Ex Parte Holub et alDownload PDFPatent Trial and Appeal BoardDec 27, 201613510310 (P.T.A.B. Dec. 27, 2016) 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. 13/510,310 05/17/2012 Patrick K. Holub 83240252 5284 28866 7590 12/29/2016 MACMILLAN, SOBANSKI & TODD, LLC - FORD ONE MARITIME PLAZA - FIFTH FLOOR 720 WATER STREET TOLEDO, OH 43604 EXAMINER SMITH, ISAAC G ART UNIT PAPER NUMBER 3662 NOTIFICATION DATE DELIVERY MODE 12/29/2016 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 @ mstfirm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK K. HOLUB, JOHN R. VAN WIEMEERSCH, STEVEN Y. SCHONDORF, GEORGE F. MACDONALD, JOHANNES HUENNEKENS, and GRAHAM MACE Appeal 2015-003258 Application 13/510,310 Technology Center 3600 Before JAMES P. CALVE, MICHAEL L. WOODS, and ARTHUR M. PESLAK, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the final rejection of claims 1—19. Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2015-003258 Application 13/510,310 CLAIMED SUBJECT MATTER Claims 1, 12, and 19 are independent. Claim 1 is reproduced below. 1. A method for electronically controlling a shifter lockout function of a vehicle while parked, wherein the vehicle includes a brake pedal and a transmission having a park position and a plurality of out-of-park positions, and an ignition switch for receiving an ignition key, the method comprising the steps of: detecting the beginning of a parked state of the vehicle with the transmission in the park position; inhibiting selection of an out-of-park position; establishing a driver action window in response to detection of the parked state and the ignition key removed from the ignition switch; detecting whether the brake pedal is activated during the driver action window; if an activation of the brake pedal is detected during the driver action window, then enabling selection of an out-of-park position while activation of the brake pedal continues; and if an end of the driver action window is detected, then continuing inhibiting shifter movement from the park position during the remainder of the parked state. REJECTIONS1 Claims 1, 2, 4—8, 12—15, and 19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fleming (US 2003/0141130 Al, pub. July 31, 2003), Giehler (US 2004/0046639 Al, pub. Mar. 11, 2004), and Michael (US 5,919,112, iss. July 6, 1999). Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Fleming, Giehler, Michael, and Koopman, Jr. (US 5,783,994, iss. July 21, 1998) (hereinafter “Koopman”). 1 The Examiner withdrew the rejection of claims 1—11, 17, and 18 under 35 U.S.C. § 101 for being directed to non-statutory subject matter. Ans. 2. 2 Appeal 2015-003258 Application 13/510,310 Claims 9—11 and 16—18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Fleming, Giehler, Michael, and Chung (JP 2009- 143528, pub. July 2, 2009). ANALYSIS Claims 1, 2, 4—8, 12—15, and 19 as unpatentable over Fleming, Giehler, and Michael The Examiner found that Fleming teaches methods and a vehicle that control a shifter lockout override as recited in claims 1, 12, and 19, except a driver action window established in response to detecting a parked state and removal of the ignition key from the ignition switch, detecting activation of the brake pedal during the driver action window, enabling selection of an out-of-park position while activation of the brake pedal continues, and continuing and inhibiting shifter movement from the park position if an end of the driver action window is detected. Final Act. 6—7, 14—17, 20-23. The Examiner found that Giehler teaches a device to operate a vehicle without a key where a timer is started if a vehicle starting key authorization signal is not detected, and a steering wheel lock is activated if the timer expires. Id. at 7, 15—16, 21. The Examiner also found that Giehler teaches that locking of the steering wheel is forestalled if the timer has not reached its threshold and a clutch pedal, brake pedal, or accelerator is actuated. Id. The Examiner reasoned that it would have been obvious to treat a lack of authorization signal from a key transponder as removal of an ignition key and a steering wheel lock as a shifter lock, as claimed. Id. at 7—8, 16, 21—22. The Examiner also found that Michael teaches shift lever operation when a brake pedal is operated within a time window of stopping a vehicle. Id. at 8, 16-17, 22. 3 Appeal 2015-003258 Application 13/510,310 The Examiner determined that it would have been obvious to modify Fleming’s vehicle locking system to activate after a predetermined time and conditions and use a brake pedal operation during the predetermined period of time to delay a locking system of the vehicle when a key is not present or cannot be detected, as taught by Giehler (using removal of an ignition key instead of loss of a key transponder of Giehler and a shifter lock instead of a steering wheel lock of Giehler) and to allow only for movement of a shifter when a brake pedal is actuated, as taught by Michael, to provide automatic control of the parking position function. Id. at 8—9, 17, 22—23; Ans. 3—5. We agree with Appellants that the Examiner’s reasons for combining teachings of Fleming, Giehler, and Michael are not supported by a rational underpinning and their teachings do not render obvious independent claims 1,12, and 19. Appeal Br. 5—7. Fleming teaches the prior art system that allows shifting out of PARK only when the ignition key is present and in the RUN position and the brake pedal is depressed. Fleming || 31—34, Figs. 3, 4; see Spec. 6:25—7:15, Fig. 2 (Prior Art). Thus, Fleming has no teachings relevant to an override of a brake shift interlock. Appeal Br. 5. Giehler does not teach a PARK lockout override, but instead teaches keyless operation of a vehicle to start an engine when a transponder sends a correct code to a transceiver and a driver activates a start switch and one of a clutch, brake pedal, or accelerator. Giehler || 13—15, Figs. 1,2; Appeal Br. 5. When the vehicle is operating, transponder 14 is queried periodically by transceiver 12 to verify that the correct transponder is present in the vehicle. Giehler || 13—15. If not, the user is advised that the transponder is missing and a vehicle immobilizer is activated to lock the steering wheel within a predetermined time period. See Giehler || 16—19, Fig. 2. 4 Appeal 2015-003258 Application 13/510,310 Giehler also teaches that steering wheel lockdown may be delayed if timer T3 has not reached its programmed threshold and the clutch pedal, brake pedal, or accelerator is engaged. Id. 120; Final Act. 7, 16, 21. The Examiner has not explained adequately why a skilled artisan would have been motivated to provide a parking brake lockout override that allows a parking brake to be unlocked in Fleming based on Giehler’s teaching of a time window that initiates locking of a steering wheel where locking may be delayed by use of a brake, clutch, or accelerator. Giehler’s system is used to immobilize a vehicle (Final Act. 7, 16, 21), whereas a parking override is used to mobilize a vehicle by allowing the transmission to be removed from PARK and the vehicle moved without using an ignition key, as claimed. Appeal Br. 5—6. Giehler uses a time window to allow a vehicle that is being operated to continue to operate without the steering wheel being locked, which would be hazardous. In contrast, the claimed method and vehicle allow a vehicle that already is locked down and non-operational to move its transmission out of PARK during a window when a brake pedal is activated. Michael teaches that the parking position is engaged automatically if ignition key 5 is withdrawn from ignition lock 4 and vehicle driving speed is 0 mph, and the ignition circuit is interrupted (turned off). Michael, 4:40-49, Fig. 2. Michael does not teach an override of the PARK condition. Michael teaches its system as a way to eliminate the PARK (“P”) setting and still lock a vehicle transmission. Id. at 4:54—5:1; Appeal Br. 6. Michael locks a vehicle in PARK upon removal of ignition key 5, whereas the claims recite an override that allows a transmission to be moved out of PARK when the ignition key is removed. The Examiner has not explained adequately why Michael renders the claimed method and system obvious in this regard. 5 Appeal 2015-003258 Application 13/510,310 Michael also teaches that engagement (rather than override) of the parking position of the transmission is prevented when the selector lever is used to select the driving position “N” before switching off the engine or within a predetermined time period of switching off the engine. Michael, 2:9—14. Fleming already teaches that a transmission is locked in PARK when the engine is turned off and the ignition key is removed, and Michael teaches that this condition can be achieved without placing a lever in PARK by removing the ignition key when the vehicle speed equals zero and the ignition circuit is interrupted. Michael 4:40—5:1. It is unclear why, apart from hindsight, a skilled artisan would have modified Fleming with just the locking aspect of Michael without using a PARK setting (Ans. 3) when Fleming locks the transmission in PARK using the PARK lever. We do not sustain the rejection of claims 1,2, 4—8, 12—15, and 19. Claim 3 as unpatentable over Fleming, Giehler, Michael, and Koopman The Examiner relied on Koopman to teach a 30-second time period for detecting inputs as recited in claim 3 and not to correct any deficiencies of Fleming, Giehler, and Michael as to claim 1 from which claim 3 depends. See Final Act. 23—24; Appeal Br. 7. Thus, we do not sustain the rejection of claim 3. Claims 9—11 and 16—18 as unpatentable over Fleming, Giehler, Michael, and Chung The Examiner relied on Chung to render obvious a configurable flag as recited in claims 9 and 16. Final Act. 25—28. Appellants argue that claims 9—11 and 16—18 are patentable at least due to their dependence from an allowable claim. Appeal Br. 8. We agree with Appellants and do not sustain the rejection of claims 9—11 and 16—18. 6 Appeal 2015-003258 Application 13/510,310 DECISION We reverse the rejections of claims 1—19. REVERSED 7 Copy with citationCopy as parenthetical citation