Ex Parte Klimes

Patent Trial and Appeal Board

Dec 20, 2017

12845151 (P.T.A.B. Dec. 20, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/845,151 07/28/2010 Milan Klimes 1576-0593 9438
28078 7590 12/21/2017
MAGINOT, MOORE & BECK, LLP
One Indiana Square, Suite 2200
INDIANAPOLIS, IN 46204
EXAMINER
LOPEZ, FRANK D
ART UNIT PAPER NUMBER
3745
MAIL DATE DELIVERY MODE
12/21/2017 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 MILAN KLIMES
Appeal 2017-001782
Application 12/845,1511
Technology Center 3700
Before LINDA E. HORNER, LISA M. GUIJT, and GORDON D. KINDER,
Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s decision rejecting claims 1-3, 5-8, and 19-22. Final Office
Action (November 23, 2015) [hereinafter “Final Act.”]. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Robert Bosch, GmbH and Robert Bosch, LLC are identified as the real
parties in interest. Appeal Brief 2 (April 14, 2016) [hereinafter “Appeal
Br.”].
Appeal 2017-001782
Application 12/845,151
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “an electrically
controlled hydraulic booster.” Specification 1 (filed July 28, 2010)
[hereinafter “Spec.”]. Claims 1 and 19 are independent. Claim 1 is
illustrative of the subject matter on appeal and is reproduced below.
1. A braking system with an electric hydraulic booster
including a housing, the braking system comprising:
a boost chamber defined within the housing;
a booster piston activating chamber defined within the
housing;
a boost piston located between the boost chamber and the
booster piston activating chamber, the boost piston configured to
move within the housing, the boost piston including a cavity;
an input rod operably connected to the boost piston and
configured to move in the cavity;
a travel sensor fixedly positioned in the cavity adjacent to
the input rod and configured to detect travel of the input rod in
the cavity; and
a solenoid valve operably connected in fluid
communication between a high pressure source, the boost
chamber, and the booster piston activating chamber, the solenoid
movable between (i) a first position whereat the boost chamber
and the booster piston activating chamber are in fluid
communication, to vent fluid from said booster piston activating
chamber to said booster chamber, and fluidly isolated from the
high pressure source, (ii) a second position whereat the boost
chamber and the booster piston activating chamber are fluidly
isolated from each other and from the high pressure source, and
(iii) a third position whereat the booster piston activating
chamber and the high pressure source are in fluid communication
and fluidly isolated from the boost chamber,
wherein the solenoid valve includes;
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Application 12/845,151
a piston including an internal bore in fluid
communication with the boost chamber entirely within the
housing;
an inlet seat; and
a sealing member, the sealing member configured
to seal the internal bore when the solenoid valve is in the
second position and configured to form a seal with the
inlet seat when the solenoid valve is in the first position
and the second position.
Appeal Br. 17 (Claims Appendix).
EVIDENCE
The Examiner’s decision relies upon the following evidence:
Burgdorf
Leiber
Myers
Takata
US 4,580,847
US 4,620,750
US 4,625,515
US 5,031,968
REJECTIONS
Apr. 8, 1986
Nov. 4, 1986
Dec. 2, 1986
July 16, 1991
The Final Office Action, as modified by the Examiner’s Answer,
includes the following rejections:2,3
1. Claim 20 stands rejected under 35 U.S.C. § 112, fourth paragraph,
as being of improper dependent form.
2 The Final Office Action included a rejection of claim 20 under 35 U.S.C.
§112, first paragraph, for failing to comply with the enablement
requirement. The Examiner withdrew this ground of rejection in the
Answer. Examiner’s Answer 8 (September 23, 2016) [hereinafter “Ans.”].
3 The Examiner also purported to enter a new ground of rejection of the
claims under 35 U.S.C. § 112, second paragraph. Ans. 7. The Examiner did
not obtain approval of the Director to include this new ground of rejection as
required by 37 C.F.R. § 41.39(a)(2). As such, we do not consider this new
of ground of rejection in the appeal.
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Application 12/845,151
2. Claims 1-3, 5-8, and 19-22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Myers, Leiber, Takata, and
Burgdorf.4
ANALYSIS
First Ground of Rejection: Rejection of claim 20 under 35 U.S.C. § 112,
fourth paragraph
Independent claim 19 is directed to a braking system with an electric
hydraulic booster and comprises:
a controller . . . configured to execute the program instructions
to[] place and maintain the solenoid valve in the second position
based upon signals generated by the travel sensor, place and
maintain the solenoid valve in the third position based upon
signals generated by the travel sensor, and allow the solenoid
valve to move from the third position to the second position
based upon signals generated by the travel sensor.
Appeal Br. 19-20 (Claims Appendix). Claim 20 depends from claim 19 and
recites “wherein the program instructions executed by said controller are
operable to control the solenoid valve to modulate the solenoid valve
between the third position to the second position.” Id. at 20.
The Examiner determined that claim 20 does not further limit claim
19 because “all the limitations of claim 20 (i.e. [,] that the solenoid valve
moves to either the second or third position) is found in claim 19.” Ans. 9.
4 The Final Office Action also included an advisory objection to the claims
based on double patenting. Final Act. 4 (“should claims 3 and 5 be found
allowable, claims 19 and 21 will be objected to under 37 C.F.R. § 1.75 as
being a substantial duplicate thereof’) (emphasis added). Review of an
objection to the claims can be sought by petition. See MPEP § 1002.02(c)
(listing petitions under 37 C.F.R. § 1.113 relating to objections made by
examiners as among petitions decided by the Technology Center Directors).
As such, we do not review this objection on appeal.
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Application 12/845,151
Appellant contends that claim 20 is further limiting because it recites that the
instructions modulate the solenoid valve, i.e., move the valve back and forth,
between the second and third positions, which is not recited in claim 19.
Reply Brief 2 (November 12, 2016) [hereinafter “Reply Br.”] (citing Spec.
149).
The language Appellant chose to employ in claim 20 belies the
Appellant’s proffered interpretation of the term “modulate.” Claim 20
recites that the controller is operable to control the valve to “modulate the
solenoid valve between the third position to the second position.” Appeal
Br. 20 (emphasis added). The Examiner reasonably construed this claim
language to refer to movement of the valve from the third position to the
second position, which is the same limitation as recited in claim 19. The use
of the term “between” in conjunction with the term “to” does not connote
moving back and forth between one position and another position. As such,
dependent claim 20 does not further limit independent claim 19. For these
reasons, we sustain the Examiner’s rejection of claim 20 under 35 U.S.C.
§112, fourth paragraph.
Second Ground of Rejection: Rejection of claims 1-3, 5-8, and 19-22
under 35 U.S.C. § 103 as unpatentable over Myers, Leiber, Takata, and
Burgdorf
In contesting the rejection based on obviousness, Appellant argues
claims 1-3, 5-8, and 19-22 as a group, and presents additional arguments
for claim 19. Appeal Br. 8-16. We select claim 1 as the representative
claim for the group, and address the additional arguments raised for claim 19
infra. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/845,151
Claim 1
Appellant contends the Examiner erred in three factual findings
regarding the disclosure of Myers as the basis for the obviousness
determination of claim 1. In particular, Appellant contends that Myers fails
to disclose the following subject matter recited in claim 1: (1) a “boost
chamber;’” (2) the “first position;” and (3) the “second position.” Appeal
Br. 8-14. We address each argument in turn.
(1) “Boost Chamber ”
The Examiner finds that the area to the left of boost piston 28 in
Myers, i.e., the annular chamber adjacent the larger diameter portion and
surrounding the smaller diameter portion of boost piston 28, corresponds to
the claimed boost chamber. Final Act. 5; Ans. 11. For the reasons that
follow, we agree with the Examiner that this chamber, formed by bore 22 in
housing 20, corresponds to the claimed “boost chamber.” For ease of
reference, we will refer to this chamber as boost chamber 22.
Claim 1 calls for a solenoid valve “operably connected in fluid
communication between a high pressure source, the boost chamber, and the
booster piston activating chamber.”5 Appellant contends that Myers’s
chamber 22 is not a “boost chamber” because it is not “operably connected
in fluid communication” with valve 30. Appeal Br. 9-10. Appellant states
that “[a]s expressed in claim 1, ‘operatively [sic] connected’ means that
movement of the solenoid valve causes or stops fluid flow in the connected
5 The Examiner finds, and Appellant does not contest, that Myers discloses a
valve (30), a high pressure source (accumulator 38 and pump 40), and a
booster piston activating chamber (pressure chamber 26). Final Act. 5. The
Examiner proposes to modify Myers with the teachings of Leiber to actuate
valve (30) with a solenoid. Id. at 6.
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components.” Id. at 10. The Examiner finds that Figure 1 of Myers shows a
passage that allows for direct continuous fluid connection between boost
chamber 22 and reservoir 44, such that boost chamber is operably connected
in fluid communication with valve 30 via the reservoir. Ans. 10, 12.
The issue of whether Myers’s chamber 22 qualifies as the claimed
“boost chamber” turns on the meaning of “operably connected in fluid
communication,” as recited in claim 1. Appellant does not direct our
attention to any portion of the Specification to support Appellant’s
contention that this claim phrase requires the movement of the solenoid
valve to cause or stop fluid flow in the boost chamber. Appellant argues
only that the Examiner’s findings read the word “operably” out of the claim
phrase entirely. Appeal Br. 9-10. We disagree with this argument.
As noted by the Examiner, chamber 22 of Myers is always in fluid
communication with reservoir 44. It is the operation of valve 30 that
controls when chamber 22 is also in fluid communication with pressure
chamber 26. For instance, when Myers’s valve 30 is in position shown in
Figure 1 (in the rest position), pressure chamber 26 is in fluid
communication with reservoir 44 and, thus, in fluid communication with
chamber 22 via reservoir 44. During braking, when Myers’s valve member
50 is not seated against valve seat 55 (in the valve opened position), high
pressure source (38, 40) is in fluid communication with pressure chamber
26. Myers 3:21-25. When Myers’s valve is subsequently closed, pressure
chamber 26 is again in fluid communication with chamber 22 via reservoir
44. Id. at 3:29-35; Fig. 1. Thus, at various points during operation of valve
30, high pressure source (38, 40), chamber 22, and pressure chamber 26 are
in fluid communication with each other. We agree with the Examiner that
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such fluid communication of the components that results from opening or
closing of valve 30 is sufficient to support a finding that Myer’s valve 30 is
operably connected in fluid communication with chamber 22, such that
chamber 22 qualifies as the claimed “boost chamber.”
For these reasons, Appellant’s first argument does not demonstrate
error in the rejection of claim 1.
(2) “First Position ”
The Examiner found that Myers discloses a valve 30 movable to a
first position in which the boost chamber 22 and the booster piston
activating chamber 26 are in fluid communication, to vent fluid from the
booster piston activating chamber 26 to the booster chamber 22, and fluidly
isolated from the high pressure source 38, 40. Final Act. 5; Ans. 10-11.
The Examiner explains that “[wjhen the booster piston activating chamber is
vented after being pressurized, the booster piston moves rearward, with the
fluid in the booster piston activating chamber flowing to the reservoir, to
mix with the fluid in the reservoir which flows to the boost chamber (since it
is getting larger).” Ans. 12.
The only discussion of venting of Appellant’s boost activation
chamber 118 is found in paragraph 36 of Appellant’s Specification. This
paragraph describes that in the rest position, when the solenoid assembly
270 is de-energized, spring 272 biases outlet seat 284 to a location spaced
apart from seal member 256, so that inner core 286 and hollow center 282
provide a vent path for the boost activating chamber 118 through fluid
channel 124 to chamber 130 and reservoir 106. Spec. ^ 36. Thus, in
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Appellant’s Specification, boost activating chamber 118 is vented to
reservoir 106 via various channels and chambers.
We agree with the Examiner that the venting of fluid from pressure
chamber 26 in Myers results from pressure differentials present between
reservoir 44 and chamber 22 when valve 30 moves to the first position.
Specifically, upon release of the brake, pressure chamber 26 contains high-
pressure fluid and reservoir 44 contains fluid at a lower pressure than
pressure chamber 26. As such, when valve 30 is in the first position, the
fluid in the circuit travels from pressure chamber 26 and is vented to
reservoir 44. As discussed supra, boost chamber 22 is always in fluid
communication with reservoir 44, and due to the movement of boost piston
28 to the right within boost chamber 22 upon release of the brake, a lower
pressure results in boost chamber 22, which is filled with fluid from
reservoir 44. Thus, when valve 30 is in the first position, fluid flows in the
fluid circuit from pressure chamber 26 into reservoir 44 and fluid flows from
reservoir 44 into boost chamber 22. This fluid flow is sufficient to support
the Examiner’s finding that in the first position of valve 30, boost chamber
22 and booster piston activating chamber 26 are in fluid communication to
vent fluid from booster piston activating chamber 26 to booster chamber 22.6
6 Appellant contends that the Examiner relies on Leiber to cure the alleged
failure of Myers to disclose venting to the boost chamber. Reply Br. 4. We
do not understand the Examiner to rely on any of the remaining references to
modify this aspect of Myers. Final Act. 6-8. The Examiner relies on Leiber
to disclose “the valve piston is fluidly coupled to the booster chamber
through passages only in the housing” (Final Act. 6), but the Examiner
appears to admit that the connection in Leiber between the valve and the
boost chamber is through the reservoir (19) (Ans. 13).
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For these reasons, Appellant’s second argument does not demonstrate
error in the rejection of claim 1.
(3) “SecondPosition”
As to the second position, the Examiner explains that Myers’s system
has a second valve position, but that it is not discussed in Myers. Ans. 14.
The Examiner finds:
When the input rod is moved forward to a first positon [sic], the
booster piston activating chamber is pressurized and the booster
piston moves forward to a corresponding first positon [sic] (due
to the valve being in the third position). Because the lever 32 has
3 pivot points (connected to the booster piston, the input rod and
the valve), as the booster piston and its pivot point moves
forward (due to the booster piston activating chamber being
pressurized), with the input rod maintained in the first positon
[sic], the valve and its pivot point are moved rearward to the
point where the sealing member just closes the connection
between the booster piston activating chamber and the high
pressure source, without opening the connection between the
booster piston activating chamber and the boost chamber (and
reservoir).
Id.
Appellant responds that “Myers provides a very detailed explanation
of the operation of the brake system and valve assembly (30)” and thus,
Myers’s omission of the discussion of such a second valve position
demonstrates that it does not occur. Reply Br. 5. Appellant explains that
“[a]s the user depresses the brake pedal, the input rod (34) gradually moves
the piston (28) forward, which gradually increases brake pressure in the
master cylinder (14).” Id.
Myers discloses a first position, in which the brake is at rest (shown in
Figure 1). Myers 2:66-3:4. Myers further discloses a third position in
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which brake is actuated sufficiently to cause valve 30 to open and allow
fluid communication between high pressure source 38, 40 and booster piston
activating chamber 26, while isolating source 38, 40 and chamber 26 from
reservoir 44, and thus from boost chamber 22. Id. at 3:21-27. Myers also
discloses a second position that occurs after the user disengages the brake
pedal and before the system moves back to the first position. In this interim
position, Myers describes:
Upon termination of braking, the input member initially returns
the valve member 50 to a sealing engagement with seat 55 to
isolate the pressure cavity from the intermediate chamber 72.
Thereafter, the input member vents the pressure chamber 26, the
intermediate chamber 72 and the auxiliary chamber 60 to the
reservoir 44.
Myers 3:29-35 (emphasis added). Thus, Myers describes a period of time in
which high pressure source 38, 40 is once again isolated from pressure
chamber 26, but the passageway for venting pressure chamber 26 has not yet
opened, so that pressure chamber 26 and boost chamber 22 are not yet
fluidly connected to one another. As such, we find sufficient description
provided by Myers of the operation of its system to support the Examiner’s
finding that the valve 30 of Myers is movable to a second position as
claimed.
For these reasons, Appellant’s third argument does not demonstrate
error in the rejection of claim 1.
Claim 19
Appellant presents two additional arguments in support of the
patentability of claim 19. First, Appellant contends that Myers does not
disclose a controller operable to place and maintain the solenoid valve in the
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second and third positions based on signals generated by the travel sensor.
Appeal Br. 14. According to Appellant, “Myers describes a braking
operation that can only occur if the valve piston (54) is pushed far enough to
dislodge the valve member (50) to allow high pressure fluid to drive the
boost piston (28).” Id. We disagree with Appellant’s characterization of
Myers.
Myers describes that during braking, the pedal 10 is pivoted to move
rod 34 and pivot arm 32, and “[t]he input member 54 is moved toward the
end wall 56 and the lever 90 opens the check valve 86 before the input
member fully engages the valve member 50.” Myers 3:14-18. The opening
of check valve 86 allows fluid pressure leaked to auxiliary chamber 60 from
pressure cavity 62 to pass through check valve 86 into intermediate chamber
72 and via passage 74 to pressure chamber 26. Id. at 3:7-10, 18-21. Thus,
the system is in a ready position to provide the desired braking function
when the passage between the high pressure source and the boost piston
activing chamber is subsequently opened (third position). Likewise,
Appellant’s Specification describes that “[i]n the initial activation position
[the second position], the braking system is in a ready position to provide the
desired braking function.” Spec. ^ 42.
Further leftward movement of input member 54 of Myers causes the
input member 54 to fully engage valve 50 “to close passage 78 and open
pressure cavity 62 to the pressure chamber 26 via the intermediate chamber
72 and the second part passage 74.” Myers 3:21-25. This fluid pressure in
pressure chamber 26 biases output piston 28 leftward toward the master
cylinder 14. Id. at 3:25-27. Similarly, Appellant’s Specification describes
that further travel of input rod 112 causes core 216 and core extension 280 to
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travel further rightward to open the passage between booster piston
activating chamber 118 and high pressure accumulator 104. Spec. ^ 43.
Further, as explained by the Examiner (Ans. 14), during braking in
Myers, once the input rod is moved leftward, and the pressure in pressure
chamber 26 causes output piston 28 to move leftward, lever 32, by virtue of
a connection on its lower end to output piston 28, is caused to pivot
clockwise about the pivot point where lever 32 connects to input rod 32,
such that the upper end of lever 32 and input member 54 are moved
rightward. This movement occurs gradually so that there is a point where
valve 50 just seals against seat 55 to close the fluid connection between
booster piston activating chamber 26 and high pressure source (38, 40)
without opening the connection between booster piston activating chamber
26 and the booster chamber 22 (via reservoir). Myers, Fig. 1. Myers, by
virtue of the mechanical lever, is able to maintain the valve assembly in this
position based on the pressure exerted against brake pedal 10 and thus input
rod 34. For all of these reasons discussed above, we find adequate support
for the Examiner’s finding that Myers’s system is operable to place and
maintain the valve in the second position and in the third position.
Second, Appellant asserts that the rejection of claim 19 should not be
sustained because the Examiner erroneously asserts that Takata discloses a
booster chamber. Appeal Br. 15. Specifically, Appellant argues that
Takata’s dynamic pressure piston 9 is integral with master cylinder piston
10, so there is no booster chamber in Takata. Id.
Takata discloses a braking system in which movement of a brake
pedal 1 is detected by a stroke detector 2 and conveyed as a signal to an
electronic control unit 3, which gives drive commands in response to the
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signal to a pressure control valve 4, which in turn controls communication
between a dynamic pressure source 5 and a reservoir 6 and a dynamic
pressure chamber 7 to feed a desired pressure to chamber 7. Takata 4:29—
37. The dynamic pressure fed to the dynamic pressure chamber 7 acts on a
dynamic pressure piston 9 to push piston 9 and master cylinder piston 10,
which is integral with it. Id. at 4:38—45.
The Examiner explains that Takata is relied on to teach the claim
limitations related to the “travel sensor” and that one of ordinary skill in this
art would recognize that Takata teaches controlling a solenoid valve to either
move piston 9 forward, hold piston 9 in position, or move piston 9 rearward,
based on input from the travel sensor. Ans. 16-17. The Examiner
determines that one of ordinary skill in the art would recognize that this
teaching of Takata can be applied to the brake booster of the modified
system of Myers, “as an alternate way to activate the brake booster.” Id. at
17.
Assuming Appellant is correct that Takata’s dynamic pressure piston
9 does operate within a “boost chamber” as claimed, nonetheless, we agree
with the Examiner that one having ordinary skill in the art would appreciate
that the technique of controlling dynamic pressure based on signals from a
travel sensor in a braking system would be applicable in the context of
Myers as an alternative way to control valve 30 to activate the brake booster.
See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“if a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.”).
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For these reasons, the additional arguments presented in support of
claim 19 do not inform us of error in the Examiner’s obviousness rejection.
Accordingly, we sustain the rejection under 35 U.S.C. § 103(a) of
independent claims 1 and 19. Claims 2, 3, 5-8, and 20-22 fall with their
respective independent claims.
DECISION
The decision of the Examiner rejecting claim 20 under 35 U.S.C.
§ 112, fourth paragraph and rejecting claims 1-3, 5-8, and 19-22 under
35 U.S.C. § 103(a) 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)(l)(iv).
AFFIRMED
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