Ex Parte Gianone et alDownload PDFPatent Trials and Appeals BoardMay 21, 201912824472 - (D) (P.T.A.B. May. 21, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/824,472 06/28/2010 113600 7590 05/23/2019 Brooks Kushman P.C. / Meritor Twenty Second Floor 1000 Town Center Southfield, MI 48075 FIRST NAMED INVENTOR Roberto Gianone 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. MERIT 090026 PUSA 9967 EXAMINER SHAPIRO, JEFFREY ALAN ART UNIT PAPER NUMBER 3655 NOTIFICATION DATE DELIVERY MODE 05/23/2019 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERTO GIANONE, CHIARA CESARI, MARCO BASSI, and MARCO FRATELLI Appeal2018-006686 1 Application 12/824,4722 Technology Center 3600 Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and TARA L. HUTCHINGS, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1, 3, 5-7, and 24--38. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Our decision references the Appeal Brief filed Dec. 13, 2017 ("Appeal Br."); the Reply Brief filed June 14, 2018 ("Reply Br."); the Examiner's Answer mailed Apr. 18, 2018 ("Ans."); and the Final Office Action mailed July 13, 2017 ("Final Act."). 2 According to Appellants, the real party in interest is Meritor Technologies, Inc. Appeal Br. 1. Appeal 2018-006686 Application 12/824,472 BACKGROUND According to Appellants, "[t]he present invention relates to controlling an oil level around a transmission gear of a vehicle, in particular to controlling the oil level in a driven axle of a vehicle." Spec. ,r 2. CLAIMS Claims 1, 24, 28, 32, and 36 are the independent claims appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method of controlling a fluid level around a transmission gear of a vehicle, the method comprising the steps of: (a) storing a set of predetermined operating conditions in an electronic control unit, each predetermined operating condition having a corresponding predetermined fluid level requirement including a first predetermined operating condition having a first fluid level and a second predetermined operating condition having a second fluid level, each of the first and second fluid levels providing lubrication to the transmission gear; (b) operating the vehicle at an actual operating condition; ( c) using the electronic control unit to determine a predetermined operating condition equivalent to the actual operating condition; ( d) providing a sump region around the transmission gear and providing a reservoir in fluid communication with the sump region; and ( e) arranging a fluid level in the sump region to be equivalent to one of the first and second fluid levels by transferring fluid between the sump region and the reservoir, wherein the predetermined operating condition is at least defined by a predicted future operating condition determined by using at least a route guidance system that includes information about road conditions. Appeal Br., Claims App. 1. 2 Appeal 2018-006686 Application 12/824,472 REJECTIONS 3 1. The Examiner rejects claims 1, 3, and 5-7 under 35 U.S.C. § I03(a) as unpatentable over Goras in view ofWang. 4 2. The Examiner rejects claims 24--27 under 35 U.S.C. § I03(a) as unpatentable over Goras in view of Lee. 5 3. The Examiner rejects claims 28-35 under 35 U.S.C. § I03(a) as unpatentable over Goras in view of Bemdorfer. 6 4. The Examiner rejects claims 36-38 under 35 U.S.C. § I03(a) as unpatentable over Goras in view of Utz 7 and Ward. 8 DISCUSSION Each of the independent claims recites a method of controlling a fluid level around a transmission gear including, inter alia, the step: storing a set of predetermined operating conditions in an electronic control unit, each predetermined operating condition having a corresponding predetermined fluid level requirement including a first predetermined operating condition having a first fluid level and a second predetermined operating condition having a second fluid level, each of the first and second fluid levels providing lubrication to the transmission gear. Appeal Br., Claims App. 1-5. 3 The Examiner has withdrawn a rejection of claims 1, 3, and 5-7 over Goras et al., WO 2008/108720 Al, pub. Sept. 12, 2008 ("Goras") in view of Van Buer et al., US 2005/0125148 Al, pub. June 9, 2005). See Ans. 4. 4 Wang et al., US 2009/0312932 Al, pub. Dec. 17, 2009 ("Wang"). 5 Lee et al., US 2010/0063694 Al, pub. Mar. 11, 2010 ("Lee"). 6 Bemdorfer et al., US 2004/0178900 Al, pub. Sept. 16, 2004 ("Bemdorfer"). 7 Utz et al., US 2006/0037387 Al, pub. Feb. 23, 2006 ("Utz"). 8 Ward et al., US 2008/0262683 Al, pub. Oct. 23, 2008 ("Ward"). 3 Appeal 2018-006686 Application 12/824,472 We are persuaded by Appellants' argument that the Examiner erred in finding that Goras teaches a storing step as required by each independent claim. With respect to claim 1, for example, the Examiner finds that Goras teaches: storing a set of predetermined operating conditions, such as represented by software algorithms which calculate loads on gears based upon the speed at which the vehicle is operating, etc., as mentioned at p. 4, lines 19-31, for example, in an electronic control unit, i.e., vehicle computer controller (70, 74, 76), as illustrated in figures 1-5, each predetermined operating condition, i.e., the load of each gear, as mentioned at p. 4, lines 15-18 and 26-29, having a corresponding predetermined fluid level requirement, i.e., "[t[he load, i.e., the torque transmitted, may if so required, e.g. in order to vary the oil level according to the load ... " , including a first predetermined operating condition, i.e., load/torque at a first amount, having a first fluid level, i.e., the gears are covered by the volume of oil corresponding to said first oil level, and a second predetermined operating condition, i.e., a different load/torque, having a second fluid level, wherein the gears are either touching the volume of oil or wherein the oil level is below said gears, each of the first and second fluid levels providing lubrication, i.e., oil, to the transmission gear. Final Act. 2-3 ( emphasis omitted). The Examiner similarly relies on Goras as teaching this step with respect to each of the other independent claims. See id. at 11, 15-16, 19, 23. However, we agree with Appellants that the Examiner has not established that Goras teaches storing predetermined operating conditions with predetermined fluid level for a transmission gear including a first operating condition with a first fluid level and a second operating condition with a second fluid level. Although the Examiner indicates that Goras teaches storing predetermined operating conditions "such as represented by 4 Appeal 2018-006686 Application 12/824,472 software algorithms which calculate loads on gears based upon the speed at which the vehicle is operating," the Examiner does not point to any express indication in Goras that Goras' s system stores multiple predetermined operating conditions with corresponding predetermined fluid levels for a specific gear. See Final Act. 2-3. Goras does disclose varying oil levels according to load, but Goras only specifically discloses oil levels for each gear that either reach or do not reach a gearwheel pair depending on whether the gearwheel pair is under load. See Goras 4--5, Figs. 1, 2. Goras further discloses that sensors are used to determine which pair of gear combinations is under load. Id. Specifically, Goras discloses that software determines the position of each gear and whether any pair of gears are under load in order to adjust the oil level so that the oil level reaches the specific gearwheels under load. Id. at 4--5. Thus, the portions of Goras cited by the Examiner discuss only adjusting the fluid level so that the fluid "reaches" any gear that is under load, and at best, Goras only expressly discloses a fluid level that is either high enough or not high enough to reach a gear depending on whether that gear is under load. See, e.g., id. at 6 ("The gear combination A+ B under load will thus be supplied with oil, while the combination C+ D not under load has a so-called 'dry sump,' i.e. an oil level below the respective lower gearwheels."). Further, we agree with Appellants that the language of the claim requires that the stored predetermined operating conditions refer to a single transmission gear. See Reply Br. 2. Thus, we disagree with the Examiner that the allegedly different fuel levels depicted in Goras are sufficient to show that Goras teaches storing first and second predetermined operating 5 Appeal 2018-006686 Application 12/824,472 conditions with first and second predetermined fluid levels as claimed. See Ans. 7-8. Rather, these fluid levels are depicted for different gears, not the same transmission gear, and Goras does not otherwise explain the apparent difference in fluid levels depicted. Based on the foregoing, we are persuaded of error in the rejections of each of the independent claims because the Examiner erred in finding that Goras discloses storing a set of predetermined operating conditions as claimed. Accordingly, we do not sustain the rejections of claims 1, 24, 28, 32, and 36. For the same reasons, we do not sustain the rejections of dependent claims 3, 5-7, 25-27, 29-31, 33-35, 37, and 38. CONCLUSION We REVERSE the rejections of claims 1, 3, 5-7, and 24--38. REVERSED 6 Copy with citationCopy as parenthetical citation