Ex Parte Washeleski et al

Patent Trial and Appeal Board

Feb 23, 2016

13221167 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/221, 167 08/30/2011
26096 7590 02/25/2016
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
FIRST NAMED INVENTOR
John M. W asheleski
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.
67596-0l 1PUS5 3064
EXAMINER
BERNS, MICHAEL ANDREW
ART UNIT PAPER NUMBER
3667
NOTIFICATION DATE DELIVERY MODE
02/25/2016 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN M. W ASHELESKI, EDWARD J. COX II,
ANDREW E. BLANK, DAVID W. SHANK,
and TODD R. NEWMAN
Appeal2015-003338
Application 13/221, 167
Technology Center 3600
Before ROBERT E. NAPPI, CARLA M. KRIVAK, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
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Application 13/221, 167
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-5, 7-22, and 25, which are all the
claims pending in the application. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Claimed Subject Matter
The invention generally relates to a vehicle keyless entry assembly
with a capacitance sensor for detecting objects. (Title.) Claim 1, reproduced
below, is illustrative:
1. An assembly for a vehicle, the assembly comprising:
a sensor earner;
a sensor in the form of an electrically conductive pad,
wherein the sensor comprises an electrically conductive
material molded onto the sensor carrier and the sensor carrier is
positioned adjacent a panel such that the sensor is adjacent the
panel, wherein the sensor capacitively couples to an electrically
conductive object proximal to the panel while the sensor is
driven with electrical charge such that capacitance of the sensor
changes due to the sensor capacitively coupling with the object;
and
a controller operable for driving the sensor with the
electrical charge and controlling a vehicle operation as a
function of the capacitance of the sensor.
1 The real party in interest is identified as UUSI, LLC. (App. Br. 1.)
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Application 13/221, 167
Rejections
Claims 1, 5, and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp (US 6,377,009 Bl; issued Apr. 23, 2002) and Ieda
et al. (US 6,933,831 B2; issued Aug. 23, 2005) ("Ieda"). (Final Act. 3--4.)
Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Philipp, Ieda, and Babala et al. (US 7,424,347 B2; issued Sept. 9, 2008)
("Babala"). (Final Act. 4--5.)
Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Philipp, Ieda, and Yilmaz et al. (US 2010/0096193 Al; published Apr. 22,
2010) ("Yilmaz"). (Final Act. 5---6.)2
Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp, Ieda, and Schoen (US 2011/0001550 Al;
published Jan. 6, 2011). (Final Act. 6-7.)
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Philipp, Ieda, and Pudney (US 2003/0216817 Al; published Nov. 20,
2003). (Final Act. 8-9.)
Claims 3 and 4 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp, Ieda, and Peterson et al. (US 2009/0243824 Al;
published Oct. 1, 2009) ("Peterson"). (Final Act. 9-10.)
Claim 21 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Peterson and Jia (CN 201158356; published Dec. 3, 2008). (Final Act.
10-11.)
2 The Examiner indicates the omission of Ieda from the dependent claims'
rejections was a typographical error. (Ans. 2.) We interpret the rejections of
dependent claims 3, 4, and 7-10 to include all references used in the
rejection of claim 1, from which they depend.
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Application 13/221, 167
Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Peterson, Jia, and Blank et al. (US 2010/0097469 Al; published Apr.
22, 2010) ("Blank"). (Final Act. 11.)
Claims 12 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp, Haag et al. (US 6,700,393 B2; issued Mar. 2,
2004) ("Haag"), and Bauer et al. (US 2005/0270620 Al; published Dec. 8,
2005) ("Bauer"). (Final Act. 11-14.)
Claims 13, 14, 18, and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp, Haag, Bauer, and Babala. (Final Act. 14--16.)
Claims 15 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Philipp, Haag, Bauer, Babala, and Pudney. (Final Act.
17-19.)
Claim 16 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Philipp, Haag, Bauer, and Peterson. (Final Act. 19.)
Claim 25 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Peterson, Jia, and Bauer. (Final Act. 19-20.)
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner erred (App. Br. 4--8; Reply Br. 1-2). We are not
persuaded by Appellants' contentions. We adopt as our own the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and as set forth by the Examiner in the Answer (Ans. 2-3). We
highlight and address specific arguments and findings for emphasis as
follows.
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Application 13/221, 167
Claims 1-5, 7, 10, and 11
Appellants argue Philipp and Ieda do not teach or suggest a sensor
that comprises an electrically conductive material molded onto the sensor
carrier, as recited in claim 1. (App. Br. 4-5; Reply Br. 1-2.)
First, Appellants argue the Examiner erred in modifying Philipp based
on Ieda to mold a conductive material onto Philipp' s weather strip carrier
because
if one were to attempt to mold a wire onto a weather strip made
of foam rubber, applying the molten metal for molding the wire
would necessarily melt through the foam rubber or at least
distort it in a way that it would no longer be useful as weather
stripping for a vehicle opening.
(App. Br. 4; see also Reply Br. 2.) Appellants' argument is not persuasive
because the Examiner's rejection is not premised on molding by melting a
wire, but rather relies on Ieda' s teaching of covering the sensor electrode
with a resin mold. (See Final Act. 4 (citing Ieda 3:25-53); Ans. 2.)
Appellants also argue Ieda does not teach molding a conductive
material onto a sensor carrier, but only teaches a resin placed over an
electrode. (App. Br. 4-5.) The Examiner finds Ieda's sensor electrode
molded within a resin mold teaches a conductive material molded onto a
sensor carrier as claimed. (Ans. 2; Final Act. 4.) We agree with the
Examiner's findings, as Ieda shows a conductive material shaped to a resin
mold (see, e.g., Ieda, Fig. 3), which is commensurate with a reasonable
interpretation of "molded" as sharing the shape of another object.
Appellants' argument regarding which part is molded onto the other
fails to identify any structural difference in the product. See In re Brown,
459 F.2d 531, 535 (CCPA 1972) ("[I]t is the patentability of the product
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Application 13/221, 167
claimed and not of the recited process steps which must be established."); Jn
re Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983) ("Where a product-by-process
claim is rejected over a prior art product that appears to be identical,
although produced by a different process, the burden is upon the applicants
to come forward with evidence establishing an unobvious difference
between the claimed product and the prior art product."); see also In re
Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985) ("[E]ven though product-by-
process claims are limited by and defined by the process, determination of
patentability is based on the product itself."). In addition, Ieda teaches two
alternatives: (1) the electrode can be "covered with a synthetic resin mold"
(Ieda 3 :26) or, (2) alternatively, the mold can be formed around the sensor
electrode already in place (Ieda 3:50-53), suggesting that in the first
alternative the mold is already formed and the sensor electrode is pressed
into it.
We further note Appellants' argument that none of the references of
record show a sensor in the form of an electrically conductive pad (Reply
Br. 1 ) is not persuasive in light of Philipp' s teaching that the sensing
electrode can be a "capacitive sensing plate" or can be "printed onto a
surface with conductive ink, made of adhesive backed metal foil, formed of
a metal mesh, or be a serpentine-laid wire" (Philipp 4:23-34, 1 :45--47; Final
Act. 3).
Appellants also contend the Examiner relies on impermissible
hindsight. (Reply Br. 2.) We do not agree. We adopt the Examiner's
reasoning (Final Act. 4), which Appellants do not show to be in error.
In view of the foregoing, we sustain the rejection of independent
claim 1 under 35 U.S.C. § 103(a) as unpatentable over Philipp and Ieda.
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Further, as Appellants have presented no additional substantive arguments
with respect to the rejections of dependent claims 2-5, 7, 10, and 11 (see
App. Br. 5), we similarly sustain the Examiner's rejections of these claims.
Claims 8 and 9
Claims 8 and 9 depend from claim 1 and recite the sensor is over-
molded into the sensor carrier (claim 8), and the sensor is two-shot molded
into the sensor carrier (claim 9). Appellants contend Schoen teaches a
transducer receptacle undergoes a molding process, and that the transducer is
not described as being molded to anything. (App. Br. 5.) Appellants also
argue the Examiner's interpretation of the claimed over-molded and two-
shot molded limitations to mean "a plastic molding technique to combine the
components" (Final Act. 7) ignores which component is molded into the
other. (App. Br. 6.)
As discussed above for claim 1, we agree with the Examiner's
findings that the combined teachings of Philipp and Ieda teach an
electrically conductive material molded onto the sensor carrier. The
Examiner relies on Schoen for teaching plastic molding techniques, and
concludes it would have been obvious to use these techniques to incorporate
the sensor into the vehicle component. (Final Act. 7.) We agree with the
findings and conclusions of the Examiner, which Appellants have not shown
to be in error. In addition, as discussed above with respect to claim 1,
Appellants' argument regarding which part is molded onto the other fails to
identify any structural difference in the product. Appellants have provided
no substantive evidence establishing an unobvious structural difference
exists between their claimed over-molded and two-shot molded sensors, and
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the sensor taught by the combined teachings of the prior art. See Brown, 459
F.2d at 535; Marosi, 710 F.2d at 803; Thorpe, 777 F.2d at 697.
Accordingly, we sustain the Examiner's rejection of claims 8 and 9
under 35 U.S.C. § 103(a).
Claims 12-20
Independent claim 12 recites, inter alia, an assembly for a vehicle
having a side-view mirror, a sensor, and a sensor carrier, and recites that the
sensor carrier is positioned adjacent the undersurface of the mirror such
that the sensor is adjacent the mirror. The Examiner finds Philipp teaches a
sensor and a sensor carrier, and Bauer teaches a side-view mirror with a
capacitive sensor, and concludes it would have been obvious to incorporate
Philipp' s sensor and carrier into Bauer's mirror "to sense the operation at the
side-view mirror and send the signal to the vehicle systems." (Final Act. 12-
13 (citing Philipp 4:17-38, Fig. 1; Baueri-fi-f 105, 134, Fig. 18); see also Ans.
3.)
Appellants argue that because Bauer's mirror is not similar to
Philipp' s sensor system "intended to prevent pinching or trapping of a body
part or foreign object by a closing panel, such as a window," the Examiner's
combination of Philipp and Bauer improperly relies on hindsight. (App. Br.
7.) The Examiner, however, has provided sufficient articulation for
combining Philipp' s capacitive sensor system with Bauer, which "show[ s]
that side-view mirrors have been known to utilize capacitive sensors" (Ans.
3).
Appellants also argue the Examiner erred in modifying Philipp based
on Haag to mold a conductive material onto Philipp's carrier as required in
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claim 12, because molding would necessarily melt Philipp's weather strip
carrier. (App. Br. 7.) As with claim 1, the Examiner's rejection is not
premised on molding by melting a wire. The Examiner relies on Haag's
teaching that a flexible conductor serving as an electrode of a capacitive
sensor assembly "is insert molded into an upper portion 24 of the sensor
body 14" (Haag 3:44--46; Final Act. 12), which is not described as involving
molten metal.
Accordingly, because Appellants' arguments directed to the
Examiner's rejection of claim 12 have not persuaded us of error in the
Examiner's rejection, we sustain the rejection of claim 12 under 35 U.S.C.
§ 103(a) as unpatentable over Philipp, Haag, and Bauer. For the same
reasons, we sustain the rejections of independent claim 17 and dependent
claims 13-16 and 18-20, which Appellants do not argue separately (App. Br.
7).
Claims 21, 22, and 25
Independent claim 21 recites, inter alia, a mirror assembly for a
vehicle with a sensor, a battery, a solar cell, and a controller operable for
driving the sensor with the electrical charge from the battery and for
controlling a vehicle operation as a function of the capacitance sensed by
the sensor.
Appellants argue the rejection of claim 21 is improper because "the
Jia reference is concerned with providing interior lighting in a vehicle and
does not contain any teaching regarding providing a solar cell or battery for
operating a controller or sensor." (App. Br. 6.) We do not find Appellants'
arguments persuasive because Appellants improperly attack the references
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individually where the rejection is based on a combination of references.
See In re Keller, 642 F.2d 413, 426 (CCPA 1981). Specifically, the
Examiner relies on Peterson, not Jia, for the controller and sensor. (Final
Act. 10.) The Examiner finds Peterson teaches a controller and a capacitive
sensor positioned adjacent an undersurface of a mirror, and Jia teaches a
battery and a solar cell supported by a mirror assembly, and concludes that
"adding a solar cell to the capacitive sensor assembly, as disclosed by
Peterson, would have been an obvious power source for the capacitive
sensor at the mirror, as shown in Jia." (Ans. 3; Final Act. 10-11 (citing
Peterson i-fi-f 116-119, 127-128, Figs. 28, 28A; Jia, Fig. 1).) We agree with
the findings and reasoning of the Examiner, which are not persuasively
rebutted by Appellants.
Accordingly, we sustain the rejection of claim 21under35 U.S.C.
§ 103(a) as unpatentable over Peterson and Jia. For the same reasons, we
sustain the rejection of dependent claim 22, which Appellants do not argue
separately (App. Br. 6).
With respect to dependent claim 25, which recites the mirror is a side-
view mirror, Appellants contend it is not logical to move the rearview mirror
in Peterson to be mounted on the exterior of the vehicle as a side-view
mirror because it would not be convenient to use the features of the side-
view mirror from inside the vehicle. (App. Br. 6-7.) We are not persuaded
by Appellants' contention. The Examiner's rejection of claim 25 relies on
Bauer, which the Examiner finds "show[ s] that side-view mirrors have been
known to utilize capacitive sensors." (Ans. 3; see Final Act. 20.) Appellants
do not persuasively rebut this finding, and we agree with the Examiner's
reasoning that, in light of these findings, it would have been obvious to use
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Peterson's sensor in "a side-view mirror, as disclosed by Bauer et al., to
sense the operation at the side-view mirror and send the signal to the vehicle
systems." (Final Act. 20.)
Accordingly, we also sustain the Examiner's rejection of claim 25
under 35 U.S.C. § 103(a) as unpatentable over Peterson, Jia, and Bauer.
DECISION
We affirm the Examiner's decision rejecting claims 1-5, 7-22, and
25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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