Ex Parte Masamura et al

Patent Trial and Appeal Board

Jun 6, 2013

11074019 (P.T.A.B. Jun. 6, 2013)

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.
11/074,019 03/08/2005 Tatsuya Masamura GOT 209 4556
7590 09/19/2013
RABIN & BERDO, P.C.
Suite 500
1101 14th Street, N.W.
Washington, DC 20005
EXAMINER
LI, CE LI
ART UNIT PAPER NUMBER
3661
MAIL DATE DELIVERY MODE
09/19/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TATSUYA MASAMURA and SHINICHI HAGIDAIRA
____________

Appeal 2011-004558
Application 11/074,019
Technology Center 3600
____________

Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

Appeal 2011-004558
Application 11/074,019

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STATEMENT OF THE CASE
Appellants timely filed on August 6, 2013 a request for rehearing
under 37 C.F.R. § 41.52 (hereinafter “Request”) requesting that we
reconsider our decision mailed June 6, 2013 (hereinafter “Decision”). In
that Decision, we affirmed the Examiner’s rejection of claims 7-10, 13, and
14 under 35 U.S.C. § 103(a) as unpatentable over Jones, Shimada, and
Takenaka, and we affirmed the Examiner’s rejection of claim 3 under 35
U.S.C. § 103(a) as unpatentable over Jones, Shimada, Takenaka, and
Nakamura.
We have reconsidered our Decision but do not modify our Decision.
ANALYSIS
Requests for rehearing are limited to matters misapprehended or
overlooked by the Board in rendering the original decision. 37 C.F.R.
§ 41.52(a)(1). A request for rehearing must state with particularity the
points believed to have been misapprehended or overlooked by the Board.
Id. Arguments not raised, and evidence not previously relied upon, are not
permitted in the request for rehearing except under circumstances not
relevant to this Request. Id.
Appellants assert that the Board misapprehended or overlooked two
arguments:
1. Neither Shimada nor Takenaka “would have suggested damping
roll angular velocity in accordance with the ‘drive control device’
paragraph of independent claim 13” (Request 1); and
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2. “[T]he references1 would not have suggested calculating roll
angular velocity based on roll angular acceleration, in accordance with
the ‘calculator’ paragraph of claim 13” (id. at 1-2).
In addition to these two arguments, Appellants state that pages 4 and 5
of the Decision illustrate that the Board failed to consider the references as a
whole (referred to by Appellants as “the sin of piecemeal reconstruction”).
Request 4.
We assess these arguments in turn.
Damping Angular Velocity
Appellants argue that our Decision overlooked the argument that
Takenada’s drive control device damps roll magnitude rather than roll
angular velocity as claimed. Request 1-2.
As explained below, we did not overlook this argument. It was
addressed and decided. Because we did not fully explain our conclusion, we
take this opportunity to do so. However, even if this argument were
overlooked, it does not demonstrate error in the rejection, as we also explain
below.
In the Decision, we summarized the Examiner’s rejection, in relevant
part to the Request, by stating that:
Thus, the Examiner is relying on Shimada for calculating
the roll angular velocity based on the roll angular
acceleration [argument number 2 listed above], and is
relying on Takenaka for damping the roll angular
velocity [argument number 1 listed above], as calculated
by Shimada, to control the roll of the vehicle body.

1 We understand the “references” to mean Shimada and Takenaka, since
those are the only two references cited and argued in the Request.
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Decision 4 (emphases added). Thus, comparing the emphasized words in
the passage quoted above from the Decision and the emphasized words in
the passages quoted above from the Request, and finding them essentially
identical, it is clear that the Decision did not overlook the two arguments
identified in the Request.
Appellants’ Request quotes nearly the entirety of the substantive
argument from the Appeal Brief and Reply Brief. The substantive argument
in the Appeal Brief begins on page 5, ends on page 7, and is 29 lines of text.
The Request quotes all but three lines of this substantive argument,
approximately 90% of the argument. The substantive argument in the two-
page Reply Brief begins and ends on page 2. The entirety of this substantive
argument (100%) is quoted in the Request. Thus, the Request essentially
repeats the entire argument presented in the Appeal.
A request for rehearing “‘must state with particularity the points believed to
have been misapprehended or overlooked by the Board”’ and “must
specifically recite ‘the points of law or fact which appellant feels were
overlooked or misapprehended by the Board.”’ Ex parte Quist, 95 USPQ2d
1140, 1141 (BPAI 2010) (precedential). A request for rehearing is not an
opportunity to reargue an appeal.
Nonetheless, the long quote from the Appeal Brief (Request 2) was
quoted, addressed, and refuted by the Examiner in the Response to
Argument. Ans. 8-9. The Examiner explained his analysis as follows:
Roll angular velocity is being calculated by the
controller from angular rate sensor and being used to
perform anti-roll function. When actuator changes to
harder damping setting, the roll angular velocity of the roll
reduces, because harder damping setting applies extra
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force to restrain the roll, the extra force provides
deceleration and damps the roll angular velocity.
Ans. 9. The Examiner’s analysis of Takenaka here is essentially the same as
in the actual rejection by the Examiner (Ans. 5), which we cited in the
Decision (Decision 4). Based on this analysis, the Examiner concluded:
“[t]herefore, Takenaka teaches damping a roll angular velocity of the roll of
the vehicle body based on the roll angular velocity calculated by the
calculator.” Ans. 9.
In our Decision, although we cited and summarized the Examiner’s
analysis and conclusion (Decision 4), we were not clear in stating that we
agreed with the conclusion because it was supported by a preponderance of
the evidence and is based on articulated reasoning with a rational
underpinning to support the legal conclusion of obviousness. We now make
our determination explicit to clarify our Decision. Such a clarification does
not mean we overlooked any argument.
However, even if we overlooked the argument, for the reasons that
follow, such argument does not demonstrate error in the rejection.
Specifically, Appellants argue that Takenaka’s disclosure of damping
angular displacement is not a disclosure of damping angular velocity
because angular displacement and angular velocity may in many instances
be independent of each other. Request 1-3; App. Br. 5-6; Reply Br. 2.
Appellants mischaracterize the reference. Takenaka does not disclose
limiting angular displacement. Rather, the Examiner correctly found that
Takenaka discloses use of a harder damping (greater force than the softer
damping setting) which provides deceleration that damps angular velocity.
Ans. 6, 9; Takenaka, col. 7, ll. 40-49; see also Takenaka, col. 2, ll. 3-6
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(describing harder and softer damping forces). Appellants’ argument does
not cogently demonstrate how this finding is in error.
Calculating Roll Angular
Appellants argue that the Decision misapprehended or overlooked the
argument that the references would not have suggesting calculating roll
angular velocity based on roll angular acceleration as claimed. Request 1-4.
To the contrary, our Decision specifically addressed this argument.
Decision 5. The Decision states:
Regarding Appellants' argument that Shimada discloses
only control of yaw, not roll (App. Br. 6-7), we do not agree
that Shimada's disclosure is so limited. Shimada states that the
disclosed invention is for detecting an angular rate of a moving
body, such as an automobile. Shimada, col. 1, 11. 8-10.
Shimada also discloses that a yaw rate is a “kind of angular
rate” (id. at col. 1, 1. 30), and that control of yaw, as disclosed
in the Shimada patent, is “[a]n example” of the type of
movement that can be controlled by the disclosed apparatus for
detecting an angular rate (id. at col. 2, 11. 24-25 (emphasis
added)). In other words, Shimada's disclosure is not limited
solely to detecting yaw; rather, it broadly discloses detecting an
angular rate. Roll, yaw, and pitch are each angular rates that
can be detected, measured, and controlled in vehicles. See, e.g.,
Takenaka, col. 6, 11. 18-48. Thus, Shimada's disclosure of
detecting and controlling an angular rate includes detecting and
controlling roll.
Appellants’ repetition of this argument, unaccompanied by a cogent
explanation of how our analysis is in error, is not persuasive. We also note
that Appellants acknowledge that “Shimada discloses controlling yaw, roll,
or pitch according to the calculated roll angular velocity based on the roll
angular acceleration.” Request 3 (emphasis added).
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Failure to Consider the References as a Whole
In support of this contention, Appellants assert that it would not have
been obvious to combine Jones, Takenaka, and Shimada because certain
aspects of Takenaka are inconsistent with Shimada. Request 4-5.
Appellants do not identify, nor do we discern where this argument was
raised in the briefs before the Board on appeal. See Request 4-5.
Accordingly, we do not consider this argument. See 37 C.F.R. § 41.52(a)(1).
Based on our analysis herein, Appellants’ Request has not established
any basis for rehearing and revising the Decision.

DECISION
We grant Appellants’ request for rehearing to the extent that we
reconsidered our Decision, but we deny the request with respect to making
any changes to the Decision.
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).

DENIED

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