Ex Parte Schubert

Board of Patent Appeals and Interferences

Oct 8, 2008

10722706 (B.P.A.I. Oct. 8, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PETER J. SCHUBERT
____________

Appeal 2008-1536
Application 10/722,706
Technology Center 3600
____________

Decided: October 8, 2008
____________

Before WILLIAM F. PATE, III, LINDA E. HORNER, and
JOHN C. KERINS, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Peter J. Schubert (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-31, the only claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

Appeal 2008-1536
Application 10/722,706

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
Appellant’s claimed invention is to an apparatus and method for
estimating the roll angle of a vehicle for the purposes of predicting a future
roll angle of the vehicle. The apparatus comprises an angular accelerometer
which senses the angular acceleration of the vehicle and outputs a signal
indicative of the same, an integrator which integrates the sensed angular
acceleration signal to produce a vehicle angular rate, and a predictor which
uses the sensed angular acceleration, the determined angular rate, and the
current roll angle, to predict a future roll angle of the vehicle. This
apparatus is said to be useful in predicting vehicle rollover. (Specification,
¶[0008]).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A roll angle estimation apparatus for predicting
a future roll angle of a vehicle, said apparatus
comprising:

an angular accelerometer for sensing angular
acceleration of a vehicle and producing an
output signal indicative thereof;

an integrator for integrating the sensed angular
acceleration signal and producing an angular rate;
and

a predictor for predicting a future roll angle of the
vehicle as a function of the sensed angular

2
Appeal 2008-1536
Application 10/722,706

acceleration, the angular rate, and a current roll
angle.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Schiffmann US 6,192,305 B1 Feb. 20, 2001
The following rejection is before us for review:
1. Claims 1-31 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Schiffmann.
ISSUES
The issue joined in this appeal is whether Appellant has shown that
the Examiner erred in finding that Schiffmann discloses the use of an
angular accelerometer for sensing angular acceleration and an integrator for
integrating the sensed angular acceleration to produce an angular rate.

FINDINGS OF FACT
The following enumerated findings of fact (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
FF 1. Schiffmann discloses the use of a value for angular acceleration
of a vehicle in a method and system for predicting a future roll angle of a
vehicle. (Schiffmann, Fig. 12; col. 8, ll. 13-24; col. 13, ll. 12-23).
FF 2. In Schiffmann, a value for angular acceleration to be used in the
method and system is an estimate of the acceleration obtained using

3
Appeal 2008-1536
Application 10/722,706

estimates of time-derivatives of a bias-corrected measured angular (roll,
pitch) rate. (Schiffman, col. 13, ll. 20-23).

PRINCIPLES OF LAW
Anticipation of a claim exists when each and every element set forth
in the claim is found, either expressly or inherently described, in a single
prior art reference. Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631
(Fed. Cir. 1987), cert. denied, 484 U.S. 827 (1987); In re Cruciferous Sprout
Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002). Once a prima facie case of
anticipation has been established, the burden shifts to the Appellant to prove
that the prior art product does not necessarily or inherently possess the
characteristics of the claimed product. In re Best, 562 F.2d 1252, 1255
(CCPA 1977); In re Spada, 911 F.2d 705, 708-09 (Fed. Cir. 1990).

ANALYSIS
Claims 1-31 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Schiffmann. Claims 1, 10, 18, and 25 are the independent claims among
these. Appellant states that four groups of claims are presented, as defined
by the four independent claims, but does not argue the patentability of any
claim separate and apart from the rest. We will take claim 1 as the
representative claim for deciding the appeal, and claims 2-31 will stand or
fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Examiner and Appellant disagree as to whether the Schiffmann
patent discloses an angular accelerometer as claimed, as well as an integrator
for integrating the sensed angular acceleration signal that is outputted from
the accelerometer. The Examiner points to columns 12 and 13 (a more

4
Appeal 2008-1536
Application 10/722,706

specific identification being column 13, lines 16-23) of Schiffmann as
disclosing the use of angular acceleration as a parameter in predicting the
future roll angle of a vehicle. (Answer 3, 6). The Examiner asserts that it is
therefore known, from Schiffmann, to employ an angular accelerometer to
sense angular acceleration in a roll angle estimation apparatus. (Answer 6).
Appellant points out that the sensors used in the Schiffmann apparatus
include three linear accelerators (longitudinal, lateral, vertical), and two
angular rate sensors (pitch, roll), but no angular accelerometers. (Appeal Br.
7, 8). Appellant further identifies that the methodology employed in
Schiffmann involves obtaining estimates of, but not direct measuring or
sensing of, angular acceleration. (Appeal Br. 6-7). Schiffmann is said to
obtain estimates of roll and pitch (angular) acceleration by taking the time
derivatives of the measured roll and pitch rate signals. (Appeal Br. 6).
Appellant contends that Schiffmann is further distinguishable in that the
system therein does not disclose an integrator for integrating the sensed
angular acceleration signal to produce an angular rate, in that Schiffmann
does not produce a sensed angular acceleration signal. (Reply Br. 4).
We agree with Appellant that the Examiner has failed to establish that
the Schiffmann patent discloses an apparatus that includes an angular
accelerometer for sensing angular acceleration of a vehicle. The portions of
the Schiffmann specification relied on by the Examiner do discuss the use of
a value for angular acceleration in a method for estimating roll angle and
possible rollover conditions. (FF 1). However, as amply shown by
Appellant, the angular acceleration value obtained is not one that is actually
sensed and outputted from an angular accelerometer, but is instead an
estimate of the acceleration obtained by taking the time derivative of a

5
Appeal 2008-1536
Application 10/722,706

measured angular rate signal outputted from a roll or pitch rate sensor. (FF
2).
The lack of any disclosure of employing an angular accelerometer in
the Schiffmann system leads further to the absence of the claimed integrator
that operates on a sensed angular acceleration to produce an angular rate.
Instead, in Schiffmann, the angular rate is directly sensed, and the angular
acceleration (estimated) is then obtained through derivative calculation. (FF
1, 2). While, ultimately, each of Appellant’s and Schiffmann’s systems
operates to predict a roll angle based at least in part upon angular
acceleration and angular rate information, that information is obtained in
different manners by different devices, as claimed by Appellant and as
disclosed by Schiffmann. Appellant employs an angular accelerometer to
measure angular acceleration and integrates to find an angular rate
(Specification, ¶[0008]; Appeal Br., Claims Appendix), whereas Schiffmann
measures an angular rate and differentiates to find a value representing an
estimate of angular acceleration. The rejection, being based on alleged
anticipation under 35 U.S.C. § 102(b), is thus one that we find we can not
sustain.
CONCLUSION
We find that Appellant has successfully established that reversible
error exists in the rejection of claims 1-31 under 35 U.S.C. § 102(b) as
anticipated by Schiffmann.
ORDER
The decision of the Examiner to reject claims 1-31 under 35 U.S.C.
§ 102(b) as anticipated by Schiffmann is REVERSED.

6
Appeal 2008-1536
Application 10/722,706

REVERSED

LV:

DELPHI TECHNOLOGIES, INC.
M/C 480-410-202
P.O. BOX 5052
TROY, MICHIGAN 48007

7