Ex Parte Post et alDownload PDFBoard of Patent Appeals and InterferencesMar 29, 201010983393 (B.P.A.I. Mar. 29, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte JAMES W. POST II, THEODORE KLAUS, and KEN KANG ____________________ Appeal 2008-006097 Application 10/983,393 Technology Center 3600 ____________________ Decided: March 29, 2010 ____________________ Before: ALLEN R. MACDONALD, WILLIAM F. PATE III, and MICHAEL W. O'NEILL, Administrative Patent Judges. PATE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 2, and 5-8. We have jurisdiction under 35 U.S.C. § 6(b). The claims are directed to an automotive braking system that has individual wheel loads as an input to adjust braking control in response to or in anticipation of changes in individual wheel load. Appeal 2008-006097 Application 10/983,393 2 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of controlling vehicle braking comprising: calculating a wheel slip of individual vehicle wheels; determining a load upon individual vehicle wheels; calculating a first brake line correction factor based on the determined loads upon the vehicle wheels utilizing different gain factors based on different vehicle operating conditions, and based on the first brake line correction factor providing a first line pressure adjustment command; calculating a second brake line correction factor based on the calculated wheel slip, and based on the second brake line correction factor providing a second line pressure adjustment command; integrating the first line pressure adjustment command and the second line pressure adjustment command; and using the integrated first and second line pressure adjustment commands to modulate a pressure supplied to individual wheel calipers during braking of the vehicle. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Shibahata Fratini US 4,666,013 US 5,692,587 May 19, 1987 Dec. 2, 1997 Kingston (as translated) DE 10 158 026 Jun. 12, 2003 Appeal 2008-006097 Application 10/983,393 3 REJECTIONS Claim 6 stands rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the enablement requirement. Ans. 3. Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kingston and Shibahata. Ans. 4. Claims 5, 7, and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kingston and Fratini. Ans. 5. ISSUES With respect to the rejection of claim 6 under § 112, first paragraph, Appellants argue that the various types of suspension controls are well- known in the art and do not have to be further explained. See Brief at 11. Appellants further cite two U.S. patents wherein adjustable dampers are used in steering and suspension control. These dampers utilize magnetorheological fluids controlled by electric current to adjust the damping rate. Accordingly, the first issue is whether the Examiner has sustained his burden of establishing that undue experimentation would be necessary to make and use the subject matter of claim 6. With respect to the rejection of claims 1 and 2 under § 103, the Appellants argue that Kingston is directed to a method of operating antilock brakes, while Shibata is directed to a steering control system. Since Kingston is not directed to controlling the steering of the vehicle, the Appellants argue that motivation is lacking to combine the references. Therefore, the second issue is whether the Examiner erred in combining the collective teachings of Kingston and Shibata in rejecting claims 1 and 2 under § 103 on the grounds obviousness. Appeal 2008-006097 Application 10/983,393 4 With respect to the rejection of claims 5, 7, and 8 under § 103, the Appellants argue that every limitation of the claimed invention is not taught or suggested by the combination of Kingston and Fratini. Appellants state that Kingston does not disclose filtering high-frequency load variation. Appellants further argue that Fratini, while teaching the use of filtering devices, does not remove high-frequency load variations. Rather Fratini teaches the use of filters to isolate a desired component from a signal that includes multiple components. Therefore, according to Appellants, Fratini does nothing to cure the deficiencies of the Kingston patent. Accordingly, the third issue for consideration is whether the Examiner has erred in rejecting claims 5, 7, and 8 on the ground that Fratini does not disclose filtering of the correct high frequency signals. FINDINGS OF FACT 1. With reference to Figure 1 of the Kingston patent, Kingston discloses calculating a wheel slip of individual vehicle wheels in ABS controller 16. See para. [0020]. Kingston further discloses suspension shock absorbers 24. See para. [0026]. The load upon the individual vehicle wheel is determined by spring deflection sensors 26. See para. [0029]. In box 30, a first brake line correcting factor is calculated based on the determined load upon the vehicle wheels and a first line pressure adjustment is outputted. Id. A second brake line correction factor is calculated in ABS module 16 based on the calculated wheel slip and a second line pressure adjustment is outputted from control device 10. See para. [0021]. The two first and second line pressure adjustment commands are integrated in interface 18. See para. [0024]. Appeal 2008-006097 Application 10/983,393 5 The integrated first and second line pressure adjustment commands are supplied to the wheel pressure modulator 12 to modulate the pressure supplied to the individual wheel calipers during braking. See para. [0026]. 2. Kingston differs from the claimed subject matter in that Kingston does not expressly disclose utilizing different gain factors based on different vehicle operating conditions. Kingston further differs from the claimed subject matter in that Kingston does not disclose high- frequency filtering. 3. Shibahata discloses a vehicle control system using different gain values to provide appropriate system control in response to differing vehicle conditions. See col. 4, ll. 3-16. The gain is calculated using a transfer function to model the behavior of the vehicle. See cols. 9-11 passim. We agree with the Examiner that a second order transfer function is often used to model a damped system such as a vehicle suspension during control of these damped systems. We further agree that variable gain is used to control these systems. Appellants admit that their vehicle control system is using a standard second order transfer function with proportional gain. Spec. para. [0017]. 4. Shibahata differs from the claimed subject matter in that Shibahata discloses using variable gain and transfer functions for controlling vehicle steering rather than vehicle braking. 5. Fratini discloses using filtering to eliminate high-frequency signal noise in the electronic control of vehicle suspensions. See col. 9, ll. 15-21. Appeal 2008-006097 Application 10/983,393 6 6. Fratini does not expressly disclose removing high-frequency load variations from determined wheel loads. PRINCIPLES OF LAW The test for enablement is whether one skilled in the art would have to resort to undue experimentation in order to practice the invention. In re Angstadt, 537 F.2d 498, 503 (CCPA 1976). Undue experimentation analysis may include consideration of: (1) the quantity of experimentation necessary, (2) the amount of direction or guidance presented, (3) the presence or absence of working examples, (4) the nature of the invention, (5) the state of the prior art, (6) the relative skill of those in the art, (7) the predictability or unpredictability of the art, and (8) the breadth of the claims. In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). These factors are illustrative, and what is relevant to an enablement determination depends upon the facts of the particular case. Amgen, Inc. v. Chugai Pharmaceutical Co., Ltd., 727 F.2d 1200, 1213 (Fed. Cir. 1991). “Section 103 forbids issuance of a patent when ‘the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.’†KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See Appeal 2008-006097 Application 10/983,393 7 also KSR, 550 U.S. at 407 (“While the sequence of these questions might be reordered in any particular case, the [Graham] factors continue to define the inquiry that controls.â€) ANALYSIS The rejection of claim 6 for lack of enablement is reversed. In our view, Appellants have successfully rebutted the Examiner’s determination of lack of enablement by the citation of two patents directed to magneto- rheological control of vehicle suspension elements. These patents serve to show the state of the art with respect to the subject matter of claim 6, and they establish that the subject matter of the claim could be made and used by one of ordinary skill without undue experimentation. With respect to the § 103 rejection of claims 1 and 2, we will affirm this rejection. In our view, the use of a proportional gain factor and a second order transfer function in the method and system of Kingston is the application of a known technique to a known device ready for improvement to yield a predictable result. See KSR, 550 U.S. at 417. Appellants’ sole argument with regard to this rejection is that there is no motivation to combine the references. However, the Supreme Court has rejected a rigid application of the requirement for motivation to combine references in a rejection under § 103. See KSR, 550 U.S. at 402. Furthermore, with respect to the specific references relied upon by the Examiner, the Examiner is of the view that using proportional gain and a second order transfer function in a control system is well known in the art of control system design. Ans. 6. Inasmuch as Shibahata discloses the use of proportional gain and a transfer function in the real-time control of steering Appeal 2008-006097 Application 10/983,393 8 in a vehicle, we are of the view that the same techniques could be used in the control of an ABS system. Thus, the Examiner did not err in combining the teachings of Kingston and Shibata. Turning to the rejection of claims 5, 7, and 8, Fratini clearly teaches the use of filtering during suspension control in a vehicle. Appellants argue that Fratini removes high-frequency noise rather than removing high- frequency load variation from the signal. We see little difference. Whether the high-frequency information is characterized as noise or as unwanted load variation, the high-frequency signal is removed, so that the control function can operate on the remaining desired signal. In our view, the use of high-frequency filtering is also the use of a known technique applied to a known device, such as an ABS system of Kingston, ready for improvement, to yield a predictable result. Therefore, the Examiner did not err in rejecting claims 5, 7, and 8. CONCLUSIONS On the record before us, we conclude that the Examiner erred in rejecting claim 6 under § 112. The rejection of claim 6 is reversed. We also conclude that the Examiner did not err in rejecting claims 1, 2, 5, 7, and 8 under § 103. The rejections of these claims are affirmed. AFFIRMED-IN-PART Vsh Appeal 2008-006097 Application 10/983,393 9 RANKIN, HILL & CLARK LLP 23755 LORAIN ROAD SUITE 200 NORTH OLMSTED OH 44070 Copy with citationCopy as parenthetical citation