Ex Parte Glueck et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201814313657 (P.T.A.B. Feb. 9, 2018) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/313,657 06/24/2014 Manuel GLUECK BOSC.P8911US/11603963 1067 24972 7590 02/13/2018 NORTON ROSE FULBRIGHT US LLP 1301 Avenue of the Americas NEW YORK, NY 10019-6022 EXAMINER RAEVIS, ROBERT R ART UNIT PAPER NUMBER 2856 NOTIFICATION DATE DELIVERY MODE 02/13/2018 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): nyipdocket@nortonrosefulbright.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MANUEL GLUECK and ALEXANDER BUHMANN Appeal 2017-005218 Application 14/313,6571 Technology Center 2800 Before KAREN M. HASTINGS, N. WHITNEY WILSON, and BRIAN D. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1—14. We have jurisdiction. 35 U.S.C. § 6(b). We AFFIRM. 1 The Appellant is the applicant, ROBERT BOSCH BmbH, and the Appeal Brief also identifies the Appellant as the real party in interest. Appeal Br. 1. Appeal 2017-005218 Application 14/313,657 STATEMENT OF THE CASE2 Appellant describes the invention as relating to a method and unit for calibrating a yaw sensor. Spec. 1 5.3 Claim 1, which is reproduced below with emphasis added to certain key recitations, is illustrative of the claimed subject matter: 1. A method for self-calibration of a yaw rate sensor of an inertial sensor unit that includes an acceleration sensor and the yaw rate sensor, the yaw rate sensor including a calibration arrangement and an evaluation arrangement, the method comprising: supplying a yaw rate signal of the yaw rate sensor to the evaluation arrangement; generating an output signal as a function of the yaw rate signal; supplying the output signal to the calibration arrangement; supplying an acceleration signal of the acceleration sensor to the calibration arrangement; generating a correction signal by the calibration arrangement as a function of the acceleration signal and of the output signal; and calibrating the output signal as a function of the correction signal. Appeal Br. Claims Appendix 1. REJECTION On appeal, the Examiner maintains the rejection of claims 1—14 under 35 U.S.C. § 112 as failing to comply with the enablement requirement. The 2 In this opinion, we refer to the Non-Final Office Action dated June 16, 2016 (“Non-Final Act.”), the Appeal Brief filed November 1, 2016 (“Appeal Br.”), the Examiner’s Answer dated December 12, 2016 (“Ans.”), and the Reply Brief filed February 13, 2017 (“Reply Br.”). 3 Appellant provides citations to the published version of the Specification, U.S. Patent Pub. No. 2014/0373595 Al, Dec. 25, 2014, and we therefore do the same. 2 Appeal 2017-005218 Application 14/313,657 Examiner also maintains the rejection of claims 9—14 under 35 U.S.C. § 112 as indefinite. ANALYSIS We review the appealed rejections for error based upon the issues identified by the Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identity the alleged error in the examiner’s rejections”)). After considering the evidence presented in this Appeal and each of Appellant’s arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner’s rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. With respect to the enablement rejection, Appellant argue all claims as a group. See Appeal Br. 3—5. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), we limit our discussion to claim 1, and all other claims on appeal stand or fall together with claim 1. Enablement is a question of law based upon underlying factual findings. In re Wright, 999 F.2d 1557, 1561 (Fed. Cir. 1993). Our reviewing court has explained the examiner’s burden in rejecting a claim under the enable requirement by stating, “the PTO bears an initial burden of setting forth a reasonable explanation as to why it believes that the scope of protection provided by that claim is not adequately enabled by the description of the invention provided in the specification of the application. . . .” Id. at 1561—2 (Fed. Cir. 1993). Once the examiner has weighed all the evidence and established a reasonable basis to question the 3 Appeal 2017-005218 Application 14/313,657 enablement provided for the claimed invention, the burden falls on applicant to present persuasive arguments, supported by suitable proofs where necessary, that one skilled in the art would be able to make and use the claimed invention using the application as a guide. In re Brandstadter, 484 F.2d 1395, 1406-07 (CCPA 1973). Here, the Examiner has met the initial burden of providing a reasonable explanation as to why claim 1 is not adequately enabled by the Specification. In particular, the Examiner concludes that the Specification does not enable “generating a correction signal by the calibration arrangement as a function of the acceleration signal and of the output signal” as recited by claim 1. Non-Final Act. 2—A. The Examiner adequately supports this conclusion by making factual findings that weigh in favor of non-enablement. The Examiner’s findings address many of the eight Wands factors: (1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, (6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, (8) and the breadth of the claims. In re Wands, 858 F.2d 731, 738 (1988); see also Cephalon, Inc. v. Watson Pharm. Inc., 707 F.3d 1330, 1336 (Fed. Cir. 2013) (“These [Wands] factors while illustrative are not mandatory.”). Exemplary findings are summarized below. 4 Appeal 2017-005218 Application 14/313,657 Factor one: the Examiner finds that generating a correction signal as a function of acceleration and output signals would require undue experimentation because the Specification “suggests no direction in which to conduct experimentation.” Ans. 3. The Examiner finds that experimentation would require determining “some direction regarding what to individually do with each of the input signals” and how they relate to provide an algorithm but finds that the Specification provides no such direction. Id. at 4. The Examiner finds that “the less direction given, the more experimentation is required. . . .” Id. Factor two: the Examiner finds that the Specification provides no indication as to how a person of ordinary skill could predict obtaining a yaw correction based on yaw and acceleration signal and no guidance as to how to “manipulate the acceleration and yaw signals to obtain a ‘correction signal.’” Non-Final Act. 3. The Examiner finds that the Specification refers to math concepts—an estimation algorithm and data fusion—without providing any particulars of what those computations are. Id. The Examiner finds that data fusion is only a broad tool / math technique. Ans. 2. The Examiner also finds that the Specification’s figures merely provide schematics rather than an algorithm that demonstrates how to obtain yaw correction. Id. at 5. Factor three: the Examiner finds that the Specification lacks working examples. Non-Final Act. 3. Factor four: the Examiner finds that the nature of the invention is that the “evaluation arrangement” corrects yaw signals as a function of correction signals. Id. at 5. 5 Appeal 2017-005218 Application 14/313,657 Factors five and six: the Examiner finds that the prior art Stoehr reference (referring to Stoehr et al., U.S. 8,660,768 B2, Feb. 25, 2014 (“Stoehr”)) does not describe correcting yaw rate as a function of transverse acceleration. Id. at 5. The Examiner finds that Stoehr is suggestive of the level of ordinary skill in the art at the time of the application. Id. Factor seven: the Examiner finds that the Specification provides no indication as to how a person of ordinary skill could predict obtain a yaw correction based on yaw and acceleration signal. Id. at 3. Factor eight: the Examiner explains that claim one is broad in that it “generally call[s] for calibration” and that the patent disclosure does not provide further specifics. Ans. 3. Appellant argues that the Examiner merely poses questions rather than engaging in appropriate factual considerations. Appeal Br. 3^4. We disagree. As explained above, the Examiner made findings regarding various Wands factors. Appellant does not persuasively dispute these findings. Appellant also argues that a person of ordinary skill in the art would be able to practice the claimed invention because they would be aware of data fusion techniques and could make use of these techniques to generate a correction signal. Appeal Br. 4. Appellant, however, cites no evidence as to this point. Appellant states that data fusion is recognized in Wikipedia, but Appellant does not present this evidence and does not establish that this recognition in the art existed at the time of the application. See In re Wright, 999 F.2d at 1563, n. 8 (explaining that “issue is not what the state of the art is today . . . but rather what the state of the art was [at the time of the patent application’s filing]”). Similarly, Appellant argues that the Examiner fails to 6 Appeal 2017-005218 Application 14/313,657 establish that a person of skill in the art would have lacked required mathematical knowledge (Appeal Br. 4—5; Reply Br. 3) but fails to present positive evidence that a person in skill in the art would have had such knowledge. Because of lack of evidence, Appellant fails to persuasively establish that that one skilled in the art would be able to make and use the claimed invention using the application as a guide. In re Brandstadter, 484 F.2d at 1406-07. In the Reply Brief, Appellant also argues that the calibration means makes use of a sigma point Kalman filter as an estimation algorithm. Reply Br. 5. The Specification, however, indicates that the Kalman filter is used as an estimation algorithm corresponding to how sensor output signals are corrected in a separate signal filter means. Spec. 122. It is unclear whether or not the same estimation algorithm could be used for calibration as discussed later in the Specification. Id. at 124. Furthermore, Appellant does not present evidence that a person of skill in the art would have understood how to use such a filter in this context. Because Appellant’s argument does not persuasively establish harmful Examiner error, we sustain the Examiner’s enablement rejection. With respect to the Examiner’s rejection of claims 9—14 as indefinite, Appellant does not address this rejection. We therefore summarily affirm the rejection. See, e.g., Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (explaining that when appellant does not contest a ground of rejection, “the Board may treat any argument with respect to that ground of rejection as waived”). 7 Appeal 2017-005218 Application 14/313,657 DECISION For the above reasons, we affirm the Examiner’s rejection of claims 1—14 as failing to comply with the enablement requirement of 35 U.S.C. § 112, and we affirm the Examiner’s rejection of claims 9—14 under 35 U.S.C. § 112 as indefinite. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 8 Copy with citationCopy as parenthetical citation