Ex Parte Yuter

Patent Trial and Appeal Board

Apr 26, 2016

13507776 (P.T.A.B. Apr. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/507,776 07/27/2012 Seymour C. Yuter
7590 04/26/2016
Seymour C Yuter
407 Cedar Dr. W.
Briarcliff Manor, NY 10510
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.
SY-1201 3592
EXAMINER
JOHNSON, BLAIR M
ART UNIT PAPER NUMBER
3634
MAILDATE DELIVERY MODE
04/26/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEYMOUR C. YUTER
Appeal2014-002718
Application 13/507,776
Technology Center 3600
Before JOHN C. KERINS, GEORGE R. HOSKINS, and LEE L. STEPINA,
Administrative Patent Judges.
HOSKINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Seymour C. Yuter ("Appellant") 1 appeals under 35 U.S.C. § 134 from
the Examiner's final decision rejecting claims 7-17, 19, and 20 in this
application. Claims 1---6 and 18 have been withdrawn from consideration.
Appeal Br., Claims App. The Board has jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
1 The Appeal Brief identifies Mr. Yuter as the real party in interest, and he
is proceedingpro se. Appeal Br. 1, 10.
Appeal2014-002718
Application 13/507,776
CLAIMED SUBJECT MATTER
Claims 7 and 9 are independent. Claim 7 illustrates the claimed
subject matter, and it recites, with some line breaks added for easier reading:
7. A glare reducing system for a vehicle having a
driver's side and a passenger's side comprising:
a front windshield glass, a regular visor and a steering
wheel on the vehicle;
an entire glare reducing means on the vehicle operated to
substantially transmit light through said vehicle front windshield
glass and alternatively to substantially reduce transmitted light
through said vehicle front windshield glass,
said entire glare reducing means being directly connected
to said front windshield glass being unmoved by hand during
driving while the hands of a driver are on said steering wheel
during driving,
an operating means for remotely operating said entire
glare reducing means while the hands of a driver are on said
steering wheel during driving,
said entire glare reducing means having part of an edge on
the passenger's side of said entire glare reducing means
substantially vertically aligned with substantially the horizontal
center of said steering wheel with the area of said front
windshield glass between said part of the passenger's side edge
of said entire glare reducing means and the remaining area of said
windshield glass on the passenger's side always being unblocked
so that the driver can always see the passenger's side of the road,
and
the area between said passenger's side of said edge and the
remaining area of said entire glare reducing means being blocked
to reduce glare when there is an oncoming vehicle with lit
headlights, said entire glare reducing means being separate from
said regular visor and directly connected to said vehicle front
windshield glass to occupy a substantial part of the entire vertical
area of the clear portion of said vehicle front windshield on the
driver's side of said passenger's side of said edge having a part
substantially vertically aligned with substantially the horizontal
center of said steering wheel;
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Application 13/507,776
whereby for nighttime driving said entire glare reducing
means without it being moved from said front windshield glass
is remotely actuated by said operating means with both hands on
said steering wheel during driving to substantially transmit light
through said vehicle front windshield glass when there is no
oncoming vehicle with lit headlights to allow a driver to see
through said glare reducing means when there is no oncoming
vehicle with lit headlights and to substantially reduce transmitted
light through said vehicle front windshield glass including the
area between said passenger's side of said edge and the
remaining area of said glare reducing means when there is an
oncoming vehicle with lit headlights to reduce glare.
Appeal Br. 22-24 (Claims App.).
REJECTIONS ON APPEAL
Claims 7-17, 19, and 20 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
Claims 7, 9, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wolff (US 4,286,308, iss. Aug. 25, 1981) in view of either
Peterson (US 1,669,838, iss. May 15, 1928) or Chen '710 (US 4,932,710,
iss. June 12, 1990).
Claims 8, 10, 11, 14--17, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wolff in view of either Peterson or Chen '710,
further in view of Chen '786 (US 6,983,786 B2, iss. Jan. 10, 2006) and
Lashua (US 2005/0039968 Al, pub. Feb. 24, 2005).2
2 The Examiner has withdrawn reliance on Moscato (US 2007/0041552 Al,
pub. Feb. 22, 2007) as an alternative to Lashua. See Final Act. 4; Ans. 5.
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Application 13/507,776
ANALYSIS
A. Indefiniteness Rejection
The Examiner determines the "regular visor" and "the remaining area
of said entire glare reducing means being blocked to reduce glare" recited in
claims 7 and 9 are indefinite. Final Act. 2. The Examiner also determines
the smart glass area "in" a windshield glass recited in claim 13 is indefinite.
Id.
Appellant's sole response to the indefiniteness rejection is to propose
claim amendments attempting to overcome the rejection. Appeal Br. 1-2.
These proposed amendments may not be admitted on appeal. See 37 C.F.R.
§ 41.33(b }---( c ). 3 Appellant does not provide any reason why the rejection
should be reversed. We therefore summarily sustain the indefiniteness
rejection of claims 7-17, 19, and 20.
B. Obviousness based on Wolff in view of either Peterson or Chen '710
1. Claims 7 and 9
Appellant argues independent claims 7 and 9 are directed to
"manually detecting ... when an incoming vehicle has lit headlights,"
thereby distinguishing the claims from Wolff which "discloses in its FIG. 2
an automatic optical detecting glare level detector 26 with photoelectric
sensor 16." Appeal Br. 1, 3. Appellant's interpretation of claims 7 and 9 is
based on the prosecution of parent Application No. 12/655,446, which
Appellant asserts included a restriction requirement that led to an election of
manually detecting oncoming vehicle headlights. Id.
3 We therefore express no opinion whether these amendments may, or may
not, overcome the indefiniteness rejections.
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Application 13/507,776
Appellant's argument is not commensurate with the scope of claims 7
and 9. Those claims do not recite in any manner a step of detecting when an
oncoming vehicle has lit headlights. The claims do recite "operating means
for remotely operating said entire glare reducing means while the hands of a
driver are on said steering wheel during driving." Appeal Br. 23, 25 (Claims
App.). We find no requirement in claims 7 and 9, or in Appellant's
Specification, limiting the operating means to a manual switch (e.g.
Figure 1) to the exclusion of an automatic detection switch (e.g. Figure 5).
Therefore, we are not persuaded Wolff's automatic detection of oncoming
vehicle headlights distinguishes Wolff from the claimed invention, inasmuch
as Wolff's system would operate while the hands of a driver are on the
steering wheel during driving.
Appellant also argues Wolff's glare-reducing visor 14 straddles the
entire steering wheel, and therefore lacks, as recited in the claims, "part of
an edge on the passenger's side ... substantially vertically aligned with
substantially the horizontal center of said steering wheel ... so that the
driver can always see the passenger's side of the road." Appeal Br. 3-5.
Appellant argues Peterson is also missing this claim limitation, because
Peterson's "recess 5 is occupied by his perforated visor 6 ... which would
prevent the driver from seeing the [passenger's] side of the road." Id. at 4
(citing Peterson, Figs. 2 and 3).
While it is true that Wolff's visor 14 extends across the entire steering
wheel, the Examiner nonetheless finds "Peterson locates and shapes his
shade specifically so that it permits the driver to still see the road while
avoiding the oncoming headlight beams," thereby "provid[ing] a teaching to
shape and locate the Wolff smart glass as recited." Final Act. 3, 5. The
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Application 13/507,776
Examiner particularly relies on Peterson's description of recess 5 as
"provid[ing] an opening through which the driver has clear vision and may
observe the roadway ahead and at the same time his vision is protected
against the strong rays of light coming from the headlight of the approaching
vehicle." Ans. 8 (quoting Peterson, 1: 107-112).
These findings by the Examiner concerning the Peterson disclosure
are supported by a preponderance of the evidence. Peterson's glare shield
has two passenger-side vertical edges, which we have identified with arrows
in Peterson Figure 1, below:
This drawing shows a glare shield including a perforated plate 4 cut away at
one comer to form a recess 5, and also including a perforated visor 6.
Peterson, 1:67-70, Figs. 1-3. We are not persuaded by Appellant's
argument that Peterson's visor 6 prevents the driver from seeing the
passenger's side of the road, particularly given Peterson's express disclosure
to the contrary. See Appeal Br. 4; Peterson, 1:107-112.
Peterson does not expressly disclose that either one of the two
passenger-side vertical edges is substantially aligned with the horizontal
center of the steering wheel. However, we are not persuaded of Examiner
error in finding the claimed "location and percentage of coverage" for the
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Application 13/507,776
visor would have been obvious from the combination of Wolff with
Peterson. Final Act. 3, 5; Ans. 7-8. Peterson discloses a glare shield having
two passenger-side vertical edges that allow the driver to see the roadway
ahead, while still protecting against glare from headlights of oncoming
vehicles. Peterson, Fig. 1, 1:107-112. Appellant has not established any
criticality or unexpected result arising from substantially aligning a
passenger-side vertical edge with the horizontal center of the steering wheel,
as opposed to some other location that still allows the driver to see the
roadway ahead. "[W]here the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or workable ranges
by routine experimentation." In re Aller, 220 F .2d 454, 456 (CCP A 1955);
In re Antonie, 559 F.2d 618, 620 (CCPA 1977) (exception to Aller exists
where unexpectedly good results are achieved). Peterson recognizes the
passenger-side vertical edges (which in part define the recess 5) are a result-
effective variable, balancing between viewing the roadway ahead and
reducing glare from oncoming vehicle headlights. See Antonie, 559 F .2d at
620 (exception to Aller exists where the prior art failed to recognize the
variable to be result-effective).
Appellant further argues Peterson's teachings "do not reverse the
teaching that Wolffs visor straddles the entire steering wheel (his FIG. 1)."
Appeal Br. 6. Appellant similarly contends Wolff teaches away from the
claimed invention by repeatedly teaching that visor 14, when opaque, blocks
"the operator's view of his vehicle's path of travel." Id. at 9 (quoting Wolff,
3:54--55).
We are not persuaded that Wolff teaches away from modifying
visor 14 to have the claimed passenger-side edge substantially aligned with
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the horizontal center of the steering wheel. In particular, Appellant does not
point to any disclosure in Wolff that criticizes, discredits, or otherwise
discourages the claimed solution. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Moreover, the Examiner's proposed modification of
Wolff s visor 14 to align a passenger-side edge substantially with the
horizontal center of the steering wheel to "permit[] the driver to still see the
road while avoiding the oncoming headlight beams" is an articulated
reasoning with rational underpinning. Final Act. 3, 5; Ans. 7-8.
Appellant also argues that if Wolff s "vertically small" visor 14 were
directly connected to the windshield, as claimed and as proposed by the
Examiner, then it "no longer will block glaring headlights which will come
through below or above" visor 14. Appeal Br. 5, 9-10. Therefore,
according to Appellant, Wolff s visor 14 would no longer be a glare blocker
if directly connected to the windshield, thus defeating its basic function and
purpose. Id.
This argument is not persuasive. Modifying Wolff s visor 14 for
attachment to the vehicle's windshield (as disclosed in Peterson) rather than
the vehicle's ceiling (as shown in Wolff Figure 1) would move the visor 14
forward by only a small distance. Appellant does not provide any persuasive
evidence as to why such an adjustment would have the drastic consequences
alleged by Appellant. Moreover, it is well within the capability of a person
of ordinary skill in the art to adjust "the specific location and percentage of
coverage" (Final Act. 3) of Wolffs visor 14, if necessary, to maintain its
glare reduction properties, when attaching it to the windshield and allowing
the driver to see the road, as taught in Peterson. See Final Act. 3; Ans. 7-8.
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Application 13/507,776
For the foregoing reasons, we sustain the rejection of independent
claims 7 and 9.
2. Claim 12 Separately
Appellant argues, in relation to claim 12, no cited reference discloses
"the glare reducing means is a smart glass panel directly attached to the
inside of the windshield." Appeal Br. 8. We are not persuaded of Examiner
error. Nonobviousness cannot be established by attacking references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner cites Wolff as disclosing a smart glass panel glare reducing
means, and cites Peterson as disclosing attaching a glare shield directly to a
vehicle windshield. See Final Act. 2--4. The Examiner further provides a
sufficient reason why it would have been obvious to attach Wolff's smart
glass panel to the windshield, namely, to facilitate easy mounting and
removal thereof. Final Act. 3. \Ve sustain the rejection of claim 12.
3. Claim 13 Separately
Appellant argues, in relation to claim 13, no cited reference discloses
the glare reducing means is a smart glass area "in" a vehicle's front
windshield glass. Appeal Br. 8 (citing Appellant's Fig. 7, and Spec. 18: 16-
22).
We are persuaded of Examiner error in rejecting claim 13 as obvious.
As the basis for obviousness, the Examiner states:
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Application 13/507,776
Whether the direct attachment is by temporary means or by being
"in" the glass, as best understood,[4] merely laminating the smart
glass to the windshield would have been obvious .... [O]ne of
ordinary skill in the art, being aware of the capabilities of smart
glass, could have been just as easily motivated to permanently
affix the smart glass to the windshield, as such further has the
advantage of not falling off, being less cumbersome, etc.
Final Act. 3--4. However, the Examiner does not identify the "capabilities of
smart glass" that would have led to the obviousness of claim 13. Nor does
the Examiner cite evidence to establish that it was known to incorporate
smart glass as a laminate within another, non-smart glass structure such as
the windshield of a vehicle. Thus, the Examiner's analysis fails to provide a
rational underpinning supported by a preponderance of evidence within the
current record. We do not sustain the rejection of claim 13.
C. Obviousness based on Wolff in view of either Peterson or Chen '710,
further in view of Chen '786 and Lashua
1. Claims 8, 10, 11, 14-17, 19, and 20As a Group
Appellant argues, for claims 8, 10, 11, 14--17, 19, and 20, as a group,
that "none of the relied-on references discloses remote control of' the glare
reducing means. Appeal Br. 6-7. According to Appellant, the Examiner's
rejection improper I y relies on hindsight wisdom from Appellant's teachings,
in that Wolff s visor 14 "is automatically optically operated, which negates
any teaching of a wireless or manually operated switch to operate the glare
4 The Examiner interprets the limitation requiring the smart glass area to be
"in" a windshield glass as requiring "a 'laminate ... of two glass panes
separated by a liquid crystal matrix, laminated between transparent
coatings' ... which is attached to the windshield as 'original equipment."'
Final Act. 2 (citing Spec. 18).
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Application 13/507,776
reducing means," as well as such a switch being "attached to the steering
wheel," as claimed. Id.
We are not persuaded of Examiner error. We appreciate that Wolff
discloses automatically switching visor 14 between light transmissive and
opaque states, based on photoelectric sensor 16 sensing oncoming headlight
glare. Wolff, 3:50-4: 17, Figs. 1-2. Nonetheless, Chen '786 discloses a
wireless remote control to raise and lower a shade to reduce sunlight in a
vehicle. See Final Act. 4; Chen '786, Fig. 1, 1:53-59, 5:4--12. Lashua
discloses a wireless remote control 10/20 attached to a vehicle steering
wheel to control "auxiliary electronic devices" in the vehicle (in the case of
Lashua, a snow plow). See Final Act. 4; Lashua, Fig. 3, i-fi-145--46. We are
not persuaded of error in the Examiner's determination that it would have
been obvious to modify Wolff to include a manually operated remote control
such as disclosed in Chen '87 6 and Lashua, to render Wolff's device more
easily installed and operated. Final Act. 4. The Examiner also adds that the
modification would have been desirable to provide a manual "fall back,
override" or "backup" to Wolff's automatic system, especially where the
safety concerns of a vehicle driver viewing the road are implicated. Ans. 6.
These determinations provide an articulated reasoning with rational
underpinning for the proposed modification of Wolff.
For the foregoing reasons, we are not persuaded of Examiner error in
determining it would have been obvious to modify Wolff, in light of
Chen '786 and Lashua, to include a wireless, manually operated remote
control mounted on the vehicle steering wheel to operate Wolff's device, as
recited (in various ways) in claims 8, 10, 11, 14--17, 19, and 20.
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Application 13/507,776
2. Claim 8 Separately
Appellant argues, in relation to claim 8, no reference teaches
"allowing a driver to see through the glare reducing means when making a
driver's side tum (or left tum in the U.S.) even though there is incoming
headlight glare which normally would block the windshield adjacent to the
glare reducing means." Appeal Br. 7. We are not persuaded. The limitation
of claim 8 at issue merely specifies a particular time (i.e., "while making a
driver's side tum") during which a switch may be operated to make the glare
reducing means transmit light. The glare reducing means of Wolff as
modified in view of Peterson is capable of transmitting light, under the
control of a wheel-mounted wireless switch as suggested by Chen '786 and
Lashua, while making a driver's side tum. We sustain the rejection of
claim 8.
3. Claim 11 Separately
1A1ppellant argues, in relation to claim 11, it \~1ould not have been
"obvious from any of the cited references that the switch is operated by the
thumb of the driver's hand." Appeal Br. 7. We are not persuaded. As
discussed above, it would have been obvious to modify Wolff to include a
wheel-mounted remote control as disclosed in Lashua to operate Wolff s
visor 14. Such a remote control, as shown in Lashua Figure 3 for example,
is operable by the thumb of a driver's hand. We sustain the rejection of
claim 11.
4. Claim 14 Separately
Appellant argues, in relation to claim 14, no cited reference discloses
operating a manual switch during daylight driving to ensure the driver can
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Application 13/507,776
always see through the glare reducing means. Appeal Br. 8. We are not
persuaded. The limitation of claim 14 at issue merely specifies a particular
time (i.e., "during daylight driving") during which a switch may be operated
to make the glare reducing means transmit light. The glare reducing means
of Wolff as modified in view of Peterson is capable of transmitting light,
under the control of a wheel-mounted wireless switch as suggested by
Chen '786 and Lashua, during daylight driving. We sustain the rejection of
claim 14.
5. Claims 15 and 16 Separately
Appellant argues, in relation to claims 15 and 16, the Examiner errs in
finding the recited circuitry is admitted to be prior art in the Specification.
Appeal Br. 8. Appellant asserts the Specification refers only to certain
components of the claimed circuitry being publicly available, rather than
their combination as recited in claims 15 and 16 being known. Id. (citing
Spec. 14:6-9, 6:1--4). For example, Appellant contends a change had to be
made to the input of the publicly available "inverter" to adapt it for use in
Appellant's claimed invention. Id.
We are persuaded of Examiner error. The Examiner provides no
citation to or discussion of the Specification in support of the determination
that "[t]he circuitry recited in claim 15 is admitted prior art." Final Act. 4.
The Examiner, apparently, relies on the Specification's disclosure that the
claimed wireless relay "can be a remote control relay switch to remotely
control any 12 VDC device supplied as a Remote Control Molex Connector
Kit" by Altronix Corporation. Spec. 13: 12-15. The Specification further
indicates the claimed inverter "can be a 120 watt power inverter supplied as
Part# PWRCUP120 by AIMS Power, Inc." Id. at 13:22-23.
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Application 13/507,776
Claims 15 and 16 are each directed to a combination of a wireless
relay and an inverter within the specific context of operating a glare
reducing means attached to a vehicle's windshield. In connection with using
the known parts in that context, the Examiner states:
Merely choosing from known parts to implement an overall
invention does not constitute a patentable step to one of ordinary
skill. The invention here deals with [] switches, etc., to operate
a glare blocker. Using whatever known electronics to
accomplish this goal would have been well within the grasp of
an ordinarily skilled artisan.
Final Act. 4--5. This conclusory analysis overlooks the specific
requirements in claims 15 and 16 for a particular relay (i.e. a 12 VDC
wireless relay connected to the vehicle's system) and a particular inverter
(i.e. to convert about 12 VDC to about 120 VAC). The Examiner's analysis
fails to provide a reason why a person of ordinary skill in the art would have
chosen to use those specifically claimed components to power a glare
reducing means mounted to the windshield of a vehicle. We do not sustain
the rejection of claims 15 and 16.
6. Claim 19 Separately
Appellant argues, in relation to claim 19, that "claim 19 is broader
than claim 17" and "covers any reason for the driver by manually operating
a switch to see through the glare reducing means even if there is an
oncoming vehicle with glaring headlights." Appeal Br 8. Even if true, this
does not apprise us of error in the Examiner's rejection. We sustain the
rejection of claim 19.
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DECISION
The rejection of claims 7-17, 19, and 20 as indefinite is affirmed.
This affirmed rejection applies to all pending claims, so we designate our
decision overall as an affirmance, even though we reverse the obviousness
rejections as to some claims.
The rejection of claims 7, 9, 12, and 13 as unpatentable over Wolff in
view of either Peterson or Chen '710 is affirmed as to claims 7, 9, and 12,
and reversed as to claim 13.
The rejection of claims 8, 10, 11, 14--17, 19, and 20 as unpatentable
over Wolff in view of either Peterson or Chen '710, and further in view of
Chen '786 and Lashua, is affirmed as to claims 8, 10, 11, 14, 17, 19, and 20,
and reversed as to claims 15 and 16.
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).
AFFIRivIED
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