Ex Parte Hoke et al

Patent Trial and Appeal Board

Mar 30, 2018

14030178 (P.T.A.B. Mar. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/030,178 09/18/2013
28395 7590 04/03/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Paul Bryan Hoke
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.
83362204 6825
EXAMINER
LIEUWEN, CODY J
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
04/03/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL BRYAN HOKE, MANFRED KOBERSTEIN,
KENNETH J. JACKSON, STEVEN L. LAMBERT, and
STEVEN VAN BUREN LAKE
Appeal2017-006413
Application 14/030, 178
Technology Center 3700
Before BENJAMIN D. M. WOOD, ANNETTE R. REIMERS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1, 2
Paul Bryan Hoke et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's decision to reject under 35 U.S.C. § 103(a): (1) claims
1, 2, 6-9, 11, and 12 as unpatentable over Wedowski (US 2014/0360739 Al,
1 Ford Global Technologies, LLC is indicated as "the real party in interest" of
the present application. Corrected Appeal Brief 2 (hereinafter "Appeal Br.")
(filed July 22, 2016).
2 The Examiner has withdrawn the rejection under 35 U.S.C. § 112( d) of
claims 6 and 7 as being of improper dependent form for failing to further limit
the subject matter of claim 1. See Examiner's Answer 7 (hereinafter "Ans.")
(dated Dec. 19, 2016).
Appeal2017-006413
Application 14/030,178
published Dec. 11, 2014), Shiraishi (US 2011/0067421 Al, published Mar.
24, 2011), and Thompson (US 2007/0084609 Al, published Apr. 19, 2007); 3
and (2) claim 3 as unpatentable over Wedowski, Shiraishi, Thompson, and
Rini (US 2010/0320021 Al, published Dec. 23, 2010). Claims 4, 5, and 13-
20 have been withdrawn from consideration. Claim 10 has been canceled. 4
We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to a system that discharges a fire
suppression material in the engine compartment of a vehicle in a collision."
See Spec. i-f 1, Figs. 1, 2.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A fire suppression system for a vehicle comprising:
a refrigerant circulation loop that circulates a flammable
refrigerant;
a pressure sensor for sensing a reduction in pressure in the
circulation loop;
a collision sensor for sensing a collision;
a distribution system dispenses a fire suppress10n
composition; and
a controller receives a pressure signal from the pressure
sensor and a collision signal from the collision sensor, and
actuates the distribution system.
3 The Examiner includes canceled claim 10 in the heading of the rejection.
See Final Office Action 4 (hereinafter "Final Act.") (dated Oct. 28, 2015); see
also Ans. 2. We consider this an inadvertent typographical error.
4 See Amendment (filed Sept. 14, 2015).
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Application 14/030,178
ANALYSIS
Obviousness over Wedowski, Shiraishi, and Thompson
Claims 1, 2, 6-9, 11, and 12
Appellants do not offer arguments in favor of dependent claims 2, 6-
9, 11, and 12 separate from those presented for independent claim 1. See
Appeal Br. 6-15. We select claim 1 as the representative claim, and claims
2, 6-9, 11, and 12 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants contend that:
In claim 1, just two inputs are required to actuate a fire
suppression distribution system. The first signal is from the
pressure sensor for sensing the reduction in pressure of the
circulation loop of the vehicle air conditioning system and the
second signal is from the collision sensor. The simplicity and
effectiveness of Applicant[s'] claimed invention is important to
preventing a fire in the engine compartment caused by the release
of a flammable refrigerant from the refrigerant circulation loop
in a collision.
Appeal Br. 7.
Appellants further contend that (1) "failure ofWedowski to disclose a
system with a pressure sensor in the refrigerant circulation loop and a
collision sensor that actuates the fire suppression distribution system is the
essence of [Appellants'] claimed invention"; (2) "[t]he Wedowski system is
much more complex than Applicant[s'] claimed fire suppression system and
follows an entirely different approach directed to controlling the release of a
flammable refrigerant from the refrigerant circulation loop to the tank 10";
(3) "Shiraishi fails to disclose a simple and effective fire suppression system
that monitors a collision signal and a pressure signal to control releasing or
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dispensing a fire suppression composition"; and (4) "Thompson fails to
disclose a simple and effective fire suppression system that monitors a
collision signal and a pressure signal to control the release of a fire
suppression composition." Id. at 6-9.
As an initial matter, the term "comprising"-recited in the preamble
to claim 1-"is well understood in patent law to mean 'including but not
limited to."' Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1319
(Fed. Cir. 2009) (quoting CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d
1356, 1360 (Fed. Cir. 2007)). Appellants do not limit claim 1 to "just two
inputs." See Appeal Br. 7. Thus, the presence of additional elements in the
cited prior art does not demonstrate error. In addition, we note that claim 1
is directed to a "fire suppression system for a vehicle." See Appeal Br.,
Claims App. 1. Claim 1 does not recite anything about "preventing a fire in
the engine compartment" of a vehicle. See id. Thus, Appellants' argument
is not commensurate in scope with the claims. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (Limitations not appearing in the claims cannot be relied
upon for patentability).
In this case, Appellants argue against a reference individually when
the rejection is based on a combination of references. See In re Keller, 642
F.2d 413 (CCPA 1981); In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986);
see also Ans. 7. Further, to the extent Appellants are arguing the references
must be capable of bodily incorporation in order to combine their teachings,
the test for obviousness is not whether the features of a secondary reference
may be bodily incorporated into the structure of a primary reference. In re
Keller, 642 F.2d at 425. "Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art." Id.
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Here, the Examiner relies on the combined teachings of Wedowski,
Shiraishi, and Thompson. Specifically, the Examiner finds that Wedowski
discloses the fire suppression system of claim 1 substantially as claimed
except "Wedowski does not disclose a system with a pressure sensor that
senses a reduction in pressure in the circulation loop and that the controller
receives a pressure signal from the pressure sensor; or that the collision
sensor provides a signal to the controller to actuate the distribution system."
Final Act. 4--5. The Examiner relies on the teaching of Shiraishi for the
pressure sensor that senses a reduction in pressure in the circulation loop and
for the controller that receives a pressure signal from the pressure sensor. In
particular, the Examiner finds that:
Shiraishi teaches an air conditioning system using a
flammable refrigerant for a vehicle (par. 1, 10). Shiraishi further
teaches a system that includes a pressure sensor (19) to sense a
reduction in pressure in the circulation loop (par. 66-69) and that
sends a pressure signal (par. 69) to a controller (18), which
actuates the system (par. 74). Finally, Shiraishi teaches that the
pressure of the refrigerant circulation loop can be used to
determine if a leak has occurred (i.e., if the pressure value is
below a normal value, then the circulation loop has a leak) (par.
69).
Id. at 5.
The Examiner concludes that it would have been obvious
to modify the fire suppression system of W edowski, which is
intended to automatically prevent the spread of fires in motor
vehicles that use a flammable refrigerant, to include a pressure
sensor that is connected to the controller and provides a signal to
the controller to indicate a leak in the refrigerant loop, as taught
by Shiraishi.
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Final Act. 5; see also Ans. 9--10 (The Examiner states that the motivation to
combine the teachings of Shiraishi with the fire suppression system of
W edowski is "to provide a fire suppression system that is able to detect
when a leak of flammable refrigerant has occurred prior to activating a fire
suppression distribution system.").
The Examiner states that:
It was known that the circulation loop pressure is an indicator as
to whether a leak in the refrigerant circulation loop has occurred,
and providing a pressure sensor to monitor this parameter and
provided a signal to a controller would result in a vehicle fire
suppression system able to automatically initiate upon the
occurrence of a refrigerant leak.
Final Act. 5.
The Examiner further relies on the teaching of Thompson for collision
sensor providing a signal to the controller to actuate the distribution system.
In particular, the Examiner finds that finds that
Thompson teaches a fire suppression system for a vehicle
(par. 3) with a distribution system (par. 29) that dispenses a fire
suppression composition (22), a collision sensor (70) for sensing
a collision (par. 34 ), and a controller ( 66) that receives the signal
from the collision sensor and uses this signal to determine
whether to actuate the distribution system (par. 37-39).
Thompson further teaches that such a system provides automatic
fire protection in response to a vehicle collision (par. 34, fig. 6).
Id. at 5---6.
The Examiner concludes that it would have been obvious "to modify
the fire suppression system of Wedowski, which discloses temperature
sensors (2) that provide signals to a controller (3) to actuate the fire
suppressant distribution system, to provide the collision signal as an input to
the controller to determine whether to actuate the distribution system, as
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taught by Thompson." Final Act. 6; see also Ans. 10 (The Examiner states
that the motivation to combine the teachings of Thompson with the fire
suppression system of Wedowski is "to provide a fire suppression system
that automatically activates upon the occurrence of a collision."). The
Examiner further states that "[a]ctivating a vehicle protection system upon
the occurrence of a collision was a known to [sic] alternative to a system that
is actuated after detection of a temperature since it ensures distribution of the
fire suppression medium even before the heat of a fire might trigger a
temperature sensor." Final Act. 6. The Examiner's findings are sound and
supported by a preponderance of the evidence, and the Examiner's
conclusions therefrom are based on rational underpinnings. Appellants do
not provide persuasive evidence or argument apprising us of Examiner error.
Appellants contend that "[i]n Wedowski, an air bag signal, or collision
sensor, is used to open the second valve that controls the flow of refrigerant
into the evacuated temperature resistant tank -- the second valve does not
control dispensing the fire suppressant" and "[ t ]he air bag signal, or collision
sensor, [of Wedowski] is not used to control the discharge mechanism that
releases the fire retardant into an engine compartment." See Appeal Br. 7;
see also id. at 10 ("W edowski fails to teach the use of a collision sensor to
control a discharge mechanism that releases the fire retardant into the engine
compartment."); id. at 10-11 ("In Wedowski, the collision sensor controls
the flow of refrigerant into the evacuated temperature-resistant tank - the
collision sensor is not used to control dispensing a fire suppression
composition."); Reply Br. 2 5 ("The airbag sensor 44 [of Wedowski] is not
5 Reply Brief (hereinafter "Reply Br.") (filed Feb. 14, 2017).
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used to control the discharge of the extinguishing agent.").
Appellants' arguments are not persuasive because they are not
commensurate in scope with claim 1. See In re Self, 671 F.2d at 1348. First,
claim 1 is directed to a "fire suppression system for a vehicle." See Appeal
Br., Claims App. 1. Claim 1 does not recite anything about "releas[ing] the
fire retardant into an engine compartment" of a vehicle. See Appeal Br.,
Claims App. 1; see also id. at 7, 10. Second, claim 1 does not require the
collision sensor to control the discharge of the extinguishing agent. See id.
Rather, claim 1 recites that the "controller receives a pressure signal from
the pressure sensor and a collision signal from the collision sensor, and [then
the controller] actuates the distribution system." See id. (emphasis added).
Stated differently, as written, claim 1 requires the controller, not the
collision sensor, to control the discharge of (i.e., actuation of) a fire
suppression composition from the distribution system. Further, the
Examiner relies on the combined teachings of W edowski and Thompson for
the claimed collision sensor. See Final Act. 4---6; see also Ans. 10.
Appellants do not apprise us of Examiner error.
Appellants contend that "Thompson does not disclose a controller that
monitors both a pressure sensor and a collision sensor to control distribution
of a fire suppressant" and "[ t ]he Thompson reference fails to disclose a
pressure sensor for a refrigerant loop." Appeal Br. 8 (emphasis added).
Again, Appellants argue against a reference individually when the
rejection is based on a combination of references. See Ans. 7. In this case,
the Examiner relies on the teachings of Shiraishi, not Thompson, for
disclosure of "a pressure sensor for sensing a reduction in pressure in the
circulation loop" and "a controller [that] receives a pressure signal from a
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pressure sensor." See Final Act. 4--5; see also Ans. 9; Appeal Br., Claims
App. 1. Appellants do not provide persuasive evidence or argument
apprising us of Examiner error.
Appellants contend that "the Examiner fails to identify any teaching,
suggestion or motivation to combine or modify the teachings of the prior art
to produce the claimed invention. Further, the Examiner fails to identify
knowledge generally available to one of ordinary skill in the art that would
produce the claimed invention." Appeal Br. 10; see also id. ("There is no
teaching, suggestion or motivation found in Shiraishi to combine Shiraishi
and Wedowski as proposed by the Examiner."); id. at 11 ("No basis for the
asserted motivation is found in either reference [i.e., Wedowski and
Thompson]. Further, the Examiner does not rely upon any alleged
knowledge available to one of ordinary skill in the art to supply the
motivation.").
Appellants' arguments appear to be holding the Examiner to a rigid
teaching, suggestion, or motivation ("TSM") standard where there must be
some suggestion or motivation, either in the references themselves or in the
knowledge generally available to one of ordinary skill in the art, to modify
the reference or to combine reference teachings; such a standard is not
required. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007) ("We
begin by rejecting the rigid [application and requirement of a TSM to
combine known elements in order to show obviousness]"). In this case, the
Examiner articulates adequate reasoning based on rational underpinnings to
explain why one of ordinary skill in the art would have been led to combine
the teachings of the references. Appellants do not provide persuasive
evidence or argument to the contrary.
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that:
Moreover, in response to Appellants' contention, the Examiner states
In this case, using a pressure sensor to monitor the pressure of
the circulation loop was disclosed by both W edowski and
Shiraishi, and Shiraishi further discloses providing a pressure
signal to a controller to indicate when a leak has occurred so a
protective measure can be taken, as discussed in the rejection.
Further in this case, using the collision signal to actuate the
distribution system [as taught by Thompson] would be readily
understood by one of ordinary skill to provide a fire suppression
system that automatically activates in response to a collision, just
as it automatically actuates the airbag or seat restraints.
Ans. 9; see also id. at 8. Appellants do not apprise us of Examiner error.
In addition, we disagree with Appellants' position that the Examiner
"fails to identify knowledge generally available to one of ordinary skill in
the art that would produce the claimed invention." See Appeal Br. 10-11.
To the contrary, regarding Shiraishi, the Examiner states that:
It was known that the circulation loop pressure is an
indicator as to whether a leak in the refrigerant circulation loop
has occurred, and providing a pressure sensor to monitor this
parameter and provided a signal to a controller would result in a
vehicle fire suppression system able to automatically initiate
upon the occurrence of a refrigerant leak.
Final Act. 5. Further, regarding Thompson, the Examiner states that
"[a ]ctivating a vehicle protection system upon the occurrence of a collision
was a known to [sic] alternative to a system that is actuated after detection of
a temperature since it ensures distribution of the fire suppression medium
even before the heat of a fire might trigger a temperature sensor." Final Act.
6; see also Ans. 8 ("[I]t was known from Thompson to actuate a vehicle fire
suppression system in response to a signal from a collision sensor indicating
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Application 14/030,178
that a collision has occurred."). Appellants do not provide persuasive
evidence or argument apprising us of Examiner error.
that:
Moreover, in response to Appellants' contention, the Examiner states
[I]t is noted that one of ordinary skill is also a person of ordinary
creativity and will be able to fit the teachings of multiple patents
together like pieces of a puzzle, see MPEP 2141.03. In the
present case, Wedowski already discloses using a pressure sensor
to monitor pressure in the circulation loop, and one of ordinary
skill would only need to incorporate the details taught by
Shiraishi to arrive at the system of claim 1. Further, Wedowski
teaches a distribution system that is actuated by temperature and
smoke sensors and that includes a collision sensor, and one of
ordinary skill would recognize the teaching of Thompson to use
the collision sensor to automatically actuate the distribution
system.
Ans. 10. Appellants do not apprise us of Examiner error.
Appellants contend that [t]he proposed combination of Wedowski,
Shiraishi, [and] Thompson ... is a product of an improper hindsight
reconstruction of Applicant[s'] claimed invention." See Appeal Br. 9--15.
We are not persuaded that the Examiner engages in impermissible
hindsight in combining the teachings of W edowski, Shiraishi, and
Thompson. The Examiner cites specific teachings in the references
themselves, not Appellants' disclosure, in support of the Examiner's
articulated reasoning for combining the references as proposed in the
rejection. See Final Act. 4---6; In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed.
Cir. 2016) (viewing an argument regarding "impermissible hindsight" as
"essentially a repackaging of the argument that there was insufficient
evidence of a motivation to combine the references").
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Appellants contend that "the obviousness rejections of the pending
claims are based on items of prior art that do not recognize the problem
addressed by the present invention." Appeal Br. 13.
It is well established that the reason to modify the reference may often
prompt a person of ordinary skill in the art to do what the inventor has done,
but for a different purpose or to solve a different problem. It is not
necessary that the prior art suggests the combination to achieve the same
advantage or result discovered by an applicant. In re Kahn, 441F.3d977,
987-88 (Fed. Cir. 2006). As discussed above, the Examiner articulates
adequate reasoning based on rational underpinnings to explain why one of
ordinary skill in the art would have been led to make the proposed
modification. Appellants do not provide any persuasive evidence or
argument apprising us of error in the Examiner's proposed combined
teachings of Wedowski, Shiraishi, and Thompson.
In the Reply Brief, Appellants contend that "neither Wedowski nor
Shiraishi teach using a collision signal to dispense a fire suppression
composition" and "[t]he pressure signal [of Shiraishi] does not cause a
dispensing of a fire extinguishing agent or a fire suppression composition."
Reply Br. 2.
Again, Appellants argue against a reference individually when the
rejection is based on a combination of references. See Ans. 7. As to
Appellants' first argument, the Examiner relies on the combined teachings of
W edowski and Thompson for the claimed collision sensor. See Final Act.
4--6. As to Appellants' second argument, similar to that discussed above
regarding the collision sensor, claim 1 does not require the pressure signal to
"cause" a dispensing of a fire extinguishing agent or a fire suppression
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composition, as asserted by Appellants. See Reply Br. 2; see also Appeal
Br., Claims App. 1. Rather, claim 1 recites that the "controller receives a
pressure signal from the pressure sensor and a collision signal from the
collision sensor, and [then the controller] actuates the distribution system."
See id. (emphasis added). Stated differently, as written, claim 1 requires the
controller, not the pressure signal, to control/cause the discharge of (i.e.,
dispensing of) a fire suppression composition from the distribution system.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as unpatentable over
W edowski, Shiraishi, and Thompson. Accordingly, we sustain the
Examiner's rejection of claim 1 as unpatentable over Wedowski, Shiraishi,
and Thompson. We, further, sustain the rejection of claims 2, 6-9, 11, and
12, which fall with claim 1.
Obviousness over Wedowski, Shiraishi, Thompson, and Rini
Claim 3
Appellants contend that "Rini does not disclose or suggest monitoring
the pressure of the refrigerant in an air conditioning system in combination
with a collision sensor. Rini does not disclose dispensing a fire suppression
composition distribution system." Appeal Br. 9.
Again, Appellants argue against a reference individually when the
rejection is based on a combination of references. See Ans. 7. The
Examiner relies on the combined teachings of Wedowski, Shiraishi, and
Thompson for the above discussed limitations. See Final Act. 4--6. The
Examiner relies on Rini for disclosure of "an engine coolant temperature
sensor." See id. at 8. The Examiner reasons that it would have been
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obvious "to modify the fire suppression apparatus of W edowski, in view of
Shiraishi and Thompson, to include an engine coolant temperature sensor, as
taught by Rini, since the engine coolant temperature was known to be an
important condition for a fire prevention and detection controller to
monitor." Final Act. 8-9. Appellants do not apprise us of Examiner error.
We also are not persuaded that the Examiner engages in impermissible
hindsight in combining the teachings of Wedowski, Shiraishi, Thompson,
and Rini. See Appeal Br. 9-15. The Examiner cites specific teachings in the
references themselves, not Appellants' disclosure, in support of the
Examiner's articulated reasoning for combining the references as proposed
in the rejection. See Final Act. 4--6; see also id. at 8-9.
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of claim 3 as unpatentable over Wedowski, Shiraishi, Thompson,
and Rini.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1, 2, 6-9,
11, and 12 as unpatentable over Wedowski, Shiraishi, and Thompson.
We AFFIRM the decision of the Examiner to reject claim 3 as
unpatentable over W edowski, Shiraishi, Thompson, and Rini.
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
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