vehicle, instead, corrections to bad driving behavior are output to correct
the behavior." Br. 12.
Appellants do not persuasively distinguish the claimed output of
braking strategies from the feedback provided by Lewis. Appellants argue
that even if "behavior correction is in accordance with an underlying
strategy, there is no teaching that the strategy itself is output." Id. However,
by providing feedback to the driver, either in response to drive pedal input
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exceeding a threshold or in anticipation of imminent dissipative braking, the
haptic feedback system informs the driver that certain non-strategic braking
behavior is to be avoided. See Lewis i-fi-125, 26, 30, 31, and 36. Thus, by
providing feedback, the Lewis haptic feedback system outputs a strategy in
the vehicle.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 17, and claims 18-20, which Appellants do not argue separately.
DECISION
We affirm the Examiner's decision rejecting claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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