Ex Parte Lu et al

Patent Trial and Appeal Board

Oct 29, 2012

11164259 (P.T.A.B. Oct. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JIANBO LU, TIMOTHY OFFERLE, HONGTEI ERIC TSENG,
DOUGLAS RHODE, and GREGORY P. BROWN
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Appeal 2010-010163
Application 11/164,259
Technology Center 3600
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Before LINDA E. HORNER, PATRICK R. SCANLON, and
BRADFORD E. KILE, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Jianbo Lu et al. (Appellants) seek our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1-10 and 16-21. Claims 11-15
are canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
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THE INVENTION
Appellants’ claimed invention “relates generally to a dynamic control
system for an automotive vehicle, and more particularly, to a system for
assistance using brake-steer.” Spec., [Para 2]. Claim 1, reproduced below,
is representative of the subject matter on appeal.
1. A method of operating a vehicle having front wheels and
rear wheels comprising:
selecting a brake-steer mode;
selecting a transfer case mode so that the front wheels are
driven and the rear wheels are not driven; and
applying brake-steer to the rear wheels to reduce the
turning radius of the vehicle.
THE REJECTION
Appellants seek review of the rejection of claims 1-10 and 16-21
under 35 U.S.C. § 103(a) as being unpatentable over Ichikawa
(US 2002/0045981 A1; pub. Apr. 18, 2002) and Sakakiyama
(US 2002/0107628 A1; pub. Aug. 8, 2002).1
ISSUE
The Examiner determined that Ichikawa discloses the first and last
steps of claim 1 and discloses a transfer case that operates in four wheel
drive mode. Ans. 3. The Examiner determined that it would have been
obvious to replace the transfer case in Ichikawa with the transfer case from
Sakakiyama so as to allow the vehicle to be able to “drive without the

1 Appellants argue claims 1-10 and 16-21 as a group. App. Br. 9-12. We
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
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mechanical connection to the rear wheels, which in turn, would reduce fuel
consumption” and allow selection between a four wheel drive and front
wheel drive configuration. Ans. 5.
Appellants argue that claim 1 calls for a “method for operating a four-
wheel drive vehicle in which selection of a brake steer mode and a two
wheel drive transfer case mode is followed by an application of brake steer
to reduce the turning radius of the vehicle.” App. Br. 9. Appellants argue
that Ichikawa does not teach: (1) a 100% reduction of rear wheel torque;
(2) brake steering to reduce the turning radius of a vehicle; and (3) linking
transfer case operation with a reduction in turning radius resulting from
brake steering. App. Br. 10. Appellants further argue that Sakakiyama does
not cure Ichikawa because it “divorces front/rear torque control from
braking force control, and there is no indication that Sakakiyama uses brake
steering either before, or after disconnection of the rear wheels from
driveline torque.” App. Br. 11.2
The issue presented by this appeal is whether representative claim 1
calls for selecting a brake-steer mode and a front wheel drive transfer case
mode, followed by applying brake-steer to the rear wheels to reduce the
turning radius of the vehicle.

2 Appellants do not specifically contest or rebut the Examiner’s articulated
reasons for combining Ichikawa and Sakakiyama as discussed supra and set
forth on page 5 of the Answer.
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ANALYSIS
Claim Interpretation
Claim 1 relates to a method comprising three steps. The language of
claim 1 does not actually recite an order for the three steps. For instance, the
claim does not recite first selecting a brake-steer mode, thereafter selecting a
transfer case mode, and thereafter applying brake-steer to the rear wheels.
“Unless the steps of a method actually recite an order, the steps are
not ordinarily construed to require one. However, such a result can ensue
when the method steps implicitly require that they be performed in the order
written.” Interactive Gift Express, Inc. v. CompuServe, Inc., 256 F.3d 1323,
1342 (Fed. Cir. 2001). Thus, a two-part test has been established for
determining if the steps of a method claim that do not otherwise recite an
order must nonetheless be performed in the order in which they are written.
Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003) (citing
Interactive Gift Express, 256 F.3d at 1342-43). First, we look to the claim
language to determine if, as a matter of logic or grammar, the recited steps
must be performed in the order written. Id. “If not, we next look to the rest
of the specification to determine whether it ‘directly or implicitly requires
such a narrow construction.”’ Id. at 1370 (quoting Interactive Gift Express,
256 F.3d at 1343). If not, the sequence in which such steps are written is not
a requirement of the claim. Id.
In this case, logic and grammar do not dictate that the steps of claim 1
are to be performed in the order proposed by Appellants. For example, the
step of applying brake-steer to the rear wheels to reduce the turning radius of
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the vehicle does not depend on whether the step of selecting a transfer case
mode so that the front wheels are driven and the rear wheels are not driven
has previously occurred. Arguably, as a matter of logic, the step of selecting
a brake-steer mode may need to occur prior to or concurrently with the step
of applying brake-steer, as logically the brake-steer cannot be applied until it
has been selected. The issue before us, however, turns on whether the claim
calls for applying brake-steer to follow selecting a transfer case mode.
The Specification also does not directly or implicitly require such a
narrow construction. Appellants’ Specification describes one embodiment
in which “[i]n step 490 the brake-steer mode is selected,” “[i]n step 492 the
transfer case mode may be selected” where “[t]he transfer case mode may
for example, be front wheel drive” and “[i]n step 492 [sic, 494], brake-steer
is applied in a front drive mode to reduce the turning radius of the vehicle.
Spec., [Para 158], [Para 159] (emphasis added). By contrast, claim 1 does
not contain any linking language that would dictate the sequence of the
recited steps. For example, the language of claim 1 does not call for
selecting a front wheel drive mode following selection of a brake-steer
mode. Likewise, the language of claim 1 does not call for applying brake-
steer to the rear wheels while the vehicle is in a front wheel drive mode. We
must be careful not to read a particular embodiment appearing in the written
description into the claim if the claim language is broader than the
embodiment. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d
870, 875 (Fed. Cir. 2004) (stating “it is important not to import into a claim
limitations that are not a part of the claim. For example, a particular
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embodiment appearing in the written description may not be read into a
claim when the claim language is broader than the embodiment.”). In this
case, Appellants’ drafting of claim 1 without the use of the more limiting
temporal description contained in the Specification implies a claim scope
that is broader than the disclosed embodiment of the method.
Further, the Specification describes other embodiments in which
brake-steer is applied to reduce the turning radius of the vehicle where the
vehicle is not necessarily in front wheel drive mode:
In step 218, brake-steer is applied to the vehicle. Step 218 may
generate a steering enhance signal or other control signal based
upon the sensing of the desirability for brake-steer. For
example, when the driver selects a driver selectable mode, a
steering enhance signal may be desired if the vehicle is to be
turned sharply. Thus, the steering enhance signal may be used
to reduce the turning radius of the vehicle. As mentioned above,
brake-steer may take the form of applying brakes as in step 220,
applying a positive torque in addition to applying brakes in step
222, or applying a differential torque. The differential torque
may be performed by providing one wheel with a greater
positive torque than a second wheel. This would be particularly
useful in the electric vehicle 10' described above. The transfer
case mode or differentials may also be changed in a 4x4 vehicle
from a 4x4 mode to a 4x2 mode to increase control of the
brake-steer. Proportioning brake-steer between front and rear
wheels may be performed by proportioning brakes between the
front and rear wheels.
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Spec., [Para 105].3 See also Spec., [Para 108] (“by controlling the wheel
speed, the turning radius of the vehicle may be reduced.”).
Appellants have failed to show how a sequence of steps described in
one embodiment mandates a narrow construction of the claim. We decline
to infer what should have been made explicit in the claim during
prosecution. To arrive at Appellants’ proposed construction would require
improperly reading limitations into the claim. With the construction of
claim 1 in mind, we now examine the prior art.
Rejection based on Ichikawa and Sakakiyama
Appellants argue the Examiner erred in rejecting the claims because
Ichikawa does not teach: (1) a 100% reduction of rear wheel torque;
(2) brake steering to reduce the turning radius of a vehicle; and (3) linking
transfer case operation with a reduction in turning radius resulting from
brake steering. App. Br. 10.
We are not persuaded by Appellants’ first argument because the
Examiner does not rely on Ichikawa to teach a 100% reduction of rear wheel

3 According to the Specification, the description of the method steps quoted
supra is with reference to Figure 10, which is supposed to show “a flow
chart of a first embodiment of the present invention.” Spec., [Para 24], [Para
98]. Figure 10 of the drawings that accompanied the original disclosure,
however, does not depict a flow chart. Rather, it appears to depict a front
view of a vehicle resting on two wheels and showing roll angles. We do not
see a flow chart among the drawings that accompanied the original
disclosure that comport with the description found in [Para 105] of the
Specification. We also note that descriptions of many of the other figures
found in the Specification fail to correspond to the drawings that
accompanied the original disclosure.
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torque. Ans. 4 (“Ichikawa fails to mention a transfer case that is able to
change the vehicle from a front wheel drive mode to a four wheel drive
mode.”). Instead, the Examiner proposes to replace Ichikawa’s transfer case
with the transfer case of Sakakiyama. Ans. 4-5.
We are also not persuaded by Appellants’ second argument because it
is based on Appellants’ position that the cited brake activation of Ichikawa
will increase the turning radius by reducing oversteer. App. Br. 10. The
Examiner correctly determined, however, that Ichikawa addresses conditions
of both oversteer and understeer and teaches brake steering to efficiently
turn the vehicle and avoid understeering by braking one of the rear brakes,
and thus Ichikawa’s system would reduce the turning radius to avoid
understeer. Ans. 3, 6 (citing Ichikawa, paras. [0084], [0090], [0091]).
We are also not persuaded by Appellants’ third argument because, as
noted supra in our analysis of claim 1, the method steps of claim 1 are not
linked so that the application of brake-steer to the rear wheels to reduce the
turning radius of the vehicle is tied to the step of selecting front wheel drive
mode. As such, we affirm the rejection of representative claim 1, and claims
2-10 and 16-21 fall with claim 1.
To the extent Appellants were to contend that independent claim 16 is
separately argued, the claim language of independent claim 16 suffers from
the same problem as claim 1 in that the vehicle of claim 16 is recited more
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broadly than is argued by Appellants.4 For example, while claim 16 calls for
the brake controller to be coupled to a brake-steer actuator, the claim
language does not call for the brake controller to operate in response to or
following selection of a brake-steer selector. Further, while claim 16 recites
that the brake controller controls the brakes to reduce a turning radius of the
vehicle during the front drive mode, it does not limit application of the brake
controller to this mode and does not tie application of the brake controller to
selection of front drive mode.
CONCLUSION
Representative claim 1 does not call for selecting a brake-steer mode
and a front wheel drive transfer case mode, followed by applying brake-steer
to the rear wheels to reduce the turning radius of the vehicle.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1-10 and
16-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
MP

4 Appellants argue claim 16 is directed to “a system . . . for operating a four-
wheel drive vehicle in which selection of a brake steer mode and a two wheel
drive transfer case mode is followed by an application of brake steer to reduce
the turning radius of the vehicle.” App. Br. 9.