Ex Parte Linke et al

Patent Trial and Appeal Board

Dec 20, 2016

12161325 (P.T.A.B. Dec. 20, 2016)

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.
12/161,325 06/03/2010 Tobias Linke 037068.60555US 1424
23911 7590 12/22/2016
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
NGUYEN, VU Q
ART UNIT PAPER NUMBER
3657
NOTIFICATION DATE DELIVERY MODE
12/22/2016 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):
edocket @ crowell. com
tche @ crowell. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOBIAS LINKE and MARKUS STOEHR
Appeal 2014-004463
Application 12/161,3251
Technology Center 3600
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
ERIC C. JESCHKE, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Tobias Linke and Markus Stoehr (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s final decision rejecting claims 13—27.
Appellant’s representative presented oral argument on November 15, 2016.
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is KNORR-
BREMSE Systeme flier Nutzfahrzeuge GmbH. Br. 1 (filed July 29, 2013).
Appeal 2014-004463
Application 12/161,325
INVENTION
Appellants’ invention relates to a “method for indicating the wear of
at least one brake pad in a disc brake with an electric motor actuator, a
device for performing this method and a corresponding disc brake.” Spec. 1,
11. 5-8.
Claims 13, 18, 21, and 27 are independent. Claims 13 and 18 are
illustrative of the claimed invention and read as follows:
13. A method for indicating the wear or residual brake pad
thickness of at least one brake pad in a disc brake having an
electric motor actuator, the method comprising the acts of:
adding wear adjustment travels of the electric motor
actuator, the electric motor actuator performing braking of the
disc brake; and
indicating the wear or residual brake pad thickness of the
at least one brake pad based on a sum of the wear adjustment
travels.
18. A method for indicating wear or residual brake pad
thickness of at least one brake pad in a disc brake having an
electric motor actuator for performing braking of the disc brake,
the method comprising the acts of:
determining wear adjustment travels of the electric motor
actuator through position of the electric motor actuator;
adding the wear adjustment travels of the electric motor
actuator;
indicating the wear or residual brake pad thickness of the
at least one brake pad based on a sum of the wear adjustment
travels,
wherein determining the wear adjustment travel further
comprises the acts of:
registering a first position prior to a closing
movement of the brake pad;
registering a second position after a lifting of the
brake pad; and
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Application 12/161,325
comparing the first position with the second
position, wherein the lift of the brake pad occurs over a
constant travel, to determine the wear adjustment travel.
REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 13, 14, and 20 under 35 U.S.C.
§ 102(b) as anticipated by Bieker (US 2004/0050635 Al, pub.
Mar. 18, 2004).
II. The Examiner rejected claims 15—19 and 21—27 under 35
U.S.C. § 103(a) as being unpatentable over Bieker and Boehm
(DE 19910048 Al, pub. May 4, 2000).2
ANALYSIS
Rejection I
The Examiner finds that:
Bieker discloses a method for indicating the wear or residual
brake pad thickness of at least one brake pad (5 or 7) in a disc
brake (at 1) having an electric motor actuator (see paragraph
0097 disclosing an electric motor as an application device, as
well as an adjusting device coupled with the application device;
thus, the Examiner interprets the adjusting device as a part of
the application device), the method comprising the acts of:
adding wear adjustment travels of the electric motor actuator
(see paragraph 0246), the electric motor actuator performing
braking of the disc brake (see paragraph 0097); and indicating
the wear or residual brake pad thickness of the at least one
2 We derive our understanding of the Boehm reference from the
translation contained in the image file wrapper of this application. All
references to the text of this document are to portions of the translation.
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Application 12/161,325
brake pad based on a sum of the wear adjustment travels (see
paragraph 0246).
Final Act. 2 (transmitted Dec. 6, 2012).
Appellants argue that Bieker fails to disclose “adding of wear
adjustment travels of the electric motor that performs the braking of the disc
brake.” Br. 7. In other words, Appellants contend that independent “claim
13 requires that the electric motor actuator perform[ing] braking of the disc
brake ... is [the] electric motor actuator whose wear adjustment travels are
added.” Id. at 8. According to Appellants, “[t]he mere fact that a wear
adjustment system is, quite often, coupled with the brake application device
(as portions of the brake application device may be used to move the brake
pad based on its wear) does not imply that the wear adjustment system
applies a braking force.” Id. at 9.
We are not persuaded by Appellants’ contention because as the
Examiner correctly finds, Bieker’s brake system uses an electric motor for
performing braking of brake disc 3 (application devices 13, 15) and also for
wear adjusting of brake pads 5, 7 (adjusting devices 21, 27 and 23, 29). See
Final Act. 2; Ans. 2 (transmitted Oct. 17, 2013); see also Bieker || 69, 77,
97 and Figs, la, 20a.
“[A] prior art reference is relevant for all that it teaches to those of
ordinary skill in the art.” In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992).
In this case, paragraph 97 of Bieker states that “[t]he adjusting devices may
be coupled for the drive with the application device(s) on one or both sides
of the brake disk and/or may be provided independently of the application
devices with one or several electromagnetic drive(s).” Emphasis added. As
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Application 12/161,325
Bieker discloses the use of electrical motors to drive application devices 13,
15 and adjusting devices 21, 27 and 23, 29, we interpret the phrase “coupled
for the drive” to mean that Bieker’s application devices 13,15 and adjusting
devices 21, 27 and 23, 29 are coupled (linked) via an electric motor drive.
We thus agree with the Examiner that when using an electric motor as a
driving element for wear adjusting devices 21, 27 and 23, 29, “the electric
motor of the wear adjustors can be said to at least contribute to braking of
the disc brake and thus perform braking of the disc brake at least to some
degree.” Ans. 2—3. Furthermore, Bieker further discloses driving
application devices 13,15 and adjusting devices 21, 27 and 23, 29
independently “with one or several electromagnetic drive(s).” Id. As such, it
is reasonable for a person of ordinary skill in the art to interpret Bieker’s
independent drive as an alternative to “using one electric motor for both
wear adjustment and application of the brake.” Id. at 3.
Lastly, Appellants assert at the Oral Hearing that the phrase “coupled
for the drive” in Bieker’s paragraph 97 necessarily means that application
devices 13,15 and adjusting devices 21, 27 and 23, 29 are driven by separate
electric motors using a common spindle. See Tr. 4,11. 10-14.3 Appellants’
argument is not persuasive because “[a]t the oral hearing, appellant may
only . . . present argument that has been relied upon in the brief or reply
brief.” 37 C.F.R. § 41.47(e)(1). Furthermore, Appellants’ argument
3 “A lot of times the electric motor actuator that performs the braking
will drive a spindle that advances outward as it’s pressing the brake pad
closer towards the disc. And when you do wear adjustment, you have
another motor that couples to that spindle to kind of twist that spindle to
push it out a little bit.”
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constitutes unsupported attorney argument that cannot take the place of
evidence in the record. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997). Nonetheless, although we appreciate that using a common spindle
with separate electric motors may be present “[a] lot of times” in a braking
system, without objective evidence in the record, it does not mean that it
necessarily occurs in the device of Bieker, nor does it mean that this is what
would have been conveyed to those of ordinary skill in the art by the
“coupled for the drive” language of paragraph 97 of Bieker.
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 102(b) of claim 13 as anticipated by Bieker.
With respect to the rejection of dependent claims 14 and 20,
Appellants rely on the arguments discussed above. See Br. 9. Therefore, for
the same reasons, we likewise sustain the anticipation rejection of claims 14
and 20.
Rejection II
Claims 15—17
Claims 15—17 depend indirectly from independent claim 13. See Br.
14 (Claims App.). In arguing the rejection of these claims, Appellants do
not contest the Examiner’s findings or reasoning in regard to the disclosure
of Boehm, but rather rely on the arguments discussed above regarding the
anticipation rejection of independent claim 13 based upon Bieker. See id. at
9.
Accordingly, for similar reasons, we sustain the rejection under 35
U.S.C. § 103(a) of claims 15—17 as unpatentable over Bieker and Bohm.
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Application 12/161,325
Claims 18 and 19
The Examiner finds that although “Bieker does not disclose expressly
that the position is defined in relation to a reference position,” Boehm
discloses “a method for monitoring movements of an actuator of a brake,
wherein a position of the actuator is defined in relation to a reference
position.” Final Act. 3. The Examiner then determines that it would have
been obvious for a person of ordinary skill in the art to modify Bieker’s
brake pad wear indicating method and “use the method for monitoring
movements of the actuator as taught by Bo[e]hm” in order “to merely
provide the predictable result of providing a more versatile and robust
method of determining the position of the actuator.” Id. at 3^4. Thus, the
Examiner relies on Boehm to disclose that “travels of an electric motor
actuator can be determined through position data as opposed to [Bieker’s]
decoder signal/pulse data.” Ans. 4.
The Examiner further explains that as Appellants’ wear adjustment
travels Ni, N2 are determined in accordance with reference positions Ro, Ri,
and R2 and are added to indicate a total brake pad wear, “Bieker discloses
analyzing decoder signals/pulses to determine wear adjustment travels, and
subsequently adding the wear adjustment travels to indicate total brake pad
wear.” Ans. 3^4 (citing Bieker 1246).
Appellants argue “there is no disclosure in Bieker, either expressly or
inherently, of determining wear adjustment travels of the electric motor
actuator through position of the electric motor actuator, nor the adding of
wear adjustment travels of the electric motor actuator.” Br. 10. Appellants
further argue “Boehm does not disclose the adding of wear adjustment
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travels or the determining of those wear adjustment travels by the specific
registering process prior to a closing movement of the brake pad and after a
lifting of the brake pad in order to compare the positions as recited in claim
18.” Id. Thus, according to Appellants, “even combining Boehm with
Bieker would not arrive at the invention recited in claim 18.” Id. at 11.
Bieker discloses a controller for adding decoder pulses for detecting
the rotating angle of adjustment spindles, i.e., position of the electric motor
actuator, converting the pulses into wear information, and adding such
adjustment movements to obtain total brake pad wear. See Bieker 1246.
We appreciate the Examiner’s position that “a comparison of. . . data must
be made to determine the wear adjustment travels.” See Ans. 4. However,
the Examiner fails to show that the positions for comparison of Bieker’s
electric motor actuator are specifically determined “prior to a closing
movement of the brake pad” and “after a lifting of the brake pad,” as called
for by claim 18, and does not rely on any teaching in Boehm to make up for
this deficiency.
Accordingly, for the foregoing reasons, we do not sustain the rejection
under 35 U.S.C. § 103(a) of claims 18 and 19 as unpatentable over Bieker
and Bohm.
Claims 21—27
Appellants do not present arguments for the patentability of claims
22—27 apart from claim 21. Therefore, in accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), we select claim 21 as the representative claim to decide
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Application 12/161,325
the appeal of the rejection of these claims, with claims 22—27 standing or
falling with claim 21.
Appellants once more argue that Bieker fails to disclose “that an
electric motor actuator for braking of the disc brake may be used for
determining wear of a brake pad.” Br. 12. However, we are not persuaded
by Appellants’ arguments for the reasons set forth supra in the anticipation
rejection of claim 13.
Appellants further argue that because the Examiner’s rejection
“interweaves Boehm’s disclosure with | [0246] of Bieker” and merely
concludes that the combination of their teachings results in the claimed
structure of claim 21, the Examiner has not set forth a proper analysis
showing “why one skilled in the art would find it obvious to make a
combination that would arrive at the claimed invention.” Br. 12.
To the extent that Appellants argue the Examiner improperly used hindsight,
the argument is of no import where the Examiner states a sufficient
reasoning with rational underpinnings for the modification that we determine
is supported adequately by sufficient facts. See In re Cree, Inc., 818 F.3d
694, 702, n.3 (Fed. Cir. 2016). In this case, the Examiner supports the
position “that the combination of Bieker and Boehm would result in
structure that meets the limitations” of claim 21 by finding that Beiker
discloses a brake control unit, an adding module, a display module, and a
control module and Bohm discloses a comparator module. See Final Act. 2,
4 (citing Bieker 1246; Bohm, page 5, 3, 4). Appellants have not shown
error in the Examiner’s findings. The Examiner further concludes that it
would have been obvious for a person of ordinary skill in the art to modify
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Bieker’s method for monitoring brake pad wear, which requires a brake
control unit, an adding module, a display module, and a control module and
“use the method for monitoring movements of the actuator as taught by
Boehm,” which requires a comparator module, in order “to merely provide
the predictable result of providing a more versatile and robust method of
determining the position of the actuator.” Id. at 4. Appellants have not
persuasively shown error in the Examiner’s reasoning.
In conclusion, for the foregoing reasons, we sustain the rejection of
claim 21 over the combined teachings of Bieker and Baum. Claims 22—27
fall with claim 21.
SUMMARY
The Examiner’s decision to reject claims 13, 14, and 20 under 35
U.S.C. § 102(b) as anticipated by Bieker is affirmed.
The Examiner’s decision to reject claims 15—19 and 21—27 under 35
U.S.C. § 103(a) as unpatentable over Bieker and Boehm is affirmed as to
claims 15—17 and 21—27, and reversed as to claims 18 and 19.
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-IN-PART
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