Ex Parte Martin

Patent Trial and Appeal Board

Aug 14, 2017

14068014 (P.T.A.B. Aug. 14, 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.
14/068,014 10/31/2013 Douglas Raymond Martin 83379434 1054
28395 7590 08/16/2017
RROOKS KTTSHMAN P C /FfTET EXAMINER
1000 TOWN CENTER PICON-FELICIANO, RUBEN
22ND FLOOR
SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
08/16/2017 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):
docketing @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS RAYMOND MARTIN1
Appeal 2016-000796
Application 14/068,014
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 1—20 under 35 U.S.C. § 102(a)(1) as anticipated by Kerns
(US 6,078,860, iss. June 20, 2000). We have jurisdiction under 35 U.S.C.
§ 6(b).2
We AFFIRM.
1 FORD GLOBAL TECHNOLOGIES, LLC, is identified in the Appeal
Brief as the Real-Party-In-Interest. Appeal Br. 4.
2 Additional grounds of rejection under Section 102 as anticipated by Weber
(US 6,654,677 B2, iss. Nov. 25, 2003) and by Sun (US 7,319,927 Bl, iss.
Jan. 15, 2008) have been withdrawn by the Examiner. Ans. 4.
Appeal 2016-000796
Application 14/068,014
THE INVENTION
Appellant’s invention relates to control systems for a vehicle
powertrain. Spec. 11. Claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A method for controlling a powertrain in a vehicle,
comprising:
controlling vehicle speed around a plurality of target vehicle
speeds based on respective accelerator pedal positions when the
vehicle is operating outside of a constant speed control process;
and
using the current target vehicle speed as a desired constant
speed when the vehicle is operating within a constant speed
control process.
OPINION
Claim 1
The Examiner finds that Kerns discloses all of the elements of
claim 1. Final Action 2—3. In particular, the Examiner finds that Kerns
controls vehicle speed based on accelerator pedal position when the vehicle
is operating outside of a constant speed control process. Id. at 2.
Appellant traverses the Examiner’s rejection by arguing that Kerns
fails to control speed based on accelerator pedal position “when the vehicle
is operating outside of a constant speed control process.” Appeal Br. 7.
Appellant challenges the Examiner’s reliance on language from Kerns’s
Abstract and argues that the Abstract is describing a constant speed control
process. Id.
In response, the Examiner directs our attention to column 2 and
Figures 8a to 8b of Kerns as disclosing controlling the speed of a vehicle
during a non-constant speed mode. Ans. 4.
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Appeal 2016-000796
Application 14/068,014
Specifically, in Figure 8a block 86 the method will decide if the
vehicle is in a constant speed mode. Then in block 108 a
decision is made about if the acceleration is near zero (e.g. near
constant speed). If NO in block 108 then the method go[es] to
point D in Figure 8b and will control the speed of the vehicle
during a non-constant speed mode based on the
predetermined torque curve, the second offset, the speed of the
vehicle and the position of the accelerator pedal.
Id. at 5 (emphasis in original).
In reply, Appellant concedes that Kerns teaches vehicle control
outside of a constant speed control process. Reply Br. 1. Appellant then
characterizes Kerns’s system as employing “complex parameters” along
with the “additional element” of accelerator pedal position. Id. at 2.
Thus, Appellant essentially concedes that Kerns controls vehicle
speed based on accelerator pedal position outside of a constant speed control
process. Appellant’s argument that Kerns also employs other “complex
parameters” does not persuade us of Examiner error. Appellant’s claim uses
a “comprising” transition term. “In the patent claim context the term
‘comprising’ is well understood to mean ‘including but not limited to.’ ”
CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007);
see also Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
(comprising transition means that the named elements are essential, but other
elements may be added and still form a construct within the scope of the
claim). Appellant’s claim does not preclude the use of additional parameters
in the control process, whether simple or “complex.”
The Examiner’s finding that Kerns discloses controlling vehicle speed
based on accelerator pedal position when the vehicle is operating outside of
the constant speed control process is supported by a preponderance of the
evidence and we sustain the anticipation rejection of claim 1.
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Appeal 2016-000796
Application 14/068,014
Claims 2—7
Appellant does not argue for the separate patentability of claims 2—7
apart from arguments presented with respect to claim 1 which we have
previously considered and a conclusory reference to “additional elements”
that allegedly “further distinguish” these claims from the prior art. Appeal
Br. 7. Appellant’s reference to “additional elements” falls short of
constituting a separate argument for the patentability of these claims. See In
reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires more
than recitation of the claim elements and a naked assertion that the elements
are not found in the prior art). Consequently, we sustain the Examiner’s
anticipation rejection of claims 2—7. See 37 C.F.R. § 41.37(c)(iv) (failure to
separately argue claims).
Claim 8
Claim 8 is an independent claim that is substantially similar in scope
to claim 1. Claims App. In traversing the rejection, Appellant relies solely
on arguments that we previously considered and found unpersuasive with
respect to claim 1 and find equally unpersuasive here. Appeal Br. 7, Reply
Br. 3. We sustain the rejection of claim 8.
Claims 9—14
Appellant does not argue for the separate patentability of claims 9—14
apart from arguments presented with respect to claim 8, which we have
previously considered, and a conclusory reference to “additional elements”
that allegedly “further distinguish” these claims from the prior art. Appeal
Br. 8. For reasons and authorities previously detailed in connection with the
rejection of claims 2—7, we sustain the Examiner’s anticipation rejection of
claims 9—14.
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Appeal 2016-000796
Application 14/068,014
Claim 15
Claim 15 is an independent claim that is substantially similar in scope
to claims 1 and 8. Claims App. In traversing the rejection, Appellant relies
solely on arguments that we previously considered and found unpersuasive
with respect to claims 1 and 8 and find equally unpersuasive here. Appeal
Br. 8, Reply Br. 3. We sustain the rejection of claim 15.
Claims 16—20
Appellant does not argue for the separate patentability of claims 16—
20 apart from arguments presented with respect to claim 15, which we have
previously considered, and a conclusory reference to “additional elements”
that allegedly “further distinguish” these claims from the prior art. Appeal
Br. 8. For reasons and authorities previously detailed in connection with the
rejection of claims 2—7 and 9—14, we sustain the Examiner’s anticipation
rejection of claims 16—20.
DECISION
The decision of the Examiner to reject claims 1—20 is affirmed.
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
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