Ex Parte Kissel

Board of Patent Appeals and Interferences

Mar 20, 2008

11302294 (B.P.A.I. Mar. 20, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte WILLIAM R. KISSEL
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Appeal 2008-0537
Application 11/302,294
Technology Center 3600
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Decided: March 21, 2008
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Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Kissel (Appellant) seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 41, 43, 52, 53, 61, and 63-68. We have jurisdiction under
35 U.S.C. § 6(b) (2002).
Appeal 2008-0537
Application 11/302,294

SUMMARY OF DECISION
We REVERSE.1
THE INVENTION
The claimed invention is directed to a brake control system and
method for actuating the brakes of a towed vehicle. (Specification ¶ 0002.)
Claims 41, 61, 67, and 68, reproduced below, are representative of the
subject matter on appeal.
41. A method for controlling a brake mechanism of a towed vehicle towed
by a towing vehicle, comprising the steps of:
measuring acceleration of one of the towed vehicle or the towing vehicle
in first and second directions using a two-dimensional accelerometer
device and establishing first and second acceleration values, the first
and second directions being perpendicular, respectively; and,
controlling the brake mechanism of the towed vehicle as a function of the
first and second acceleration values, wherein the step of controlling
the brake mechanism includes the step of establishing a magnitude of
a horizontal component of the acceleration of one of the towing
vehicle or the towed vehicle as a function of the first and second
acceleration values.

61. A system for controlling a brake mechanism of a towed vehicle towed by
a towing vehicle, comprising:
an accelerometer device for measuring acceleration of one of the towed
vehicle or the towing vehicle in a first direction and responsively
establishing a first acceleration value and for measuring acceleration
of the vehicle in a second direction and responsively establishing a
second acceleration value, the first and second directions being
perpendicular; and,

1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,”
filed Jan. 22, 2007), Reply Brief (“Reply Br.,” filed May 16, 2007), and the
Examiner’s Answer (“Answer,” mailed Apr. 25, 2007).
2
Appeal 2008-0537
Application 11/302,294

a controller coupled to the accelerometer device for receiving the first
and second acceleration values and for controlling the brake
mechanism of the towed vehicle as a function of the first and second
acceleration values and for establishing a magnitude of a horizontal
component of the acceleration of one of the towing vehicle or the
towed vehicle as a function of the first and second acceleration values.

67. A method for controlling a brake mechanism of a towed vehicle towed
by a towing vehicle, comprising the steps of:
measuring acceleration of one of the towed vehicle or the towing vehicle
in first and second directions using a two-dimensional accelerometer
device and establishing first and second acceleration values, the first
and second directions being perpendicular, respectively;
establishing a magnitude of a horizontal component of the acceleration of
one of the towing vehicle or the towed vehicle as a function of the
first and second acceleration values; and,
controlling the brake mechanism of the towed vehicle as a function of the
horizontal component of the acceleration of one of the towing vehicle
or the towed vehicle.

68. A system for controlling a brake mechanism of a towed vehicle towed by
a towing vehicle, comprising:
an accelerometer device for measuring acceleration of one of the towed
vehicle or the towing vehicle in a first direction and responsively
establishing a first acceleration value and for measuring acceleration
of the vehicle in a second direction and responsively establishing a
second acceleration value, the first and second directions being
perpendicular; and,
a controller coupled to the accelerometer device for receiving the first
and second acceleration values and establishing a magnitude of a
horizontal component of the acceleration of one of the towing
vehicle or the towed vehicle as a function of the first and second
acceleration values and for controlling the brake mechanism of the
towed vehicle as a function of the horizontal component of the
acceleration of one of the towing vehicle or the towed vehicle.

3
Appeal 2008-0537
Application 11/302,294

THE PRIOR ART
The Examiner relies upon the following as evidence of
unpatentability:
Robinson US 6,837,551 B2 Jan. 04, 2005

THE REJECTIONS
The following rejections are before us for review:
Claims 41, 43, 52, 53, 61, and 63-68 are rejected under
35 U.S.C. § 102(e) as being anticipated by Robinson.

THE ISSUE
The issue is whether the Appellant has shown that the Examiner erred
in rejecting the claims as being anticipated by Robinson.2 This issue turns
on whether establishing a magnitude of a horizontal component of
acceleration either the towing vehicle or the towed vehicle as a function of
the first and second acceleration values reads on summing the acceleration in
the x direction with the acceleration in the y direction to determine the total
acceleration.

2 Only those arguments actually made by Appellants have been considered
in this decision. Arguments that Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2007).
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Appeal 2008-0537
Application 11/302,294

FINDINGS OF FACT
We find that the following enumerated findings of fact are supported
by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849
F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary
standard for proceedings before the Office).
Robinson discloses in an illustrative embodiment, a dual axis
accelerometer is used. This accelerometer determines the force of braking,
i.e., the acceleration, in two axes, e.g., x and y axes. The accelerometer
sums the acceleration in the x direction with the acceleration in the y
direction to determine the total acceleration. (Robinson, col. 10, ll. 24-29.)

PRINCIPLES OF LAW
It is well settled that in order for the examiner to establish a prima
facie case of anticipation, each and every element of the claimed invention,
arranged as required by the claim, must be found in a single prior art
reference, either expressly or under the principles of inherency. See
generally, In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997);
Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 677-78 (Fed. Cir.
1988); Lindemann Maschinenfabrik GMBH v. American Hoist and Derrick,
730 F.2d 1452, 1458 (Fed. Cir. 1984).
When relying upon the theory of inherency, the examiner must
provide a basis in fact and/or technical reasoning to reasonably support the
determination that the allegedly inherent characteristic necessarily flows
from the teachings of the applied prior art. See Ex parte Levy, 17 USPQ2d
1461, 1464 (Bd. Patent App. & Int. 1990).
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Appeal 2008-0537
Application 11/302,294

ANALYSIS
In reaching our decision in this appeal, we have given careful
consideration to the Appellant’s Specification and claims, to the applied
prior art reference, and to the respective positions articulated by the
Appellant and the Examiner. Upon evaluation of all the evidence before us,
it is our conclusion that the evidence adduced by the Examiner is not
sufficient to establish a prima facie case of anticipation with respect to
claims. Accordingly, we will not affirm the Examiner’s decision to reject
the claims under 35 U.S.C. § 102(e). Our reasoning for this determination
follows.
We agree with the Examiner that the limitations of a two-dimensional
accelerometer and an accelerometer device read on Robinson’s disclosure of
a dual axis accelerometer. However, we do not agree with the Examiner that
the limitation of establishing a magnitude of a horizontal component of the
acceleration of one of the towing vehicle or the towed vehicle as a function
of established first and second acceleration values reads on Robinson’s
disclosure of summing the acceleration in the x direction with the
acceleration in the y direction to determine the total acceleration. At most,
with the evidence and analysis provided by the Examiner, the summation of
the acceleration in the x direction with the acceleration in the y direction
yields the resultant vector of acceleration.
The Examiner has not established that the resultant vector of
acceleration is necessarily the established magnitude of a horizontal
component of acceleration of either a towing vehicle or towed vehicle as
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Appeal 2008-0537
Application 11/302,294

required when the Examiner states the combination of x and y axes
acceleration is inherently the horizontal magnitude because it is in the x-y
plane and that such would be recognized by one skilled in the art. (Answer
3.) If the Examiner is going to rely on theory of inherency in order to
explain that this limitation reads on the disclosure of the reference cited, then
Examiner must provide a basis in fact and/or technical reasoning to
reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art, in
this case Robinson.
The Appellant has pointed out that the limitation of establishing a
magnitude of a horizontal component of acceleration of either the towing
vehicle or towed vehicle is absent from Robinson. (App. Br. 18 and 21.) As
such, without more evidence and explanation from the Examiner providing a
basis in fact and/or technical reasoning to reasonably support the resultant
acceleration vector inherently establishes a magnitude of a horizontal
component of acceleration of either the towing vehicle or towed vehicle, we
are constrained not to sustain the Examiner’s rejection on appeal.

CONCLUSIONS OF LAW
We have concluded that the Appellant has shown that the Examiner
erred in rejecting the claims as being anticipated by Robinson.

7
DECISION
The decision of the Examiner to reject the claims as being anticipated
is reversed.
REVERSED

vsh

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