Ex Parte Flick

Board of Patent Appeals and Interferences

Jan 11, 2006

09859973 (B.P.A.I. Jan. 11, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH E. FLICK
____________

Appeal No. 2005-2762
Application No. 09/859,973
____________

ON BRIEF
____________

Before FRANKFORT, NASE and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner's rejection of claims 1-27, which
are all of the claims pending in this application.
We REVERSE.

Appeal No. 2005-2762
Application No. 09/859,973

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BACKGROUND
The appellant's invention relates to a tracking and alerting system for a vehicle.
A copy of the claims under appeal is set forth in the appendix to the appellant's brief.

The Rejection
Claims 1-27 stand rejected under 35 U.S.C. § 102(a) as being anticipated by
Gioia1.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the rejection
(mailed January 28, 2003), answer (mailed June 19, 2003) and supplemental answer
(mailed March 23, 2005 ) for the examiner's complete reasoning in support of the
rejection and to the supplemental brief (filed April 30, 2003), first reply brief (filed August
22, 2003) and second reply brief (filed May 26, 2005 ) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied Gioia patent, and to the

1 U.S. Pat. No. 6,067,007, issued May 23, 2000.
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respective positions articulated by the appellant and the examiner. For the reasons
which follow, we cannot sustain the examiner’s rejection.
This application was remanded to the examiner by a panel of Administrative
Patent Judges Irwin Charles Cohen, Lawrence J. Staab and Jennifer D. Bahr in a
decision mailed November 10, 2004 to obtain the examiner’s finding “as to how the
noted feature of a controller selectively operating an engine starter interrupt device in
each of claims 1, 12, and 20 reads on the Gioia teaching” (remand, page 2). Judges
Cohen and Staab have subsequently retired. Accordingly, with further explanation from
the examiner in the supplemental answer and response by the appellant in the second
reply brief, this appeal is now before Judges Frankfort, Nase and Bahr.
Each of appellant’s independent claims 1, 12 and 20 calls for a controller
switching between an armed mode and a disarmed mode based upon operation of the
engine starter interrupt device and said controller also selectively operating the engine
starter interrupt device. According to the examiner (supplemental answer, page 3), the
control unit 22 of Gioia responds to the claimed controller and the passive operator
identification device 24 of Gioia responds to the claimed engine starter interrupt device.
The examiner’s position is as follows:
When the key 30 is inserted to the lock switch 34, the
transponder 32 is energized to transmit the security code
associated with the key 30 to the theft control unit 22. If the
transmitted security code is not equal to the security code
stored in the memory 29 of the control unit 22, the vehicle is
under abnormal condition, and then an alarm condition is
indicated; the security system 12 disables the engine 42. In
a condition that the transmitted security code is matched
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with the security code stored in the memory 29 of the control
unit 22, the authorized user is operating the vehicle, none
[sic] alarm condition is indicated, then the controller 22
selectively operates the ignition switch 34 with the passive
operator identification device 24 which reads “selectively
operating the engine starter interrupt device” as claimed
[supplemental answer, page 3].

The flaw in the examiner’s position, as aptly pointed out by the appellant on page
3 of the second reply brief, is that “[n]owhere does Gioia teach that the theft control unit
22 selectively operates any of the components of the passive operator identification
device 24" (which includes lock switch 34, key 30, and key transponder 32). As
explained in columns 3 and 4 of Gioia, when the key 30, which contains a transponder
32, is coupled to the lock switch 34 and the lock switch is in the “on” position, the
transponder 32 is energized to transmit the security code associated with the key to the
theft control unit 22. The theft control unit 22 then compares the security code received
from the transponder to the security code stored in memory 29 of the theft control unit
22. If the received security code is not equal to the security code stored in memory 29,
an unauthorized operator identification flag is set. The theft control unit 22
communicates with the electronic engine controller 36 which can disable the engine 42.
It is clear from the above disclosure that the passive operator identification
device 24 controls the theft control unit, by transmitting the security code stored in the
transponder of the key. Contrary to the examiner’s contention, however, Gioia provides
absolutely no disclosure that the theft control unit 22 provides any feedback to the lock
switch 34, or to any other component of the passive operator identification device 24, or
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otherwise controls the passive operator identification device 24 or any component
thereof. It follows that the examiner’s position that the theft control unit 22 and passive
operator identification device 24 respond, respectively, to the claimed controller and
engine starter interrupt device in appellant’s claims 1, 12 and 20 is not well taken.
Accordingly, the examiner’s rejection of independent claims 1, 12 and 20, and claims 2-
11, 13-19 and 21-27 depending therefrom, cannot be sustained.

CONCLUSION
To summarize, the decision of the examiner to reject claims 1-27 under 35
U.S.C. § 102(a) is reversed.
REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2005-2762
Application No. 09/859,973

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CHRISTOPHER F. REGAN
ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST
SUITE 1401
255 S. ORANGE AVENUE
ORLANDO, FL 32801

JDB/ki
Comment [jvn1]: Type address