Ex Parte Thor

Board of Patent Appeals and Interferences

Nov 16, 2011

11468021 (B.P.A.I. Nov. 16, 2011)

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