Ex Parte Maass

Board of Patent Appeals and Interferences

Dec 20, 2006

10384862 (B.P.A.I. Dec. 20, 2006)

The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte ALEXANDER MAASS
_______________

Appeal No. 2006-2480
Application No. 10/384,862
_______________

ON BRIEF
_______________

Before JERRY SMITH, BARRY, and BLANKENSHIP, Administrative Patent
Judges.

JERRY SMITH, Administrative Patent Judge.

ON REQUEST FOR REHEARING

Appellant requests that we reconsider our decision of Sept. 27, 2006, in
which we sustained the rejection of claims 1 and 3-10 as unpatentable under
35 U.S.C. § 103.
We have reconsidered our decision of Sept. 27, 2006, in light of
appellant’s comments in the request for rehearing, and we find no errors therein.
We, therefore, decline to change our prior decision for the following reasons.
Appeal No. 2006-2480
Application No. 10/384,862

Appellant first argues that Bevan does not teach or suggest the limitation
calling for “the magnitude of the warning signal varies depending upon the
variable that represents the degree of driver inattentiveness” as claimed.
Appellant emphasizes that the magnitude of the warning signal is varied only if
there is no change in the degree of driver inattentiveness (i.e., the driver’s
alertness does not change after the first stage alert is issued) [request, page 3].
But as we indicated in our decision, the duration of inattentiveness
corresponds to the degree of inattentiveness [decision, page 7]. That is, drivers
that are inattentive longer (e.g., inattentive drivers that do not respond to the first
stage alert) are more inattentive than drivers that respond more promptly (e.g.,
inattentive drivers that respond to the first stage alert).
Turning to the prior art, Bevan changes the magnitude of the warning
signal (i.e., activates the more pronounced second stage alert) if the driver’s
inattentiveness continues after the first stage alert. Thus, the warning signal’s
magnitude is raised (i.e., from the lower-magnitude first stage alert to the higher-
magnitude second stage alert) for drivers that are inattentive longer than drivers
that respond to the first stage alert [Bevan, col. 7, line 43 – col. 8, line 4].
Appellant argues that our interpretation is flawed since Bevan teaches
raising the magnitude of the alarm when a driver’s alertness has not changed
after the first stage alarm [request, page 3]. But an unchanging or constant
inattentiveness for a longer period of time, in our view, reasonably corresponds
to a higher degree of inattentiveness. As we noted in our decision, drivers that
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Appeal No. 2006-2480
Application No. 10/384,862

are inattentive longer (e.g., inattentive drivers that do not respond to the first
stage alert) are more inattentive than drivers that respond more promptly (e.g.,
inattentive drivers that respond to the first stage alert) [decision, pages 7 and 8].
We find no error in this interpretation.
Appellant also argues that the duration of inattentiveness is not a variable
that is derived from at least one operating variable that in turn influences the
magnitude of the warning signal [request, pages 3 and 4]. We disagree. In our
view, the duration of inattentiveness is a “variable” in the sense that its
magnitude varies with respect to time. Furthermore, the inattentiveness duration
variable is derived from multiple operating “variables,” including (1) elapsed time,
and (2) other detected parameters that determine driver inattentiveness (e.g.,
eye blinking, driver movement, etc.). And as we noted previously, the
inattentiveness duration variable represents a degree of driver inattentiveness.
In short, given the scope and breadth of the claim language and the broadest
reasonable interpretation of the term “variable,” we find no error in our conclusion
that Bevan fully meets the independent claims. Although we sustained the
examiner’s obviousness rejection based on an anticipatory reference, it is well
settled that obviousness rejections can be based on references that happen to
anticipate the claimed subject matter. In re Meyer, 599 F.2d 1026, 1031, 202
USPQ 175, 179 (CCPA 1979).

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Appeal No. 2006-2480
Application No. 10/384,862

We have carefully considered the arguments raised by appellant in the
request for rehearing, but none of these arguments are persuasive that the
original decision was in error. We are still of the view that the invention set forth
in claims 1 and 3-10 is not patentable over the applied prior art based on the
record before us in the original appeal.
We have granted appellant‘s request to the extent that we have
reconsidered our decision of Sept. 27, 2006, but we deny the request with
respect to making any changes therein.

REHEARING DENIED

JERRY SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LANCE LEONARD BARRY ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )

JS/jaj/rwk
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Appeal No. 2006-2480
Application No. 10/384,862

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