Ex Parte Platt

Patent Trial and Appeal Board

Aug 4, 2016

13305972 (P.T.A.B. Aug. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/305,972 11129/2011
90263 7590
Jerome R Drouillard
10213 Tims Lake Blvd.
Grass Lake, MI 49240
08/08/2016
FIRST NAMED INVENTOR
Richard Booth Platt
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PLTOOl 1097
EXAMINER
ALIZADA, OMEED
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
08/08/2016 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):
lisa@i3law.com
j drouillard @fordsonlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD BOOTH PLATT
Appeal 2015-003158
Application 13/305,972
Technology Center 2600
Before: IRVINE. BRANCH, ADAM J. PYONIN, and SHARON PENICK,
Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
4, 8-13, and 15-26. Claims 5-7 and 14 are objected to. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2015-003158
Application 13/305,972
CLAIMED SUBJECT MATTER
The claims are directed to an indicator system that senses an
automotive vehicle's operating parameter and transmits a corresponding
signal for display. Spec., Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A remote indicator for an automotive vehicle, comprising:
a sensor unit for determining the value of at least one
vehicle prime mover operating parameter and for generating a
wireless signal corresponding to the sensed value; and
a receiver for receiving said signal wirelessly and for
displaying an indication of said signal to a vehicle occupant.
REJECTIONS
Claims 1--4, 8-12, 15-18, and 20-26 stand rejected under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Olsen (US 2013/0038438 Al, Feb.
14, 2013). Final Act. 5-11.
Claim 13 stands rejected under pre-AIA § 35 U.S.C. 103(a) as
unpatentable over Olsen and Hirasago (US 2002/0133285 Al, Sept. 19,
2002). Final Act. 11-12.
Claim 19 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Olsen and Abdoo (US 4,144,863, Mar. 20, 1979). Final
Act. 12-13.
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ANALYSIS
Claims 1-4, 8-12, 15-18, and 20-26 as Obvious over Olsen
Claim 1
The Examiner finds that Olsen discloses all elements of claim 1,
except that Olsen does not "explicitly" state a receiver. Final Act. 5 (citing
Olsen, Abstract; i-fi-f 18, 20, 36; and Figs. 2A-2E, 3B, and 3C). The
Examiner finds, however, that Olsen's disclosure of a display that receives a
signal through an "Electronic Control Unit" (ECU) teaches or suggests the
limitation, thereby rendering the claim obvious to one of ordinary skill in the
art. Id. (citing Olsen i1 48 and Figs. 2A-E).
Appellant argues that the Examiner's rejection "lacks a rational
underpinning" because it provides no justification in support of the
conclusion that it would have been obvious to use wireless technology
between a sensor and a display. App. Br. 8-9. Appellant's argument is
based on an alleged shortcoming in Olsen, namely that, although Olsen
discloses a wireless signal transmitted from sensor modules to the ECU,
"Olsen is devoid of any teaching regarding wireless transmission of a
parametric signal to a receiver viewable by an occupant of a vehicle." Id. 8.
Appellant argues further that a "receiver" in accordance with claim 1 is "a
device viewable by a vehicle occupant," which Olsen's ECU is not. Reply
Br. 1 (citing Spec. i-f 19).
The Examiner finds that Olsen's ECU in combination with the display
meets the claimed "receiver." Ans. 3.
We are unpersuaded of error. While we decline to adopt Appellant's
narrow construction of "receiver," even under that construction we agree
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Application 13/305,972
with the Examiner that Olsen's ECU in combination with the display (see,
e.g., Olsen Figs. 1, 3B and C), teaches or suggests a "receiver" as claimed.
Claim 4
Claim 4 depends from claim 1 and recites the sending of a shift signal
when the engine has reached a predetermined speed that depends on the state
of a power adder. Appellant argues that the Examiner has erred in rejecting
claim 4 by applying an overly broad construction of "power adder," which
should be construed in accordance with Appellant's Specification and the
knowledge of one of ordinary skill in the art to mean a "device which
increases engine output over what would otherwise be available." App. Br.
9--10 (citing Spec. i-fi-1 6, 17).
The Examiner finds that Appellant's Specification, by using the open
terms "may be" and "could be" to define "power adder," does not clearly
disclaim "throttle" from the definition of "power adder."
We agree with the Examiner.
It is well settled that "[ d]uring patent examination the pending claims
must be interpreted as broadly as their terms reasonably allow." In re Zietz,
893 F.2d 319, 321 (Fed. Cir. 1989). The broadest reasonable interpretation
of the claims must be consistent with the interpretation that those skilled in
the art would reach. In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999).
Hence, because Appellant's Specification does not clearly disclaim
"throttle," which is a device that adds power, from the definition of "power
adder," the Examiner's construction, while broad, is reasonable, and
consistent with Appellant's Specification.
We note Appellant's argument that no one skilled in the art would
consider an accelerator a "power adder" (Reply Br. 1 ), but we do not find
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Application 13/305,972
this assertion to be supported with sufficient persuasive evidence to
convince us of its veracity. Arguments of counsel cannot take the place of
factually supported objective evidence. See, e.g., In re Huang, 100 F.3d
135, 139--40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984).
We further note that Appellants always have the opportunity to amend
the claims during prosecution, and broad interpretation by the Examiner
reduces the possibility that the claim, once issued, will be interpreted more
broadly than is justified. In re Prater, 415 F.2d 1393, 1404---05 (CCPA
1969).
Claims 8 and 9
Claims 8 and 9 each depend from claim 1 and recite, inter alia, that a
sensor is "mounted within an engine compartment of a vehicle." Appellant
argues claims 8 and 9 based on arguments presented with respect to claim 1
and also on the basis that Olsen does not disclose a sensor mounted in an
engine compartment. App. Br. 11.
Although the Examiner does not respond to Appellant's argument in
the Examiner's Answer, we are unpersuaded of error because Olsen at least
suggests that the engine sensor module (Fig. 1, 110) is mounted in the
Engine compartment with the engine. See Final Act. 6-7.
Claim 23
Claim 23 depends from claim 16 (which is analogous to claim 1) and
recites a "haptics device" "incorporated within a vehicle control accessible
to a driver of a vehicle." Appellant argues claim 23 on the same basis as
claim 16 (which is argued on the same basis as claim 1 ), adding that "Claim
23 is allowable for the additional reason that Olsen teaches nothing
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regarding the incorporation of a haptics signaling device within a vehicle
control accessible to the driver of a vehicle." App. Br. 9, 13.
Although the Examiner does not respond to Appellant's argument in
the Examiner's Answer, we are unpersuaded of error in view of Olsen's
disclosure that the display may include haptic feedback devices. Olsen i-f 16.
See Final Act. 10-11.
Claims 15, 24, and 25
Claims 15, 24, and 25 depend from claim 11 or claim 16 and recite
incorporating the receiver in a bracelet or steering apparatus providing
haptic feedback to the operator.
The Examiner finds that, in view of Olsen's disclosure incorporating
haptic feedback (i-f 16), the subject matter of claims 15, 23, and 24 would
have been an obvious design choice. Final Act. 11. We have reviewed
Appellant's arguments (App. Br. 13; Reply Br. 2) and find them
unpersuasive of error in the Examiner's conclusion. Final Act. 11.
Appellant argues claims 2, 3, 10-12, 16-18, 20, 22, and 26 on the
same basis as claim 1 and argues claim 21 on the same basis as claim 4.
App. Br. 7-13. For the foregoing reasons, we sustain the Examiner's
decision to reject claims 1--4, 8-12, 15-18, and 20-26 as obvious over
Olsen.
Claim 13 as Obvious over Olsen and Hirasago
Claim 13 depends from claim 11 and recites using a plurality of
engine speed ranges to trigger generation and transmission of the shift
signal, with the speed ranges being displayed on said receiver.
Appellant argues error on the basis that Hirasago deals with vehicle
speed, not engine speed, which are "largely independent" from one another,
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rendering Hirasago "irrelevant" to gear shifting decisions. Appellant also
argues that the Examiner has not "mentioned what Hirasago fails to disclose
nor any explanation of how the references would be combined." App. Br.
14--15; Reply Br. 2.
Appellant's arguments amount to an unpersuasive attack on Hirasago
alone, when the rejection is based on the combined teachings of Olsen and
Hirasago. Final Act. 11-12. See In re Keller, 642 F.2d 413, 426 (CCPA
1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
Examiner relies on Hirasago only for teaching displaying speed ranges
(Final Act. 12), which is undisputed by Appellant. See App. Br. 14--15;
Reply Br. 2. Appellant's arguments do not persuade us of error in the
Examiner's finding that modifying Olsen's engine speed based shift signals
with Hirasago 's speed range display would have been obvious to one of
ordinary skill in the art "so the vehicle occupant can see a visual display of
the speed range, [which] is known to help a user with following a task and is
more informative." Final Act. 12; see also Ans. 4, Olsen Figs. 3B, 3C,
Hirasago Title, Abstract.
Claim 19 as Obvious over Olsen and Abdoo
Claim 19 depends from claim 16 and recites a plurality of "prime
mover" operating modes that comprise modes with a power adder activated
and deactivated.
Appellant argues error on the basis that Abdoo deals with cylinder
deactivation, which is more of a power subtractor than a "power adder."
App. Br. 16; Reply Br. 2. Appellant also argues that the rejection has not
explained "how Olsen could be modified ... to display gear shifting
commands as a function of how many engine cylinders are activated" and
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has not explained "what purpose would be achieved by displaying the
number of cylinders which have been activated or deactivated." App. Br.
16.
We are unpersuaded of error for the reasons stated by the Examiner
(Final Act. 12-13; Ans. 4--5) and our reasoning above that Appellant's
construction of "power adder" fails to afford the term its broadest reasonable
meaning consistent with the Specification. Appellant's arguments of error
based on the Examiner's alleged failure to explain "how Olsen could be
modified ... to display gear shifting commands as a function of how many
engine cylinders are activated" and "what purpose would be achieved by
displaying the number of cylinders which have been activated or
deactivated" (App. Br. 16) do not amount to an argument against
obviousness. These arguments do not persuasively rebut the Examiner's
reasoning that one of ordinary skill in the art would have found it obvious to
modify Olsen's teachings with Abdoo's teachings of operating with a power
adder activated and deactivated for the purpose of saving fuel consumption.
Final Act. 12-13. Additionally, we find Appellant's statement that Abdoo's
teaching of "cylinder deactivation is ... akin to using a vehicle's
accelerator" (Reply Br. 2) supports the Examiner's determination that
Abdoo properly combines with Olsen's teaching of using a throttle (see Ans.
3-5).
We sustain the Examiner's decision to reject claim 19 as obvious over
Olsen and Abdoo.
DECISION
We sustain the Examiner's decision rejecting claims 1--4, 8-13, and
15-26.
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Application 13/305,972
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)(l )(iv).
AFFIRMED
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