Ex Parte Kitahara

Patent Trial and Appeal Board

Feb 16, 2017

13473967 (P.T.A.B. Feb. 16, 2017)

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.
13/473,967 05/17/2012 Noboru KITAHARA MNL-2018-2914 8091
23117 7590 02/21/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
KOLB, NATHANIEL J
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
02/21/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NOBORU KITAHARA
Appeal 2016-000642
Application 13/473,967
Technology Center 2800
Before KAREN M. HASTINGS, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1—11 under 35 U.S.C. § 103(a) as obvious
over the combination of Nakada et al. (US 6,851,311 B2, issued Feb. 8,
2005) (“Nakada”) and Hecht et al. (US 5,668,313, issued Sept. 16, 1997)
(“Hecht”), and of claim 12 under 35 U.S.C. § 103(a) as obvious over the
combination of Nakada, Hecht, and Ranke et al. (US 5,681,989, issued Oct.
1 The Real Party in Interest is stated to be Denso Corp.(App. Br. 3).
Appeal 2016-000642
Application 13/473,967
28, 1997) (“Kanke”). We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b).
We AFFIRM.
Claim 1 is representative of the claimed invention:
1. A method for adjusting a flow measuring device that
includes:
a housing including a bypass flow passage which is formed to
take in a part of a mainstream of air; and
a flow sensor disposed in the bypass flow passage and
configured to output an electrical signal in accordance with a flow rate
of air, wherein:
the bypass flow passage is formed in an asymmetrical shape with
respect to the flow sensor in upstream and downstream directions of
the mainstream;
a flow from an upstream side toward a downstream side of the
mainstream is a forward flow;
a flow from the downstream side toward the upstream side of the
mainstream is a backward flow, and
a conversion map that converts the output of the electrical signal
from the flow sensor into the flow rate, the method comprising:
obtaining an output from the flow sensor in a backward-flow
region; and
adjusting the output of the flow sensor in the backward-flow
region to correspond to a target characteristic which is backward-
flow side output characteristic using the conversion map.
(Emphasis added).
Appellant presents arguments that mainly focus on independent claim
1 (see App. Br., Reply Br. generally). Appellant separately argues
dependent claims 3, 6, and 12 (App. Br. 11, 12).
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Appeal 2016-000642
Application 13/473,967
ANALYSIS
We have reviewed each of Appellant’s arguments for patentability.
Having done so, we determine that a preponderance of the evidence supports
the Examiner’s determination that the claimed subject matter of
representative claim 1 is unpatentable within the meaning of § 103. Thus,
we sustain the Examiner’s rejection for essentially those reasons expressed
in the Final Action and Answer, including the Examiner’s Response to
Argument section, and we add the following primarily for emphasis.
“[T]he PTO must give claims their broadest reasonable construction
consistent with the specification. . . . Therefore, we look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope,
a broad construction during prosecution creates no unfairness to the
applicant or patentee.” Id.
Appellant’s main argument is that Hecht does not “adjust[] the output
from a flow sensor in the backflow region before converting the adjusted
output using a conversion map” (Reply Br. 3; App. Br. 11 (stating that Hecht
only teaches correcting a conversion map, which “is different and separate
from the adjustment of the voltage Ua output from the flow sensor”)). These
arguments are not persuasive of reversible error in the Examiner’s rejection.
As aptly pointed out by the Examiner, the claim does not require
converting the voltage from the flow sensor to another voltage
corresponding to the target characteristic (e.g., Ans. 4; Reply Br. 6). See In
re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Many of appellant’s arguments
fail from the outset because . . . they are not based on limitations appearing
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Appeal 2016-000642
Application 13/473,967
in the claims.”). Contrary to Appellant’s position, we agree with the
Examiner that the plain language of the claim only requires that “adjusting
the output of the flow sensor in the backward-flow region to correspond to a
target characteristic [e.g., flow rate] which is backward-flow side output
characteristic using the conversion map” (emphasis added) (e.g., Ans. 2, 3).
Appellant’s arguments do not focus on and thus do not adequately
explain the meaning of “which is backward-flow side output characteristic”
so as to differentiate the claim interpretation of the Examiner. To the
contrary, “which is backward-flow side output characteristic” modifies
“target characteristic” (which is, e.g., airflow) such that the claim
interpretation attributed to the language appears to be reasonable. Thus, a
preponderance of the evidence supports the Examiner’s determination that
the claim language as currently written encompasses Hecht’s method (e.g.,
Ans. 2-4). Notably, Appellant has not directed our attention to any limiting
definitions in the Specification,2 or to any persuasive reasoning or credible
evidence, to establish that the Examiner’s interpretation of the language of
claim 1 is unreasonable.
Accordingly, we affirm the Examiner’s rejection of claim 1. To the
extent Appellant separately argues dependent claims 3, 6, and 12 (App. Br.
11, 12), a preponderance of the evidence supports the Examiner’s
obviousness determination of the subject matter therein, including that
Nakada exemplifies a backflow prevention structure (Ans. 3, 4). No further
2 Indeed, Appellant disclaims any limitation of the claim scope when
mapping the claim to the Specification in the Appeal Brief (App. Br. 6, FN
1).
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Appeal 2016-000642
Application 13/473,967
substantive arguments were made regarding the § 103 rejection. Thus, we
also affirm the § 103 rejection of claims 3, 6, and 12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
ORDER
AFFIRMED
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