Ex Parte Zehnder, II et al

Board of Patent Appeals and Interferences

Jun 9, 2004

09754686 (B.P.A.I. Jun. 9, 2004)

1Appellants submitted an amendment subsequent to the final
rejection, amending claims 3-6, 10 and 15, which amendment was
indicated as entered upon appeal by the examiner (see the
amendment dated May 23, 2003, Paper No. 8, with entry indicated
as per the Advisory Action dated June 6, 2003, Paper No. 9). We
note that this amendment has not been physically entered into the
record. Upon return of this application to the jurisdiction of
the examiner, this clerical error should be corrected by the
examiner.
The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JAMES W. ZEHNDER II and JOHN C. LAYMAN
___________
Appeal No. 2004-1109
Application No. 09/754,686
__________
ON BRIEF
_________
Before WALTZ, TIMM, and KRATZ, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the primary examiner’s
final rejection of claims 1, 3 through 16, and 18 through 20,
which are the only claims remaining in this application.1 We
have jurisdiction pursuant to 35 U.S.C. § 134.
Appeal No. 2004-1109
Application No. 09/754,686
2
According to appellants, the invention is directed to a
brake pedal emulator system including a master cylinder and
associated fluid reservoir, in integral association with both a
gas-filled bellows emulator and a spring emulator (Brief, pages
3-4). Appellants state that the claims on appeal “should be
considered as one group” (Brief, page 4). We construe this
statement as meaning that the claims stand or fall together.
Therefore we select independent claim 1 from the grouping and
decide the ground of rejection in this appeal on the basis of
this claim alone. See 37 CFR § 1.192(c)(7)(2000).
Representative independent claim 1 is reproduced below:
1. A brake-by-wire pedal feel emulator system comprising:
a master cylinder;
a first piston slidably positioned in the master cylinder;
a second piston slidably positioned in the master cylinder;
a reservoir carried near the master cylinder;
a first seal operably attached to the first piston wherein a
force applied to said first piston positions the first seal
member to isolate the reservoir from the master cylinder;
a second seal operably attached to the second piston wherein
a force applied to said second piston positions the second seal
member to isolate the reservoir from the master cylinder;
a gas-filled bellows emulator integral to and carried near
the master cylinder wherein isolation of the reservoir from said
master cylinder diverts fluid pressure into said bellows
emulator; and
Appeal No. 2004-1109
Application No. 09/754,686
2The examiner has relied upon U.S. Patent 6,354,673 to
Feigel et al. as the “English equivalent” to DE 196 40 767 A1
(Paper No. 7, page 2). Since appellants do not contest that
these documents are “equivalent” (see the Brief and Reply Brief
in their entirety), for purposes of this appeal and decision, we
rely upon and cite from U.S. Patent 6,354,673 as equivalent to
“Feigel.”
3
a spring emulator integral to and carried near the master
cylinder wherein isolation of the reservoir from said master
cylinder diverts fluid pressure into said spring emulator.
The examiner has relied upon the following references as
evidence of obviousness:
Campau et al. (Campau) 5,941,608 Aug. 24, 1999
Sasaki et al. (Sasaki) 6,056,013 May 02, 2000
Feigel et al. (Feigel) 196 40 767 A1 Apr. 09, 1998
(published German Offenlegungsschrift)2
Hoyt, Wade A. (ed.), Reader’s Digest Complete Car Care Manual
(Complete Car Care Manual), p. 111, The Reader’s Digest
Association, Inc., Pleasantville, New York, 1981.
The claims on appeal stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Campau in view of the Complete Car Care
Manual, Sasaki and Feigel (Answer, page 3, referring to the
complete exposition of the rejection in Paper No. 7). We affirm
the rejection on appeal essentially for the reasons stated in the
final Office action (Paper No. 7), the Answer, and for those
reasons set forth below.
Appeal No. 2004-1109
Application No. 09/754,686
3Campau discloses that the master cylinder is preferably a
tandem master cylinder having two service pistons (col. 3, ll. 6-
10, and col. 20, ll. 38-42).
4
OPINION
The examiner finds that Campau discloses a master cylinder
12, reservoir 20, gas-filled emulator 31, and a spring emulator
26b (Paper No. 7, page 2). The examiner recognizes that Campau
fails to disclose the details of the master cylinder, that the
specific gas-filled emulator may be a gas-filled bellows
emulator, and that the emulators may be integral with the master
cylinder (id. at pages 2-3). Therefore the examiner applies the
Complete Car Care Manual for its teachings that a standard master
cylinder in a hydraulic brake system contains two pistons, each
with a seal, and corresponding first and second chambers and
bypass ports (id., paragraph bridging pages 2-3).3 The examiner
also applies Sasaki for the teaching of a bellows type
accumulator, noting that Campau discloses that the accumulator,
which is structurally similar to an emulator, can be a bellows
type (id. at page 3). Finally, the examiner applies Feigel for
the teaching of a “brake-by-wire” system with a spring type
travel simulator integral with the master cylinder (id.). From
these findings, the examiner concludes that it would have been
obvious to one of ordinary skill in this art at the time of
Appeal No. 2004-1109
Application No. 09/754,686
4It is axiomatic that admitted prior art in an applicant’s
specification may be used in determining the patentability of a
claimed invention (In re Nomiya, 509 F.2d 566, 570-71, 184 USPQ
607, 611-12 (CCPA 1975)); and that consideration of the prior art
cited by the examiner may include consideration of the admitted
prior art found in an applicant’s specification (In re Davis, 305
F.2d 501, 503, 134 USPQ 256, 258 (CCPA 1962); cf., In re Hedges,
783 F.2d 1038, 1039-40, 228 USPQ 685, 686 (Fed. Cir. 1986)).
5
appellants’ invention to have used the standard dual master
cylinder as taught by the Complete Car Care Manual, with a
bellows membrane or emulator as shown by Sasaki and Campau, with
all emulators integral with the master cylinder as taught by
Feigel, in the braking system of Campau to improve the “pedal
feel” of the system (id. at pages 3-4). We agree.
Appellants concede that “the individual elements of the
instant invention may be taught separately” by Campau, the
Complete Car Care Manual, Sasaki, and Feigel (Reply Brief, page
3). Furthermore, appellants admit that a “known device” that
mimics pedal feel includes an elastomeric spring emulator that is
integrated with the master cylinder (specification, page 1, ll.
24-27).4 However, appellants’ principal argument is that none of
the references, alone or in combination, disclose or suggest that
emulators are “integral” with the master cylinder, i.e.,
“constituent parts, so combined as to constitute a unitary whole”
(Brief, pages 5-6). Appellants additionally argue that the
Appeal No. 2004-1109
Application No. 09/754,686
6
examiner has not demonstrated any suggestion or motivation for
combining the prior art references to arrive at the claimed
invention, nor shown any reasonable expectation of success (Reply
Brief, pages 3-4).
Appellants’ arguments are not persuasive. As correctly
stated by the examiner, Feigel teaches making the simulator
(emulator) integral with the master cylinder, specifically
teaching the option of having the simulator apart or integral
with the master cylinder, although the option of having the
simulator integral with the master cylinder is preferable (see
Figures 1 and 2; col. 1, l. 46-col. 2, l. 4, especially col. 1,
l. 61; and col. 2, ll. 14-19). Additionally, we note that Campau
teaches, at col. 15, ll. 32-50:
It should be noted that many of the components
described and illustrated as discrete components may be
easily combined in a single compact housing. For
example, the master cylinder 12, the isolation valves
22a and 22b, the simulator valve 28, the pedal
simulator 26 ... could be integrated into one unit with
or without the reservoir 20 included therein.
. . .
Indeed, it is contemplated that any or all of the
components discussed in this paragraph could be highly
integrated into one unit.
Appeal No. 2004-1109
Application No. 09/754,686
7
Accordingly, we determine that sufficient evidence has been
presented to establish that making the emulators integral with
the master cylinder would have been obvious to one of ordinary
skill in this art, as well as demonstrating a motivation and
reasonable expectation of success in so making the components
integral.
For the foregoing reasons and those stated in the final
Office action and the Answer, we determine that the examiner has
established a prima facie case of obviousness. Based on the
totality of the record, including due consideration of
appellants’ arguments, we determine that the preponderance of
evidence weighs most heavily in favor of obviousness within the
meaning of section 103(a). Therefore we affirm the examiner’s
rejection of claims 1, 3-16, and 18-20 under 35 U.S.C. § 103(a)
over Campau in view of the Complete Car Care Manual, Sasaki, and
Feigel.
Appeal No. 2004-1109
Application No. 09/754,686
8
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
Thomas A. Waltz )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Catherine Timm ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
Peter F. Kratz )
Administrative Patent Judge )
TAW/tdl
Appeal No. 2004-1109
Application No. 09/754,686
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Delphi Technologies, Inc.
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