Ex Parte Masamura et alDownload PDFPatent Trials and Appeals BoardSep 19, 201311074019 - (R) (P.T.A.B. Sep. 19, 2013) Copy Citation 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 2 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 Appeal 2011-004558 Application 11/074,019 3 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. Appeal 2011-004558 Application 11/074,019 4 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 Appeal 2011-004558 Application 11/074,019 5 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 Appeal 2011-004558 Application 11/074,019 6 (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). Appeal 2011-004558 Application 11/074,019 7 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 mls Copy with citationCopy as parenthetical citation