Ex Parte ThorDownload PDFBoard of Patent Appeals and InterferencesNov 16, 201111468021 (B.P.A.I. Nov. 16, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte TODD J. THOR ________________ Appeal 2010-002371 Application 11/468,021 Technology Center 3600 ________________ Before KEN B. BARRETT, PHILLIP J. KAUFFMAN, and MICHAEL L. HOELTER, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002371 Application 11/468,021 2 STATEMENT OF THE CASE This is a decision on appeal under 35 U.S.C. § 134(a), from a final rejection of claims 1-17. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter The claimed subject matter is directed to a speed sensor diagnostic system and a related method. Claim 1 is illustrative of the claims on appeal and is reproduced below. 1. A diagnostic system for a vehicle speed sensor comprising: an upshift module that initiates an upshift of a transmission based on a vehicle speed sensor (VSS) signal; a speed drop detection module that monitors at least one of engine speed and input speed for a reduction in speed due to said upshift; and a torque request module that monitors engine torque and diagnoses a VSS malfunction based on said speed reduction and said engine torque. References Relied on by the Examiner Milunas US 4,779,490 Oct. 25, 1988 Shimanaka US 5,033,328 Jul. 23, 1991 Jeon US 7,214,163 B2 May 8, 2007 The Rejections on Appeal 1. Claims 1-5, 7, 9-15 and 17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shimanaka (Ans. 3). 2. Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over Shimanaka and Jeon (Ans. 4). 3. Claims 8 and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Shimanaka and Milunas (Ans. 5). Appeal 2010-002371 Application 11/468,021 3 ISSUES 1. Would one of ordinary skill in the art have understood Shimanaka as teaching a torque request module that monitors engine torque and speed to perform diagnostics on the vehicle’s speed sensors as set forth in claim 1? 2. Would one of ordinary skill in the art have understood the combination of Shimanaka and Milunas as teaching the use of a change in throttle position to perform such diagnostics as set forth in claim 8? ANALYSIS The rejection of claims 1-5, 7, 9-15 and 17 over Shimanaka Appellant argues claims 1-5, 7, 9-15 and 17 as a group (App. Br. 6). We select claim 1 for review with claims 2-5, 7, 9-15 and 17 standing or falling with claim 1. Claim 1 defines “VSS” as “vehicle speed sensor” and requires a “torque request module that monitors engine torque and diagnoses a VSS malfunction based on said speed reduction and said engine torque.” The Examiner relies on Shimanaka for disclosing all the features of claim 1 and specifically “a torque request module that monitors engine torque and diagnoses a VSS malfunction based on said speed reduction and said engine torque” (Ans. 3-4 referencing Shimanaka 5:3-24 and 6:28-35). Appellant addresses these specific citations to Shimanaka stating that “Shimanaka fails to disclose a torque request module” as claimed (App. Br. 7). More specifically, Appellant contends that “the Shimanaka reference is not directed to determining a vehicle speed sensor malfunction but rather an engine speed sensor malfunction” (App. Br. 7) (italics added). Appeal 2010-002371 Application 11/468,021 4 The Examiner identifies Shimanaka’s Fig. 4 as the torque request module (Ans. 6). The Examiner further states that Appellant’s disclosed VSS’s “are identical to elements 14 and 13 respectively in the Shimanaka reference” and that yet another location in Shimanaka teaches that “diagnostic sub-routines are run in order to determine if any one of sensors 5, 13 or 14 is producing an output indicative of abnormal or improper operation” (Ans. 6-7 citing Shimanaka 6:59-66 and comparing Shimanaka Fig. 5 with Appellant’s Fig. 1). Appellant “admits that the Shimanaka reference teaches various sensors associated with an engine” but “submits that the Examiner is not allowed to pick and choose his way through the references in such a manner as to read more into the teachings than what is set forth” (Reply Br. 2). Shimanaka addresses “the amount of torque produced by the engine during shifts” and Fig. 4 is specifically described as depicting “routines which perform torque variation and torque variation inhibit functions in accordance with engine speed and transmission output shaft” data (Shimanaka 1:8-15 and 2:64-68). We have been instructed that one skilled in the art is able to read a reference for all that it teaches and not limit a reference to its preferred embodiment (see Beckman Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed. Cir. 1989)). Appellant does not deny that Shimanaka’s speed sensors are similarly placed on the drive train, that diagnostic subroutines are performed on these sensors, or that Shimanaka’s torque request module relies on torque and engine speed for its routines (see Shimanaka 2:64-68, 6:64-66 and Figs. 4 and 5). Accordingly, based on the record presented, we are not persuaded by Appellant’s Appeal 2010-002371 Application 11/468,021 5 contentions that Shimanaka does not disclose a torque request module used to diagnose vehicle speed sensor malfunctions as claimed. Appellant also contends that Shimanaka does not determine torque until “after the malfunction flag is set” and thus Shimanaka’s torque request module does not monitor engine torque and diagnose “a vehicle speed sensor malfunction based upon the speed reduction and the [] engine torque” (App. Br. 7-8). The Examiner states that whether the torque is determined after the flag is set “is irrelevant and more importantly not recited by the claim language” (Ans. 7). Appellant disagrees stating that “the Examiner appears to take the reference out of context” and that “the determination of the torque is clearly set forth as part of the last element of Claim 1” and as such, “the determination of engine torque and a speed reduction is relevant and is set forth in the claim language” (Reply Br. 3). Claim 1 does indeed require the determination of engine torque but “[A]ppellant’s arguments fail from the outset because…they are not based on limitations appearing in the claims” (see In re Self, 671 F.2d 1344, 1348 (CCPA 1982)). The Examiner is not disputing that the determination of engine torque and speed are relevant, but instead that the determination of these values after Shimanaka’s malfunction flag is set is irrelevant and not claimed. Further, Appellant does not clarify how the Examiner took Shimanaka out of context. Based on the record presented, we are not persuaded that the Examiner erred. Accordingly, the Examiner’s rejection of claims 1-5, 7, 9- 15 and 17 as being obvious over Shimanaka is affirmed. Appeal 2010-002371 Application 11/468,021 6 The rejection of claim 6 over Shimanaka and Jeon Appellant does not dispute the Examiner’s reliance on Jeon for teaching that “engine torque is computed based on engine operating parameters” as claimed (App. Br. 8, Ans. 5). Instead, Appellant contends that the Jeon reference “fails to teach the limitations missing from claim 1” (App. Br. 8). Based on our analysis of claim 1 supra, there are no missing deficiencies in Shimanaka that Jeon need supply. Consequently, as Appellant does not dispute the Examiner’s reliance on Jeon for computing engine torque based on operating parameters, Appellant’s contention is not persuasive and we sustain the Examiner’s rejection of claim 6. The rejection of claims 8 and 16 over Shimanaka and Milunas Dependent claims 8 and 16 are argued together and we select claim 8 for review with claim 16 standing or falling with claim 8 (App. Br. 9). Claim 8 further requires diagnosing a VSS malfunction “when a change in throttle position is within a predetermined negative range and when said engine speed is reduced.” The Examiner relies on Shimanaka for the reasons stated above and relies on Milunas for diagnosing a VSS malfunction “when a change in throttle position is within a predetermined negative range” (Ans. 5 citing Milunas 7:38 to 8:17). The Examiner states that it would have been obvious to modify the invention of Shimanaka as taught by Milunas “to avoid an improper diagnosis under such condition” (Ans. 5). Appellant contends that the Milunas reference “is directed to a method for determining the loss of a transmission output speed signal” and that Milunas “fails to teach or suggest a torque request module” that diagnoses a malfunction when a change in throttle occurs (App. Br. 9, see also Reply Br. 3). Appeal 2010-002371 Application 11/468,021 7 "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner is not relying on Milunas for teaching a torque request module (for which Shimanaka is relied upon, supra) or for determining the loss of transmission output speed signal, instead, the Examiner relies on Milunas “to show monitoring [of] the throttle position within a predetermined range to diagnose the vehicle speed sensor malfunction” (App. Br. 9, Reply Br. 3; Ans. 8). Appellant presents no further contentions and the ones presented are not persuasive. Accordingly, we sustain the Examiner’s rejection of claims 8 and 16 over Shimanaka and Milunas. CONCLUSIONS OF LAW 1. One of ordinary skill in the art would have understood Shimanaka as teaching a torque request module that monitors engine torque and speed to perform diagnostics on the vehicle’s speed sensors. 2. One of ordinary skill in the art would have understood the combination of Shimanaka and Milunas as teaching the use of a change in throttle position to perform such diagnostics. DECISION 1. The rejection of claims 1-5, 7, 9-15 and 17 under 35 U.S.C. § 103(a) as unpatentable over Shimanaka is affirmed. 2. The rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable over Shimanaka and Jeon is affirmed. Appeal 2010-002371 Application 11/468,021 8 3. The rejection of claims 8 and 16 under 35 U.S.C. § 103(a) as unpatentable over Shimanaka and Milunas is affirmed. 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). AFFIRMED mls Copy with citationCopy as parenthetical citation