Ex Parte Johansson et alDownload PDFPatent Trial and Appeal BoardMay 31, 201814116435 (P.T.A.B. May. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/116,435 11/08/2013 2352 7590 06/04/2018 OSTROLENK FABER LLP 1180 A VENUE OF THE AMERICAS NEW YORK, NY 10036-8403 FIRST NAMED INVENTOR Oskar Johansson 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. P/1228-405 (V28653) 3282 EXAMINER MCPHERSON, JAMES M ART UNIT PAPER NUMBER 3669 NOTIFICATION DATE DELIVERY MODE 06/04/2018 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): pat@ostrolenk.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte OSKAR JOHANSSON, MARIA SODERGREN, and FREDRIK ROOS Appeal2018-004150 Application 14/116,435 1,2 Technology Center 3600 Before BENJAMIN D. M. WOOD, JEFFREY A. STEPHENS, and ERIC C. JESCHKE, Administrative Patent Judges. JESCHKE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Oskar Johansson et al. ("Appellants") seek review under 35 U.S.C. § 134(a) of the Examiner's decision, as set forth in the Final Office Action dated March 15, 2017 ("Final Act."), and as further explained in the Advisory Action dated July 6, 2017, rejecting claims 1--4, 6-18, 20, and 21. 1 This Application is accorded special status under the Patent Prosecution Highway program. See Decision on Request to Participate in the Patent Prosecution Highway Program and Petition to Make Special Under 37 C.F.R. § l.102(a), dated Feb. 3, 2014. 2 Appellants identify Scania CV AB as the real party in interest. Appeal Br. 1. Appeal2018-004150 Application 14/116,435 We have jurisdiction under 35 U.S.C. § 6(b). We reverse. BACKGROUND The disclosed subject matter relates to "an economical cruise control." Spec. 1, 11. 4--9. Claims 1, 20, and 21 are independent. Claim 1 is reproduced below, with bracketed letters added to identify each clause: 1. A method performed by a cruise control of a vehicle, the method comprising the steps of: [a] the cruise control controlling an engine system of the vehicle by demanding from the engine system a reference speed Vref which may differ from a set speed Vset chosen by a user of the cruise control, and; [b.i] the cruise control controlling the engine system of the vehicle by adjusting at least the reference speed Vref, when the reference speed Vref differs from the set speed Vset, to a second value which is not equal to a first value of Vref chosen by the cruise control before the adjustment, the first value of Vref being based on Vset, [b.ii] the adjusting being based, at least partly, on input from a user of the cruise control, wherein [ c. i] the input changes the reference speed Vref, [ c. ii] the input causes the reference speed Vref to be set to a selected one of a plurality of speeds to which the reference speed VreJmay be set, and [ c. iii] the selected one of the plurality of speeds is a current speed Vpres SO that Vref = Vpres- 2 Appeal2018-004150 Application 14/116,435 REJECTIONS 1. Claims 1, 6, 7, 10-16, 18, 20, and 21 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Johansson (WO 2010/144031 Al, published Dec. 16, 2010)3 and Heft (US 2010/0217494, published Aug. 26, 2010). 2. Claims 2 and 17 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Johansson, Heft, and Vaughan (US 2011/0276216 Al, published Nov. 10, 2011). 3. Claims 3, 4, 8, and 9 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Johansson, Heft, and Nowak (US 2009/0132142 Al, published May 21, 2009). DISCUSSION Rejection 1 - Claims 1, 6, 7, 10---16, 18, 20, and 21 For independent claim 1, the Examiner relied on Johansson for clauses a and b.i (as designated above) but stated that "Johansson arguably fails to specifically disclose all of the features of' clauses b. ii, c. i, c. ii, and c.iii. See Final Act. 4--5. The Examiner implicitly found, however, that Heft teaches clauses b.ii, c.i, c.ii, and c.iii. See id. at 5---6 (discussing Heft ,r 63). According to the Examiner, it would have been obvious for one of ordinary skill in the art at the time of the invention to modify the cruise control system of Johansson to include the ability to selectively vary a reference speed from an assigned set speed, and in particular in one configuration select to 3 The Examiner states: "For the purpose of examination, [the] Examiner is utilizing corresponding U.S. Patent Publication No. 2012/0083984 to W020I0/144031." Final Act. 4. 3 Appeal2018-004150 Application 14/116,435 maintain a current speed, as taught by Heft, to provide a user with increased flexibility in the utilization of cruise control systems configured for improving fuel economy. Id. at 6. For independent claims 20 and 21, the Examiner relies on Johansson and Heft in a similar manner. See id. at 10-15. Both Appellants and the Examiner address the independent claims as a group. See Appeal Br. 6-9; Ans. 3 (stating that "for simplicity, the Examiner presents arguments with respect to independent claim 1, which would equally apply to independent claims 20 and 21 "). The discussion below focuses on claim 1 but applies equally to claims 20 and 21. As to the Examiner's reliance on paragraph 63 of Heft for clauses b.ii, c.i, c.ii, and c.iii of claim 1 (see Final Act. 5-6), Appellants argue that "[n]owhere in paragraph [0063] ... is it disclosed, taught, or suggested that an input from a user of the cruise control causes the reference speed Vref to be set to the current speed Vpres'' as required by clause c.iii. Appeal Br. 6. For the reasons below, we agree with Appellants that paragraph 63 of Heft does not disclose clause c.iii of claim 1 (which is the same as the final clauses of claims 20 and 21 ). We agree with Appellants that paragraph 63 of Heft teaches using one-touch button 63a "to automatically adjust the vehicle's speed by taking into consideration a user defined margin with respect to the[] posted speed limit. In other words, one-touch button 63a activates a preset margin of speed, under a posted speed limit." Appeal Br. 6; see also Heft ,r 63 ("For example, when the user prefers to always drive 2 mph under the posted speed limit, the [Intelligent Cruise Control] unit 10 can be configured to accept the user input for the user defined margin in advance, and to automatically adapt the vehicle speed to a speed that is 2 mph under the 4 Appeal2018-004150 Application 14/116,435 posted speed limit when the driver activates the one-touch button 63a."). Paragraph 63 also discloses that the "user defined margin ... can be set by the user in advance." Heft ,r 63. In the Office Action, the Examiner identified the "posted speed limit" referenced in paragraph 63 as Vset in claim 1 and identified the "speed different than the posted speed limit, such as 2 mph below ( or other speed variants) a posted speed limit" as Vref in claim 1. Final Act. 6. Citing paragraph 63, the Examiner also states, "[s]hould the posted speed limit change and a user wishes to maintain a current speed, the user is afforded the opportunity to keep a current speed through utilization of the one-touch button 63a." Final Act. 6 (emphasis added). The record does not support this finding. The Examiner has not shown ( and we do not discern from our own review) that the system in paragraph 63 utilizes the current speed of the vehicle (i.e., Vpres) to set the identified Vref, as required by clause C.iii. Addressing clause c. iii in the Answer, the Examiner takes a similar position to that discussed in the prior paragraph, but cites paragraph 65 rather than paragraph 63: During a situation where the speed limit changes or is set to change, which would change the reference speed (i.e. Vref), the driver is afforded the opportunity to set the reference speed (i.e. Vref), which as previously indicated is the signal being sent from the ICC 10 to the engine control unit 30 for the purpose of controlling the vehicle speed ... to the current speed (i.e. Vpres) through the use of the one-touch button 63a ( e.g. see paragraph 0065). Ans. 10-11 ( emphasis added). The record does not support this finding. Paragraph 65 discloses that one-touch button 63a is "used as the input operator for setting the cruising speed, accelerating or decelerating the vehicle speed, and/or resuming the previously set cruising speed for the 5 Appeal2018-004150 Application 14/116,435 cruise control system." Heft ,r 65. We agree with Appellants that "[n]one of these functions of the one-touch button 63a is synonymous or equivalent to setting the reference speed to be equal to the current speed." Appeal Br. 8 ( emphasis added). To the extent the Examiner relies on "resuming the previously set cruising speed" disclosed in paragraph 65 to address clause c. iii, we agree with Appellants that "even if the one-touch button 63a of Heft ... is used to resume the previously set cruising speed ... , the present speed of the vehicle at the time the one-touch button 63a is pressed will not be set as the reference speed. Rather, the previously set cruising speed for the cruise control system will be set as the reference speed." Appeal Br. 8-9; see also id. at 8 (stating that "such resumption merely initially causes the reference speed to be set to the previously selected set speed Vset and the actual speed may thereafter be automatically adjusted by the adaptive cruise control system"). The Examiner has not shown how paragraph 65 demonstrates that the disclosed system utilizes the current speed of the vehicle (i.e., Vpres) to set the identified Vref, as required by clause c.iii. 4 We tum now to the Examiner's discussion of "designer's choice." Final Act. 6; Ans. 11. The Examiner stated that "setting the reference speed Vref to a current speed Ypres is a matter of designer's choice and is a user's defined margin based upon the desires of the user to simply maintain a current speed." Final Act. 6; see also Ans. 11 (stating that clause c.iii "is a 4 In the context of the Examiner's finding regarding paragraph 65, we understand the Examiner to identify "the signal being sent from the ICC 10 to the engine control unit 30 for the purpose of controlling the vehicle speed" as Vref. Ans. 11. 6 Appeal2018-004150 Application 14/116,435 matter of designer's choice and is a user's defined margin based upon the desires of the user to simply maintain a current speed"). To the extent the Examiner takes the position that the vehicle in Heft could be travelling at a certain speed (e.g., 43 mph) when a user activates button 63a to select that same speed as the identified Vre~ither as (1) a user-defined margin of, for example, 2 mph below the posted speed limit of 45 mph (see Heft ,r 63) or (2) a "previously set cruising speed" of 43 mph (see Heft ,r 65}-we do not agree that either situation falls within the scope of clause c. iii. In those situations, the user would not be "select[ing]" the "current speed Vpres" to set "vrei' as required by clause c.iii. See, e.g., Spec. 14, 11. 17-20 (discussing the embodiment in Figure 4 and stating that "the reference speed Vref is set to a current speed Vpres of the vehicle SO that Vref = Vpres when the user influences the reference speed Vrei'). Instead, the user is merely implementing a reference speed (i.e., VreJ) that happens to equal the current speed of the vehicle (i.e., Vpres). For the reasons above, we do not sustain the rejection of independent claims 1, 20, and 21, and we also do not sustain the rejection of claims 6, 7, 10-16, and 18 (which depend from claim 1). Rejections 2 and 3 - Claims 2--4, 8, 9, and 17 Claims 2--4, 8, 9, and 17 depend from claim 1. Appeal Br. 15-17 (Claims App.). The Examiner's added reliance on Vaughan (regarding Rejection 2) and Nowak (regarding Rejection 3) does not remedy the deficiencies in the rejection based on Johansson and Heft, discussed above, regarding claim 1 (see supra Rejection 1 ). Thus, for the same reasons discussed above, we do not sustain the rejection of claims 2--4, 8, 9, and 17. 7 Appeal2018-004150 Application 14/116,435 DECISION We reverse the decision to reject claims 1--4, 6-18, 20, and 21. REVERSED 8 Copy with citationCopy as parenthetical citation