Ex Parte Reisner

Patent Trial and Appeal Board

Nov 14, 2013

11403216 (P.T.A.B. Nov. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RONALD CHRISTOPHER REISNER
____________

Appeal 2011-012197
Application 11/403,216
Technology Center 3600
____________

Before: JOHN C. KERINS, WILLIAM A. CAPP and BEVERLY M.
BUNTING, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 6-14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2011-012197
Application 11/403,216
- 2 -
THE INVENTION
Appellant’s invention relates to remote vehicle braking systems.
Spec. 1. Claim 6, reproduced below, is illustrative of the subject matter on
appeal.
6. A vehicle braking method comprising:
providing an electromagnetic loop, wherein the
electromagnetic loop is located on or under a roadway;
detecting a vehicle, wherein the vehicle is detected via
electromagnetic variance in the electromagnetic loop as the
vehicle electromagnetically interacts with the loop;
providing a traffic control device, wherein the traffic
control device is configured to calculate the position and
velocity of the detected vehicle in relation to the status of a
traffic control zone and to determine whether the condition of
the vehicle, as detected in relation to the status of the traffic
control zone, is safe;
transmitting braking signals from the electromagnetic
loop, wherein the braking signals are initiated by the traffic
control device if the condition of the vehicle is determined to be
unsafe; and
receiving the signals, by the vehicle, to remotely initiate
braking of the vehicle.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:

Paufve
Nishikawa
Schmidt
Allen
Bachelder
Isaji
US 3,085,646
US 5,913,375
US 2004/0193363 A1
US 6,864,804 B1
US 2005/0104745 A1
US 2005/0128063 A1
Apr. 16, 1963
Jun. 22, 1999
Sep. 30, 2004
Mar. 8, 2005
May 19, 2005
Jun. 16, 2005
Appeal 2011-012197
Application 11/403,216
- 3 -
The following rejections are before us for review:
1. Claims 6, 9, 11 and 12 are rejected under 35 U.S.C. § 103(a), as
being unpatentable over Allen and Schmidt.
2. Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Allen, Schmidt and Isaji.
3. Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Allen, Schmidt and Bachelder.
4. Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Allen, Schmidt and Nishikawa.
5. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Allen, Schmidt and Paufve.

OPINION
Unpatentability of Claims 6, 9, 11 and 12
Claim 6
The Examiner finds that Allen discloses all of the elements of claim 6
except for transmission of braking signals. Ans. 4. The Examiner relies on
Schmidt as disclosing the missing element. Id. The Examiner concludes
that it would have been obvious to a person of ordinary skill in the art at the
time of the invention to modify the apparatus of Allen with the ability to
remotely control brakes, as taught by Schmidt. Id. According to the
Examiner, a person of ordinary skill in the art would do this to remotely
avoid obstacles. Id.
Appellant traverses the Examiner’s rejection by arguing that Allen’s
electromagnetic loops are not used to transmit braking signals. App. Br. 14.
Appellant argues that Schmidt uses beacons, not underground loops, to
transmit signals to a vehicle receiver. App. Br. 16. Appellant argues that
Appeal 2011-012197
Application 11/403,216
- 4 -
Appellant’s non-obvious, technological advancement is using an
electromagnetic loop to transmit braking signals to a vehicle. App. Br. 19.
Appellant argues that Allen and Schmidt fail to disclose the use of
electromagnetic loops to transmit signals to a vehicle and, furthermore, fail
to disclose how such an innovation would or could be implemented. App.
Br. 19.
In response, the Examiner states that Appellant’s arguments lack merit
because both Allen and Schmidt use electromagnetic signals to communicate
with vehicles. Ans. 8. The Examiner concludes that it would have been
obvious to use electromagnetic loops in the ground to control a vehicle as
such merely employs known, established infrastructure. Id.
Appellant’s argument that Allen and Schmidt each lack an element of
claim 6 is not persuasive. Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references. In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Appellant’s argument that Allen and Schmidt lack a teaching
disclosure as to how the use of an electromagnetic loop to transmit signals
would or could be implemented is also unpersuasive. The entirety of
Appellant’s teaching disclosure on this aspect of the invention is stated
below:
. . . to assist in facilitating proper vehicular behavior, an
electromagnetic loop, such as loop 20, may be configured to
transmit electromagnetic braking signals, such as signal 29, to a
vehicle, such as vehicle 100 . . . The signals, such as signal 29
emitted from loop 20, may be radio frequency (RF) signals, or
other electromagnetic signals such as infrared (IR) signals.
Appeal 2011-012197
Application 11/403,216
- 5 -
Spec. 7-8. In failing to provide a more detailed teaching disclosure,
Appellant’s Specification essentially presumes that a person of ordinary skill
in the art already knows how to configure an electromagnetic loop to
function as a transmitter. The fact that Appellant did not deem it necessary
to furnish a more detailed teaching disclosure on “how to” configure an
electromagnetic loop to function as a transmitter undermines Appellant’s
argument that Allen and Schmidt lack such a detailed disclosure and
supports the Examiner’s position that it would have been obvious to use
“established infrastructure” to achieve the claimed invention. Ans. 8; see
Streck, Inc. v. Research & Diagnostic Sys., Inc., 665 F.3d 1269, 1288 (Fed.
Cir. 2012) (a patent need not teach, and preferably omits, what is well
known in the art).
Recently, our supervising Court admonished the Board to take an
expansive and flexible approach to the obviousness analysis. Randall Mfg.
v. Rea, -- F.3d --, 2013 WL 5813334, *4 (Fed. Cir. 2013), citing KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 415-22 (2007) . Among other things, we
are admonished to take account of the background knowledge possessed by,
and the inferences and creative steps that would be taken by, a person of
ordinary skill in the art. Id. The Examiner’s approach to this case, including
the findings of fact and conclusions of law set forth in the Answer reflect the
appropriate expansive and flexible approach to obviousness that our
supervising Court directs us to employ.
We sustain the Examiner’s unpatentability rejection of claim 6.
Claims 9, 11 and 12
Claims 9, 11 and 12 depend, directly or indirectly, from claim 6.
Clms. App’x. Appellants cite only to the arguments presented for the
Appeal 2011-012197
Application 11/403,216
- 6 -
patentability of claim 6 as conferring patentability on claims 9 and 12. App.
Br. 20. Appellant does not argue for the separate patentability of claim 11.
For the reasons discussed with respect to claim 6, we are not apprised of
error in the Examiner’s rejection of claims 9, 11 and 12.
Accordingly, the rejections of claims 9, 11 and 12 are sustained.
Unpatentability of Claims 7, 8, 10, 13 and 14
Appellant cites only to the arguments presented for the patentability of
claim 6 as conferring patentability on claims 7, 8, 10, 13 and 14, which stand
rejected as being unpatentable over Allen and Schmidt in combination with
additional references. App. Br. 21-23. For the reasons discussed with
respect to claim 6, we are not apprised of error in the Examiner’s rejection of
claims 7, 8, 10, 13 and 14. Accordingly, the rejections of claims 7, 8, 10, 13
and 14 are sustained.

DECISION
The decision of the Examiner to reject claims 6-14 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)(1)(iv).

AFFIRMED

mls