Ex Parte Kanagawa et al

Board of Patent Appeals and Interferences

Jul 24, 2012

11360319 (B.P.A.I. Jul. 24, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte AKIHARU KANAGAWA, YASUSHI AOKI, and
MAKOTO KIKUCHI
____________

Appeal 2009-015059
Application 11/360,319
Technology Center 3600
____________

Before JENNIFER D. BAHR, LINDA E. HORNER, and
PATRICK R. SCANLON, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Akiharu Kanagawa et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1-6. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
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THE INVENTION
Appellants’ claimed invention relates to “a brake control device for
controlling a hydraulic brake.” Spec. 1, para. [002]. Claim 1, reproduced
below, is representative of the subject matter on appeal.
1. A brake control device comprising:
a hydraulic pressure source comprising a pump for pumping
working fluid from a reservoir and an accumulator for accumulating
the working fluid pumped by the pump;
a pressure governing valve for regulating and outputting hydraulic
pressure supplied from the accumulator corresponding to a stroke
amount of a brake operating member;
a plurality of wheel cylinders operated by the output hydraulic
pressure outputted from the pressure governing valve;
an electromagnetic valve that is normally closed and is provided on
a hydraulic pressure passage and directly communicated with a high
pressure chamber of the pressure governing valve, thereby to allow an
accumulator side to communicate with the wheel cylinders when the
electromagnetic valve is opened, via a hydraulic pressure input side of
the pressure governing valve;
a first hydraulic pressure sensor for detecting a value of the
hydraulic pressure supplied from the accumulator into the pressure
governing valve;
a housing in which the pressure governing valve is slidably fitted;
a master cylinder piston which is slidably fitted forward of the
pressure governing valve in the housing, wherein the master cylinder
piston is moved by virtue of fluid pressure outputted from the pressure
governing valve so as to generate master cylinder pressure;
an output hydraulic pressure sensor for detecting a value of the
output hydraulic pressure outputted from a hydraulic pressure output
side of the pressure governing valve to the wheel cylinders;
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a stroke amount detecting part for detecting a stroke amount of the
brake operating member; and
a control unit for controlling the electromagnetic valve to open and
close, depending on information from the first hydraulic pressure
sensor, the output hydraulic pressure sensor and the stroke amount
detecting part,
wherein the control unit controls the electromagnetic valve to open
so as to output the hydraulic pressure outputted from the accumulator
side via the hydraulic pressure input side and the high pressure
chamber of the pressure governing valve into the wheel cylinders
when determining that a trouble has occurred at the pressure
governing valve,
wherein the control unit determines the trouble on the pressure
governing valve if determining that:
the hydraulic pressure within a defined range is outputted
from the accumulator to the hydraulic pressure input side of
the pressure governing valve, based on information on the
detected value inputted from the first hydraulic pressure
sensor;
a value of output hydraulic pressure outputted from the
hydraulic pressure output side of the pressure governing
valve at a time of a braking operation by the brake operating
member is lower than a reference output pressure depending
on information on the stroke amount of the braking
operation inputted from the stroke amount detecting part,
based on information on the detected value inputted from the
output hydraulic pressure sensor; and
a difference between the value of the output hydraulic
pressure and the reference output pressure is greater than a
predetermined value;
thereby to generate a master cylinder pressure in accordance with
the reference output pressure.
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THE REJECTIONS
Appellants seek review of the following rejections:
1. The Examiner rejected claims 1-6 under 35 U.S.C. § 102(f) on the
basis that Makoto Kikuchi did not invent the claimed subject matter.
2. The Examiner rejected claims 1-6 under 35 U.S.C. § 103(a) as
unpatentable over Kusano (US 6,641,233 B2; iss. Nov. 4, 2003) and
Asa (US 5,716,108; iss. Feb. 10, 1998).
3. The Examiner provisionally rejected claim 1 on the ground of non-
statutory obviousness-type double patenting as unpatentable over
claim 5 of co-pending Application 11/333,634 to Aoki.1
ISSUES
The issues presented by this appeal are:
Does a Rule 132 declaration filed by inventors Kanagawa and Aoki
provide an adequate basis for the Examiner’s determination that the work of
inventor Kikuchi is not being claimed?
Would the combined teachings of Kusano and Asa have led one of
ordinary skill in the art to a brake control device having a control unit that
determines if there is trouble on the pressure governing valve as called for in
each of the claims?
Is claim 1 broader than the scope of claim 5 in Aoki?

1 Since institution of this rejection, claim 5 of the ‘634 application has been
amended, and the ‘634 application has issued as U.S. Patent 7,517,027, with
patented claim 5 corresponding to amended application claim 5.
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ANALYSIS
Rejection of claims 1-6 under 35 U.S.C. § 102(f)
The Examiner previously rejected claims 1-6 under 35 U.S.C.
§ 102(e) as being anticipated by Aoki (US 2006/0158026 A1; pub. Jul. 20,
2006). Office Action dated Sep. 12, 2007. Inventors Kanagawa and Aoki
filed a Declaration Under 37 C.F.R. § 1.132 to show that the subject matter
disclosed but not claimed in Aoki was not “by another” within the meaning
of 35 U.S.C. § 102(e), stating that “[a]ny invention disclosed but not claimed
in U.S. published patent application 2006/0158026 to Aoki et al was derived
from the undersigned, who are also two of the inventors of the invention
disclosed and claimed in U.S. patent application serial No. 11/360,319.”
App. Br., Evid. Appx. The Examiner subsequently withdrew the rejection of
claims 1-6 under 35 U.S.C. § 102(e) based on Aoki, but determined that
because the subject matter of claims 1-6 is the work of inventors Kanagawa
and Aoki, the work of inventor Kikuchi is not being claimed. Ans. 3.
Appellants argue that they did not concede, by filing the Rule 132
Declaration, the Examiner’s position that Aoki discloses the subject matter
of claims 1-6. App. Br. 16. Appellants contend that inventor Kikuchi
contributed to the portion of the invention of each of independent claims 1
and 2 that relates to the control effected by the control unit when trouble has
occurred with the pressure governing valve. Id. Appellants contend that
Aoki does not disclose this claimed subject matter because Aoki discloses
that when trouble occurs with the pressure governing valve, the braking
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force is generated in the wheel cylinders by the mechanical action resulting
from only the effort applied to the brake pedal. App. Br. 16-17.
In response, the Examiner determined that “the last four paragraphs of
claim 5 of [Aoki] claim the control unit opening the valves so as to output
the hydraulic pressure in the same manner as recited in [claim 1].” Ans. 8.
Claim 5 of Aoki, however, is not pertinent to the statement in the Rule 132
Declaration relied on by the Examiner, because that statement is directed to
any invention “disclosed but not claimed” in Aoki. Emphasis added.
Aoki discloses a hydraulic brake device that includes:
[a] control unit (ECU) 37 [which] controls the ON/OFF of the
motor 7 and the opening and closing of the primary and
secondary solenoid opening/closing valves 34, 36 based on a
pressure detection signal inputted from a primary pressure
sensor 12 or a secondary pressure sensor 32 and a stroke
detection signal inputted from the brake stroke sensor 38[.]
Aoki, p. 5, para. [0051]. Aoki discloses that when control unit 37
determines that the regulator valve 3 of the hydraulic brake device is
operating abnormally (e.g., clogged) so that the predetermined fluid pressure
P2 that is outputted from the regulator valve decreases largely or becomes
zero, the control unit 37 outputs opening signals to the primary and
secondary solenoid opening/closing valves 34, 36 and also outputs an OFF
signal to the motor 7 so that a braking force can be generated in each of the
wheel cylinders by the mechanical action resulting from only the effort
applied to the brake pedal 6. Aoki, p. 7, paras. [0074] -[0076]; p. 8, para.
[0083]. Aoki describes that when the valves 34, 36 are changed from
closed to open, the residual pressure in the high pressure chamber 18 and the
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output fluid pressure chamber 15 of the regulator valve 3 are released to the
atmosphere through the reservoir 8, which is accessed via the lower pressure
chamber 20 in the regulator valve 3. Aoki, pp. 7-8, paras. [0079] – [0080].
Aoki describes that by stopping the motor 7, the pressure in accumulator 11
is no longer pumped and the residual pressure in the accumulator 11 can be
reduced to zero. Aoki, p. 8, para. [0081].
Independent claim 1 calls for a control unit that, when the hydraulic
pressure output from the pressure governing valve is too low, controls an
electromagnetic valve to open so as to output the hydraulic pressure from the
high pressure chamber into the wheel cylinders. Independent claim 2 calls
for a control unit that, when the hydraulic pressure output from the pressure
governing valve is too high, selectively controls an electromagnetic valve to
open so as to output a part of the hydraulic pressure output from the high
pressure chamber of the pressure governing valve into the reservoir.
Aoki does not disclose this subject matter of claims 1 and 2. With
regard to claim 1, Aoki’s control unit, upon detecting the hydraulic pressure
output from the regulator valve is too low, does not send the hydraulic
pressure from the high pressure chamber to the master cylinder. Rather,
Aoki’s system is designed to open normally closed valves to send the
hydraulic pressure from the high pressure chamber to the reservoir and then
to the atmosphere. With regard to claim 2, Aoki’s control unit is not
disclosed as being programmed to check for an occurrence of the hydraulic
pressure output from the regulator valve being too high and does not
disclose what action to take if such a circumstance were to occur.
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As such, the statement in the Rule 132 Declaration by inventors
Kanagawa and Aoki that the subject matter “disclosed but not claimed” in
Aoki was derived from their work does not provide an adequate basis to
support the Examiner’s determination that inventor Kikuchi’s work is not
being claimed in the present claims on appeal. For this reason, we cannot
sustain the rejection of claims 1-6 under 35 U.S.C. § 102(f).
Rejection of claims 1-6 under 35 U.S.C. § 103(a) as unpatentable over
Kusano and Asa
Appellants argue that the Examiner’s rejection of claims 1-6 based on
Kusano and Asa should not be sustained because “both reference[s] fail to
disclose or suggest features required by each of the present claims involving
determination of trouble in the pressure governing valve and operation of the
system when trouble is determined.” App. Br. 18.
Both independent claim 1 and independent claim 2 call for the control
unit to determine trouble on the pressure governing valve. In particular,
claim 1 calls for the control unit to determine trouble on the pressure
governing valve when the value of the output hydraulic pressure is too low,
and claim 2 calls for the control unit to determine trouble on the pressure
governing valve when the value of the output hydraulic pressure is too high.
The Examiner determined that Kusano’s control unit (ECU) 13 meets these
claim limitations because it controls an electromagnetic valve 31 based, in
part, on information received from output hydraulic pressure sensor 28.
Ans. 4.
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Kusano discloses a braking system that uses a pressure sensor 28 to
sense the output pressure P2 of a regulation valve 16 and sends this
information to ECU 13. Kusano, col. 5, ll. 38-42, 45-46; fig. 1. Kusano
does not disclose, however, that the ECU 13 is programmed to use this
information to determine if P2 is too low or too high, or that based on such a
determination, the ECU 13 causes a valve to open. Rather, Kusano
discloses that the ECU 13 is programmed to use information about the
output pressure P2 and information about master cylinder pressure P4 to
control proportioning solenoid valves 26, 27 so that the brake force
difference, in which the regenerative braking force is subtracted from the
braking force required by the driver, coincides with the braking force
corresponding to the braking pressure in the wheel cylinders. Kusano,
col. 5, ll. 42-54. Kusano further discloses that the ECU 13 is programmed to
close a solenoid valve 30 and open a solenoid valve 31 to effect an
automatic braking operation, but it does not disclose that the ECU 13 is
programmed to operate these valves 30, 31 in response to a determination of
trouble on the regulation valve, as called for in the claims. The Examiner
relied on Asa to teach using a stroke sensor to monitor the operation of the
brake pedal, and did not rely on Asa to cure the above-noted deficiency in
Kusano. As such, the Examiner has failed to adequately show how the
proposed combination of Kusano and Asa would result in the control unit
called for in independent claims 1 and 2, or their dependent claims 3-6.
Accordingly, we cannot sustain the rejection of claims 1-6 under 35 U.S.C.
§ 103(a) as unpatentable over Kusano and Asa.
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Rejection of claim 1 based on obviousness-type double patenting
The Examiner determined that appealed claim 1 is “broader in scope”
than published claim 5 of Aoki and “would have encompassed claim 5.”
Ans. 7.2 Despite the analysis of the disclosure of Aoki supra in which we
determined that the subject matter “disclosed but not claimed” in Aoki
differs from the control unit claimed in the present application on appeal, we
agree with the Examiner that appealed claim 1 encompasses Aoki’s claim 5.
Claim 5 of Aoki recites that the control unit opens a normally closed
opening/closing valve in the event the control unit determines that an output
fluid pressure outputted from the regulator valve decreases to or below a
predetermined range. Claim 5 of Aoki is broader than Aoki’s disclosed
embodiment in that claim 5 calls for only a single “normally closed
opening/closing valve provided along a fluid line communicating between a
side of the accumulator and the reservoir by way of the fluid pressure input
side and a fluid pressure output side of the regulator valve,” while the
disclosure in Aoki describes a device having two normally closed open/close
valves (i.e., primary solenoid valve 34 and second solenoid valve 36).
Further, while the disclosure in Aoki describes that the control unit is
programmed to send a stop signal to a drive unit of the pump upon
occurrence of the above described condition, claim 5 of Aoki does not call

2 A copy of claim 5 of Aoki as amended and issued is reproduced in the
Appendix. We analyze the rejection as applied to amended claim 5.
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for this feature of the control unit.3 Given the breadth of claim 5 of Aoki,
we disagree with the Appellants’ assertion that appealed claim 1 and Aoki’s
claim 5 define brake systems which function contrary to each other. App.
Br. 26.
Appellants fail to point to any portion of appealed claim 1 that is
narrower than Aoki’s claim 5. Rather, Appellants argue that appealed claim
1 cannot encompass Aoki’s claim 5 because the fail-safe operation of Aoki’s
claim 5 involves hydraulic pressure directly generated by the mechanical act
of a driver pushing on the brake pedal, instead of being derived from
pressure from the accumulator, as called for in appealed claim 1. App. Br.
26. Aoki’s claim 5 calls for two separate fail-safe operations. First, Aoki’s
claim 5 calls for a fail-safe operation that occurs in the event that “something
abnormal occurs in which the fluid pressure supplied from the accumulator
to the regulator valve decreases down to or lower than the predetermined
range.” Appealed claim 1 does not include a fail-safe operation for an
abnormal condition in the accumulator. As such, Aoki’s claim 5 is narrower
than, but not contrary to, appealed claim 1 in this regard.
Second, Aoki’s claim 5 calls for a fail-safe operation
in the event that the control unit determines that an output fluid
pressure outputted from the fluid pressure output side of the
regulator valve decreases down to or lower than the
predetermined range in accordance with each of detection
information from the output fluid pressure valve detecting unit
and the operation amount detecting [unit].

3 Dependent claim 6 recites that the control unit outputs a stop signal to a
drive unit of the pump upon occurrence of this condition.
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Appealed claim 1 likewise calls for a fail-safe operation “when determining
that a trouble has occurred at the pressure governing valve” wherein the
trouble is determined when a value of output hydraulic pressure outputted
from the hydraulic pressure output side of the pressure governing valve at a
time of a braking operation by the brake operating member is lower than a
reference output pressure depending on information on the stroke amount of
the braking operation and the detected value inputted from the output
hydraulic pressure sensor and a difference between the output hydraulic
pressure and the reference output pressure is greater than a predetermined
value. Both appealed claim 1 and Aoki’s claim 5 call for the control unit to
be programmed to open the opening/closing valve in this circumstance. As
such, appealed claim 1 is broader than Aoki’s claim 5. Thus, we sustain the
Examiner’s rejection of claim 1 as unpatentable based on obviousness-type
double patenting over claim 5 of Aoki.
CONCLUSIONS
The Rule 132 declaration filed by inventors Kanagawa and Aoki does
not provide an adequate basis for the Examiner’s determination that the
work of inventor Kikuchi is not being claimed.
The combined teachings of Kusano and Asa would not have led one
of ordinary skill in the art to a brake control device having a control unit that
determines if there is trouble on the pressure governing valve as called for in
each of the claims.
Claim 1 is broader than the scope of Aoki’s claim 5.
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DECISION
The decision of the Examiner to reject claims 1-6 under 35 U.S.C.
§ 102(f) and under 35 U.S.C. § 103(a) is REVERSED. The decision of the
Examiner to reject claim 1 on the ground of non-statutory obviousness-type
double patenting 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-IN-PART

mls

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APPENDIX
PUBLISHED CLAIM 5 OF AOKI AS AMENDED
Deletions shown with strikethrough and additions shown with underlining
5. A hydraulic brake device comprising:
a reservoir;
a fluid pressure generating unit comprising:
a pump for pumping operating fluid out of the
reservoir; and
an accumulator for accumulating the pumped out
operating fluid within a predetermined pressure range;
a regulator valve for regulating and outputting a fluid
pressure supplied from the accumulator in accordance with an
operation amount of a brake operation member;
a housing in which the regulator valve is slidably fitted;
a master cylinder piston which is slidably fitted forward
of the regulator valve in the housing, wherein
when a during normal time braking operation, the
master cylinder piston is moved by virtue of the output
fluid pressure outputted from the regulator valve so as to
generate the master cylinder pressure, and
when something abnormal occurs in which the
fluid pressure supplied from the accumulator to the
regulator valve decreases down to or lower than the
predetermined range, the master cylinder piston which is
in press contact with an outer end face of the regulator
valve is moved direct mechanically so as to generate the
master cylinder pressure by mechanically moving
forward the regulator valve by virtue of a force applied
by the brake operation member;
a normally closed opening/closing valve provided along a
fluid line communicating between a side of the accumulator and
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the reservoir by way of the fluid pressure input side and a fluid
pressure output side of the regulator valve;
an output fluid pressure value detecting unit for detecting
a value of a fluid pressure outputted from the fluid pressure
output side of the regulator valve to the master cylinder piston;
an operation amount detecting unit for detecting an
operation amount of the brake operation member; and
a control unit for controlling the opening and closing of
the opening/closing valve based on each detection information
from the output fluid pressure value detecting unit and the
operation amount detecting unit,
wherein the predetermined range of the output fluid
pressure outputted from the fluid pressure output side of the
regulator valve is determined so as to correspond to operation
amounts of the brake operation member, and
the control unit changes over the state of opens the
opening/closing valve in the event that the control unit
determines that an output fluid pressure outputted from the fluid
pressure output side of the regulator valve decreases down to or
lower than the predetermined range in accordance with each of
detection information from the output fluid pressure value
detecting unit and the operation amount detecting amount,
whereby any residual pressure remaining in the regulator valve
is reduced to facilitate forward mechanical movement of the
regulator valve.