Ex Parte WaldmannDownload PDFPatent Trial and Appeal BoardJul 13, 201613296787 (P.T.A.B. Jul. 13, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/296,787 11/15/2011 23911 7590 07115/2016 CROWELL & MORING LLP INTELLECTUAL PROPERTY GROUP P.O. BOX 14300 WASHINGTON, DC 20044-4300 FIRST NAMED INVENTOR Peter Waldmann 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. 080437.63940US 5399 EXAMINER TRIVEDI, ATUL ART UNIT PAPER NUMBER 3667 NOTIFICATION DATE DELIVERY MODE 07/15/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): edocket@crowell.com tche@crowell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER WALDMANN Appeal2014-007010 Application 13/296,787 1 Technology Center 3600 Before JOHN C. KERINS, STEP AN ST AI CO VICI, and LEE L. STEPINA, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Peter Waldmann (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting under 35 U.S.C. § 103(a) claims 1- 17 as being unpatentable over Walker (US 2008/0091309 Al, pub. Apr. 17, 2008) and Akaba (US 2006/0097504 Al, pub. May 11, 2006). We have jurisdiction over this appeal under 35 U.S.C. § 6(b ). According to Appellant, the real party in interest is Bayerische Motoren Werke Aktiengesellschaft. Appeal Br. 1 (filed Dec. 17, 2013). Appeal2014-007010 Application 13/296,787 We REVERSE. SUMMARY OF DECISION INVENTION Appellant's invention relates to "a driver assistance system having an electronically controllable braking system and a control unit which is assigned to the braking system and is connected with an operating element also assigned to the braking system." Spec. i-f 2. Claims 1 and 13 are independent, are illustrative of the claimed invention, and read as follows: 1. A driver assistance system in a motor vehicle, compnsmg: an electronically controllable braking system; an operating element in the motor vehicle assigned to the electronically controllable braking system; a control unit, in the motor vehicle, operatively coupled to the electronically controllable braking system and the operating element, wherein when the operating element is actuated, an automatic braking function is initiated to carry out normal braking via the electronically controllable braking system independent of any actuation of a brake pedal; and wherein the control unit is operatively configured such that, when the operating element is continuously actuated beyond a predefined minimum duration, an emergency braking function is initiated via the electronically controllable braking system. 13. A method of operating a motor vehicle having an electronically controllable braking system and a control unit assigned to the braking system and coupled with an operating element in the motor vehicle also assigned to the braking system, the method comprising the acts of: 2 Appeal2014-007010 Application 13/296,787 controlling the electronically controllable braking system independently of an actuation of a gas pedal of the motor vehicle to initiate an automatic braking function in the form of a normal braking when a first operating element signal is received; and initiating an emergency braking function by way of the electronically controllable braking system independently of the actuation of the brake pedal when a second operating signal is received. ANALYSIS Claims 1-12 Claim 1 requires, inter alia, a "control unit [] operatively configured such that, when the operating element is continuously actuated beyond a predefined minimum duration, an emergency braking function is initiated via the electronically controllable braking system." Appeal Br. 13, Claims App. The Examiner finds that \X/ alker' s system performs an emergency braking function by expanding the shoes out to the drum surfaces in a pulsed action according to a preprogrammed circuit that receives vehicle speed data and considers the on/off time applied to the brakes in the pulsing action to be the claimed "predefined minimum duration" that initiates an emergency braking function. Final Act. 2 (citing Walker i-fi-f 116, 117); Ans. 2. Appellant asserts that Walker's "paragraph [ 116] contains no discussion or suggestion that Walker's 'on/off time or amount of current to be applied' has anything to do with the length of time the 'operating element' (e.g., parking brake actuator 18) itself is actuated." Appeal Br. 5. Appellant argues that, in contrast, "Walker merely describes how there is 'a preprogrammed circuit that receives vehicle data and equates the on/off time 3 Appeal2014-007010 Application 13/296,787 or amount of current to be applied' in order to 'activate and expand the shoes out to the drum surface."' Id. In the Answer, the Examiner responds that "Walker further teaches that the vehicle's processor circuits connect to a controlled reversing circuit that activates accelerator stop and emergency brake actuator mechanisms." Ans. 2 (citing Walker i-f 134). Appellant replies that Walker's paragraph 134 relates to "a general discussion of how controllers are used," but that "it is unclear what applicability this teaching has to the claimed feature of initiating an emergency braking function 'when the operating element is continuously actuated beyond a predefined minimum duration,' as recited in claim 1." Reply Br. 2. We agree with Appellant for the following reasons. As correctly noted by Appellant, paragraph 116 of Walker discloses that brakes are "pulsed through a preprogrammed circuit that receives vehicle speed data and equates [the vehicle speed to] the on/ off time or amount of current to be applied." Walker i-f 116. As such, even if a person of ordinary skill in the art considers the pulsed braking of Walker emergency braking, as the Examiner proposes, the Examiner fails to adequately explain what predefined minimum time period has elapsed before emergency braking is initiated, because the pulsed on/ off time intervals in Walker occur throughout the braking process and merely change depending on the vehicle speed. We thus agree with Appellant that Walker's "'on/off time or amount of current to be applied' is correlated to the received 'vehicle speed data,' and not to 4 Appeal2014-007010 Application 13/296,787 any length of time that the 'operating element' (such as a parking brake) itself is actuated." Appeal Br. 5. Paragraph 134 of Walker also does not clarify what time period has elapsed before emergency braking is initiated. Specifically, this paragraph merely describes a controlled reversing circuit2 that is "similar to the ones employed for the accelerator stop and the emergency brake actuator mechanisms," but does not disclose a time period during which the circuit is actuated. See Walker i-f 134. As such, the Examiner has not provided a basis in fact and/ or sufficient technical reasoning to reasonably support the finding that the control unit of Walker is operatively configured such that, "when the operating element is continuously actuated beyond a predefined minimum duration, an emergency braking function is initiated via the electronically controllable braking system," as called for by claim 1. The Examiner's use of Akaba does not remedy the deficiencies of Walker. See Final Act. 3. Accordingly, for the foregoing reason, we do not sustain the rejection under 35 U.S.C. § 103(a) of claim 1, and of claims 2-12 depending therefrom, as being unpatentable over Walker and Akaba. Claims 13-17 Claim 13 requires, inter alia, controlling an electronically controllable braking system "to initiate an automatic braking function in the form of a 2 Walker discloses that in a reversing circuit the polarity on the motor is reversed to apply and relax a brake, respectively. See Walker i-f 104. 5 Appeal2014-007010 Application 13/296,787 normal braking" and "an emergency braking function." Appeal Br. 15-16, Claims App. The Examiner finds that Walker discloses, "controlling the electronically controllable braking system independently of an actuation of a gas pedal of the motor vehicle to initiate an automatic braking function in the form of a normal braking when a first operating element signal is received." Final Act. 4 (citing Walker i-fi-f 117, 141). The Examiner also finds that Walker discloses, "initiating an emergency braking function by way of the electronically controllable braking system independently of the actuation of the brake pedal when a second operating signal is received." Id. (citing Walker i-fi-f 117, 122). Appellant's Specification does not explicitly define the term "normal braking," but does state that, "[i]n the state of the art, a pulling of the parking brake actuator results in an immediate deceleration with a predefined gradient, which in the following will be called a normal braking." Spec. i130. Similarly, the Specification does not explicitly define the term "emergency braking," but does state that "a deceleration will be initiated that is increased in comparison to normal braking ('emergency braking' of the emergency braking function)." Id. i132. Moreover, in light of the Specification, the use of different terms in the claim connotes that the terms should be given different meanings. See CAE Screenplates Inc. v. Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000). As such, a person of ordinary skill in the art would readily understand that there is a difference between "normal braking" and "emergency braking" and their associated braking functions. 6 Appeal2014-007010 Application 13/296,787 In contrast, paragraph 117 of Walker relates to braking an electric vehicle and discloses "a use for different kinds of braking systems as a possibility to conserve weight in the emerging electric car industry." Walker i-f 117. This paragraph also discloses using a wheel generator so that "its fields would be energized for a braking mode," and "that the same drive motor could be configured to be part of a generating braking system through switching fields thereby creating a complete electrical drive train and braking system." Id. From this disclosure, we do not discern, nor does the Examiner explain, what is considered "normal braking" and what is considered "emergency braking" and how this passages distinguishes between the two. As such, the Examiner does not make sufficient findings to distinguish between what, in Walker, constitutes normal braking as compared to emergency braking. Paragraph 141 of Walker relates to an electronic control steering module and discloses that such "module will receive some of its sensor data from the EBCM the electronic brake module as to the coordination of controlled braking and the effortless control steering in GM cars." Id. i-f 141. Although paragraph 141 of Walker relates to receipt of data for braking and thus could be considered as including a signal, the Examiner fails to adequately explain how this signal is used to initiate the braking mode described in paragraph 117 of Walker. Moreover, Walker's paragraph 141 also fails to distinguish between normal braking and emergency braking. Finally, paragraph 122 of Walker relates to a signal for a fuel pump and/or fuel injector and the Examiner fails to a sufficiently explain how this 7 Appeal2014-007010 Application 13/296,787 signal relates to a second operating signal for initiating an emergency braking function. In conclusion, because the Examiner does not adequately explain how the signals disclosed by Walker relate to normal and emergency braking, and furthermore, fails to distinguish between normal braking and emergency braking functions, the Examiner has not made the initial factual findings required to demonstrate a prima facie case of obviousness of claim 13-17. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). As such, we likewise do not sustain the rejection under 35 U.S.C. § 103(a) of claim 13, and of claims 14--17 depending therefrom, as being unpatentable over Walker and Akaba. DECISION The decision of the Examiner to reject claims 1-17 is reversed. REVERSED 8 Copy with citationCopy as parenthetical citation